Exhibit 10.1
[Published CUSIP Number: ]
Dated as of June 26, 2009
among
SUBURBAN PROPANE, L.P.,
as the Borrower,
SUBURBAN PROPANE PARTNERS, L.P.,
as the Parent,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and
an L/C Issuer,
and
The Other Lenders Party Hereto
WACHOVIA BANK, N.A.,
Syndication Agent
CAPITAL ONE N.A.
and
RBS CITIZENS, N.A.,
Co-Documentation Agents
BANC OF AMERICA SECURITIES LLC
and
WACHOVIA CAPITAL MARKETS, LLC
Joint Lead Arrangers and Joint Book Managers
TABLE OF CONTENTS
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Section |
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Page |
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Article I. Definitions and Accounting Terms |
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1 |
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1.01 Defined Terms |
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1 |
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1.02 Other Interpretive Provisions |
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27 |
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1.03 Accounting Terms |
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27 |
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1.04 Rounding |
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27 |
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1.05 Times of Day |
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27 |
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1.06 Letter of Credit Amounts |
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28 |
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Article II. The Commitments and Credit Extensions |
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28 |
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2.01 The Revolving Credit Loans |
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28 |
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2.02 Borrowings, Conversions and Continuations of Loans |
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28 |
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2.03 Letters of Credit |
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30 |
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2.04 Swing Line Loans |
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38 |
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2.05 Prepayments |
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41 |
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2.06 Termination or Reduction of Commitments |
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43 |
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2.07 Repayment of Loans |
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44 |
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2.08 Interest |
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44 |
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2.09 Fees |
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45 |
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2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate |
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45 |
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2.11 Evidence of Debt |
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46 |
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2.12 Payments Generally; Administrative Agent’s Clawback |
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47 |
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2.13 Sharing of Payments by Lenders |
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48 |
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2.14 [Reserved] |
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49 |
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2.15 Increase in Revolving Credit Facility |
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49 |
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2.16 Incremental Term Facility |
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50 |
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Article III. Taxes, Yield Protection and Illegality |
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51 |
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3.01 Taxes |
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51 |
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3.02 Illegality |
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55 |
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3.03 Inability to Determine Rates |
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55 |
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3.04 Increased Costs; Reserves on Eurodollar Rate Loans |
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55 |
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3.05 Compensation for Losses |
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57 |
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3.06 Mitigation Obligations; Replacement of Lenders |
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57 |
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3.07 Survival |
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58 |
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Article IV. Conditions Precedent to Credit Extensions |
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58 |
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4.01 Conditions of Initial Credit Extension |
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58 |
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4.02 Conditions to all Credit Extensions |
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60 |
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Article V. Representations and Warranties |
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61 |
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5.01 Existence, Qualification and Power |
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61 |
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5.02 Authorization; No Contravention |
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61 |
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5.03 Governmental Authorization; Other Consents |
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61 |
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5.04 Binding Effect |
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61 |
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5.05 Financial Statements; No Material Adverse Effect |
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62 |
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5.06 Litigation |
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62 |
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5.07 No Default |
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62 |
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Section |
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Page |
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5.08 Ownership of Property; Liens |
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62 |
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5.09 Environmental Compliance |
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63 |
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5.10 Insurance |
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63 |
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5.11 Taxes |
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64 |
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5.12 ERISA Compliance |
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64 |
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5.13 Subsidiaries; Equity Interests; Loan Parties |
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64 |
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5.14 Margin Regulations; Investment Company Act |
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65 |
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5.15 Disclosure |
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65 |
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5.16 Compliance with Laws |
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65 |
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5.17 Intellectual Property; Licenses, Etc |
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65 |
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5.18 Solvency |
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66 |
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5.19 Casualty, Etc |
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66 |
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5.20 Labor Matters |
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66 |
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5.21 Collateral Documents |
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66 |
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5.22 Agreements |
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66 |
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5.23 Burdensome Provisions |
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66 |
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Article VI. Affirmative Covenants |
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66 |
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6.01 Financial Statements |
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66 |
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6.02 Certificates; Other Information |
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68 |
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6.03 Notices |
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69 |
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6.04 Payment of Obligations |
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70 |
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6.05 Preservation of Existence, Etc |
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70 |
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6.06 Maintenance of Properties |
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70 |
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6.07 Maintenance of Insurance |
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70 |
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6.08 Compliance with Laws |
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70 |
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6.09 Books and Records |
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71 |
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6.10 Inspection |
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71 |
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6.11 Use of Proceeds |
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71 |
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6.12 Covenant to Guarantee Obligations and Give Security |
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71 |
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6.13 Compliance with Environmental Laws |
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73 |
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6.14 Preparation of Environmental Assessments |
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73 |
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6.15 Further Assurances |
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75 |
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6.16 Compliance with Terms of Leaseholds |
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75 |
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6.17 Material Contracts |
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75 |
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6.18 Corporate Identity |
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76 |
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Article VII. Negative Covenants |
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76 |
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7.01 Liens |
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76 |
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7.02 Indebtedness |
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78 |
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7.03 Investments |
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79 |
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7.04 Fundamental Changes |
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81 |
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7.05 Dispositions |
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82 |
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7.06 Restricted Payments |
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83 |
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7.07 Change in Nature of Business |
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83 |
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7.08 Transactions with Affiliates |
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83 |
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7.09 Burdensome Agreements |
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83 |
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7.10 Use of Proceeds |
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84 |
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7.11 Financial Covenants |
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84 |
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7.12 Amendments of Organization Documents |
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84 |
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7.13 Accounting Changes |
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84 |
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ii
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Section |
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7.14 Prepayments of Indebtedness |
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84 |
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7.15 Holding Companies |
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85 |
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7.16 Lease Obligations |
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85 |
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7.17 Swap Agreements |
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85 |
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Article VIII. Events of Default and Remedies |
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85 |
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8.01 Events of Default |
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85 |
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8.02 Remedies upon Event of Default |
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87 |
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8.03 Application of Funds |
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88 |
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Article IX. Administrative Agent |
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89 |
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9.01 Appointment and Authority |
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89 |
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9.02 Rights as a Lender |
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90 |
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9.03 Exculpatory Provisions |
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90 |
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9.04 Reliance by Administrative Agent |
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91 |
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9.05 Delegation of Duties |
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91 |
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9.06 Resignation of Administrative Agent |
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91 |
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9.07 NonReliance on Administrative Agent and Other Lenders |
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92 |
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9.08 No Other Duties, Etc |
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92 |
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9.09 Administrative Agent May File Proofs of Claim |
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92 |
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9.10 Collateral and Guaranty Matters |
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93 |
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9.11 Secured Cash Management Agreements and Secured Hedge Agreements |
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93 |
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Article X. Continuing Guaranty |
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94 |
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10.01 Guaranty |
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94 |
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10.02 Rights of Lenders |
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94 |
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10.03 Certain Waivers |
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94 |
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10.04 Obligations Independent |
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95 |
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10.05 Subrogation |
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95 |
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10.06 Termination; Reinstatement |
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95 |
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10.07 Subordination |
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95 |
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10.08 Stay of Acceleration |
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95 |
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10.09 Condition of Borrower |
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96 |
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10.10 Additional Guarantor Waivers and Agreements |
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96 |
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Article XI. Miscellaneous |
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97 |
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11.01 Amendments, Etc |
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97 |
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11.02 Notices; Effectiveness; Electronic Communications |
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98 |
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11.03 No Waiver; Cumulative Remedies; Enforcement |
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100 |
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11.04 Expenses; Indemnity; Damage Waiver |
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101 |
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11.05 Payments Set Aside |
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104 |
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11.06 Successors and Assigns |
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104 |
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11.07 Treatment of Certain Information; Confidentiality |
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108 |
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11.08 Right of Setoff |
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108 |
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11.09 Interest Rate Limitation |
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109 |
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11.10 Counterparts; Integration; Effectiveness |
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109 |
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11.11 Survival of Representations and Warranties |
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109 |
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11.12 Severability |
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110 |
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11.13 Replacement of Lenders |
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110 |
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11.14 Governing Law; Jurisdiction; Etc |
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110 |
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11.15 California Judicial Reference |
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111 |
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Section |
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Page |
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11.16 Real Property Collateral Located in the State of California |
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111 |
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11.17 Waiver of Jury Trial |
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112 |
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11.18 No Advisory or Fiduciary Responsibility |
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112 |
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11.19 Electronic Execution of Assignments and Certain Other Documents |
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112 |
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11.20 USA PATRIOT Act |
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113 |
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11.21 ENTIRE AGREEMENT |
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113 |
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iv
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SCHEDULES |
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1.01(a) |
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Agway Subsidiaries; Inactive Subsidiaries |
1.01(b) |
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Existing Letters of Credit |
2.01 |
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Commitments and Applicable Percentages |
5.13 |
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Subsidiaries and Other Equity Investments; Loan Parties |
7.02 |
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Existing Indebtedness |
11.02 |
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Administrative Agent’s Office, Certain Addresses for Notices |
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EXHIBITS |
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Form
of |
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A |
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Committed Loan Notice |
B |
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Swing Line Loan Notice |
C |
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Revolving Credit Note |
D |
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Compliance Certificate |
E |
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Assignment and Assumption |
F |
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Guaranty |
G |
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Security Agreement |
H |
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Opinion |
v
This
CREDIT AGREEMENT (“
Agreement”) is entered into as of June 26, 2009, among SUBURBAN
PROPANE, L.P., a Delaware limited partnership (the “
Borrower”), SUBURBAN PROPANE PARTNERS, L.P., a
Delaware limited partnership (the “
Parent”), each lender from time to time party hereto
(collectively, the “
Lenders” and individually, a “
Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.
The Borrower has requested that the Lenders provide a revolving credit facility and one or
more incremental term loan facilities, and the Lenders have indicated their willingness to lend and
the L/C Issuer has indicated its willingness to issue letters of credit, in each case, on the terms
and subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:
Article I.
Definitions and Accounting Terms
1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set
forth below:
“Administrative Agent” means Bank of America in its capacity as administrative agent under any
of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 11.02, or such other address or account as the Administrative
Agent may from time to time notify to the Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in the form approved by
the Administrative Agent.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.
“Aggregate Commitments” means the Commitments of all the Lenders.
“Agway Subsidiaries” means, collectively, each of the twenty-seven companies that are
Wholly-Owned Subsidiaries of Gas Connection, LLC as of the date hereof and are identified as “Agway
Subsidiaries” on Schedule 1.01(a) hereto; provided, however, if the book value of any such
Subsidiary exceeds $1 million at any time, such Subsidiary shall no longer be deemed an “Agway
Subsidiary;” and provided further that if the aggregate book value of all assets of the Agway
Subsidiaries exceeds $10 million at any time, none of such Subsidiaries shall be deemed an “Agway
Subsidiary.” Nothing in this Agreement shall prevent the Borrower from causing the winding up and
dissolution of any Agway Subsidiary during the term of this Agreement in accordance with Section
7.04(e).
“Applicable Percentage” means (a) in respect of the Revolving Credit Facility, with respect to
any Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of
the Revolving Credit Facility Amount represented by such Revolving Credit Lender’s Revolving Credit
Commitment at such time, and (b) in respect of any Incremental Term Facility at any time, the
percentage (carried out to the ninth decimal place) of such Incremental Term Facility represented
by (i) on the applicable Incremental Term Facility Effective Date, such Incremental Term Facility
Lender’s Incremental Term Facility Commitment at such time and (ii) thereafter, the principal
amount of the Incremental Term Facility Loans of such Incremental Term Facility Lender at such
time. If the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, or if the Revolving Credit Commitments have expired, then the Applicable Percentage
of each Revolving Credit Lender in respect of the Revolving Credit Facility Amount shall be
determined based on the Applicable Percentage of such Revolving Credit Lender in respect of the
Revolving Credit Facility Amount most recently in effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of each Lender in respect of each Facility is set
forth opposite the name of such Lender on Schedule 2.01, in the Assignment and Assumption pursuant
to which such Lender becomes a party hereto or in an amendment or supplement to this Agreement
relating to an Incremental Term Facility, as applicable.
“Applicable Rate” means (a) with respect to the Revolving Credit Facility, the applicable
percentage per annum set forth below determined by reference to the Total Consolidated Leverage
Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent
pursuant to Section 6.02(a):
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Applicable Margin |
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Applicable |
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Pricing |
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Total Consolidated |
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for LIBOR Loans/ |
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Margin for Base |
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Commitment |
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Level |
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Leverage Ratio |
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Letter of Credit Fee |
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Rate Loans |
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Fee |
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I |
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< 2.50:1 |
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3.00 |
% |
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2.00 |
% |
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0.50 |
% |
II |
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≥ 2.50:1 but < 3.00:1 |
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3.25 |
% |
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2.25 |
% |
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0.50 |
% |
III |
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≥ 3.00:1 but < 3.50:1 |
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3.50 |
% |
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2.50 |
% |
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0.50 |
% |
IV |
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≥ 3.50:1 but < 4.00:1 |
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3.75 |
% |
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2.75 |
% |
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0.625 |
% |
V |
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≥ 4.00:1 |
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4.00 |
% |
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3.00 |
% |
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0.625 |
% |
Any increase or decrease in the Applicable Rate for the Revolving Credit Facility resulting from a
change in the Total Consolidated Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a);
provided, however, that if a Compliance Certificate is not delivered when due in accordance with
such Section, then, upon the request of the Required Revolving Lenders, Pricing Level V shall apply
in respect of the Revolving Credit Facility, in each case as of the first Business Day after the
date on which such Compliance Certificate was required to have been delivered and in each case
shall remain in effect until the date on which such Compliance Certificate is delivered.
The Applicable Rate for the Revolving Credit Facility in effect from the Closing Date through
the first adjustment made pursuant to the preceding paragraph in connection with the Parent’s
September 26, 2009 fiscal year end reporting shall be no less than Pricing Level III.
(b) with respect to any Incremental Term Facility, shall have meaning set forth in such
amendment or supplement to this Agreement entered into in connection with such Incremental Term
Facility among the Borrower, the Guarantors, the Incremental Term Facility Lenders that have agreed
to participate in such Incremental Term Facility and the Administrative Agent.
2
Notwithstanding anything to the contrary contained in this definition, the determination of
the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).
“Applicable Revolving Credit Percentage” means with respect to any Revolving Credit Lender at
any time, such Revolving Credit Lender’s Applicable Percentage in respect of the Revolving Credit
Facility Amount at such time.
“Appropriate Lender” means, at any time, (a) with respect to the Revolving Credit Facility or
any Incremental Term Facility, a Lender that has a Commitment with respect to such Facility or
holds a Revolving Credit Loan or an Incremental Term Facility Loan, respectively, at such time,
(b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of
Credit have been issued pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with
respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are
outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.
“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.
“Arranger” means either Banc of America Securities LLC or Wachovia Capital Markets, LLC, in
their respective capacities as joint lead arrangers and joint book running managers. As used
herein, the term “Arranger” shall mean “each Arranger” or the “applicable Arranger” as the context
may require.
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or
two or more Approved Funds managed by the same investment advisor.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an
Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)),
and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form
approved by the Administrative Agent.
“Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any
Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared
as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease or similar payments under the relevant lease or other
applicable agreement or instrument that would appear on a balance sheet of such Person prepared as
of such date in accordance with GAAP if such lease or other agreement or instrument were accounted
for as a Capitalized Lease and (c) all Synthetic Debt of such Person.
“Audited Financial Statements” means the audited consolidated balance sheet of the Parent and
its Subsidiaries for the fiscal year ended September 27, 2008, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the
Parent and its Subsidiaries, including the notes thereto.
“Availability Period” means (a) in respect of the Revolving Credit Facility, the period from
and including the Closing Date to the earliest of (i) the Maturity Date for the Revolving Credit
Facility, (ii) the date of termination of the Revolving Credit Commitments pursuant to
Section 2.06, and (iii) the date of termination of the commitment of each Revolving Credit Lender
to make Revolving Credit Loans and of the obligation of the L/C Issuer to make L/C Credit
Extensions pursuant to Section 8.02 and (b) in respect of any Incremental Term Facility, the period
from and including the applicable Incremental Term Facility Effective Date to the earliest of
(i) the Maturity Date for such Incremental Term Facility and
(ii) the date of termination of the commitments of the respective Incremental Term Facility
Lenders to make Incremental Term Facility Loans pursuant to Section 8.02.
3
“BAS” means Banc of America Securities LLC and its successors.
“Bank of America” means Bank of America, N.A. and its successors.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (i) the
Federal Funds Rate plus 1/2 of 1%, (ii) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate,” and (iii) except during a
Eurodollar Unavailability Period, the Eurodollar Rate plus 1.0%. 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 such 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.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Board of Supervisors” means, with respect to the Parent or the Borrower, as the case may be,
such Board of Supervisors as defined in the Parent Partnership Agreement or the Borrower
Partnership Agreement, as applicable.
“Borrower” has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning specified in Section 6.02.
“Borrower Partnership Agreement” means the Third Amended and Restated Agreement of Limited
Partnership of the Borrower, dated as of October 19, 2006, as it may hereafter be amended,
supplemented or otherwise modified from time to time consistent with the terms hereof.
“Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing, or an Incremental Term
Facility Borrowing, as the context may require.
“Business” means the businesses of the Parent and its Subsidiaries.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the state where the
Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan,
means any such day on which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
“Capital Expenditures” means, with respect to any Person for any period, any expenditure in
respect of the purchase or other acquisition of any fixed or capital asset (excluding normal
replacements and maintenance which are properly charged to current operations).
“Capitalized Leases” means all leases that have been or should be, in accordance with GAAP,
recorded as capitalized leases.
“Cash Collateralize” has the meaning specified in Section 2.03(g).
4
“Cash Equivalents” means any of the following types of Investments, to the extent owned by the
Borrower or any of its Subsidiaries free and clear of all Liens (other than Liens created under the
Collateral Documents):
(a) readily marketable obligations issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof having maturities
of not more than 360 days from the date of acquisition thereof; provided that the full faith
and credit of the United States of America is pledged in support thereof;
(b) time deposits with, or insured certificates of deposit or bankers’ acceptances of,
any commercial bank that (i)(A) is a Lender or (B) is organized under the laws of the United
States of America, any state thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the laws of the United States of
America, any state thereof or the District of Columbia, and is a member of the Federal
Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as
described in clause (c) of this definition and (iii) has combined capital and surplus of at
least $1,000,000,000, in each case with maturities of not more than 90 days from the date of
acquisition thereof;
(c) commercial paper issued by any Person organized under the laws of any state of the
United States of America and rated at least “Prime-2” (or the then equivalent grade) by
Xxxxx’x or at least “A-2” (or the then equivalent grade) by S&P, in each case with
maturities of not more than 180 days from the date of acquisition thereof; and
(d) money market funds having assets of not less than $500,000,000, the portfolios of
which are limited solely to Investments of the character and quality described in
clauses (a), (b) and (c) of this definition and have an average maturity of not more than
two years.
“Cash Management Agreement” means any agreement to provide cash management services, including
treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash
management arrangements.
“Cash Management Bank” means any Lender or Affiliate of a Lender that is a party to a Cash
Management Agreement; provided, however that if such Person ceases to be a Lender or an Affiliate
of a Lender, such Person shall no longer be a “Cash Management Bank.”
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of
1980.
“CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.
5
“Change in Control” means the occurrence of any of the following events:
(a) any of the following shall occur: (i) at any time the Person who is then Chief
Executive Officer of the Parent shall fail to own and control, beneficially and of record
(free and clear of all Liens other than Liens in favor of the Administrative Agent), 100% of
the Equity
Interests in the General Partner, (ii) the General Partner shall fail to own and
control directly, beneficially and of record (free and clear of all Liens), 100% of the
general partner interests in the Parent, (ii) the General Partner shall fail to own
directly, beneficially and of record (free and clear of all Liens other than Liens in favor
of the Administrative Agent), 100% of the general partner interests in the Borrower, (iii)
the Parent shall fail to own directly or indirectly, beneficially and of record (free and
clear of all Liens), 100% of the economic interest in the Borrower, or (iv) the Parent shall
fail to own directly or indirectly, beneficially and of record, 100% of the limited
partnership interests in the Borrower,
(b) 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 such person or
its subsidiaries, and any person or entity 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 or
group shall be deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire, whether such right is exercisable immediately or only after
the passage of time (such right, an “option right”)), directly or indirectly, of 30% or more
of the voting Equity Interests of the Parent on a fully-diluted basis (and taking into
account all such securities that such “person” or “group” has the right to acquire pursuant
to any option right); or
(c) a majority of the seats (excluding vacant seats) on the Board of Supervisors of the
Parent or the Borrower should at any time be occupied by Persons who were not nominated by
the General Partner, by a majority of the Board of Supervisors of the Parent or the Borrower
or by Persons so nominated or
(d) any Person or two or more Persons acting in concert shall have acquired by contract
or otherwise, or shall have entered into a contract or arrangement that, upon consummation
thereof, will result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the Parent or the
Borrower, or control over the Equity Interests of the Parent or the Borrower entitled to
vote for members of the Board of Supervisors or equivalent governing body of the Parent or
the Borrower on a fully-diluted basis (and taking into account all such securities that such
Person or Persons have the right to acquire pursuant to any option right) representing 30%
or more of the combined voting power of such Equity Interests; or
(e) a change in control with respect to the General Partner, the Parent or the Borrower
(or similar event, however denominated) should occur under and as defined in any indenture
or agreement in respect of Indebtedness in an aggregate outstanding principal amount in
excess of the Threshold Amount to which the General Partner, the Parent, the Borrower or any
Subsidiary is party.
“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied
or waived in accordance with Section 11.01.
“Code” means the Internal Revenue Code of 1986.
“Collateral” means all of the “Collateral” and “Mortgaged Property” referred to in the
Collateral Documents and all of the other property that is or is intended under the terms of the
Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of
the Secured Parties.
6
“Collateral Documents” means, collectively, (a) the Security Agreements, each Deposit Account
Control Agreement, each Investment Account Control Agreement, the Guaranty and all other security
agreements, mortgages, deeds of trust, patent and trademark assignments, lease assignments,
guaranties and other similar agreements executed by the Borrower, any Subsidiary, or any Guarantor
in favor of the Administrative Agent, for the benefit of the Secured Parties, now or hereafter
delivered to the Administrative Agent or any Secured Party pursuant to or in connection with the
transactions contemplated hereby, and all financing statements (or comparable documents now or
hereafter filed in accordance with the UCC or comparable law) against the Borrower, any Subsidiary
or any Guarantor, as debtor, in favor of the Administrative Agent, for the benefit of the Secured
Parties, as secured party, and (b) any amendments, supplements, modifications, renewals,
replacements, consolidations, substitutions and extensions of any of the foregoing.
“Commitment” means a Revolving Credit Commitment or an Incremental Term Facility Commitment,
as the context may require.
“Committed Loan Notice” means a notice of (a) a Revolving Credit Borrowing, (b) an Incremental
Term Facility Borrowing, (c) a conversion of Loans from one Type to the other, or (d) a
continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A.
“Common Units” means Common Units of the Parent representing limited partner interests in the
Parent.
“Compliance Certificate” means a certificate substantially in the form of Exhibit D.
“Consolidated Billing Program” means an accounts receivable billing and purchasing arrangement
entered into between an ESCO and a utility provider whereby the utility provider performs billing
and collection services for the ESCO with respect to the commodity component of gas or electricity
owned by an ESCO and delivered to the utility’s customers.
“Consolidated EBITDA” means, for any Person at any date of determination, an amount equal to
Consolidated Net Income of such Person and its Subsidiaries on a consolidated basis for the most
recently completed Measurement Period plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: (i) Consolidated Interest Charges, (ii) the provision
for Federal, state, local and foreign income taxes, (iii) depreciation and amortization expense,
(iv) extraordinary losses which do not represent a cash item in such period and are not expected to
represent a cash item in any future period, (v) the amount of any make whole or premium paid in
connection with the prepayment of the Parent Notes, (vi) other cash restructuring charges, in an
aggregate amount not to exceed $5,000,000 during the term of this Agreement and (vii) other
non-recurring expenses reducing such Consolidated Net Income which do not represent a cash item in
such period or any future period (in each case of or by such Person and its Subsidiaries for such
Measurement Period), and minus (b) the following to the extent added in computing such Consolidated
Net Income and without duplication, (i) extraordinary gains and other non-recurring gains during
such period, and (ii) in the case of Consolidated EBITDA for the Parent or the Borrower, income
from the Agway Subsidiaries and income, if any, from Inactive Subsidiaries, and non-cash gains, if
any, from the sale of Agway Subsidiaries and Inactive Subsidiaries and their respective properties;
provided, that (1) for the purposes of determining Consolidated EBITDA for any period during which
a Permitted Acquisition is consummated, Consolidated EBITDA shall be adjusted in a manner
reasonably satisfactory to the Administrative Agent to give effect to the consummation of such
Permitted Acquisition on a pro forma basis in accordance with GAAP, as if such Permitted
Acquisition occurred on the first day of such period and (2) Consolidated EBITDA shall exclude all
unrealized gains and losses reported under Financial Accounting Standards Board Statement No. 133,
as amended, in
connection with forward contracts, futures contracts or other derivatives or commodity hedging
agreements in accordance with the Borrower’s existing commodity hedging policy.
7
“Consolidated Interest Charges” means, for any Person for any Measurement Period, the sum of
(a) all interest, premium payments, debt discount, fees, charges and related expenses in connection
with borrowed money (including capitalized interest) or in connection with the deferred purchase
price of assets, in each case to the extent treated as interest in accordance with GAAP, (b) all
interest paid or payable with respect to discontinued operations and (c) the portion of rent
expense under Capitalized Leases that is treated as interest in accordance with GAAP, in each case,
of or by such Person and its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period.
“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of
(a) Consolidated EBITDA to (b) Consolidated Interest Charges, in each case, of or by the Parent and
its Subsidiaries on a consolidated basis for the most recently completed Measurement Period.
“Consolidated Net Income” means, for any Person at any date of determination, the net income
of such Person and its consolidated Subsidiaries as determined in accordance with GAAP (excluding
extraordinary gains and extraordinary losses) for that period; provided, that, there shall be
excluded from such net income (to the extent otherwise included therein) the income (or loss) of
any entity other than a Subsidiary in which such Person or any Subsidiary of such Person has an
ownership interest, except to the extent that any such income has been actually received by such
Person or such Subsidiary in the form of cash dividends or similar cash distributions.
“Consolidated Total Debt” means, for any Person as of any date of determination, all Total
Debt of such Person and its Subsidiaries on a consolidated basis, without duplication.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such
Person or of any agreement, instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability to exercise voting
power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Controlled Foreign Corporation” means a “controlled foreign corporation” as defined in the
Internal Revenue Code of 1986.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
“Default” means any event or condition that constitutes an Event of Default or that, with the
giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit
Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable
to Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Eurodollar
Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan plus 2% per annum and (b) when used with respect to Letter
of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.
8
“Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Revolving
Credit Loans, Incremental Term Facility Loans, participations in L/C Obligations 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 or any other 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 adjudicated
as, or determined by any Governmental Authority having regulatory authority over such Person or its
assets to be, insolvent, or has become the subject of a bankruptcy or insolvency proceeding.
“Deposit Account Control Agreement” means an agreement among the Administrative Agent, a
depository bank holding a deposit account for a Loan Party, and such Loan Party, in form and
substance satisfactory to the Administrative Agent, evidencing that the Administrative Agent has
“control” (as defined in the UCC) of such deposit account.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition
(including any sale and leaseback transaction) of any property by any Person (or the granting of
any option or other right to do any of the foregoing), including any sale, assignment, transfer or
other disposal, with or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary of the Parent organized under the laws of any State
of the United States of America or the District of Columbia.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under
Section 11.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under
Section 11.06(b)(iii)).
“Elk Grove Facility” means the propane storage facility of the Borrower located in Elk Grove,
California.
“Environmental Assessment” means a report (including all drafts thereof) of an environmental
assessment of the applicable real property of such scope (including but not limited to the taking
of soil borings and air and groundwater samples and other above and below ground testing) as the
Administrative Agent may reasonably request, by a consulting firm reasonably acceptable to the
Administrative Agent, which shall be of a scope reasonably necessary to address the perceived
environmental concerns, taking into account the use of the relevant property.
“Environmental Laws” means all applicable Federal, state, and local laws, statutes, rules,
regulations, codes, ordinances, directives or orders of any Governmental Authority relating to the
protection of the environment or to human health and safety as related to environmental matters,
now existing or hereafter adopted, including without limitation, those relating to the generation,
processing, treatment, investigation, remediation, storage, transport, disposal, management,
handling, and use of Hazardous Materials, those relating to the protection of environmentally
sensitive areas or threatened or endangered species, and those relating to the reporting or control
of greenhouse gases, as any of the foregoing now exist or may be changed, amended or come into
effect in the future.
9
“Environmental Liability” means any liability (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities and including any liability for injury
or damage to any person, property or natural resource), of the Borrower, any other Loan Party or
any of their respective Subsidiaries resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials into the environment, or (e) any contract or written
agreement pursuant to which any Loan Party has assumed liability with respect to any of the
foregoing.
“Environmental Permit” means any permit, approval, license or other authorization required
under any Environmental Law.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of
(or other ownership or profit interests in) such Person, all of the warrants, options or other
rights for the purchase or acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common
control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent
to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.
“ESCO” means any Subsidiary of the Borrower that provides natural gas and/or electricity to
end users thereof through a utility provider and participates in one or more Consolidated Billing
Program(s) in the ordinary course of such Subsidiary’s business.
10
“Eurodollar Rate” means:
(a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum
equal to (A) the British Bankers Association LIBOR Rate as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) (“BBA LIBOR”), 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, or (B) if the rate referenced in the preceding clause (A) is not
available at such time for any reason, 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 Rate 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; and
(b) for any interest rate calculation with respect to a Base Rate Loan, the rate per
annum equal to (i) BBA LIBOR at approximately 11:00 a.m., London time, two Business Days
prior to the date of determination (provided that if such day is not a Business Day, the
next preceding Business Day) for Dollar deposits being delivered in the London interbank
market for a term of one month commencing that day; or (ii) if such rate is not available at
such time for any reason, the per annum rate determined by Administrative Agent to be the
rate at which deposits in Dollars for delivery on the date of determination (or if such day
is not a Business Day, the immediately preceding Business Day) in immediately available
funds in the approximate amount of the Base Rate Loan being made or converted by Bank of
America and with a term equivalent to one month would be offered by Bank of America’s London
Branch to major banks in the London interbank eurodollar market at their request on the date
of determination (or if such day is not a Business Day, the immediately preceding Business
Day).
“Eurodollar Rate Loan” means a Revolving Credit Loan or an Incremental Term Facility Loan that
bears interest at a rate based on the Eurodollar Rate.
“Eurodollar Unavailability Period” means any period of time during which a notice delivered to
the Borrower in accordance with Section 3.03 shall remain in force and effect.
“Event of Default” has the meaning specified in Section 8.01.
“Excess Cash” on any date means an amount equal to the excess of (i) the book value of Cash
Equivalents owned by the Borrower and the Subsidiary Guarantors on such date over (ii) an amount
equal to the principal amount of Loans outstanding on such date.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C Issuer
or any other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which such recipient is organized or in which its principal
office is located or which imposes such taxes because such Person engages in business in such
jurisdiction other than as a result of this Agreement or, in the case of any Lender, in which its
applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup
withholding tax that is required by the Code to be withheld from amounts payable to a Lender that
has failed to comply with clause (A) of Section 3.01(e)(ii), and (d) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under Section 11.13), any
United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign
Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or
inability (other than as a result of a Change in Law) to comply with clause (B)
of Section 3.01(e)(ii), except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 3.01(a).
11
“
Existing Credit Agreement” means that certain Third Amended and Restated
Credit Agreement
dated as of October 20, 2004 among the Borrower, Wachovia Bank, National Association, as agent, and
a syndicate of lenders, as amended.
“
Existing Letters of Credit” means each of the letters of credit issued under the Existing
Credit Agreement outstanding on the Closing Date that are described on
Schedule 1.01(b).
“Extraordinary Receipt” means any cash and cash equivalents received by or paid to or for the
account of any Person not in the ordinary course of business, including tax refunds, pension plan
reversions, proceeds of insurance (other than proceeds of business interruption insurance to the
extent such proceeds constitute compensation for lost earnings), condemnation awards (and payments
in lieu thereof), indemnity payments and any purchase price adjustments; provided, however, that an
Extraordinary Receipt shall not include cash receipts from proceeds of insurance or condemnation
awards (or payments in lieu thereof) to the extent that any such receipt is in an amount equal to
or less than $100,000 with respect to any single occurrence.
“Facility” means the Revolving Credit Facility or any Incremental Term Facility, as the
context may require.
“
Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York
on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative Agent.
“Fee Letters” means, collectively, (i) the fee letter agreement, dated April 13, 2009, among
the Borrower, the Administrative Agent and BAS, and (ii) the fee letter agreement among the
Borrower and Wachovia Capital Markets, LLC.
“Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction other
than that in which the Borrower is resident for tax purposes (including such a lender when acting
in the capacity of the L/C Issuer). For purposes of this definition, the United States, each State
thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“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 activities.
12
“GAAP” means generally accepted accounting principles in the United States set forth 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 such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.
“General Partner” means Suburban Energy Services Group LLC, a Delaware limited liability
company.
“General Partner Guaranty” means the General Partner Guaranty dated as of the date hereof made
by the General Partner in favor of the Secured Parties, substantially in the form of Exhibit F.
“Governmental Authority” means the government of the United States or any other nation, or of
any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).
“Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.
“Guarantors” means, collectively, the Parent, the General Partner, the Subsidiary Guarantors,
the Intermediate Entity Guarantors and the MLP Subsidiary Guarantors.
“Guaranty” means, collectively, the guaranty made by the Parent under Article X, the General
Partner Guaranty, and the Subsidiary Guaranty, together with each other guaranty and guaranty
supplement delivered pursuant to Section 6.12, as each of the same may be renewed, extended,
amended, restated or otherwise modified from time to time.
“Hazardous Materials” means any substance, material or waste which is now or hereafter
regulated by any Governmental Authority because of its effect or potential effect on human health
and safety as related to environmental matters or the environment, including any material,
substance or waste which is defined as a “hazardous waste,” “hazardous material,” “hazardous
substance,” “extremely
hazardous waste,” “restricted hazardous waste,” “solid waste,” “pollutant,” or “contaminant,”
“toxic waste,” or “toxic substance” under any provision of Law, and including petroleum, petroleum
products, natural gas, natural gas liquids, liquefied natural gas or synthetic gas, friable
asbestos (except for friable asbestos located in a facility acquired or leased after the date of
this Agreement and which will be removed within 45 days of acquisition or lease), urea formaldehyde
and polychlorinated biphenyls.
13
“Hedge Bank” means any Lender or Affiliate of a Lender that is a party to a Swap Contract;
provided, however that in the event that such Person ceases to be a Lender or an Affiliate of a
Lender, such Person shall no longer be a “Hedge Bank.”
“Impacted Lender” means a Defaulting Lender or any Lender as to which (a) the L/C Issuer or
the Swing Line Lender has a good faith belief that such Lender has defaulted in fulfilling its
obligations under one or more other syndicated credit facilities or (b) such Lender or an entity
that controls such Lender has been deemed insolvent or become subject to a bankruptcy or other
similar proceeding.
“Inactive Subsidiaries” means collectively, each of the Subsidiaries of the Borrower that have
a book value of less than $3 million as of the date hereof and that are not engaged in active
business as of the date hereof and that are identified as an “Inactive Subsidiaries” on Schedule
1.01(a) hereto; provided, however, if after the date hereof, any such Subsidiary has a book value
of $3 million or more, or engages in active business, such Subsidiary shall no longer be deemed an
“Inactive Subsidiary.”
“Incremental Term Facility” has the meaning specified in Section 2.16(a).
“Incremental Term Facility Borrowing” means a borrowing made under an Incremental Term
Facility consisting of simultaneous Incremental Term Facility Loans of the same Type and, in the
case of Eurodollar Rate Loans, having the same Interest Period made by each of the Incremental Term
Facility Lenders under such Incremental Term Facility.
“Incremental Term Facility Commitment” means, as to each Incremental Term Facility Lender, its
obligation to make Incremental Term Facility Loans to the Borrower pursuant to an amendment or
supplement to this Agreement relating to an Incremental Term Facility, in the aggregate principal
amount at any time not to exceed the amount set forth in such amendment or supplement.
“Incremental Term Facility Effective Date” has the meaning specified in Section 2.16(c).
“Incremental Term Facility Lender” has the meaning specified in Section 2.16(c).
“Incremental Term Facility Loan” means an advance made by any Incremental Term Facility Lender
under an Incremental Term Facility.
“Incremental Term Facility Note” means a promissory note made by the Borrower in favor of an
Incremental Term Facility Lender evidencing Incremental Term Facility Loans made by such
Incremental Term Facility Lender under an Incremental Term Facility, in form and substance
reasonably acceptable to the Borrower and such Incremental Term Facility Lender.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
14
(b) the maximum amount of all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers’ acceptances, bank
guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business and not past
due for more than 60 days);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;
(f) all Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease
Obligations of such Person and all Synthetic Debt of such Person;
(g) all obligations (other than contingent obligations) of such Person to purchase,
redeem, retire, defease or otherwise make any payment (other than declared dividends) in
respect of any Equity Interest in such Person or any other Person or any warrant, right or
option to acquire such Equity Interest, valued, in the case of a redeemable preferred
interest, at the greater of its voluntary or involuntary liquidation preference plus accrued
and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date.
“Indemnified Taxes” means Taxes other than Excluded Taxes and Other Taxes.
“Indemnitees” has the meaning specified in Section 11.04(b).
“Information” has the meaning specified in Section 11.07.
“Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan
was made; provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds three
months, the respective dates that fall every three months after the beginning of such Interest
Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or Swing Line Loan,
the last Business Day of each March, June, September and December and the Maturity Date of the
Facility under which such Loan was made (with Swing Line Loans being deemed made under the
Revolving Credit Facility for purposes of this definition).
15
“Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date
such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and
ending on the date one, two, three or six months thereafter, as selected by the Borrower in its
Committed
Loan Notice or such other period that is twelve months or less requested by the Borrower and
consented to by all the Appropriate Lenders; provided that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar 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; and
(c) no Interest Period shall extend beyond the Maturity Date of the Facility under
which such Loan was made.
“Intermediate Entity Guarantors” means, collectively, Suburban LP Holdings, LLC, Suburban LP
Holdings, Inc. and each other Subsidiary of the Parent that directly or indirectly owns Equity
Interests of the Borrower that shall be required to execute and deliver a guaranty or guaranty
supplement pursuant to Section 6.12.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another
Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or interest in, another Person, or (c) the purchase
or other acquisition (in one transaction or a series of transactions) of assets of another Person.
For purposes of covenant compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“Investment Account Control Agreement” means an agreement among the Administrative Agent, a
Securities Intermediary holding a securities account for a Loan Party, and such Loan Party, in form
and substance satisfactory to the Administrative Agent, evidencing that the Administrative Agent
has “control” (as defined in the UCC) of such securities account.
“IP Rights” has the meaning specified in Section 5.17.
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice, Inc. (or such later version
thereof as may be in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of
Credit.
“L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s funding of
its participation in any L/C Borrowing in accordance with its Applicable Revolving Credit
Percentage.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of
Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit
Borrowing.
16
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or
extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Issuer” means with respect to each Letter of Credit issued, or in the case of each
Existing Letter of Credit deemed issued, hereunder, either Bank of America, Wachovia Bank, N.A., or
any other Lender that is a Co-Documentation Agent hereunder and that has agreed to issue a Letter
of Credit at the request of the Borrower in its capacity as an issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder. As used herein, the term “the
L/C Issuer” shall mean “each L/C Issuer” or “the applicable L/C Issuer,” as the context may
require.
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be
drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts,
including all L/C Borrowings. For purposes of computing the amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter of
Credit has expired by its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.
“Lender” has the meaning specified in the introductory paragraph hereto and, as the context
requires, includes the Swing Line Lender.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as
such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may
from time to time notify the Borrower and the Administrative Agent.
“Letter of Credit” means any standby letter of credit issued hereunder and shall include the
Existing Letters of Credit.
“Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
“Letter of Credit Expiration Date” means the day that is seven days prior to the Maturity Date
then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next
preceding Business Day).
“Letter of Credit Fee” has the meaning specified in Section 2.03(i).
“Letter of Credit Sublimit” means at anytime an amount equal to the Revolving Credit Facility
Amount in effect at such time. The Letter of Credit Sublimit is part of, and not in addition to,
the Revolving Credit Facility Amount.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including
any conditional sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).
17
“Loan” means an extension of credit by a Lender to the Borrower under Article II in the form
of a Revolving Credit Loan, a Swing Line Loan or an Incremental Term Facility Loan.
“Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty,
(d) the Collateral Documents, (e) the Fee Letter, (f) each Issuer Document, and (g) any other
document executed by a Loan Party that states by its terms that it is a “Loan Document”.
“Loan Parties” means, collectively, the Borrower and each Guarantor.
“MLP Subsidiary Guarantors” means, collectively, each of the Subsidiaries of the Parent (other
than the Intermediate Entity Guarantors and the Borrower and its Subsidiaries) that shall be
required to execute and deliver a guaranty or guaranty supplement pursuant to Section 6.12.
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect
upon, the operations, business, assets, properties, liabilities (actual or contingent), condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole or the
Parent and its Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies
of the Administrative Agent or any Lender under any Loan Document, or of the ability of any Loan
Party to perform its obligations under any Loan Document to which it is a party; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party
of any Loan Document to which it is a party.
“Maturity Date” means (a) with respect to the Revolving Credit Facility, June 25, 2013 and
(b) with respect to any Incremental Term Facility, the final maturity date established for such
Incremental Term Facility in the amendment or supplement to this Agreement entered into in
connection with such Incremental Term Facility; provided, however, that, in each case, if such date
is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“Measurement Period” means, for any Person at any date of determination, the most recently
completed four fiscal quarters of such Person.
“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto.
“Multiemployer Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been obligated to make
contributions.
“Net Cash Proceeds” mean with respect to any Disposition by any Loan Party or any of its
Subsidiaries, or any Extraordinary Receipt received or paid to the account of any Loan Party or any
of its Subsidiaries, the excess, if any, of (i) the sum of cash and cash equivalents received in
connection with such transaction (including any cash or cash equivalents received by way of
deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as
and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is
secured by the applicable asset and that is required to be repaid in connection with such
transaction (other than Indebtedness under the Loan Documents), (B) the reasonable out-of-pocket
expenses incurred by such Loan Party or such Subsidiary in connection with such transaction and
(C) taxes paid or reasonably estimated to be payable within two
years of the date of the relevant transaction as a result of any gain recognized in connection
therewith; provided that, if the amount of any estimated taxes pursuant to subclause (C) exceeds
the amount of taxes actually required to be paid in cash in respect of such Disposition, the
aggregate amount of such excess shall constitute Net Cash Proceeds.
18
“New Jersey Headquarters” means the premises constituting the headquarters of the Borrower
located in Whippany, New Jersey.
“Note” means a Revolving Credit Note or an Incremental Term Facility Note, as the context may
require.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties
of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of
Credit, Secured Cash Management Agreement or Secured Hedge Agreement, in each case whether direct
or indirect (including those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and fees that accrue after the
commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding.
“Oregon Tank Farm” means the propane storage facility of the Borrower located in Xxxxxxx
County, Medford, Oregon.
“Organization Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with
respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.
“Other Taxes” means all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made hereunder or under any
other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect
to, this Agreement or any other Loan Document.
“Outstanding Amount” means (a) with respect to Revolving Credit Loans, Swing Line Loans and
Incremental Term Facility Loan on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans,
Swing Line Loans and Incremental Term Facility Loans, as the case may be, occurring on such date;
and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any L/C Credit Extension occurring on such date and any other changes
in the aggregate amount of the L/C Obligations as of such date, including as a result of any
reimbursements by the Borrower of Unreimbursed Amounts.
“Parent” has the meaning specified in the introductory paragraph hereto.
“Parent Note Indenture” has the meaning set forth in the definition of “Parent Notes”.
19
“Parent Notes” means the collective reference to (i) the 6.875% senior notes, due 2013, of the
Parent issued in the original principal amount of $175,000,000 pursuant to the indenture dated as
of December 23, 2003 (the “Parent Note Indenture”) and the additional 6.875% senior notes, due
2013, of the Parent issued in the original principal amount of $250,000,000 pursuant to the Parent
Note Indenture, in each case as in effect on the date hereof and (ii) the foregoing notes as may be
amended after the date hereof and any other Parent Refinancing Notes.
“Parent Debt Service” means all scheduled payments of principal, interest and fees due on the
Parent Notes.
“Parent Partnership Agreement” means the Third Amended and Restated Agreement of Limited
Partnership of the Parent dated as of July 31, 2007, as it may hereafter be amended, supplemented
or otherwise modified from time to time consistent with the terms hereof.
“Parent Refinancing Notes” means, collectively, any Parent Notes amended after the date hereof
and any Indebtedness of the Parent (other than intercompany Indebtedness) issued in exchange for,
or the net proceeds of which are used to refund, refinance, replace, defease or discharge all or
any portion of the Parent Notes; provided that:
(a) the principal amount (or accreted value, if applicable) of such Parent Refinancing
Notes does not exceed the principal amount (or accreted value, if applicable) of the Parent
Notes being amended, extended, refinanced, renewed, replaced, defeased or refunded (plus all
accrued interest on said Parent Notes and the amount of all fees, expenses and premiums
incurred in connection with such refinancing);
(b) such Parent Refinancing Notes have a final maturity date not earlier than the final
maturity date of, and have a weighted average life to maturity equal to or greater than the
weighted average life to maturity of, the Parent Notes being amended, extended, refinanced,
renewed, replaced, defeased or refunded; and
(c) such Indebtedness is incurred by the Person or Persons that are the obligor on the
Parent Notes being amended, extended, refinanced, renewed, replaced, defeased or refunded.
As used in this definition, “intercompany Indebtedness” means Indebtedness of the Parent owed to
another Loan Party that is permitted under Article VII.
“Participant” has the meaning specified in Section 11.06(d).
“Partnership Documents” means the Parent Partnership Agreement and the Borrower Partnership
Agreement, in each case as in effect on the date hereof and as the same may from time to time be
amended, supplemented or otherwise modified consistent with the terms hereof and thereof.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.
20
“Permitted Acquisition” means an acquisition permitted by Section 7.03(f).
“Person” means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by the Borrower or, with respect to any such plan that is subject to Section 412 of the
Code or Title IV of ERISA, any ERISA Affiliate.
“Platform” has the meaning specified in Section 6.02.
“Public Lender” has the meaning specified in Section 6.02.
“Quarterly Distributions” means (i) with respect to the Borrower, the distributions by the
Borrower of Available Cash (as defined in the Borrower Partnership Agreement) or (ii) with respect
to the Parent, the distributions by the Parent of Available Cash (as defined in the Parent
Partnership Agreement).
“Reduction Amount” has the meaning set forth in Section 2.05(b)(v).
“Register” has the meaning specified in Section 11.06(c).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees and advisors of such Person and of such
Person’s Affiliates.
“Release” means any depositing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, migration, or disposing.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than
events for which the 30 day notice period has been waived.
“Reportable Investment” has the meaning specified in Section 7.03(f)(vi).
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Incremental Term Facility Loans or Revolving Credit Loans, a Committed Loan Notice,
(b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect
to a Swing Line Loan, a Swing Line Loan Notice.
“Required Incremental Term Facility Lenders” means, as of any date of determination for any
Incremental Term Facility, Incremental Term Facility Lenders holding more than 50% of the sum of
(a) the Outstanding Amount of all Incremental Term Facility Loans applicable to such Incremental
Term Facility and (b) aggregate unused Incremental Term Facility Commitments applicable to such
Incremental Term Facility, if any; provided that any unused Incremental Term Facility Commitments
applicable to such Incremental Term Facility of, and the portion of such Outstanding Amount of all
Incremental Term Facility Loans applicable to such Incremental Term Facility held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a determination of Required
Incremental Term Facility Lenders.
21
“Required Lenders” means, as of any date of determination, Lenders holding more than 50% of
the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit Lender’s
risk
participation and funded participation in L/C Obligations and Swing Line Loans being deemed
“held” by such Revolving Credit Lender for purposes of this definition) and (b) aggregate unused
Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and the
portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded
for purposes of making a determination of Required Lenders.
“Required Revolving Lenders” means, as of any date of determination, Revolving Credit Lenders
holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate
amount of each Revolving Credit Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for purposes
of this definition) and (b) aggregate unused Revolving Credit Commitments; provided that the unused
Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of
Required Revolving Lenders.
“Responsible Officer” means the chief executive officer, president, chief financial officer,
treasurer, assistant treasurer or controller of a Loan Party. Any document delivered hereunder
that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such
Loan Party.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or
other property) with respect to any capital stock or other Equity Interest of any Person or any of
its Subsidiaries, or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance,
acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to any Person’s stockholders, partners or members (or the
equivalent of any thereof), or any option, warrant or other right to acquire any such dividend or
other distribution or payment.
“Revolving Credit Facility Amount” means, at any time, the aggregate amount of the Revolving
Credit Lenders’ Revolving Credit Commitments at such time.
“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit
Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by each of the Revolving Credit Lenders pursuant to Section 2.01.
“Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to
(a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite
such Lender’s name on Schedule 2.01 under the caption “Revolving Credit Commitment” or opposite
such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“Revolving Credit Facility” means the revolving credit facility established by the terms of
this Agreement.
“Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit
Commitment at such time.
“Revolving Credit Loan” has the meaning specified in Section 2.01.
22
“Revolving Credit Note” means a promissory note made by the Borrower in favor of a Revolving
Credit Lender evidencing Revolving Credit Loans or Swing Line Loans, as the case may be, made by
such Revolving Credit Lender, substantially in the form of Exhibit C.
“S&P” means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.,
and any successor thereto.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding
to any of its principal functions.
“Secured Cash Management Agreement” means any Cash Management Agreement that is between any
Loan Party and any Cash Management Bank.
“Secured Hedge Agreement” means any Swap Contract that is between any Loan Party and any Hedge
Bank.
“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer,
the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to Section 9.05, and the other Persons the
Obligations owing to which are or are purported to be secured by the Collateral under the terms of
the Collateral Documents.
“Security Agreement (General Partner)” means the Pledge and Security Agreement substantially
in the form of Exhibit G hereto, executed by the General Partner in favor of the Administrative
Agent, for the benefit of the Secured Parties, as renewed, extended, amended or restated or
otherwise modified from time to time.
“Security Agreement (Parent and Subsidiaries)” means the Pledge and Security Agreement
substantially in the form of Exhibit G hereto, executed by the Parent, the Borrower, each
Intermediate Entity Guarantor, each Subsidiary Guarantor and each MLP Subsidiary Guarantor in favor
of the Administrative Agent, for the benefit of the Secured Parties, as renewed, extended, amended
or restated or otherwise modified from time to time.
“Security Agreements” means, collectively, each of the Security Agreement (General Partner)
and the Security Agreement (Parent and Subsidiaries), together with each other security agreement
and security agreement supplement delivered pursuant to Section 6.12, as each of the same may be
renewed, extended, amended, restated or otherwise modified from time to time.
“Senior Secured Consolidated Leverage Ratio” means, as of any date of determination, the ratio
of (a) Senior Secured Indebtedness of the Borrower as of such date to (b) Consolidated EBITDA of
the Borrower for the most recently completed Measurement Period.
“Senior Secured Indebtedness” means, at any time, (i) Total Debt of the Borrower secured by
Liens on any assets of any Loan Party at such time, including Total Debt under this Agreement, (ii)
Total Debt of any Subsidiary Guarantor secured by Liens on any assets of any Loan Party at such
time, and (iii) all Total Debt of any Subsidiary of the Borrower (other than a Subsidiary
Guarantor) at such time. For the avoidance of doubt, nothing in this definition shall be construed
to permit the Borrower or any of its Subsidiaries to incur or permit Liens other than those
permitted by Section 7.01.
23
“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that
on such date (a) the fair value of the property of such Person is greater than the total amount of
liabilities, including contingent liabilities, of such Person, (b) the present fair salable value
of the assets of such
Person is not less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such
debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction,
and is not about to engage in business or a transaction, for which such Person’s property would
constitute an unreasonably small capital, and (e) such Person is able to pay its debts and
liabilities, contingent obligations and other commitments as they mature in the ordinary course of
business. The amount of contingent liabilities at any time shall be computed as the amount that,
in the light of all the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of securities or other interests
having ordinary voting power for the election of directors or other governing body (other than
securities or interests having such power only by reason of the happening of a contingency) are at
the time beneficially owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Parent (which shall include for the avoidance of doubt, the Borrower).
“Subsidiary Guarantors” means, collectively, each of the Subsidiaries of Borrower listed on
Part (a) of Schedule 5.13 (other than the Agway Subsidiaries and the Inactive Subsidiaries) and
each other Subsidiary of the Borrower that shall be required to execute and deliver a guaranty or
guaranty supplement pursuant to Section 6.12.
“Subsidiary Guaranty” means the Guaranty dated as of the date hereof made by the Intermediate
Entity Guarantors, the Subsidiary Guarantors, and the MLP Subsidiary Guarantors in favor of the
Secured Parties, substantially in the form of Exhibit F, together with each other guaranty and
guaranty supplement delivered by a Subsidiary Guarantor pursuant to Section 6.12, as each of the
same may be renewed, extended, amended, restated or otherwise modified from time to time.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the xxxx-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations
provided by any recognized dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).
24
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.
“Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or
any successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified in Section 2.04(a).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b),
which, if in writing, shall be substantially in the form of Exhibit B.
“Swing Line Sublimit” means an amount equal to the lesser of (a) $10,000,000 and (b) the
Revolving Credit Facility Amount. The Swing Line Sublimit is part of, and not in addition to, the
Revolving Credit Facility Amount.
“Synthetic Debt” means, with respect to any Person as of any date of determination thereof,
all obligations of such Person in respect of transactions entered into by such Person that are
intended to function primarily as a borrowing of funds (including any minority interest
transactions that function primarily as a borrowing) but are not otherwise included in the
definition of “Indebtedness” or as a liability on the consolidated balance sheet of such Person and
its Subsidiaries in accordance with GAAP.
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called
synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession
of property (including sale and leaseback transactions), in each case, creating obligations that do
not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief
Laws to such Person, would be characterized as the indebtedness of such Person (without regard to
accounting treatment).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable thereto.
“Threshold Amount” means $10,000,000.
“Total Assets” means, as of any date of determination, the total assets of the Borrower and
its Subsidiaries as shown on the balance sheet of the Borrower and its Subsidiaries as of such
date, determined on a Consolidated basis in accordance with GAAP.
“Total Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Total Debt of the Parent as of such date to (b) Consolidated EBITDA of the Parent for
the most recently completed Measurement Period.
“Total Debt” means, with respect to any Person at any time, all Indebtedness of such Person
and its Subsidiaries at such time (other than contingent Indebtedness described under clause (b) of
the definition of “Indebtedness” and Indebtedness described under clause (c) of the definition of
“Indebtedness”) determined on a consolidated basis in accordance with GAAP.
“Total Outstandings” means, at any time, the aggregate Outstanding Amount of all Loans and all
L/C Obligations at such time.
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“Total Revolving Credit Outstandings” means, at any time, the aggregate Outstanding Amount of
all Revolving Credit Loans, Swing Line Loans and L/C Obligations at such time.
“Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate
Loan.
“
UCC” means the Uniform Commercial Code as in effect in the State of
New York;
provided that,
if perfection or the effect of perfection or non-perfection or the priority of any security
interest in any Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of
New York, “
UCC” means the Uniform Commercial Code as in effect
from time to time in such other jurisdiction for purposes of the provisions hereof relating to such
perfection, effect of perfection or non-perfection or priority.
“Unaudited Financial Statements” means (a) the unaudited consolidated balance sheet of
Borrower and its Subsidiaries dated March 28, 2009, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that
date, and (b) the unaudited consolidated balance sheet of Parent and its Subsidiaries dated
March 28, 2009, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for the fiscal quarter ended on that date.
“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in
accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the
Code for the applicable plan year.
“United States” and “U.S.” mean the United States of America.
“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).
“Wholly-Owned” means, when used in connection with a Subsidiary of a Person, that all of the
issued and outstanding Equity Interests of such Subsidiary are directly or indirectly owned by such
Person, and (i) when used in connection with a “Subsidiary Guarantor,” that all of the issued and
outstanding Equity Interests of such Subsidiary Guarantor are directly or indirectly owned by the
Borrower, and (ii) when used in connection with a “Guarantor” or “MLP Subsidiary Guarantor,” that
all of the issued and outstanding Equity Interests of such Guarantor or MLP Subsidiary Guarantor
are directly or indirectly owned by the Parent. Suburban Plumbing New Jersey LLC shall be deemed a
Wholly-Owned Subsidiary Guarantor for so long as not less than 90% of the ownership interests in
Suburban Plumbing New Jersey LLC is directly or indirectly owned by the Borrower.
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1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document,
unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word
“will” shall be construed to have the same meaning and effect as the word “shall.” Unless
the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such amendments,
supplements or
modifications set forth herein or in any other Loan Document), (ii) any reference
herein to any Person shall be construed to include such Person’s successors and assigns,
(iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in
any Loan Document, shall be construed to refer to such Loan Document in its entirety and not
to any particular provision thereof, (iv) all references in a Loan Document to Articles,
Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending, replacing or interpreting such
law and any reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time, and (vi) the
words “asset” and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
(b) 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.”
(c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or
any other Loan Document.
1.03 Accounting Terms.
(a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this Agreement shall
be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time
to time, applied in a manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either the Borrower
or the Required Lenders shall so request, the Administrative Agent, the Lenders and the
Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made before and
after giving effect to such change in GAAP.
1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).
1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).
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1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit
at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such
time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms
of any Issuer Document related thereto, provides for one or more automatic increases in the stated
amount thereof, the amount of such Letter of Credit shall be deemed for all purposes (other than
determining the Letter of Credit Fee payable in connection with such Letter of Credit) to be the
maximum stated amount of such Letter of Credit after giving effect to all such increases, whether
or not such maximum stated amount is in effect at such time.
Article II.
The Commitments and Credit Extensions
2.01 The Revolving Credit Loans. Subject to the terms and conditions set forth herein, each
Revolving Credit Lender severally agrees to make loans (each such loan, a “Revolving Credit Loan”)
to the Borrower from time to time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit
Commitment; provided, however, that after giving effect to any Revolving Credit Borrowing, (i) the
Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility Amount, and
(ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such
Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all
L/C Obligations, plus such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Credit Lender’s
Revolving Credit Commitment. Within the limits of each Revolving Credit Lender’s Revolving Credit
Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Revolving
Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Revolving Credit Borrowing, each Incremental Term Facility Borrowing, each
conversion of Revolving Credit Loans or any Incremental Term Facility Loans from one Type to
the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such
notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or continuation
of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans,
and (ii) on the requested date of any Borrowing of Base Rate Loans; provided, however, that
if the Borrower wishes to request Eurodollar Rate Loans having an Interest Period other than
one, two, three or six months in duration as provided in the definition of “Interest
Period,” the applicable notice must be received by the Administrative Agent not later than
11:00 a.m. four Business Days prior to the requested date of such Borrowing, conversion or
continuation, whereupon the Administrative Agent shall give prompt notice to the Appropriate
Lenders of such request and determine whether the requested Interest Period is acceptable to
all of them. Not later than 11:00 a.m., three Business Days before the requested date of
such Borrowing, conversion or continuation, the Administrative Agent shall notify the
Borrower (which notice may be by telephone) whether or not the requested Interest Period has
been consented to by all the Lenders. Each telephonic notice by the Borrower pursuant to
this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a
written Committed Loan Notice, appropriately completed and signed by a Responsible Officer
of the Borrower. Each Borrowing of, conversion to or continuation of
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Eurodollar Rate Loans
shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall
be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the
Borrower is requesting a Revolving Credit Borrowing, an Incremental Term Facility Borrowing,
a conversion of Revolving Credit Loans or Incremental Term Facility Loans from one Type to
the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of
Loans to be borrowed or to which existing Revolving Credit Loans or Incremental Term
Facility Loans are to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Committed
Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Revolving Credit Loans or Incremental Term Facility Loans
shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base
Rate Loans shall be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice,
but fails to specify an Interest Period, it will be deemed to have specified an Interest
Period of one month. Notwithstanding anything to the contrary herein, a Swing Line Loan may
not be converted to a Eurodollar Rate Loan.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage under the applicable
Facility of the applicable Revolving Credit Loans or Incremental Term Facility Loans, and if
no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans described in
Section 2.02(a). In the case of a Revolving Credit Borrowing
or an Incremental Term Facility Borrowing, each Appropriate Lender shall make the amount of
its Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth
in
Section 4.02 (and, if such Borrowing is the initial Credit Extension,
Section 4.01, or if
such Borrowing is an Incremental Term Facility Borrowing, in the amendment or supplement to
this Agreement relating to such Incremental Term Facility), the Administrative Agent shall
make all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the books of
Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each
case in accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Borrower;
provided,
however, that if, on the date a Committed
Loan Notice with respect to a Revolving Credit Borrowing is given by the Borrower, there are
L/C Borrowings outstanding, then the proceeds of such Revolving Credit Borrowing,
first,
shall be applied to the payment in full of any such L/C Borrowings, and
second, shall be
made available to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During
the existence of a Default, no Loans may be requested as, converted to or continued as
Eurodollar Rate Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination
of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative
Agent
shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate
used in determining the Base Rate promptly following the public announcement of such change.
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(e) After giving effect to all Revolving Credit Borrowings, all conversions of
Revolving Credit Loans from one Type to the other, and all continuations of Revolving Credit
Loans as the same Type, there shall not be more than 5 Interest Periods in effect in respect
of the Revolving Credit Facility. After giving effect to Incremental Term Facility
Borrowings, all conversions of Incremental Term Facility Loans from one Type to the other,
and all continuations of Incremental Term Facility Loans as the same Type, there shall not
be more than 5 Interest Periods in effect in respect of such Incremental Term Loan Facility.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer
agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in
this Section 2.03, (1) from time to time on any Business Day during the
period from the Closing Date until the Letter of Credit Expiration Date, to issue
Letters of Credit for the account of the Parent, Borrower or the Wholly-Owned
Subsidiary Guarantors, and to amend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings under the Letters of
Credit issued by it; and (B) the Revolving Credit Lenders severally agree to
participate in Letters of Credit issued for the account of the Borrower or the
Wholly-Owned Subsidiary Guarantors and any drawings thereunder; provided that after
giving effect to any L/C Credit Extension with respect to any Letter of Credit,
(x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit
Facility Amount, (y) the aggregate Outstanding Amount of the Revolving Credit Loans
of any Revolving Credit Lender, plus such Lender’s Applicable Revolving Credit
Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Revolving Credit Commitment, and (z) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of
Credit shall be deemed to be a representation by the Borrower that the L/C Credit
Extension so requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been
drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have
been issued pursuant hereto, and from and after the Closing Date shall be subject to
and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of
issuance or last extension, unless the Required Revolving Lenders have
approved such expiry date; or
30
(B) the expiry date of such requested Letter of Credit would occur
after the Letter of Credit Expiration Date, unless all the Revolving Credit
Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of
Credit if:
(A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer
from issuing such Letter of Credit, or any Law applicable to the L/C Issuer
or any request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over the L/C Issuer shall
prohibit, or request that the L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which the L/C Issuer in good xxxxx
xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more
policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C
Issuer, such Letter of Credit is in an initial stated amount less than
$25,000;
(D) such Letter of Credit is to be denominated in a currency other than
Dollars;
(E) such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder; or
(F) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time an Impacted Lender hereunder, unless
the L/C Issuer has entered into arrangements satisfactory to the L/C Issuer
with the Borrower or such Lender to eliminate the L/C Issuer’s risk with
respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer
would not be permitted at such time to issue such Letter of Credit in its amended
form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit
if (A) the L/C Issuer would have no obligation at such time to issue such Letter of
Credit in its amended form under the terms hereof, or (B) the beneficiary of such
Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Revolving Credit Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuer shall have all of the benefits and immunities
(A) provided to the Administrative Agent in Article IX with respect to any acts
taken or omissions suffered
by the L/C Issuer in connection with Letters of Credit issued by it or proposed
to be issued by it and Issuer Documents pertaining to such Letters of Credit as
fully as if the term “Administrative Agent” as used in Article IX included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally provided
herein with respect to the L/C Issuer.
31
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters
of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon
the request of the Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application, appropriately
completed and signed by a Responsible Officer of the Borrower. Such Letter of
Credit Application must be received by the L/C Issuer and the Administrative Agent
not later than 11:00 a.m. at least two Business Days (or such later date and time as
the Administrative Agent and the L/C Issuer may agree in a particular instance in
their sole discretion) prior to the proposed issuance date or date of amendment, as
the case may be. In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing thereunder;
(F) the full text of any certificate to be presented by such beneficiary in case of
any drawing thereunder; (G) the purpose and nature of the requested Letter of
Credit; and (H) such other matters as the L/C Issuer may require. In the case of a
request for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer (1) the
Letter of Credit to be amended; (2) the proposed date of amendment thereof (which
shall be a Business Day); (3) the nature of the proposed amendment; and (4) such
other matters as the L/C Issuer may require. Additionally, the Borrower shall
furnish to the L/C Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or amendment,
including any Issuer Documents, as the L/C Issuer or the Administrative Agent may
require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer
will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from
the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with
a copy thereof. Unless the L/C Issuer has received written notice from any
Revolving Credit Lender, the Administrative Agent or any Loan Party, at least one
Business Day prior to the requested date of issuance or amendment of the applicable
Letter of Credit, that one or more applicable conditions contained in Article IV
shall not then be satisfied, then, subject to the terms and conditions hereof, the
L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of
the Borrower (or the applicable Wholly-Owned Subsidiary Guarantor) or enter into the
applicable amendment, as the case may be, in each case in accordance with the L/C
Issuer’s usual and customary business practices. Immediately upon the issuance of
each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of such
Revolving Credit Lender’s Applicable Revolving Credit Percentage times the amount of
such Letter of Credit.
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(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue
a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension Letter of Credit must
permit the L/C Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such Letter of Credit)
by giving prior notice to the beneficiary thereof not later than a day (the
“Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at
the time such Letter of Credit is issued. Unless otherwise directed by the L/C
Issuer, the Borrower shall not be required to make a specific request to the L/C
Issuer for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Revolving Credit Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of Credit at any time
to an expiry date not later than the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such extension if (A) the L/C
Issuer has determined that it would not be permitted, or would have no obligation at
such time to issue such Letter of Credit in its revised form (as extended) under the
terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a)
or otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is seven Business Days before the Non-Extension
Notice Date (1) from the Administrative Agent that the Required Revolving Lenders
have elected not to permit such extension or (2) from the Administrative Agent, any
Revolving Credit Lender or the Borrower that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied, and in each such case
directing the L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any amendment to a
Letter of Credit to an advising bank with respect thereto or to the beneficiary
thereof, the L/C Issuer will also deliver to the Borrower and the Administrative
Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of
a drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and
the Administrative Agent thereof. Not later than 11:00 a.m. on the date of any
payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor
Date”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent
in an amount equal to the amount of such drawing. If the Borrower fails to so
reimburse the L/C Issuer by such time, the Administrative Agent shall promptly
notify each Revolving Credit Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Revolving
Credit Lender’s Applicable Revolving Credit Percentage thereof. In such event, the
Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate
Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in Section 2.02 for
the principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Revolving Credit Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given
by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i)
may be given by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
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(ii) Each Revolving Credit Lender shall upon any notice pursuant to
Section 2.03(c)(i) make funds available to the Administrative Agent for the account
of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its
Applicable Revolving Credit Percentage of the Unreimbursed Amount not later than
1:00 p.m. on the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Credit
Lender that so makes funds available shall be deemed to have made a Base Rate Loan
to the Borrower in such amount. The Administrative Agent shall remit the funds so
received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in
Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be
deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at the Default
Rate. In such event, each Revolving Credit Lender’s payment to the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 2.03.
(iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C
Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount
drawn under any Letter of Credit, interest in respect of such Lender’s Applicable
Revolving Credit Percentage of such amount shall be solely for the account of the
L/C Issuer.
(v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or
L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit,
as contemplated by this Section 2.03(c), shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the L/C
Issuer, the Borrower or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however, that
each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to
this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other
than delivery by the Borrower of a Committed Loan Notice ). No such making of an
L/C Advance shall relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under
any Letter of Credit, together with interest as provided herein.
(vi) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by
the time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled to
recover from such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is required
to the date on which such payment is immediately available to the L/C Issuer at a
rate per annum equal to the greater of the Federal Funds Rate and a rate determined
by the L/C Issuer in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily
charged by the L/C Issuer in connection with the
foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan
included in the relevant Revolving Credit Borrowing or L/C Advance in respect of the
relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer
submitted to any Revolving Credit Lender (through the Administrative Agent) with
respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive
absent manifest error.
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(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any Letter of
Credit and has received from any Revolving Credit Lender such Lender’s L/C Advance
in respect of such payment in accordance with Section 2.03(c), if the Administrative
Agent receives for the account of the L/C Issuer any payment in respect of the
related Unreimbursed Amount or interest thereon (whether directly from the Borrower
or otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such Lender its
Applicable Revolving Credit Percentage thereof in the same funds as those received
by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of the
L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of
the circumstances described in Section 11.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Revolving Credit Lender
shall pay to the Administrative Agent for the account of the L/C Issuer its
Applicable Revolving Credit Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds Rate from
time to time in effect. The obligations of the Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this
Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be
absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right
that the Borrower or any Subsidiary may have at any time against any beneficiary or
any transferee of such Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the L/C Issuer or any other Person, whether
in connection with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect; or any
loss or delay in the transmission or otherwise of any document required in order to
make a drawing under such Letter of Credit;
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(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the terms
of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief Law;
or
(v) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing, including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Borrower or any of its
Subsidiaries.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s
instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The
Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing
under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of
the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for
(i) any action taken or omitted in connection herewith at the request or with the approval
of the Revolving Credit Lenders or the Required Revolving Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful misconduct; or
(iii) the due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes
all risks of the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have a claim
against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C Issuer’s willful
misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter
of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that
appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any
reason.
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(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such
drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit
Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall,
in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations. Sections 2.05 and 8.02(c) set forth certain additional requirements to deliver
Cash Collateral hereunder. For purposes of this Section 2.03, Section 2.05 and
Section 8.02(c), “Cash Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for
the L/C Obligations, cash or deposit account balances pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the L/C Issuer (which documents are
hereby consented to by the Lenders). Derivatives of such term have corresponding meanings.
The Borrower hereby grants to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, a security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked,
non-interest bearing deposit accounts at Bank of America. If at any time the Administrative
Agent determines that any funds held as Cash Collateral are subject to any right or claim of
any Person other than the Administrative Agent or that the total amount of such funds is
less than the aggregate Outstanding Amount of all L/C Obligations, the Borrower will,
forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited as Cash Collateral, an amount equal to the excess of
(x) such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held
as Cash Collateral that the Administrative Agent determines to be free and clear of any such
right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as
Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws,
to reimburse the L/C Issuer.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit
equal to the Applicable Rate times the daily amount available to be drawn under such Letter
of Credit. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.06. Letter of Credit Fees shall be (i) due and payable on the first Business Day
after the end of each March, June, September and December, commencing with the first such
date to occur after the issuance of such Letter of Credit and (ii) computed on a quarterly
basis in arrears. If there is any change in the Applicable Rate during any quarter, the
daily amount available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein,
upon the request of the Required Revolving Lenders, while any Event of Default exists, all
Letter of Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with
respect to each Letter of Credit, at the rate per annum specified in the Fee Letter, as
applicable, or as may be agreed between the Borrower and the L/C Issuer, computed on the
daily amount available to be drawn under such Letter of Credit on a quarterly basis in
arrears. Such fronting fee shall be due and payable on the tenth Business Day after the end
of each March, June, September and December in respect of the most recently-ended quarterly
period (or portion thereof, in the case of the first payment), commencing with the first
such date to occur after the
issuance of such Letter of Credit and on the last Business Day of the month in which
such Letter of Credit expires. For purposes of computing the daily amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. In addition, the Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the L/C Issuer relating to letters
of credit as from time to time in effect. Such customary fees and standard costs and
charges are due and payable on demand and are nonrefundable.
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(k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.
(l) Letter of Credit Issued for Wholly-Owned Subsidiary Guarantors. Notwithstanding
that a Letter of Credit issued or outstanding hereunder is in support of any obligations of,
or is for the account of, a Wholly-Owned Subsidiary Guarantor, the Borrower shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter
of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the
account of Wholly-Owned Subsidiary Guarantors inures to the benefit of the Borrower, and
that the Borrower’s business derives substantial benefits from the business of such
Wholly-Owned Subsidiary Guarantors.
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein and at the
Swing Line Lender’s sole discretion at all times, the Swing Line Lender may agree, in
reliance upon the agreements of the other Lenders set forth in this Section 2.04,
to make loans (each such loan, a “Swing Line Loan”) to the Borrower from time to time
on any Business Day during the Availability Period in an aggregate amount not to exceed at
any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Applicable Revolving Credit Percentage of
the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as
Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit Commitment;
provided, however, that after giving effect to any Swing Line Loan, (i) the Total Revolving
Credit Outstandings shall not exceed the Revolving Credit Facility Amount at such time, and
(ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit
Lender at such time, plus such Revolving Credit Lender’s Applicable Revolving Credit
Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such
Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount
of all Swing Line Loans at such time shall not exceed such Lender’s Revolving Credit
Commitment, and provided further that the Borrower shall not use the proceeds of any Swing
Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrower may borrow under this
Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing
Line Loan shall bear interest only at a rate based on the Base Rate as set forth in Section
2.08(a)(iii). Immediately upon the making of a Swing Line Loan, each Revolving Credit
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal
to the product of such Revolving Credit Lender’s Applicable Revolving Credit Percentage
times the amount of such Swing Line Loan.
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(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which
may be given by telephone. Each such notice must be received by the Swing Line Lender
and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and
shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and
(ii) the requested borrowing date, which shall be a Business Day. Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed
by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line Lender
of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also
received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing
Line Lender has received notice (by telephone or in writing) from the Administrative Agent
(including at the request of any Revolving Credit Lender) prior to 2:00 p.m. on the date of
the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing
Line Loan as a result of the limitations set forth in the first proviso to the first
sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified
in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such
Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower at
its office by crediting the account of the Borrower on the books of the Swing Line Lender in
immediately available funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute discretion may
request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing
Line Lender to so request on its behalf), that each Revolving Credit Lender make a
Base Rate Loan in an amount equal to such Lender’s Applicable Revolving Credit
Percentage of the amount of Swing Line Loans then outstanding. Such request shall
be made in writing (which written request shall be deemed to be a Committed Loan
Notice for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the Revolving
Credit Facility Amount and the conditions set forth in Section 4.02. The Swing Line
Lender shall furnish the Borrower with a copy of the applicable Committed Loan
Notice promptly after delivering such notice to the Administrative Agent. Each
Revolving Credit Lender shall make an amount equal to its Applicable Revolving
Credit Percentage of the amount specified in such Committed Loan Notice available to
the Administrative Agent in immediately available funds for the account of the Swing
Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day
specified in such Committed Loan Notice, whereupon, subject to Section 2.03(c)(ii),
each Revolving Credit Lender that so makes funds available shall be deemed to have
made a Base Rate Loan to the Borrower in such amount. The Administrative Agent
shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such a
Revolving Credit Borrowing in accordance with Section 2.03(c)(i), the request for
Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be
deemed to be a request by the Swing Line Lender that each of the Revolving Credit
Lenders fund its risk participation in the relevant Swing Line Loan and each
Revolving Credit Lender’s payment to the Administrative Agent for the account of the
Swing Line Lender pursuant to Section 2.03(c)(i) shall be deemed payment in respect
of such participation.
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(iii) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any amount required to
be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c)
by the time specified in Section 2.03(c)(i), the Swing Line Lender shall be entitled
to recover from such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the Swing
Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a
rate determined by the Swing Line Lender in accordance with banking industry rules
on interbank compensation, plus any administrative, processing or similar fees
customarily charged by the Swing Line Lender in connection with the foregoing. If
such Lender pays such amount (with interest and fees as aforesaid), the amount so
paid shall constitute such Lender’s Revolving Credit Loan included in the relevant
Revolving Credit Borrowing or funded participation in the relevant Swing Line Loan,
as the case may be. A certificate of the Swing Line Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.
(iv) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans
or to purchase and fund risk participations in Swing Line Loans pursuant to this
Section 2.04(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other
right which such Lender may have against the Swing Line Lender, the Borrower or any
other Person for any reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided, however, that each Revolving Credit Lender’s
obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the Borrower to
repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Revolving Credit Lender has purchased and funded a
risk participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will distribute to
such Revolving Credit Lender its Applicable Revolving Credit Percentage thereof in
the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of principal
or interest on any Swing Line Loan is required to be returned by the Swing Line
Lender under any of the circumstances described in Section 11.05 (including pursuant
to any settlement entered into by the Swing Line Lender in its discretion), each
Revolving Credit Lender shall pay to the Swing Line Lender its Applicable Revolving
Credit Percentage thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned, at a rate
per annum equal to the Federal Funds Rate. The Administrative Agent will make such
demand upon the request of the Swing Line Lender. The obligations of the Lenders
under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.
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(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each
Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to this
Section 2.04 to refinance such Revolving Credit Lender’s Applicable Revolving Credit
Percentage of any Swing Line Loan, interest in respect of such Applicable Revolving Credit
Percentage shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
2.05 Prepayments.
(a) Optional.
(i) Subject to the last sentence of this Section 2.05(a)(i), the Borrower may,
upon notice to the Administrative Agent, at any time or from time to time
voluntarily prepay Revolving Credit Loans and Incremental Term Facility Loans in
whole or in part without premium or penalty; provided that (A) such notice must be
received by the Administrative Agent not later than 11:00 a.m. (1) three Business
Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on the date of
prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be
in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof; and (C) any prepayment of Base Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Loans to be
prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of
such Loans. The Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of the amount of such Lender’s ratable portion of
such prepayment (based on such Lender’s Applicable Percentage in respect of the
relevant Facility). If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together with
any additional amounts required pursuant to Section 3.05.
(ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing
Line Loans in whole or in part without premium or penalty; provided that (A) such
notice must be received by the Swing Line Lender and the Administrative Agent not
later than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment
shall be in a minimum principal amount of $100,000. Each such notice shall specify
the date and amount of such prepayment. If such notice is given by the Borrower,
the Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.
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(b) Mandatory.
(i) At any time in which any Incremental Term Facility Loan remains
outstanding, if any Loan Party or any of its Subsidiaries (other than Agway
Subsidiaries or Inactive Subsidiaries) Disposes of any property (other than any
Disposition of any property permitted by Section 7.05(a), (b), (c), (d), (e) or (h)
which results in the realization by such Person of Net Cash Proceeds, the Borrower
shall prepay an aggregate
principal amount of Loans equal to 100% of such Net Cash Proceeds immediately
upon receipt thereof by such Person (such prepayments to be applied as set forth in
clauses (iii) and (v) below); provided, however, that (A) the first $15,000,000 of
such Net Cash Proceeds received in any fiscal year (the “Exempt Proceeds”) shall not
be subject to the mandatory prepayment requirements set forth in this Section
2.05(b)(i), and (B) with respect to any Net Cash Proceeds realized under a
Disposition described in this Section 2.05(b)(i) in excess of the Exempt Proceeds,
at the election of the Borrower (as notified by the Borrower to the Administrative
Agent on or prior to the date of such Disposition), and so long as no Default shall
have occurred and be continuing, such Loan Party or Subsidiary may reinvest all or
any portion of such Net Cash Proceeds in operating assets so long as within 12
months after the receipt of such Net Cash Proceeds, such reinvestment shall have
been consummated (as certified by the Borrower in writing to the Administrative
Agent); and provided further, however, that (A) any Net Cash Proceeds not so
reinvested within such 12 month period shall be immediately applied to the
prepayment of the Loans as set forth in this Section 2.05(b)(i), and (B) if a
Default has occurred and is continuing at any time that a Borrower or a Subsidiary
Guarantor receives or is holding any Net Cash Proceeds which have not yet been
reinvested, such Net Cash Proceeds shall be immediately applied to the prepayment of
the Loans as set forth in this Section 2.05(b)(i).
(ii) At any time in which any Incremental Term Loan remains outstanding, upon
any Extraordinary Receipt received by or paid to or for the account of any Loan
Party or any of its Subsidiaries (other than Agway Subsidiaries or Inactive
Subsidiaries), and not otherwise included in clause (i) of this Section 2.05(b), the
Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all
Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan
Party or such Subsidiary (such prepayments to be applied as set forth in
clauses (iii) and (v) below); provided, however, that (A) the first $5,000,000 of
such Extraordinary Receipts received in any fiscal year (the “Exempt Receipts”)
shall not be subject to the mandatory prepayment requirements set forth in this
Section 2.05(b)(ii), and (B) with respect to any proceeds of insurance, condemnation
awards (or payments in lieu thereof) or indemnity payments in excess of the Exempt
Receipts, at the election of the Borrower (as notified by the Borrower to the
Administrative Agent on or prior to the date of receipt of such insurance proceeds,
condemnation awards or indemnity payments), and so long as no Default shall have
occurred and be continuing, such Loan Party or such Subsidiary may apply within 12
months after the receipt of such cash proceeds to replace or repair the equipment,
fixed assets or real property in respect of which such cash proceeds were received;
and provided, further, however, that (A) any cash proceeds not so applied within
such 12 month period shall be immediately applied to the prepayment of the Loans as
set forth in this Section 2.05(b)(ii), and (B) if a Default has occurred and is
continuing at any time that a Loan Party or Subsidiary receives or is holding any
Net Cash Proceeds which have not yet been applied to replace or repair the
equipment, fixed assets or real property in respect of which such cash proceeds were
received, such cash proceeds shall be immediately applied to the prepayment of the
Loans as set forth in this Section 2.05(b)(ii).
(iii) Each prepayment of Loans pursuant to the foregoing provisions of this
Section 2.05(b) shall be applied ratably to the Revolving Credit Facility (in the
manner set forth in clause (v) of this Section 2.05(b)) and the Incremental Term
Facilities.
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(iv) If for any reason the Total Revolving Credit Outstandings at any time
exceed the Revolving Credit Facility Amount at such time, the Borrower shall
immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings
and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an
aggregate amount equal to such excess.
(v) Prepayments of the Revolving Credit Facility made pursuant to this
Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing
Line Loans, second, shall be applied ratably to the outstanding Revolving Credit
Loans, and, third, shall be used to Cash Collateralize the remaining L/C
Obligations; and, in the case of prepayments of the Revolving Credit Facility
required pursuant to clause (i) or (ii) of this Section 2.05(b), the amount
remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line
Loans and Revolving Credit Loans outstanding at such time and the Cash
Collateralization of the remaining L/C Obligations in full (the sum of such
prepayment amounts, cash collateralization amounts and remaining amount being,
collectively, the “Reduction Amount”) may be retained by the Borrower for use in the
ordinary course of its business. Upon the drawing of any Letter of Credit that has
been Cash Collateralized, the funds held as Cash Collateral shall be applied
(without any further action by or notice to or from the Borrower or any other Loan
Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(vi) Prepayments of the Revolving Credit Facility made pursuant to this
Section 2.05(b) shall not reduce the Revolving Credit Commitments.
2.06 Termination or Reduction of Commitments.
(a) Optional. The Borrower may, upon notice to the Administrative Agent, terminate the
Revolving Credit Facility Amount, the Letter of Credit Sublimit or the Swing Line Sublimit,
or from time to time permanently reduce the Revolving Credit Facility Amount, the Letter of
Credit Sublimit or the Swing Line Sublimit; provided that (i) any such notice shall be
received by the Administrative Agent not later than 11:00 a.m. five Business Days prior to
the date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and
(iii) the Borrower shall not terminate or reduce (A) the Revolving Credit Facility Amount
if, after giving effect thereto and to any concurrent prepayments hereunder, the Total
Revolving Credit Outstandings would exceed the Revolving Credit Facility Amount, (B) the
Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C
Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit
Sublimit, or (C) the Swing Line Sublimit if, after giving effect thereto and to any
concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed
the Letter of Credit Sublimit.
(b) Mandatory.
(i) If after giving effect to any reduction or termination of Revolving Credit
Commitments under this Section 2.06, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the Revolving Credit Facility Amount at such time, the Letter of
Credit Sublimit or the Swing Line Sublimit, as the case may be, shall be
automatically reduced by the amount of such excess.
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(ii) Unless provided otherwise in the amendment or supplement to this Agreement
executed in connection with an Incremental Term Facility, the aggregate
Incremental Term Facility Commitments of all Incremental Term Facility Lenders
under such Incremental Term Facility shall be automatically and permanently reduced
to zero on the Incremental Term Facility Effective Date after the Incremental Term
Facility Borrowing is made on such date.
(c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent
will promptly notify the Lenders of any termination or reduction of the Letter of Credit
Sublimit, Swing Line Sublimit or the Revolving Credit Facility Amount under this
Section 2.06. Upon any reduction of the Revolving Credit Facility Amount, the Revolving
Credit Commitment of each Revolving Credit Lender shall be reduced by such Lender’s
Applicable Revolving Credit Percentage of such reduction amount. All fees in respect of the
Revolving Credit Facility Amount accrued until the effective date of any termination of the
Revolving Credit Facility Amount shall be paid on the effective date of such termination.
2.07 Repayment of Loans.
(a) Revolving Credit Loans. On the Maturity Date for the Revolving Credit Facility,
the Borrower shall repay to the Revolving Credit Lenders the aggregate principal amount of
all Revolving Credit Loans outstanding on such date.
(b) Swing Line Loans. On the earlier to occur of (i) the date ten Business Days after
such Loan is made and (ii) the Maturity Date for the Revolving Credit Facility, the Borrower
shall repay each Swing Line Loan.
(c) Incremental Term Facility Loans. The Borrower shall repay to the applicable
Incremental Term Facility Lenders the aggregate amount of all Incremental Term Facility
Loans made under an Incremental Term Facility at such times as may be set forth in the
amendment or supplement to this Agreement executed in connection with such Incremental Term
Facility.
2.08 Interest.
(a) Subject to the provisions of Section 2.08(b), (i) each Eurodollar Rate Loan under a
Facility shall bear interest on the outstanding principal amount thereof for each Interest
Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the
Applicable Rate for such Facility; (ii) each Base Rate Loan under a Facility shall bear
interest on the outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate for such Facility; and
(iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate for the Revolving Credit Facility.
(b) (i) If any amount of principal of any Loan is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration or otherwise,
such amount shall thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the Borrower
under any Loan Document is not paid when due (without regard to any applicable grace
periods), whether at stated maturity, by acceleration or otherwise, then upon the
request of the Required Lenders such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.
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(iii) Upon the request of the Required Lenders, while any Event of Default
exists, the Borrower shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including interest on
past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment
Date applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any proceeding under any Debtor Relief
Law.
2.09 Fees. In addition to certain fees described in Sections 2.03(i) and (j):
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the account
of each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage, a commitment fee equal to the Applicable Rate times the actual daily amount by
which the Revolving Credit Facility Amount exceeds the sum of (i) the Outstanding Amount of
Revolving Credit Loans and (ii) the Outstanding Amount of L/C Obligations. The commitment
fee shall accrue at all times during the Availability Period, including at any time during
which one or more of the conditions in Article IV is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the last day of
the Availability Period for the Revolving Credit Facility. The commitment fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in effect.
(b) Other Fees.
(i) The Borrower shall pay to each Arranger and the Administrative Agent for
their own respective accounts fees in the amounts and at the times specified in the
respective Fee Letters. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified.
Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.
(a) All computations of interest for Base Rate Loans shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year and actual
days elapsed (which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on
which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day
on which the Loan or such portion is paid, provided that any Loan that is repaid on the same
day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each
determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes, absent
manifest error.
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(b) If, as a result of any restatement of or other adjustment to the financial
statements of the Parent or for any other reason, the Parent or the Lenders determine that
(i) the Total Consolidated Leverage Ratio as calculated by the Parent as of any applicable
date was inaccurate and (ii) a proper calculation of the Total Consolidated Leverage Ratio
would have resulted in higher pricing for such period, the Borrower shall immediately and
retroactively be obligated to pay to the Administrative Agent for the account of the
applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by the
Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for
relief with respect to the Borrower under the Bankruptcy Code of the United States,
automatically and without further action by the Administrative Agent, any Lender or the L/C
Issuer), an amount equal to the excess of the amount of interest and fees that should have
been paid for such period over the amount of interest and fees actually paid for such
period. This paragraph shall not limit the rights of the Administrative Agent,
any Lender or the L/C Issuer, as the case may be, under Section 2.03(c)(iii), 2.03(i) or
2.08(b) or under Article VIII.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative Agent
and each Lender shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records maintained by
any Lender and the accounts and records of the Administrative Agent in respect of such
matters, the accounts and records of the Administrative Agent shall control in the absence
of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a
Note, which shall evidence such Lender’s Loans in addition to such accounts or records.
Each Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in Section 2.11(a), each Lender
and the Administrative Agent shall maintain in accordance with its usual practice accounts
or records evidencing the purchases and sales by such Lender of participations in Letters of
Credit and Swing Line Loans. In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any Lender in respect
of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error.
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2.12 Payments Generally; Administrative Agent’s Clawback.
(a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise
expressly provided herein, all payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such payment is
owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not
later than
2:00 p.m. on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Applicable Percentage in respect of the relevant Facility (or
other applicable share as provided herein) of such payment in like funds as received by wire
transfer to such Lender’s Lending Office. All payments received by the Administrative Agent
after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected on computing
interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of
any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 12:00 noon. on the date of such Borrowing) that such Lender will not make available
to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent
may assume that such Lender has made such share available on such date in accordance with
Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made
such share available in accordance with and at the time required by Section 2.02) and may,
in reliance upon such assumption, make available to the Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable Borrowing available
to the Administrative Agent, then the applicable Lender and the Borrower severally agree to
pay to the Administrative Agent forthwith on demand such corresponding amount in immediately
available funds with interest thereon, for each day from and including the date such amount
is made available to the Borrower to but excluding the date of payment to the Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the Administrative Agent in connection with the foregoing, and
(B) in the case of a payment to be made by the Borrower, the interest rate applicable to
Base Rate Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative Agent shall
promptly remit to the Borrower the amount of such interest paid by the Borrower for such
period. If such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender’s Loan included in such
Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower
may have against a Lender that shall have failed to make such payment to the Administrative
Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the time
at which any payment is due to the Administrative Agent for the account of the
Lenders or the L/C Issuer hereunder that the Borrower will not make such payment,
the Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption, distribute to
the Appropriate Lenders or the L/C Issuer, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of the
Appropriate Lenders or the L/C Issuer, as the case may be, severally agrees to repay
to the Administrative Agent forthwith on demand the amount so distributed to such
Lender or the L/C Issuer, in immediately available funds with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
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A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the
foregoing provisions of this Article II, and such funds are not made available to the
Borrower by the Administrative Agent because the conditions to the applicable Credit
Extension set forth in Article IV are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Revolving Credit Loans and Incremental Term Facility Loans, to fund participations in
Letters of Credit and Swing Line Loans and to make payments pursuant to Section 11.04(c) are
several and not joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any payment under Section 11.04(c) on any date required hereunder
shall not relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so make its Loan,
to purchase its participation or to make its payment under Section 11.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation
by any Lender that it has obtained or will obtain the funds for any Loan in any particular
place or manner.
(f) Insufficient Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first, toward payment
of interest and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and (ii) second,
toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to
such parties.
2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any of the
Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time
in excess of its ratable share (according to the proportion of (i) the amount of such Obligations
due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in
respect of the Facilities due and payable to all Lenders hereunder and under the other Loan
Documents at such time) of payments on account of the Obligations in respect of the Facilities due
and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by
all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not
due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess
of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but
not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in
respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the
other Loan Parties at such time) of payment on account of the Obligations in respect of the
Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan
Documents at such time obtained by all of the Lenders at such time then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for
cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swing
Line Loans of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of Obligations in respect of the Facilities then due and
payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be,
provided that:
(i) if any such participations or subparticipations are purchased and all or
any portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest; and
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(ii) the provisions of this Section shall not be construed to apply to (A) any
payment made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or (B) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or subparticipations in
L/C Obligations or Swing Line Loans to any assignee or participant, other than to
the Borrower or any Subsidiary thereof (as to which the provisions of this Section
shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under applicable Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
2.14 [Reserved].
2.15 Increase in Revolving Credit Facility.
(a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Revolving Credit Lenders), the
Borrower may from time to time, request an increase in the Revolving Credit Facility Amount;
provided that (i) any such request for an increase shall be in a minimum amount of
$25,000,000, (ii) the Revolving Credit Facility Amount shall not exceed $300,000,000 on the
Closing Date, and (iii) the Aggregate Commitments after giving effect to (A) all increases
of the Revolving Credit Facility Amount under this Section 2.15 and (B) all Incremental Term
Facilities established pursuant to Section 2.16 shall not exceed $400,000,000. To achieve
the full amount of a requested increase, and subject to the approval of the Administrative
Agent, the L/C Issuer and the Swing Line Lender (which approvals shall not be unreasonably
withheld), the Borrower may (i) request that one or more Lenders increase their Revolving
Credit Commitment, (ii) invite all Lenders to increase their respective Revolving Credit
Commitment, and/or (iii) invite additional Eligible Assignees to become Revolving Credit
Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(b)
Notification by Administrative Agent; Additional Revolving Credit Lenders. In the
event the Borrower invites all Lenders to increase their respective Revolving Credit
Commitment, then at the time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Revolving Credit
Lender is requested to respond. Each Revolving Credit Lender shall notify the
Administrative Agent within such time period whether or not it agrees to increase its
Revolving Credit Commitment and, if so, whether by an amount equal to, greater than, or less
than its Applicable Revolving Credit Percentage of such requested increase. Any Revolving
Credit Lender not responding within such time period shall be deemed to have declined to
increase its Revolving Credit
Commitment. The Administrative Agent shall notify the Borrower and each Revolving
Credit Lender of the Revolving Credit Lenders’ responses to each request made hereunder.
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(c)
Effective Date and Allocations. If the Revolving Credit Facility Amount is
increased in accordance with this Section, the Administrative Agent and the Borrower shall
determine the effective date (the “Revolving Credit Increase Effective Date”) and the final
allocation of such increase. The Administrative Agent shall promptly notify the Borrower
and the Revolving Credit Lenders of the final allocation of such increase and the Revolving
Credit Increase Effective Date.
(d) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan
Party dated as of the Revolving Credit Increase Effective Date (in sufficient copies for
each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching
the resolutions adopted by such Loan Party approving or consenting to such increase, and
(ii) in the case of the Borrower, certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in Article V and the other Loan
Documents are true and correct on and as of the Revolving Credit Increase Effective Date,
except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date, and except
that for purposes of this Section 2.15, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a), (b), (c) and (d), respectively, of
Section 6.01, and (B) no Default exists. The Borrower shall prepay any Revolving Credit
Loans outstanding on the Revolving Credit Increase Effective Date (and pay any additional
amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding
Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages
arising from any nonratable increase in the Revolving Credit Commitments under this Section.
(e) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.13 or 11.01 to the contrary.
2.16 Incremental Term Facility.
(a) Request for Incremental Term Facility. Provided that there exists no Default, upon
notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrower
may from time to time, request one or more incremental term loan facilities under this
Agreement (each an “Incremental Term Facility”); provided that (i) any such Incremental Term
Facility shall be in a minimum amount of $25,000,000, and (ii) the Aggregate Commitments
after giving effect to all increases of the Revolving Credit Facility Amount under Section
2.15 and all Incremental Term Facilities established under this Section 2.16 shall not
exceed $400,000,000. To achieve the full amount of a requested Incremental Term Facility,
and subject to the approval of the Administrative Agent (which approval shall not be
unreasonably withheld), the Borrower may (i) request that one or more Lenders participate in
such Incremental Term Facility, (ii) invite all Lenders to participate in such Incremental
Term Facility, and/or (iii) invite additional Eligible Assignees to participate in such
Incremental Term Facility.
(b)
Notification by Administrative Agent; Incremental Term Facility Lenders. In the
event the Borrower invites all Lenders to participate in a requested Incremental Term
Facility, then at the time of giving such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is requested to
respond as to whether it elects to participate in the requested Incremental Term Facility.
Each
Lender shall notify the Administrative Agent within such time period whether or not it
agrees to participate in the requested Incremental Term Facility and, if so, the amount of
such participation. Any Lender not responding within such time period shall be deemed to
have declined to participate in such Incremental Term Facility. The Administrative Agent
shall notify the Borrower and each Lender of the Lenders’ responses to each request made
hereunder.
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(c) Effective Date and Allocations. If an Incremental Term Facility is provided in
accordance with this Section, the Administrative Agent and the Borrower shall determine the
effective date (the “Incremental Term Facility Effective Date”) and the final allocation of
such Incremental Term Facility. The Administrative Agent shall promptly notify the Borrower
and the lenders participating in such Incremental Term Facility (the “Incremental Term
Facility Lenders”) of the final allocation of such Incremental Term Facility and the
Incremental Term Facility Effective Date.
(d) Terms of Incremental Term Facilities. Each Incremental Term Facility shall have
such terms and conditions as are not inconsistent herewith and as are set forth in an
amendment or supplement to this Agreement entered into among the Borrower, the Guarantors,
the Incremental Term Facility Lenders that have agreed to participate in such Incremental
Term Facility and the Administrative Agent (but not any of the other Lenders); provided,
however, that (A) each Incremental Term Facility shall rank pari passu in right of payment
and of security with the other Facilities, (B) Loans made under an Incremental Term Facility
shall not mature earlier than the Maturity Date with respect to the Revolving Credit
Facility, (C) each Incremental Term Facility shall be treated substantially the same as (and
in any event, no more favorably than) the Revolving Credit Facility (in each case, including
with respect to mandatory and voluntary prepayments) and (D) each Incremental Term Facility
will accrue interest at rates determined by the Borrower, the applicable Incremental Term
Facility Lenders and the Administrative Agent, which rates may be higher or lower than the
rates applicable to the Revolving Credit Loans.
(e)
Conflicting Provisions. This Section shall supersede any provisions in Section
2.13 or 10.01 to the contrary.
3.01 Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any and all payments by or on account of any obligation of the Borrower or
the Parent hereunder or under any other Loan Document shall to the extent permitted
by applicable Laws be made free and clear of and without reduction or withholding
for any Taxes. If, however, applicable Laws require the Borrower, the Parent or the
Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld or
deducted in accordance with such Laws as determined by the Borrower, the Parent or
the Administrative Agent, as the case may be, upon the basis of the information and
documentation to be delivered pursuant to subsection (e) below.
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(ii) If the Borrower, the Parent or the Administrative Agent shall be required
by the Code to withhold or deduct any Taxes, including both United States Federal
backup withholding and withholding taxes, from any payment, then (A) the
Administrative Agent shall withhold or make such deductions as are determined
by the Administrative Agent to be required based upon the information and
documentation it has received pursuant to subsection (e) below, (B) the
Administrative Agent shall timely pay the full amount withheld or deducted to the
relevant Governmental Authority in accordance with the Code, and (C) to the extent
that the withholding or deduction is made on account of Indemnified Taxes or Other
Taxes, the sum payable by the Borrower or the Parent, as the case may be, shall be
increased as necessary so that after any required withholding or the making of all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, Lender or L/C Issuer, as the case may
be, receives an amount equal to the sum it would have received had no such
withholding or deduction been made.
(b) Payment of Other Taxes by the Borrower and the Parent. Without limiting the
provisions of subsection (a) above, the Borrower and the Parent shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable Law.
(c) Tax Indemnifications.
(i) Without limiting the provisions of subsection (a) or (b) above, the
Borrower and the Parent shall, and do hereby, jointly and severally, indemnify the
Administrative Agent, each Lender and the L/C Issuer, and shall make payment in
respect thereof within 10 days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed
or asserted on or attributable to amounts payable under this Section) withheld or
deducted by the Borrower, the Parent or the Administrative Agent or paid by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. The Borrower
and the Parent shall also, and do hereby, jointly and severally, indemnify the
Administrative Agent, and shall make payment in respect thereof within 10 days after
demand therefor, for any amount which a Lender or the L/C Issuer for any reason
fails to pay indefeasibly to the Administrative Agent as required by clause (ii) of
this subsection. A certificate as to the amount of any such payment or liability
delivered to the Borrower and the Parent by a Lender or the L/C Issuer (with a copy
to the Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.
(ii) Without limiting the provisions of subsection (a) or (b) above, each
Lender and the L/C Issuer shall, and does hereby, indemnify the Borrower, the Parent
and the Administrative Agent, and shall make payment in respect thereof within 10
days after demand therefor, against any and all Taxes and any and all related
losses, claims, liabilities, penalties, interest and expenses (including the fees,
charges and disbursements of any counsel for the Borrower, the Parent or the
Administrative Agent) incurred by or asserted against the Borrower or the
Administrative Agent by any Governmental Authority as a result of the failure by
such Lender or the L/C Issuer, as the case may be, to deliver, or as a result of the
inaccuracy, inadequacy or deficiency of, any documentation required to be delivered
by such Lender or the L/C Issuer, as the case may be, to the Borrower, the Parent or
the Administrative Agent pursuant to subsection (e). Each Lender and the L/C Issuer
hereby authorizes the Administrative Agent to set off and apply any and all amounts
at any time owing to such Lender or the L/C Issuer, as the case
may be, under this Agreement or any other Loan Document against any amount due
to the Administrative Agent under this clause (ii). The agreements in this
clause (ii) shall survive the resignation and/or replacement of the Administrative
Agent, any assignment of rights by, or the replacement of, a Lender or the L/C
Issuer, the termination of the Aggregate Commitments and the repayment, satisfaction
or discharge of all other Obligations.
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(d) Evidence of Payments. Upon request by the Borrower, the Parent or the
Administrative Agent, as the case may be, after any payment of Taxes by the Borrower, the
Parent or the Administrative Agent to a Governmental Authority as provided in this
Section 3.01, the Borrower and the Parent shall each deliver to the Administrative Agent or
the Administrative Agent shall deliver to the Borrower and the Parent, as the case may be,
the original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of any return required by Laws to report such payment or
other evidence of such payment reasonably satisfactory to the Borrower, the Parent or the
Administrative Agent, as the case may be.
(e) Status of Lenders; Tax Documentation.
(i) Each Lender shall deliver to the Borrower, to the Parent and to the
Administrative Agent, at the time or times prescribed by applicable Laws or when
reasonably requested by the Borrower, the Parent or the Administrative Agent, such
properly completed and executed documentation prescribed by applicable Laws or by
the taxing authorities of any jurisdiction and such other reasonably requested
information as will permit the Borrower, the Parent or the Administrative Agent, as
the case may be, to determine (A) whether or not payments made hereunder or under
any other Loan Document are subject to Taxes, (B) if applicable, the required rate
of withholding or deduction, and (C) such Lender’s entitlement to any available
exemption from, or reduction of, applicable Taxes in respect of all payments to be
made to such Lender by the Borrower or the Parent, as the case may be pursuant to
this Agreement or otherwise to establish such Lender’s status for withholding tax
purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if the Borrower or the
Parent, as the case may be is resident for tax purposes in the United States,
(A) any Lender that is a “United States person” within the meaning of
Section 7701(a)(30) of the Code shall deliver to the Borrower, the Parent
and the Administrative Agent executed originals of Internal Revenue Service
Form W-9 or such other documentation or information prescribed by applicable
Laws or reasonably requested by the Borrower, the Parent or the
Administrative Agent as will enable the Borrower, the Parent or the
Administrative Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting
requirements; and
(B) each Foreign Lender that is entitled under the Code or any
applicable treaty to an exemption from or reduction of withholding tax with
respect to payments hereunder or under any other Loan Document shall deliver
to the Borrower, the Parent and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on
which such Foreign Lender becomes a Lender under this Agreement (and from
time to time thereafter upon the request of the Borrower, the Parent or the
Administrative
Agent, but only if such Foreign Lender is legally entitled to do so),
whichever of the following is applicable:
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(1) executed originals of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which
the United States is a party,
(2) executed originals of Internal Revenue Service Form W-8ECI,
(3) executed originals of Internal Revenue Service Form W-8IMY
and all required supporting documentation,
(4) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code,
(x) a certificate to the effect that such Foreign Lender is not (A) a
“bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a
“10 percent shareholder” of the Borrower or the Parent within the
meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Code
and (y) executed originals of Internal Revenue Service Form W-8BEN,
or
(5) executed originals of any other form prescribed by
applicable Laws as a basis for claiming exemption from or a reduction
in United States Federal withholding tax together with such
supplementary documentation as may be prescribed by applicable Laws
to permit the Borrower, the Parent or the Administrative Agent to
determine the withholding or deduction required to be made.
(iii) Each Lender shall promptly (A) notify the Borrower, the Parent and the
Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and (B) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and as
may be reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws of any jurisdiction that the Borrower, the
Parent or the Administrative Agent make any withholding or deduction for taxes from
amounts payable to such Lender.
(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall
the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any
refund of Taxes withheld or deducted from funds paid for the account of such Lender or the
L/C Issuer, as the case may be. If the Administrative Agent, any Lender or the L/C Issuer
determines, in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or the Parent, as the case may be
or with respect to which the Borrower or the Parent, as the case may be has paid additional
amounts pursuant to this Section, it shall pay to the Borrower or the Parent, as the case
may be an amount equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower or the Parent, as the case may be under this
Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses incurred by the Administrative Agent, such Lender or the L/C Issuer,
as the case may be, and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund), provided that the
Borrower or the Parent, as the case may be, upon the request of the Administrative Agent,
such Lender or the L/C Issuer, agrees to repay the amount paid over to the Borrower or the
Parent, as the case may be (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer
in the event the Administrative Agent, such Lender or the L/C Issuer is required to repay
such refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make available its tax
returns (or any other information relating to its taxes that it deems confidential) to the
Borrower, the Parent or any other Person.
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3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on
the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative
Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base
Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of
such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or
converted.
3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof
that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market
for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the instruction of
the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke
any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a Borrowing of Base
Rate Loans in the amount specified therein.
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or credit extended or participated in by, any Lender (except any
reserve requirement contemplated by Section 3.04(e)) or the L/C Issuer;
55
(ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any participation in a Letter
of
Credit or any Eurodollar Rate Loan made by it, or change the basis of taxation
of payments to such Lender or the L/C Issuer in respect thereof (except for
Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or
any change in the rate of, any Excluded Tax payable by such Lender or the L/C
Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London interbank market any
other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or
the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s
capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by
the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s
or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s or the L/C Issuer’s policies and the policies of such
Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from
time to time the Borrower will pay to such Lender or the L/C Issuer, as the case may be,
such additional amount or amounts as will compensate such Lender or the L/C Issuer or such
Lender’s or the L/C Issuer’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or
its holding company, as the case may be, as specified in subsection (a) or (b) of this
Section and delivered to the Borrower shall be conclusive absent manifest error. The
Borrower shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as
due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to
demand compensation pursuant to the foregoing provisions of this Section shall not
constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation,
provided that the Borrower shall not be required to compensate a Lender or the L/C Issuer
pursuant to the foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than nine months prior to the date that such Lender or the L/C
Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the nine-month period referred to above shall be extended
to include the period of retroactive effect thereof).
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(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, as long
as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate
Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as
determined by such Lender in good faith, which determination shall be conclusive), which
shall be due and payable on each date on which interest is payable on such Loan, provided
the Borrower shall have received at least 10 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest from such Lender. If a Lender fails to
give notice 10 days prior to the relevant Interest Payment Date, such additional interest
shall be due and payable 10 days from receipt of such notice.
3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on
the date or in the amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13;
including any loss or expense arising from the liquidation or reemployment of funds obtained by it
to maintain such Loan or from fees payable to terminate the deposits from which such funds were
obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in
connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05,
each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar
Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar
market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate
Loan was in fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender,
the L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C
Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02,
then such Lender or the L/C Issuer shall, as applicable, use reasonable efforts to designate
a different Lending Office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender or the L/C Issuer, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in
the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable,
and (ii) in each case, would not subject such Lender or the L/C Issuer, as the case may be,
to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or
the L/C Issuer in connection with any such designation or assignment.
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(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or
if the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, the Borrower may replace
such Lender in accordance with Section 11.13.
3.07 Survival. All of the Borrower’s obligations under this Article III shall survive termination
of the Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of the
Administrative Agent.
4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to
make its initial Credit Extension hereunder is subject to satisfaction of the following conditions
precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be
originals, telecopies, faxes or scanned pdf files (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the signing Loan
Party, each dated the Closing Date (or, in the case of certificates of governmental
officials, a recent date before the Closing Date) and each in form and substance reasonably
satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) the Collateral Documents, executed by the Loan Parties party thereto in
appropriate form for recording, where necessary, together with such evidence that
such reasonable actions as are necessary or, in the opinion of the Administrative
Agent or the Required Lenders, desirable to perfect the Administrative Agent’s Liens
in the Collateral, have been taken or arrangements therefor satisfactory to the
Administrative Agent have been made;
(iv) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may reasonably require evidencing the identity, authority and
capacity of each Responsible Officer thereof authorized to act as a Responsible
Officer in connection with this Agreement and the other Loan Documents to which such
Loan Party is a party or is to be a party;
(v) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or formed, and
that each Loan Party is validly existing, in good standing and qualified to engage
in business in its jurisdiction of organization;
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(vi) (A) a favorable opinion of Weil, Gotshal & Xxxxxx LLP, counsel to the Loan
Parties, addressed to the Administrative Agent and each Lender, as to the matters
set forth in Exhibit H, and (B) local counsel opinions relating to real property
Collateral;
(vii) a certificate of a Responsible Officer of each Loan Party either
(A) attaching copies of all consents, licenses and approvals required in connection
with the execution, delivery and performance by such Loan Party and the validity
against such Loan Party of the Loan Documents to which it is a party, and such
consents, licenses and approvals shall be in full force and effect, or (B) stating
that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying
(A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied,
and (B) that there has been no event or circumstance since the date of the Audited
Financial Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect;
(ix) a duly completed Compliance Certificate as of the last day of the fiscal
quarter of the Parent and the Borrower ended March 28, 2009, signed by the chief
executive officer, chief financial officer, treasurer or controller of the Parent;
(x) (A) a survey of the New Jersey Headquarters, the Elk Grove Facility and the
Oregon Tank Farm, and (B) mortgagee title insurance policies (with customary
endorsements) covering each of the Elk Grove Facility and the Oregon Tank Farm (a
mortgagee title insurance policy covering the New Jersey Headquarters shall not be
required);
(xi) A certificate of the Borrower confirming that (A) all insurance required
to be maintained pursuant to the Loan Documents has been obtained and is in effect,
(B) there are no past due premiums in respect of any such insurance, and (C)
attached thereto are the certificates of insurance, naming the Administrative Agent,
on behalf of the Secured Parties, as an additional insured or loss payee, as the
case may be, under all insurance policies maintained with respect to the assets and
properties of the Loan Parties that constitute Collateral;
(xii) copies of environmental reports, if any, previously prepared for the
Borrower with respect to the New Jersey Headquarters, the Elk Grove Facility, and
the Oregon Tank Farm;
(xiii) a certificate of a Responsible Officer of the Borrower certifying that
the commitments to extend credit under the Existing
Credit Agreement have been, or
concurrently with the Closing Date are being, terminated, all indebtedness or other
obligations then due under the Existing
Credit Agreement have been, or concurrently
with the Closing Date are being, repaid, and no letters of credit will remain
outstanding under the Existing
Credit Agreement;
(xiv) a certificate of a Responsible Officer of the Borrower certifying that
the Borrower Partnership Agreement as in effect on the Closing Date has been amended
to include provisions (A) permitting the pledge of the general and limited
partnership interests of the Borrower as Collateral, (B) providing for the right to
enforce such Lien and acquire or transfer such limited and general partnership
interests (and in connection
with such enforcement, be admitted, or have such transferee be admitted, as a
substitute limited partner or general partner, as applicable, without the consent of
the Board of Supervisors of the Borrower or any other person or entity), and (C) as
may be necessary to effectuate the foregoing; and
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(xv) such other assurances, certificates or documents as the Administrative
Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) (i) All fees required to be paid to the Administrative Agent and the Arranger on or
before the Closing Date shall have been paid and (ii) all fees required to be paid to the
Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees,
charges and disbursements of counsel (including local counsel) to the Administrative Agent
(directly to such counsel if requested by the Administrative Agent) to the extent invoiced
prior to the Closing Date, plus such additional amounts of such fees, charges and
disbursements as shall constitute its reasonable estimate of such fees, charges and
disbursements incurred or to be incurred by it through the closing proceedings (provided
that such estimate shall not thereafter preclude a final settling of accounts between the
Borrower and the Administrative Agent or such counsel).
(d) The Closing Date shall have occurred on or before July 31, 2009.
(e) The conditions precedent set forth in Section 4.02 shall have been satisfied.
Without limiting the generality of the provisions of the last paragraph of Section 9.03, for
purposes of determining compliance with the conditions specified in this Section 4.01, each Lender
that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for
Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the
other Type, or a continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of the Borrower and each other Loan Party
contained in Article V or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be true and
correct on and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they
shall be true and correct as of such earlier date, and except that for purposes of this
Section 4.02, the representations and warranties contained in Sections 5.05(a) and (b) shall
be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a),
(b), (c) and (d), respectively.
(b) No Default shall exist, or would result from such proposed Credit Extension or from
the application of the proceeds thereof.
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(c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line
Lender shall have received a Request for Credit Extension in accordance with the
requirements hereof.
Each Request for Credit Extension submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.
Each of the Parent and the Borrower represents and warrants to the Administrative Agent and
the Lenders that:
5.01 Existence, Qualification and Power. Each Loan Party and each of its Subsidiaries (a) is duly
organized or formed, validly existing and, as applicable, in good standing under the Laws of the
jurisdiction of its incorporation or organization (other than the Inactive Subsidiaries and the
Agway Subsidiaries), (b) has all requisite power and authority and all requisite governmental
licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its
business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it
is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under
the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct
of its business requires such qualification or license; except in each case referred to in
clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have
a Material Adverse Effect.
5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party
of each Loan Document to which such Person is or is to be a party have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents (after giving effect to the amendment to the
Borrower’s Partnership Agreement referenced in Section 4.01(a)(xiv)); (b) conflict with or result
in any breach or contravention of, or the creation of any Lien under, or require any payment to be
made under (i) any Contractual Obligation to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or
decree of any Governmental Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law.
5.03 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization,
or other action by, or notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with (a) the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan Document, (b) the grant by
any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection
or maintenance of the Liens created under the Collateral Documents (including the first priority
nature thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under
the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral
Documents.
5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and
remedies generally.
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5.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present the financial condition of the Parent and its
Subsidiaries as of the date thereof and their results of operations for the period covered
thereby in accordance with GAAP consistently applied in all material respects throughout the
period covered thereby, except as otherwise expressly noted therein; and (iii) show all
material indebtedness and other liabilities, direct or contingent, of the Parent and its
Subsidiaries as of the date thereof, including liabilities for taxes, material commitments
and Indebtedness.
(b) The Unaudited Financial Statements (i) were prepared in accordance with GAAP
consistently applied in all material respects throughout the period covered thereby, except
as otherwise expressly noted therein, and (ii) fairly present the financial condition of the
Borrower (or Parent, as applicable) and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments.
(c) Since the date of each of the Audited Financial Statements, there has been no event
or circumstance, either individually or in the aggregate, that has had or could reasonably
be expected to have a Material Adverse Effect.
(d) The consolidated forecasted balance sheet, statements of income and cash flows of
the Parent and its Subsidiaries delivered pursuant to Section 4.01 or Section 6.01(d) were
prepared in good faith on the basis of the assumptions stated therein, which assumptions
were fair in light of the conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Parent’s best estimate of its future financial
condition and performance.
5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the General Partner, the Parent or the Borrower after due and diligent investigation,
threatened, at law, in equity, in arbitration or before any Governmental Authority, by or against
any Loan Party or any of their respective Subsidiaries or against any of their respective
properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan
Document, or (b) either individually or in the aggregate, if determined adversely, after giving
effect to any insurance coverage, could reasonably be expected to have a Material Adverse Effect.
5.07 No Default. Neither any Loan Party nor any Subsidiary thereof is in default under or with
respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.
5.08 Ownership of Property; Liens. Each Loan Party and each of its Subsidiaries has good record
and marketable title in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of each Loan Party and each of its Subsidiaries is subject to no Liens, other than Liens
permitted by Section 7.01.
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5.09 Environmental Compliance.
(a) The Loan Parties and their respective Subsidiaries, and the operations conducted by
each of them, are in compliance with Environmental Laws except to the extent that
noncompliance could not reasonably be expected to have a Material Adverse Effect. The
Loan Parties and their respective Subsidiaries conduct in the ordinary course of business a
review of the effect of existing Environmental Laws and claims alleging potential liability
or responsibility for violation of any Environmental Law or for any Release of Hazardous
Materials on their respective businesses, operations and properties, and as a result
thereof, neither the Parent nor the Borrower has reasonably concluded that such
Environmental Laws and claims could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(b) There has been no Release or threatened Release of Hazardous Materials on, at,
under, to or from any property currently or, to the best of the knowledge of the Loan
Parties, formerly owned or operated by any Loan Party or any of its Subsidiaries during the
term of such party’s ownership or operation, except for such Releases or threatened Releases
which, individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect, and as of the Closing Date would not reasonably be expected to have a
material adverse effect on the value of the real property Collateral taken as whole.
(c) All Hazardous Materials generated, used, treated, handled or stored at, or
transported by any Loan Party or any of its Subsidiaries have been disposed of at off-site
locations in a manner not reasonably expected to result in a Material Adverse Effect, and as
of the Closing Date not reasonably expected to result in a material adverse effect on the
value of the real property Collateral taken as whole.
(d) There are no pending or, to the knowledge of the Borrower, threatened claims of
Environmental Liability against any Loan Party or any of its Subsidiaries or relating to any
property currently or, to the best of the knowledge of the Loan Parties, formerly owned or
operated by any Loan Party or any of its Subsidiaries, and there exists no reasonable basis
for the assertion of such Environmental Liability; and there are no pending or, to the
knowledge of the Borrower, threatened investigations concerning the presence or Release of
Hazardous Materials relating to any property currently or, to the knowledge of the Loan
Parties, formerly owned or operated by any Loan Party or any of its Subsidiaries, except for
such claims, assertions, investigations of Environmental Liability that would not
individually or in the aggregate reasonably be expected to have a Material Adverse Effect,
and as of the Closing Date would not individually or in the aggregate reasonably be expected
to have a material adverse effect on the value of the real property Collateral taken as
whole.
(e) No action has been taken pursuant to the provisions of Sections 25220 through 25241
of the California Health and Safety Code to designate the Elk Grove Facility or any other
real property owned or operated by the Loan Parties or any of their respective Subsidiaries
in the State of California as a hazardous waste property or border zone property or
otherwise to materially and adversely restrict the land use of the Elk Grove Facility or any
other real property material to the operation of the Business owned by the Loan Parties or
any of their respective Subsidiaries in the State of California (including through a
moratorium on new land uses), nor do the Loan Parties or any of their respective
Subsidiaries have actual knowledge of any condition which would reasonably be expected to
give rise to such designation or other material or adverse restriction.
5.10 Insurance. The properties of the Loan Parties and their respective Subsidiaries are insured
with financially sound and reputable insurance companies not Affiliates of a Loan Party, in such
amounts, with such deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where the applicable Loan
Party or Subsidiary operates.
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5.11 Taxes. Each Loan Party and each of their respective Subsidiaries have filed all Federal,
state income and other material tax returns required to be filed by it, and have paid all Federal,
state and other material Taxes to the same extent as that required by Section 6.04. There is no
proposed tax assessment against any Loan Party or any Subsidiary that would, if made, have a
Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to any tax
sharing agreement with any Person other than the Borrower or any other Subsidiary of the Parent.
5.12 ERISA Compliance.
(a) Except as would not reasonably be expected to result in a Material Adverse Effect,
each Plan is in compliance with the applicable provisions of ERISA, the Code and other
Federal or state Laws. As of the Closing Date, each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto
and, to the best knowledge of the General Partner, the Parent and the Borrower, nothing has
occurred which would prevent, or cause the loss of, such qualification. The Borrower and
each ERISA Affiliate have made all required contributions to each Pension Plan subject to
Section 412 of the Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with respect to any
Pension Plan.
(b) There are no pending or, to the best knowledge of the Parent and the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary responsibility rules
with respect to any Plan that has resulted or could reasonably be expected to result in a
Material Adverse Effect.
(c) Except as would not reasonably be expected to result in a Material Adverse Effect
(i) no ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has
any Unfunded Pension Liability; (iii) neither the General Partner, the Parent, the Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than premiums due and not
delinquent under Section 4007 of ERISA); (iv) neither the General Partner, the Parent, the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219 of ERISA,
would result in such liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the General Partner, the Parent, the Borrower nor any
ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or
4212(c) of ERISA.
5.13 Subsidiaries; Equity Interests; Loan Parties.
(a) As of the Closing Date, no Loan Party has any Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding Equity
Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable
and are owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.13 free and
clear of all Liens except those created under the Collateral Documents. No Loan Party has
any equity investments in any other corporation or entity other than those specifically
disclosed in Part (b) of Schedule 5.13.
(b) The sole general partner of the Parent is the General Partner and the sole general
partner of the Borrower is the General Partner.
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(c) The General Partner’s general partnership interests in the Parent and in the
Borrower, respectively, do not give the holder of such interests any economic right in
either the Parent or the Borrower. The only limited partners of the Borrower are (i) the
Parent, which owns a 99.9% limited partner interest in the Borrower, and (ii) Suburban LP
Holding, LLC, a Delaware limited liability company (“Suburban Holding”), which owns a 0.1%
limited partner interest in the Borrower. The only Persons owning partnership interests in
the Borrower are the General Partner, the Parent and Suburban Holding.
5.14 Margin Regulations; Investment Company Act.
(a) No Loan Party is engaged and no Loan Party will engage, principally or as one of
its important activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock. Neither the MLP, the Borrower nor any of their
respective Subsidiaries own margin stock.
(b) No Loan Party, no Person Controlling any Loan Party, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment Company Act of
1940.
5.15 Disclosure. The Parent and the Borrower have each disclosed to the Administrative Agent and
the Lenders all agreements, instruments and corporate or other restrictions to which it or any of
its Subsidiaries or any other Loan Party is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect. No report, financial statement, certificate or other information furnished (whether in
writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case as modified or supplemented by
other information so furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that, with respect to projected financial
information, each of the Parent and the Borrower represents only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time.
5.16 Compliance with Laws. Each Loan Party and each Subsidiary thereof is in compliance in all
material respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.
5.17 Intellectual Property; Licenses, Etc. Each Loan Party and each of its Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person. To the best knowledge of the Parent and the
Borrower, no slogan or other advertising device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed, by any Loan Party or any of its
Subsidiaries infringes upon any rights held by any other Person. No claim or litigation regarding
any of the foregoing is pending or, to the best knowledge of the General Partner, the Parent, and
the Borrower, threatened, which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
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5.18 Solvency. The Parent and the Borrower are each, individually and together with its
Subsidiaries on a consolidated basis, Solvent.
5.19 Casualty, Etc. Neither the businesses nor the properties of any Loan Party or any of its
Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance) that, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
5.20 Labor Matters. No Loan Party nor any Subsidiary thereof has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five years that, either
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
5.21 Collateral Documents. The provisions of the Collateral Documents are effective to create in
favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid and
enforceable first priority Lien (subject to Liens permitted by Section 7.01) on all right, title
and interest of the respective Loan Parties in the Collateral described therein. Except for
filings completed prior to the Closing Date and as contemplated hereby and by the Collateral
Documents, no filing or other action will be necessary to perfect or protect such Liens.
5.22 Agreements. No Loan Party nor any of their respective Subsidiaries is a party to any
agreement or instrument or subject to any restriction in its partnership or other organizational
documents (after giving effect to the amendment to the Borrower’s Partnership Agreement referenced
in Section 4.01(a)(xiv)) that (i) will have the effect of prohibiting or restraining, or will
impose adverse conditions upon, any of the transactions contemplated hereby or the payment of
dividends or the making of any loans, investments or transfers by any Subsidiary to or in the
Borrower or (ii) has resulted or could reasonably be expected to result in a Material Adverse
Effect.
5.23 Burdensome Provisions. No Loan Party nor any Subsidiary thereof is subject to any
Governmental Approval or Applicable Law which is so unusual or burdensome as in the foreseeable
future could be reasonably expected to have a Material Adverse Effect. The Loan Parties and their
respective Subsidiaries do not presently anticipate that future expenditures needed to meet the
provisions of any statutes, orders, rules or regulations of a Governmental Authority will be so
burdensome as to have a Material Adverse Effect.
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
each of the Parent and the Borrower shall, and shall (except in the case of the covenants set forth
in Sections 6.01, 6.02, 6.03, and 6.11) cause each Subsidiary to:
6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in form
and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the end of each fiscal
year of the Parent, a consolidated balance sheet of the Parent and its Subsidiaries as at
the end of such fiscal year, and the related consolidated statements of operations, changes
in partners’ capital, and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with
GAAP, audited and accompanied by a report and opinion of an independent certified
public accountant of nationally recognized standing, which report and opinion shall be
prepared in accordance with the standards of the Public Company Accounting Oversight Board
and shall not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit;
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(b) as soon as available, but in any event within 90 days after the end of each fiscal
year of Borrower, a consolidated balance sheet of Borrower and its Subsidiaries as at the
end of such fiscal year, and the related consolidated statements of operations, changes in
partners’ capital, and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, certified by the chief executive officer, chief financial
officer, treasurer or controller of Borrower as fairly presenting the financial condition,
results of operations, partners’ capital and cash flows of Borrower and its Subsidiaries in
accordance with GAAP;
(c) as soon as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of the Parent (commencing with the fiscal
quarter ended June 27, 2009), a consolidated balance sheet of the Parent and its
Subsidiaries as at the end of such fiscal quarter, setting forth in comparative form the
figures as at the end of the previous fiscal year, and the related consolidated statements
of operations for such fiscal quarter, and statements of operations, changes in partners’
capital and cash flows for the portion of the Parent’s fiscal year then ended, setting forth
in each case in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year, if applicable, and the corresponding portion of the previous fiscal
year, if applicable, all in reasonable detail, certified by the chief executive officer,
chief financial officer, treasurer or controller of the Parent as fairly presenting the
financial condition, results of operations, partners’ capital and cash flows of the Parent
and its Subsidiaries in accordance with GAAP, subject only to normal year-end adjustments
and the absence of footnotes;
(d) as soon as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal
quarter ended June 27, 2009), a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter, setting forth in comparative form the
figures as at the end of the previous fiscal year, and the related consolidated statements
of operations for such fiscal quarter, and statements of operations, changes in partners’
capital and cash flows for the portion of Borrower’s fiscal year then ended, setting forth
in each case in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year, if applicable, and the corresponding portion of the previous fiscal
year, if applicable, all in reasonable detail, certified by the chief executive officer,
chief financial officer, treasurer or controller of the Borrower as fairly presenting the
financial condition, results of operations, partners’ capital and cash flows of the Borrower
and its Subsidiaries in accordance with GAAP, subject only to normal year-end adjustments
and the absence of footnotes; and
(e) as soon as available, but in any event at least 45 days after the end of each
fiscal year of the Parent, an annual budget of the Parent and its Subsidiaries on a
consolidated basis, including forecasts prepared by management of the Parent of consolidated
balance sheets and statements of operations and cash flows of the Parent and its
Subsidiaries on a quarterly basis for the immediately following fiscal year.
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6.02 Certificates; Other Information. Deliver to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a), (b), (c) and (d) (commencing with the delivery of the financial statements
for the fiscal quarter ended June 27, 2009), a duly completed Compliance Certificate signed
by the chief executive officer, chief financial officer, treasurer or controller of the
Parent;
(b) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to any Loan Party,
the Board of Supervisors of the Parent or the Borrower, or the board of directors (or the
audit committee of the board of directors) of any other Loan Party by independent
accountants in connection with the accounts or books of any Loan Party or any of its
Subsidiaries, or any audit of any of them;
(c) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the holders of Common Units of
the Parent, and copies of all annual, regular, periodic and special reports and registration
statements which any Loan Party or any Subsidiary files with the SEC under Section 13 or
15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and
in any case not otherwise required to be delivered to the Administrative Agent pursuant
hereto;
(d) promptly after the furnishing thereof, copies of any statement or report furnished
to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to
the terms of any indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this
Section 6.02;
(e) concurrently with the delivery of the Compliance Certificate delivered in
connection with the annual financial statement pursuant to Section 6.01(a), a report
summarizing the insurance coverage (specifying type, amount and carrier) in effect for each
Loan Party and its Subsidiaries and containing such additional information as the
Administrative Agent, or any Lender through the Administrative Agent, may reasonably
specify;
(f) promptly, and in any event within five Business Days after receipt thereof by any
Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received
from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any
investigation or possible investigation or other inquiry by such agency regarding financial
or other operational results of any Loan Party or any Subsidiary thereof;
(g) promptly after the assertion or occurrence thereof, notice of any action,
proceeding or threatened action or proceeding against or of any noncompliance by any Loan
Party or any of its Subsidiaries with or relating to any Environmental Law, Environmental
Permit or Hazardous Materials that could reasonably be expected to have a Material Adverse
Effect or a material adverse effect on the value of the real property Collateral taken as a
whole.
(h) promptly, such additional information regarding the business, financial, legal or
corporate affairs of any Loan Party or any Subsidiary thereof, or compliance with the terms
of the Loan Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.
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Documents required to be delivered pursuant to Sections 6.01(a) or (c) or Section 6.02(c) (to
the extent any such documents are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to have been delivered on the date
(i) on which the Parent posts such documents, or provides a link thereto on the Parent’s website on
the Internet at the
website address listed on Schedule 11.02; or (ii) on which such documents are posted on the
Parent’s behalf on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that: the Parent shall notify the Administrative Agent (by fax
or electronic mail) of the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Parent shall be required to provide paper copies
of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Except for
such Compliance Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Parent with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.
Each of the Parent and the Borrower hereby acknowledges that (a) the Administrative Agent
and/or the Arranger will make available to the Lenders and the L/C Issuer materials and/or
information provided by or on behalf of the Parent or the Borrower hereunder (collectively,
“Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel
who do not wish to receive material non-public information with respect to the Parent, the Borrower
or their respective Affiliates, or the respective securities of any of the foregoing, and who may
be engaged in investment and other market-related activities with respect to such Persons’
securities. Each of the Parent and the Borrower hereby agrees that it will use commercially
reasonable efforts to identify that portion of the Borrower Materials that may be distributed to
the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on
the first page thereof; (x) by marking Borrower Materials “PUBLIC,” each of the Parent and the
Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer
and the Lenders to treat such Borrower Materials as not containing any material non-public
information (although it may be sensitive and proprietary) with respect to the Parent, the Borrower
or their respective securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute Information, they shall
be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted
to be made available through a portion of the Platform designated “Public Side Information;” and
(z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials
that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Side Information.”
6.03 Notices. Promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or any default under, a
Contractual Obligation of any Loan Party or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between any Loan Party or any Subsidiary thereof and
any Governmental Authority; or (iii) the commencement of, or any material development in,
any litigation or proceeding affecting any Loan Party or any Subsidiary thereof, including
pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event that could reasonably be expected to result in
a Material Adverse Effect;
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(d) of any material change in accounting policies or financial reporting practices by
any Loan Party or any Subsidiary thereof, including any determination by the Parent referred
to in Section 2.10(b); and
(e) of the (i) occurrence of any Disposition of property or assets for which the
Borrower is required to make a mandatory prepayment pursuant to Section 2.05(b)(i), and
(ii) receipt of any Extraordinary Receipt for which the Borrower is required to make a
mandatory prepayment pursuant to Section 2.05(b)(ii).
Each notice pursuant to Section 6.03 (other than Section 6.03(e)) shall be accompanied by a
statement of a Responsible Officer of the Parent setting forth details of the occurrence referred
to therein and stating what action the Parent or such Subsidiary, as applicable, has taken and
proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan Document that have been
breached.
6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all its
obligations and liabilities, including (a) all Taxes upon it or its properties or assets, unless
the same are either (i) being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained by the applicable Loan
Party or Subsidiary or (ii) the non-payment of which would not give rise to a Lien on any property
or assets of any Loan Party or any Subsidiary thereof (except as permitted under Section 7.01(c))
and could not reasonably be expected to have a Material Adverse Effect; (b) all lawful claims
which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and
when due and payable, but subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.
6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its
legal existence and good standing under the Laws of the jurisdiction of its organization except in
a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect; and (c) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation
and maintenance of its facilities.
6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance companies
not Affiliates of a Loan Party or a Subsidiary, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts (after giving effect to any
self-insurance compatible with the following standards) as are customarily carried under similar
circumstances by such other Persons and providing for not less than 30 days’ prior notice to the
Administrative Agent of termination, lapse or cancellation of such insurance.
6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its business or property, except
in such instances in which (a) such requirement of Law or order, writ, injunction or decree is
being
contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to
comply therewith could not reasonably be expected to have a Material Adverse Effect.
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6.09 Books and Records. Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving its assets and business; and maintain such books of record and
account in material conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over it.
6.10 Inspection. Permit representatives and independent contractors of the Administrative
Agent and each Lender to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent public accountants,
all at the expense of the Borrower and at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the applicable Loan Party or
Subsidiary; provided, however, that when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time during normal business hours and without
advance notice.
6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for working capital, Capital
Expenditures, Permitted Acquisitions, to repay outstanding Indebtedness under the Existing Credit
Agreement, to make payments in respect of the Parent Notes as permitted by Section 7.14, and for
other general corporate purposes, in each case, not in contravention of any Law or of any Loan
Document.
6.12 Covenant to Guarantee Obligations and Give Security.
(a) Notify the Administrative Agent at the time that any Person becomes a Subsidiary
after the date of this Agreement, and
(i) within 30 days after such Person becomes a Subsidiary, cause such
Subsidiary to become a Guarantor by executing and delivering to the Administrative
Agent a Guaranty or such other document as the Administrative Agent shall deem
appropriate for such purpose; provided, however, that a Controlled Foreign
Corporation shall not be required to become a Guarantor for so long as the Internal
Revenue Code would impose adverse Tax consequences for such Guarantee,
(ii) within 30 days after such Person becomes a Subsidiary, execute and deliver
to the Administrative Agent a Security Agreement, deeds of trust or mortgages
covering any real property on which a Lien is required pursuant to this Section
6.12, and such financing statements and other documents and instruments related
thereto as the Administrative Agent may require in order to perfect such Liens, and
(iii) within 30 days after such Person becomes a Subsidiary, deliver to the
Administrative Agent such documents of the types referred to in Sections 4.01(a)(iv)
and (a)(v) and such opinions (including opinions as to the legality, validity,
binding effect and enforceability of such documentation) of the general counsel of
the Borrower (and to the extent applicable, local counsel if such Subsidiary is a
Foreign Subsidiary or if real property Collateral is involved) as the Administrative
Agent requires, all in form, content and scope reasonably satisfactory to the
Administrative Agent.
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(b) Cause (i) all present and future Equity Interests in the Borrower and each of the
present and future Subsidiaries of the Parent and the Borrower (other than the 10% ownership
interest in Suburban Plumbing New Jersey LLC that is shown on Schedule 5.13 as being owned
by an individual and the Equity Interests in the Inactive Subsidiaries for so long as the
Inactive Subsidiaries remain the process of dissolution), and (ii) all material real
property and personal property and assets of the Parent, the Borrower, and each of the
present and future Subsidiaries of the Parent and the Borrower (other than the Agway
Subsidiaries and the Inactive Subsidiaries) to be subject at all times to perfected Liens in
favor of the Administrative Agent to secure the Obligations pursuant to the terms and
conditions of Collateral Documents as the Administrative Agent shall reasonably request;
provided, however, Liens shall not be required on Equity Interests of a Controlled Foreign
Corporation in excess of 65% of the voting power of all classes of Equity Interests of such
Controlled Foreign Corporation entitled to vote for so long as the Internal Revenue Code
would impose adverse Tax consequences to a pledge in excess of such amount; and provided
further that with respect to real property, mortgages, surveys and title policies will be
required only on the New Jersey Headquarters, the Elk Grove Facility and the Oregon Tank
Farm and any other real property having a book value in excess of $5,000,000; and provided
further that with respect to fleet assets (trucks, rail cars and similar collateral for
which perfection of liens would require taking possession of, or noting liens on,
certificates of title), liens on such assets need not be perfected for so long as the
aggregate book value of such assets is less than $20,000,000, and if the aggregate book
value of such assets equals or exceeds such amount, such liens shall be perfected.
(c) In furtherance of the foregoing provisions of this Section 6.12, in connection with
(i) property of a Loan Party owned on the Closing Date for which a Lien on such property is
not required by Section 6.12(b) prior to the Closing Date, and (ii) property that becomes
property owned by a Loan Party after the Closing Date for which a Lien on such property is
required by Section 6.12(b), the Parent and the Borrower shall deliver and shall cause each
applicable Loan Party to deliver (A) such documentation as the Administrative Agent may
reasonably deem necessary or desirable in order to create and perfect and obtain the full
benefits of such Lien, including mortgages, deeds of trust, security agreements, UCC-1
financing statements, surveys, real estate title insurance policies, landlord’s waivers,
certified resolutions and other organizational and authorizing documents of the grantor of
liens, favorable opinions of the general counsel of the Borrower (and to the extent
applicable, local counsel if such Subsidiary is a Foreign Subsidiary or if real property
Collateral is involved) (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to above and the perfection
of the Administrative Agent’s Liens thereunder) and other items of the types required to be
delivered pursuant to Section 4.01, all in form, content and scope reasonably satisfactory
to the Administrative Agent, and (B) such other documentation as the Required Lenders may
reasonably deem necessary or desirable in order to create and perfect and obtain the full
benefits of such Lien, including environmental reports and appraisals.
(d) Use its best efforts (without the obligation to pay money) to deliver landlord
waivers, access agreements and other third party consents and agreements requested by the
Administrative Agent, in form and substance reasonably satisfactory to the Administrative
Agent, with respect to Collateral located at the underground storage facility leased by the
Borrower in Xxxxxx, South Carolina, and use commercially reasonable efforts to deliver such
documents with respect to any other facility, pipeline or location where inventory of a Loan
Party is located, if the volume of product located there is 500,000 gallons, or more (or if
inventory is of a type not measured by gallons in an equivalent amount).
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(e) In the case of assets or properties, this Agreement and the other Loan Documents
shall not require the creation or perfection of Liens in particular properties or assets if
and for so long as, in the reasonable judgment of the Administrative Agent, the cost of
creating or perfecting such Liens in such property shall be excessive in view of the
benefits to be obtained by the Lenders therefrom.
(f) The Administrative Agent may grant extensions of time for the creation and
perfection of Liens in particular assets or property where it determines, in consultation
with the Borrower, that such action cannot be accomplished without undue effort or expense
by the time or times at which it would otherwise be required by this Agreement or the other
Loan Documents.
6.13 Compliance with Environmental Laws.
(a) Comply, and cause all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable Environmental Laws and
Environmental Permits except in such instances where (i) such failure to comply is being
contested in good faith by appropriate proceedings diligently conducted or (ii) such failure
to comply could not reasonably be expected to have a Material Adverse Effect.
(b) Obtain and renew all Environmental Permits necessary for its operations and
properties, except to the extent that such failure to obtain or renew could not reasonably
be expected to have a Material Adverse Effect.
(c) With respect to a Release or threatened Release of Hazardous Materials on, at, to
or from real property owned or operated by a Loan Party or any Subsidiary thereof, (other
than a Release or threatened Release which could not reasonably be expected to have a
Material Adverse Effect or a material adverse effect on the value of the real property
Collateral taken as a whole), conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action as required by Environmental Law
and if such real property constitutes Collateral, take such other action as is necessary to
have the use and benefit of such property as contemplated by the Loan Documents provided,
however, that neither any Loan Party nor any of their respective Subsidiaries shall be
required to undertake any such cleanup, removal, remedial or other action to the extent that
its obligation to do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such circumstances in accordance
with GAAP.
6.14 Preparation of Environmental Assessments.
(a) If (i) a Default caused by reason of a breach of Sections 5.09 or 6.13 has occurred
and is continuing, (ii) the Required Lenders reasonably believe that the presence of
Hazardous Materials on or about any real property constituting Collateral could reasonably
be expected to have a Material Adverse Effect or a material adverse effect on the value of
the real property Collateral taken as a whole, (iii) a claim of Environmental Liability is
made or threatened with respect to any real property Collateral that could reasonably be
expected to have a Material Adverse Effect or a material adverse effect on the value of the
real property Collateral taken as a whole, or (iv) if any Loan Party or any of its
Subsidiaries acquires property after the Closing Date on which a Lien is required to be
granted to secure the Obligations, then in the case of clause (iv), provide to the
Administrative Agent and the Lenders not less than twenty (20) days prior to the acquisition
thereof (or such lesser number of days as shall be acceptable to the Administrative Agent),
and in the case of clauses (i), (ii) and (iii), then at the request of the Required Lenders,
provide to the Lenders within 60 days after such request, in each
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instance
at the expense of the Borrower, (1) a current Environmental Assessment for each of the
properties described in such request (which shall be limited to the properties being
acquired or which are the subject of such Default, concern or claim), and (2) in the case of
clauses (i), (ii) and (iii), an explanation of the Borrower’s (or other Loan Party’s) plans
to remedy such Default or other material effect. Each of the Parent and the Borrower shall,
and shall cause each Subsidiary (other than an Inactive Subsidiary or an Agway Subsidiary)
to, cooperate with each consulting firm making any such Environmental Assessment and supply
to any such consulting firm, from time to time and promptly on request, all non-privileged
information in their custody or control to facilitate the completion of the applicable
Environmental Assessment. In the case of clauses (i), (ii) and (iii) above, if the Borrower
fails to deliver to the Administrative Agent a copy of any requested Environmental
Assessment within sixty (60) days, of the Required Lenders’ request, the Administrative
Agent may, with respect to either such failure, cause such requested Environmental
Assessment to be made at the Borrower’s expense and risk, and in connection therewith, the
Parent and the Borrower each hereby grants, and agrees to cause any Subsidiary (other than
an Inactive Subsidiary or an Agway Subsidiary) that owns any applicable real property to
grant, to the Administrative Agent and its designees, subject to the rights of tenants, (A)
access to the applicable real properties at any reasonable time or times, upon reasonable
written notice, and (B) a non-exclusive license which is coupled with an interest and
irrevocable, to make or cause to be made any such requested Environmental Assessments.
Without limiting the generality of the foregoing, with respect to the real property
Collateral located in the State of California, each of the Parent and the Borrower agree
that the Administrative Agent and its designees shall have the same right, power and
authority to enter and inspect such real property as is granted to the secured lender under
Section 2929.5 of the California Civil Code, and that Administrative Agent shall have the
right to appoint a receiver to enter and inspect such real property to the extent such
authority is provided under applicable law, including the authority given to the secured
lender under Section 564(c) of the California Code of Civil Procedure; provided,
Administrative Agent shall not exercise such rights unless clause (i), (ii) or (iii) is
triggered.
(b) Each of the Parent and the Borrower acknowledges and agrees for itself and on
behalf of its respective Subsidiaries that (i) the Administrative Agent and the Lenders
shall be under no duty to make any Environmental Assessment, and in no event shall any such
Environmental Assessment give rise to a representation that any Hazardous Material is or is
not present, or that there has been or shall be compliance with any Environmental Law, nor
shall any of the Loan Parties, their respective Subsidiaries or any other person be entitled
to rely on any Environmental Assessment made by the Administrative Agent, any Lender or any
other Person at the request of the Required Lenders; provided, however, that the Loan
Parties shall be entitled to request a reliance letter from any third party performing an
Environmental Assessment if the Loan Parties are responsible for the cost thereof, and the
Lenders shall not object to such request; (ii) neither the Administrative Agent nor any
Lender owes any duty to inform the Loan Parties, their respective Subsidiaries or any other
person of any Hazardous Material or other adverse condition; (iii) neither the
Administrative Agent nor any Lender owes any duty of care to protect the Loan Parties, their
respective Subsidiaries or any other person against any Hazardous Materials or other adverse
condition; provided however, that this Section 6.14 shall not relieve the Administrative
Agent or any of its designees for damages that are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from its gross negligence
or willful misconduct in conducting an Environmental Assessment; (iv) Administrative Agent
may, subject to the provisions of Section 11.07 hereof, disclose to interested parties any
information Administrative Agent now or hereafter has about the environmental condition or
compliance of the real properties of the Parent and the Borrower or their respective
Subsidiaries, but shall be under no duty to disclose any such
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information;
(v) the Administrative Agent and the Lenders cannot control or otherwise assure the
truthfulness or accuracy of any Environmental Assessments; (vi) the release of Environmental
Assessments, or any information contained therein or gathered in connection therewith, to
prospective bidders at any foreclosure sale of any real property Collateral associated with
any Environmental Assessment may have a material and adverse effect upon the amount that a
party may bid at such foreclosure sale; (vii) neither the Administrative Agent nor any of
the Lenders shall have any liability whatsoever as a result of delivering any Environmental
Assessments, or any information contained therein or gathered in connection therewith, to
any prospective bidder at a foreclosure sale; and (viii) the Administrative Agent and each
of the Lenders and each Related Party of each of the foregoing Persons are released and
forever discharged from any and all claims, damages, causes of action, or other liabilities
of any type or nature whatsoever arising out of, connected with or incidental to any
Environmental Assessments or the delivery or disclosure thereof; provided, this clause
(viii) shall not relieve the Administrative Agent, any Lender or any of their respective
Related Parties from claims, damages, causes of action or other liabilities that are
determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from such Person’s gross negligence or willful misconduct in conducting such
Environmental Assessments.
6.15 Further Assurances. Promptly upon request by the Administrative Agent, or any Lender through
the Administrative Agent, (a) correct any material defect or error that may be discovered in any
Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and
all such further acts, deeds, certificates, assurances and other instruments as the Administrative
Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in
order to (i) to the fullest extent permitted by applicable Law, subject any Loan Party’s or any of
its Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to
be covered by any of the Collateral Documents, (ii) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be
created thereunder and (iii) assure, convey, grant, assign, transfer, preserve, protect and confirm
more effectively unto the Secured Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Loan Document or under any other instrument executed in
connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be
a party, and cause each of its Subsidiaries to do so.
6.16 Compliance with Terms of Leaseholds. Make all payments and otherwise perform all obligations
in respect of all leases of real and personal property to which any Loan Party or any of their
respective Subsidiaries is a party, keep such leases in full force and effect and not allow such
leases to lapse or be terminated (except at the end of the contractual term of such leases) or any
rights to renew such leases to be forfeited or cancelled unless such Loan Party determines in its
reasonable business judgment that it does not require such lease to be renewed, notify the
Administrative Agent of any default by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and cause each of its Subsidiaries
to do so, except, in any case, where the failure to do so, either individually or in the aggregate,
could not be reasonably likely to have a Material Adverse Effect.
6.17 Material Contracts. Perform and observe all the terms and provisions of each contract that is
material to its business to be performed or observed by it, maintain each such contract in full
force and effect, enforce each such contract in accordance with its terms, and cause each of its
Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.
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6.18 Corporate Identity. Do or cause to be done (or refrain from doing or causing to be done, as
the case may be) all things necessary to ensure that the separate legal identity of the Parent and
the Borrower will at all times be respected and that neither the Borrower nor any of its
Subsidiaries will be liable for any obligations, contractual or otherwise, of the General Partner,
the Parent or any other entity in which the General Partner or the Parent owns any Equity Interest.
Without limiting the foregoing, the Parent and the Borrower will (a) observe all requirements,
procedures and formalities necessary or advisable in order that the Borrower will for all purposes
be considered a validly existing partnership separate and distinct from the Parent and their other
Subsidiaries, (b) not permit any commingling of the assets of the Parent or any of its other
Subsidiaries with assets of the Borrower or any of its other Subsidiaries which would prevent the
assets of the Parent or any of its other Subsidiaries from being readily distinguished from the
assets of the Borrower and its Subsidiaries and (c) take reasonable and customary actions to ensure
that creditors of the General Partner, the Parent and their other Subsidiaries are aware that each
such Person is an entity separate and distinct from the Borrower and its Subsidiaries. As used in
this Section 6.18, “other Subsidiaries” shall mean all Subsidiaries of the General Partner and the
Parent other than the Borrower and its Subsidiaries.
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
neither the Parent nor the Borrower shall, nor shall the Parent or the Borrower permit any
Subsidiary to, directly or indirectly:
7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, or sign or file or suffer to exist under the
Uniform Commercial Code of any jurisdiction a financing statement that names any Loan Party or any
of its Subsidiaries as debtor, or assign any accounts or other right to receive income, other than
the following:
(a) Liens pursuant to any Loan Document;
(b) Liens securing Indebtedness existing on the date hereof and listed on Schedule 7.02
and any renewals or extensions thereof, provided that (i) the property covered thereby is
not changed, (ii) the amount secured or benefited thereby is not increased except as
contemplated by Section 7.02(e), (iii) the direct or any contingent obligor with respect
thereto is not changed, and (iv) any renewal or extension of the obligations secured or
benefited thereby is permitted by Section 7.02(e);
(c) Liens for taxes not yet due or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP or Liens for taxes
that are not either individually or in aggregate material;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business which are not overdue for a period of more
than 60 days or which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained on the books
of the applicable Person or which are bonded;
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(e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions, servitudes, covenants, licenses,
encroachments, minor defects or other irregularities in title, liens securing obligations
under reciprocal easements or similar agreements and other similar encumbrances affecting
real property which, in the aggregate, do not materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of the business
of the applicable Person;
(h) (i) any interest or title of a lessor or sublessor under any lease not prohibited
by this Agreement (ii) any Lien or restriction to which the interest or title of such lessor
or sublessor may be subject, or (iii) any subordination of the interest of the lessee or
sublessee under such lease to any Lien or restriction referred to in the preceding clause
(ii), so long as the holder of such Lien or restriction agrees to recognize the rights of
such lessee or sublessee under such lease;
(i) licenses, sublicenses, leases or subleases granted to third parties in the ordinary
course of business not interfering in any material respect with the ordinary conduct of the
business of the Loan Parties or any of their Subsidiaries;
(j) any zoning or similar law or right reserved to or vested in any governmental office
or agency to control or regulate the use of any real property;
(k) (i) Liens on the property or assets of any Subsidiary in favor of the Borrower or
any Wholly-Owned Subsidiary Guarantor, and (ii) Liens on the property or assets of any MLP
Subsidiary in favor of any Wholly-Owned MLP Subsidiary;
(l) Liens securing judgments for the payment of money not constituting an Event of
Default under Section 8.01(h);
(m) Liens securing Indebtedness permitted under Section 7.02(j); provided (i) any such
Lien shall be confined solely to the item or items of such property (or improvement therein)
so acquired or constructed and, if required by the terms of the instrument creating such
Lien, other property (or improvements thereon) which is an improvement to such acquired or
constructed property, (ii) any such Lien shall be created contemporaneously with, or within
sixty (60) Business Days after, the acquisition or construction of such property, and (iii)
such Lien does not exceed an amount equal to 85% (100% in the case of Capitalized Leases) of
the fair market value of such assets (as determined in good faith by the Board of
Supervisors of the Borrower) at the time of acquisition thereof;
(n) Liens granted to a utility provider by an ESCO on accounts receivable sold to such
utility provider in connection with a Consolidated Billing Program; and
(o) precautionary UCC-1 financing statement filings by lessors in respect of operating
leases, provided that the obligations under such leases do not constitute Indebtedness.
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Notwithstanding the foregoing, the Parent will not, and will not permit any Subsidiary to,
create, assume, incur or suffer to exist any Lien (other than Liens created by the Loan Documents)
upon or with respect to any of its proprietary software developed by or on behalf of the Parent or
its Affiliates and necessary and useful for the conduct of the Business.
7.02 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) obligations (contingent or otherwise) of the Parent, the Borrower, any Subsidiary
Guarantor or any MLP Subsidiary Guarantor existing or arising under any Swap Contract
permitted under Section 7.17;
(b) Indebtedness of the Parent and Suburban Energy Finance Corp. evidenced by the
Parent Notes (including the Parent Refinancing Notes);
(c) (i) Indebtedness of a Subsidiary of the Borrower owed to the Borrower or any other
Wholly-Owned Subsidiary Guarantor, and (ii) Indebtedness of a MLP Subsidiary Guarantor owed
to the Parent or to any other Wholly-Owned MLP Subsidiary Guarantor, in each case, which
Indebtedness shall constitute “Collateral” under the Security Agreement and shall be
otherwise permitted under the provisions of Section 7.03;
(d) Indebtedness under the Loan Documents;
(e) other Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and
any refinancings, refundings, renewals or extensions thereof; provided that the amount of
such Indebtedness is not increased at the time of such refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other reasonable amount paid,
and fees and expenses reasonably incurred, in connection with such refinancing and by an
amount equal to any existing commitments unutilized thereunder and the direct or any
contingent obligor with respect thereto is not changed, as a result of or in connection with
such refinancing, refunding, renewal or extension other; and provided, further, that the
terms relating to principal amount, amortization, maturity, collateral (if any) and
subordination (if any), and other material terms taken as a whole, of any such refinancing,
refunding, renewing or extending Indebtedness, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any material respect to
the Loan Parties or the Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest rate
applicable to any such refinancing, refunding, renewing or extending Indebtedness does not
exceed the then applicable market interest rate;
(f) (i) Guarantees of the Parent or any MLP Subsidiary Guarantor in respect of
Indebtedness otherwise permitted hereunder of any Wholly-Owned MLP Subsidiary Guarantor, and
(ii) Guarantees in respect of Indebtedness otherwise permitted hereunder of the Borrower or
any Subsidiary Guarantor;
(g) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds
and similar obligations, in each case provided in the ordinary course of business, including
those incurred to secure health, safety and environmental obligations in the ordinary course
of business, and in each case, not delinquent in payment;
(h) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument drawn against insufficient funds in the ordinary course
of
business; provided that such Indebtedness is extinguished within two (2) Business Days
of its incurrence;
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(i) (i) Indebtedness of a Subsidiary Guarantor or a MLP Subsidiary Guarantor acquired
after the date hereof and (ii) Indebtedness of any Person merged or consolidated with or
into the Borrower, any Subsidiary Guarantor or a MLP Subsidiary Guarantor after the date
hereof, which Indebtedness in each case, exists at the time of such acquisition, merger,
consolidation or conversion and is not created in contemplation of such event and where such
acquisition, merger or consolidation is otherwise permitted by this Agreement; provided that
the aggregate principal amount of Indebtedness under this clause (i) shall not at any time
exceed $5,000,000;
(j) Indebtedness incurred, issued or assumed by the Borrower, any Subsidiary Guarantor
or any MLP Subsidiary Guarantor (i) to finance the acquisitions, improvements or repairs (to
the extent such improvements and repairs may be capitalized on the books of such Person in
accordance with GAAP) of, or additions to, the property and assets of such Person, or (ii)
to replace, extend, renew, refund or refinance any such Indebtedness; provided that:
(A) the aggregate principal amount of Indebtedness incurred under this
clause (j) and outstanding at any time shall not exceed $35,000,000; and
(B) the aggregate principal amount of Indebtedness incurred in
connection with any such replacement, extension, renewal, refunding or
refinancing shall not exceed the outstanding principal amount of
Indebtedness so replaced, extended, renewed, refunded or refinanced;
(k) other unsecured Indebtedness in an aggregate principal amount not to exceed
$20,000,000 at any time outstanding.
No Loan Party may incur any Indebtedness owed to, or guaranty any Indebtedness of, any Agway
Subsidiary or Inactive Subsidiary.
7.03 Investments. Make or hold any Investments, except:
(a) Investments in the form of Cash Equivalents;
(b) advances to officers, directors (or persons performing similar functions) and
employees made in the ordinary course of business, for travel, entertainment, relocation and
analogous ordinary business purposes;
(c) (i) Investments by the Parent and its Subsidiaries in their respective Subsidiaries
outstanding on the date hereof, (ii) additional Investments by the Parent in the Borrower
and entities that are (prior to or as a result of such Investment) Wholly-Owned Subsidiary
Guarantors, (ii) additional Investments by the Parent and the MLP Subsidiary Guarantors in
entities that are (prior to or as a result of such Investment) Wholly-Owned MLP Subsidiary
Guarantors, (iii) Investments by MLP Subsidiary Guarantors in the Parent, and (iv)
additional Investments in Agway Subsidiaries in an aggregate amount during the term of this
Agreement not to exceed $5,000,000; provided that, in the case of Investments in a Foreign
Subsidiary made pursuant to this Section 7.03(c), the amount of such Investments when
aggregated with Investments in Foreign Subsidiaries made pursuant to Section 7.03(f) and
Investments made pursuant to Section 7.03(g) shall not exceed $10,000,000 in the aggregate;
and provided further that all Investments
made in Persons that are not Loan Parties prior to such Investment shall be subject to
the provisions of Section 7.03(f);
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(d) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors in the ordinary course;
(e) Guarantees permitted by Section 7.02;
(f) the purchase or other acquisition of Equity Interests or other property or assets
of any Person; provided that, with respect to each purchase or other acquisition made
pursuant to this Section 7.03(f):
(i) in the case of an acquisition or purchase of Equity Interests, including as
a result of a merger or consolidation, (A) by the Parent, the entity in which such
Investment is being made will be a Wholly-Owned Subsidiary of the Parent, (B) by the
Borrower or any Subsidiary of the Borrower, the entity in which such Investment is
being made will be a Wholly-Owned Subsidiary of the Borrower, and (C) by a MLP
Subsidiary Guarantor, the entity in which such Investment is being made will be a
Wholly-Owned Subsidiary of one or more MLP Subsidiary Guarantors or a Subsidiary
that is Wholly-Owned directly by the Parent and one or more MLP Subsidiary
Guarantors;
(ii) any such newly-created or acquired Subsidiary shall comply with the
requirements of Section 6.12;
(iii) the lines of business of the Person to be (or the property so purchased
or otherwise acquired) shall be consistent with the provisions of Section 7.07;
(iv) such purchase or other acquisition shall not include or result in any
contingent liabilities that could reasonably be expected to be material to the
business, financial condition, operations or prospects of the Parent and its
Subsidiaries, taken as a whole (as determined in good faith by the Board of
Supervisors of the Parent or the board of directors (or the persons performing
similar functions) of such Subsidiary if the Board of Supervisors or the board of
directors (or the persons performing similar functions) is otherwise approving such
transaction;
(v) (A) immediately before and immediately after giving pro forma effect to any
such purchase or other acquisition, no Default shall have occurred and be continuing
and (B) immediately after giving effect to such purchase or other acquisition, the
Borrower and its Subsidiaries and the Parent and its Subsidiaries shall be in pro
forma compliance with all of the covenants set forth in Section 7.11, such
compliance to be determined on the basis of the financial information most recently
delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a),
(b), (c) or (d) as though such purchase or other acquisition had been consummated as
of the first day of the fiscal period covered thereby; provided, however, if (1) the
total cash and noncash consideration (including the fair market value of all Equity
Interests issued or transferred to the sellers thereof, all indemnities, earnouts
and other contingent payment obligations to, and the aggregate amounts paid or to be
paid under noncompete, consulting and other affiliated agreements with, the sellers
thereof, all write-downs of property and reserves for liabilities with respect
thereto and all assumptions of debt, liabilities and other
obligations in connection therewith) paid for any such purchase or other
acquisition, exceeds $100,000,000 and (2) the Total Consolidated Leverage Ratio as
determined on a pro forma basis after giving effect to such purchase or acquisition
is in excess of 3.5 to 1.00, the consent of the Required Lenders shall be required;
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(vi) in the case of (A) a purchase or acquisition of Equity Interests of
another Person, (B) a purchase or other acquisition of assets of another Person that
constitutes a business unit or all or a substantial part of the business, of another
Person, or (C) a purchase or other acquisition of assets of another Person where the
total aggregate cash and non-cash consideration paid for such purchase or other
acquisition exceeds $25,000,000 (each Investment described in the foregoing clauses
(A) through (C), a “Reportable Investment”), within a reasonable time prior to such
purchase or acquisition, the Administrative Agent shall have received a copy of the
executed purchase agreement (or, in the event that the purchase agreement is not
being executed until closing, then a substantially complete unexecuted version of
the purchase agreement, with the copy of the executed purchase agreement to follow
promptly upon closing of such acquisition) for such purchase or acquisition, the
anticipated amount to be borrowed in order to consummate such purchase or
acquisition, and such other information related to such purchase or acquisition as
the Administrative Agent shall reasonably request;
(vii) in the case of Investments in a Foreign Subsidiary made pursuant to this
Section 7.03(f), the amount of such Investments when aggregated with Investments in
Foreign Subsidiaries made pursuant to Section 7.03(c) and Investments made pursuant
to Section 7.03(g) shall not exceed $10,000,000 in the aggregate; and
(viii) in the case of a Reportable Investment, the Parent shall have delivered
to the Administrative Agent, at least five Business Days (or such shorter period of
time as may be agreed by the Administrative Agent) prior to the date on which any
such purchase or other acquisition is to be consummated, a certificate of a
Responsible Officer, in form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders, certifying that the requirements set
forth in this clause (f) have been satisfied or will be satisfied on or prior to the
consummation of such purchase or other acquisition; and
(g) Investments not otherwise permitted by this Section 7.03 in an amount, when
aggregated with Investments made in Foreign Subsidiaries pursuant to Sections 7.03(c) and
7.03(f), not to exceed $10,000,000 in the aggregate.
7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so
long as no Default exists or would result therefrom:
(a) any Subsidiary Guarantor may merge or consolidate with (i) the Borrower, provided
that the Borrower shall be the continuing or surviving Person, or (ii) any one or more
Subsidiary Guarantors provided that if a Wholly-Owned Subsidiary Guarantor is a party to
such merger consolidation, the continuing or surviving Person shall be a Wholly-Owned
Subsidiary Guarantor;
(b) any MLP Subsidiary Guarantor may merge with any one or more MLP Subsidiary
Guarantors provided that if a Wholly-Owned MLP Subsidiary Guarantor is a party to
such merger consolidation, the continuing or surviving Person shall be a MLP Subsidiary
Guarantor;
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(c) any Subsidiary Guarantor may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or to another Wholly-Owned
Subsidiary Guarantor;
(d) any MLP Subsidiary Guarantor may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to any Wholly-Owned Guarantor;
(e) any Agway Subsidiary or Inactive Subsidiary may dispose of all or substantially all
of its assets (including any Disposition that is in the nature of a liquidation) to any
Person; and
(f) in connection with any acquisition permitted under Section 7.03, each of the
Borrower, any of the Wholly-Owned Subsidiary Guarantors, and any of the Wholly-Owned MLP
Subsidiary Guarantors may merge into or consolidate with any other Person or permit any
other Person to merge into or consolidate with it; provided, however, that in each case,
immediately after giving effect thereto (i) in the case of any such merger to which the
Borrower is a party, the Borrower is the surviving entity, (ii) in the case of any such
merger to which any Wholly-Owned Subsidiary Guarantor is a party, a Wholly-Owned Subsidiary
Guarantor is the surviving entity, and (iii) in the case of any such merger to which any
Wholly-Owned MLP Subsidiary Guarantor is a party, a Wholly-Owned Guarantor is the surviving
entity.
7.05 Dispositions. Make any Disposition, except:
(a) Dispositions of used, obsolete or worn out property, whether now owned or hereafter
acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property;
(d) Dispositions by any Subsidiary to the Borrower or to a Subsidiary Guarantor;
(e) Dispositions by any MLP Subsidiary Guarantor to another Guarantor;
(f) Dispositions by or of the Agway Subsidiaries and Inactive Subsidiaries;
(g) Dispositions by a Person of all or substantially all the assets of such Person that
are permitted by Section 7.04; and
(h) sales of accounts receivable related to a Consolidated Billing Program by any ESCO
to the utility provider in connection with such Consolidated Billing Program; and
(i) Dispositions not otherwise permitted by this Section 7.05 in an aggregate amount
not to exceed $25,000,000 in any fiscal year.
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7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that:
(a) any Subsidiary Guarantor may make Restricted Payments to the Borrower and any
Wholly-Owned Subsidiary Guarantor;
(b) any MLP Subsidiary Guarantor may make Restricted Payments to the Parent and any
Wholly-Owned MLP Subsidiary Guarantor;
(c) the Borrower may declare and make Quarterly Distributions of Available Cash as
defined in the Borrower Partnership Agreement and the Borrower may redeem or repurchase its
partner interests to the extent such Quarterly Distributions, redemptions and repurchases in
any fiscal quarter do not exceed in the aggregate Available Cash as defined in the Borrower
Partnership Agreement for the immediately preceding fiscal quarter and are made in
accordance with the Borrower Partnership Agreement; provided, that at the time each such
Quarterly Distribution, redemption or repurchase is declared or made no Default or Event of
Default exists or would result therefrom;
(d) the Parent may declare and make Quarterly Distributions of Available Cash as
defined in the Parent Partnership Agreement and the Parent may redeem or repurchase its
limited partnership units to the extent such Quarterly Distributions, redemptions and
repurchases in any fiscal quarter do not exceed, in the aggregate Available Cash as defined
in the Parent Partnership Agreement for the immediately preceding fiscal quarter and are
made in accordance with the Parent Partnership Agreement; provided, that at the time each
such Quarterly Distribution, redemption or repurchase is declared or made no Default or
Event of Default exists or would result therefrom; and
(e) the Parent may declare and make dividend payments or other distributions payable
solely in Equity Interests of the Parent.
7.07 Change in Nature of Business. Engage in any material line of business other than (a) the
Business conducted on the Closing Date and (b) any other business related to the energy business.
7.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of a
Loan Party, whether or not in the ordinary course of business, other than on terms substantially as
favorable to the Loan Party entering into such transaction as would be obtainable by such Loan
Party at the time in a comparable arm’s length transaction with a Person other than an Affiliate;
provided that this Section 7.08 shall not apply to (a) Restricted Payments permitted under Section
7.06, (b) indemnification of and contribution to all Persons entitled to indemnification or
contribution under Section 7.14 of the Borrower Partnership Agreement, (c) transactions between or
among the Parent, the Borrower and the Wholly-Owned Subsidiary Guarantors, and (d) transactions
between or among the Parent and the Wholly-Owned MLP Subsidiary Guarantors.
7.09 Burdensome Agreements.
(a) Enter into or permit to exist any Contractual Obligation (other than this Agreement
or any other Loan Document or the Parent Note Indenture as in effect on the date hereof)
that (a) limits the ability (i) of any Subsidiary to make Restricted Payments to the
Borrower or any Guarantor or to otherwise transfer property to or invest in the Borrower or
any Guarantor, (ii) of the General Partner, the Parent or any Subsidiary to Guarantee the
Indebtedness of the Borrower or (iii) of the General Partner, the Parent, the Borrower or
any Subsidiary to
create, incur, assume or suffer to exist Liens on property of such Person; provided,
however, that this clause (iii) shall not prohibit any negative pledge incurred or provided
in favor of any holder of Indebtedness permitted under Section 7.02(j) solely to the extent
any such negative pledge relates to the property financed by or the subject of such
Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if
a Lien is granted to secure another obligation of such Person.
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(b) Enter into any amendment or other agreement in respect of Indebtedness which
contains any covenants (including, without limitation, a negative pledge on assets) more
restrictive than the provisions of Article VI and Article VII.
7.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly,
and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the
meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund indebtedness originally incurred for such purpose.
7.11 Financial Covenants.
(a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of the Parent to be less than 2.50 to 1:00.
(b) Total Consolidated Leverage Ratio. Permit the Total Consolidated Leverage Ratio as
of the end of any fiscal quarter of the Parent to be greater than 4:50 to 1:00.
(c) Senior Secured Consolidated Leverage Ratio. Permit the Senior Secured Consolidated
Leverage Ratio as of the end of any fiscal quarter of the Borrower to be greater than 3.00
to 1.00.
7.12 Amendments of Organization Documents.
(a) Amend any Organization Document of the Borrower or of any Intermediate Entity
Guarantor; or
(b) Amend any other Organization Documents of any Loan Party in any manner that could
reasonably be expected to adversely and materially affect the rights of the Lenders under
this Agreement or any other Loan Document or their ability to enforce any provisions of this
Agreement or any other Loan Document, or that could reasonably be expected to have a
Material Adverse Effect.
7.13 Accounting Changes. Make any change in (a) accounting policies or reporting practices, except
as required or permitted by GAAP, or (b) its fiscal year.
7.14
Prepayments of Indebtedness. Prepay, redeem, purchase, defease or otherwise make any payment
of principal in respect of the Parent Notes (each, a “Principal Payment”) except:
(a) Principal Payments required by the terms of the Parent Notes,
(b) other Principal Payments, provided that the aggregate Principal Payments made
pursuant to this clause (b) on any date may not exceed an amount equal to Excess Cash on
such date, and
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(c) Principal Payments, not permitted by clause (a) or (b) above, in an amount not to
exceed $25,000,000 in the aggregate from and after the Closing Date;
provided, that in the case of any Principal Payment pursuant to clause (b) or (c) above: (i) on the
date of such Principal Payment the Senior Secured Consolidated Leverage Ratio calculated on a pro
forma basis as of such date shall not be greater than 3.00 to 1.00, and (ii) no Default shall exist
at the time of or as a result of such Principal Payment.
7.15 Holding Companies. In the case of the Intermediate Entity Guarantors, engage in any business
or activity other than (i) in the case of Suburban LP Holdings, LLC, the direct ownership of
limited partnership interests in the Borrower, and in the case of Suburban LP Holdings, Inc., the
direct ownership of limited partnership interests in Suburban LP Holdings, LLC, (ii) maintaining
its existence, (iii) the execution and delivery of the Loan Documents to which it is a party and
the performance of its obligations thereunder, and (iv) activities incidental to the businesses or
activities described in the foregoing clauses (i) through (iii).
7.16 Lease Obligations. Create, incur, assume or suffer to exist any obligations as lessee (a) for
the rental or hire of real or personal property in connection with any sale and leaseback
transaction, or (b) for the rental or hire of other real or personal property under leases
(excluding Capitalized Leases) having an original term of one year or more that would cause the
direct and contingent liabilities of the Parent and its Subsidiaries, on a consolidated basis, in
respect of all such obligations to exceed $30,000,000 payable in any period of 12 consecutive
months.
7.17 Swap Agreements.
(a) Enter into or permit to exist any obligations under Swap Contracts other than Swap
Contracts entered into by a Loan Party or any Subsidiary thereof in the ordinary course of
business for the purpose of mitigating risks associated with liabilities, commitments,
investments, assets, or property held or reasonably anticipated by such Person in connection
with the business of such Person conducted in accordance with Section 7.07 and not for
purposes of speculation.
(b) The Borrower shall not amend the Borrower’s hedging and risk management policies in
place as of the date hereof, a copy of which has been delivered to the Administrative Agent,
in any manner that increases the risk exposure of the Borrower (including without
limitation, any increase of the limits thereunder) without the prior written consent of the
Required Lenders, which consent shall not be unreasonably withheld.
8.01 Events of Default. (i) Any of the following shall constitute an Event of Default (each an
“Event of Default”):
(a) Non-Payment. The Borrower or any other Loan Party fails to (i) pay when and as
required to be paid herein, any amount of principal of any Loan or any L/C Obligation or
deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) pay within three
Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation,
or any fee due hereunder, or (iii) pay within five Business Days after the same becomes due,
any other amount payable hereunder or under any other Loan Document; or
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(b) Specific Covenants. (i) Any Loan Party fails to perform or observe any term,
covenant or agreement applicable to it contained in any of Sections 6.02, 6.03, 6.05, 6.10,
6.11, 6.12, 6.14, or Article VII , or (ii) any Loan Party fails to perform or observe any
term, covenant or agreement applicable to it contained in Section 6.01 and such failure
continues for 30 days; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on
its part to be performed or observed and such failure continues for 30 days after (i) the
Borrower has knowledge of such Event of Default or (ii) the Borrower receives written notice
thereof from the Administrative Agent; or
(d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of Loan Party herein, in any other
Loan Document, or in any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) Any Loan Party or any Subsidiary thereof (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount (including amounts
owing to all creditors under any combined or syndicated credit arrangement) of more than the
Threshold Amount, or (B) fails to observe or perform any other agreement or condition
relating to any such Indebtedness contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated maturity, or cash
collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract
an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of
default under such Swap Contract as to which a Loan Party or any Subsidiary thereof is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so
defined) under such Swap Contract as to which a Loan Party or any Subsidiary thereof is an
Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such
Loan Party or such Subsidiary as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary thereof (other than
the Agway Subsidiaries or Inactive Subsidiaries) institutes or consents to the institution
of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent
of such Person and the appointment continues undischarged or unstayed for 60 calendar days;
or any proceeding under any Debtor Relief Law relating to any such Person or to all or any
material part of its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiary thereof
becomes unable or admits in writing its inability or fails generally to pay its debts as
they become due, or (ii) any writ or warrant of attachment or execution or similar process
is issued or
levied against all or any material part of the property of any such Person and is not
released, vacated or fully bonded within 30 days after its issue or levy; or
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(h) Judgments. There is entered against any Loan Party or any Subsidiary thereof
(i) one or more final judgments or orders for the payment of money in an aggregate amount
(as to all such judgments and orders) exceeding the Threshold Amount (to the extent not
covered by independent third-party insurance as to which the insurer is rated at least “A”
by A.M. Best Company, has been notified of the potential claim and does not dispute
coverage), or (ii) any one or more non-monetary final judgments that have, or could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor upon such
judgment or order, or (B) there is a period of 30 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in a Material Adverse
Effect, or has resulted in liability of a Loan Party or any Subsidiary thereof under Title
IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount, and such amount is not paid when due, after expiration of
any applicable grace period, or (ii) a Loan Party or any Subsidiary thereof or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or any other Person contests in any manner the validity
or enforceability of any provision of any Loan Document; or any Loan Party denies that it
has any or further liability or obligation under any provision of any Loan Document, or
purports to revoke, terminate or rescind any provision of any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Tax Status. The Parent or the Borrower shall be treated as an association taxable
as a corporation or shall otherwise be taxed as an entity for Federal income tax purposes;
or
(m) Amendment to Organization Documents. The Borrower Partnership Agreement or any
other Organization Document of the Borrower is amended without the consent of the Required
Lenders; or
(n) Collateral Documents. Any Collateral Document after delivery thereof pursuant to
Section 4.01 or 6.12 shall for any reason (other than pursuant to the terms thereof) cease
to create a valid and perfected first priority Lien (subject to Liens permitted by
Section 7.01) on the Collateral purported to be covered thereby.
8.02
Remedies upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:
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(a) declare the commitment of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount
equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and
remedies available to it, the Lenders and the L/C Issuer under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each
Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable, and the obligation of the
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any Lender.
8.03
Application of Funds. After the exercise of remedies provided for in
Section 8.02 (or after
the Loans have automatically become immediately due and payable and the L/C Obligations have
automatically been required to be Cash Collateralized as set forth in the proviso to
Section 8.02),
any amounts received on account of the Obligations shall be applied by the Administrative Agent in
the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses
and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent
and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other
amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the
L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the
L/C Issuer) arising under the Loan Documents and amounts payable under Article III, ratably among
them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of
Credit Fees and interest on the Loans, L/C Borrowings and other Obligations arising under the Loan
Documents, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts
described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the
Loans, L/C Borrowings and Obligations then owing under Secured Hedge Agreements and Secured Cash
Management Agreements, ratably among the Lenders, the L/C Issuer, the Hedge Banks, and the Cash
Management Banks in proportion to the respective amounts described in this clause Fourth held by
them;
Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize
that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; and
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Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full,
to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of
Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such
Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all
Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and
Secured Hedge Agreements shall be excluded from the application described above if the
Administrative Agent has not received written notice thereof two Business Days (or such shorter
time as may be acceptable to the Administrative Agent) prior to the date that the Administrative
Agent sets (by written notice to the Lenders) for such application, together with such supporting
documentation as the Administrative Agent may request, from the applicable Cash Management Bank or
Hedge Bank, as the case may be. The Administrative Agent shall be entitled to rely on, and shall
not incur any liability for relying upon, any notice received from a Cash Management Bank or a
Hedge Bank regarding Secured Cash Management Agreements and Secured Hedge Agreements and shall not
be responsible for or have any duty to ascertain or inquire into the validity, authenticity, or
accuracy of any statement or representation contained therein or otherwise with respect thereto.
9.01 Appointment and Authority.
(a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America
to act on its behalf as the Administrative Agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the
Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party shall have
rights as a third party beneficiary of any of such provisions.
(b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank
and a potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and
authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer
for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by
any of the Loan Parties to secure any of the Obligations, together with such powers and
discretion as are reasonably incidental thereto. In this connection, the Administrative
Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed
by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing
any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents,
or for exercising any rights and remedies thereunder at the direction of the Administrative
Agent), shall be entitled to the benefits of all provisions of this Article IX and Article
XI (including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact
were the “collateral agent” under the Loan Documents) as if set forth in full herein with
respect thereto.
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9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as
though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated or unless the context otherwise requires, include the Person serving
as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates
may accept deposits from, lend money to, act as the financial advisor or in any other advisory
capacity for and generally engage in any kind of business with any Loan Party or any Subsidiary or
other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without
any duty to account therefor to the Lenders.
9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents), provided
that the Administrative Agent shall not be required to take any action that, in its opinion
or the opinion of its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable Law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Loan Parties or any of their respective Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or any of its
Affiliates in any capacity.
(d) The Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall
believe in good faith shall be necessary, under the circumstances as provided in
Sections 11.01 and 8.02) or (ii) in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Administrative Agent by a
Loan Party, a Lender or the L/C Issuer.
(e) The Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in connection with
this Agreement or any other Loan Document, (ii) the contents of any certificate, report or
other document delivered hereunder or thereunder or in connection herewith or therewith,
(iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or
any other agreement, instrument or document, or the creation, perfection or priority of any
Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency
of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or
elsewhere herein, other than to confirm receipt of items expressly required to be delivered
to the Administrative Agent.
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9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon,
and shall not incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may
rely upon any statement made to it orally or by telephone and believed by it to have been made by
the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C
Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower or any
other Loan Party), independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or through any one or
more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and powers by or through
their respective Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give notice of
its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any such notice
of resignation, the Required Lenders shall have the right, with the consent of the Borrower, to
appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent
which shall be a bank with an office in the United States, or an Affiliate of any such bank with an
office in the United States; provided that if the Administrative Agent shall notify the Borrower
and the Lenders that no qualifying Person has accepted such appointment, then such resignation
shall nonetheless become effective in accordance with such notice and (a) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the
other Loan Documents (except that in the case of any collateral security held by the Administrative
Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (b) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
and the L/C Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already discharged therefrom as
provided above in this Section). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this
Article and Section 11.04 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.
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Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan Documents, and
(iii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory
to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.
9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Arrangers or other agents listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders,
the L/C Issuer and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuer and the Administrative Agent under
Sections 2.03(i) and (j), 2.09 and 11.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, if the Administrative Agent shall consent to the making
of such payments
directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and
its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and
11.04.
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Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
the L/C Issuer or in any such proceeding.
9.10 Collateral and Guaranty Matters. Each of the Lenders (including in its capacities as a
potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer 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 Loan Document (i) upon termination of the Aggregate Commitments and payment in
full of all Obligations (other than (A) contingent indemnification obligations and
(B) obligations and liabilities under Secured Cash Management Agreements and Secured Hedge
Agreements as to which arrangements satisfactory to the applicable Cash Management Bank of
Hedge Bank shall have been made) and the expiration or termination of all Letters of Credit
(other than Letters of Credit as to which other arrangements satisfactory to the
Administrative Agent and the L/C Issuer shall have been made), (ii) that is sold or to be
sold as part of or in connection with any sale permitted hereunder or under any other Loan
Document, or (iii) if approved, authorized or ratified in writing in accordance with
Section 11.01;
(b) to release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder; and
(c) to subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is permitted
by
Section 7.01(m).
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 Guarantor from its obligations under the Guaranty
pursuant to this Section 9.10. In each case as specified in this Section 9.10, the Administrative
Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such
documents as such Loan Party may reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted under the Collateral Documents or to
subordinate its interest in such item, or to release such Guarantor from its obligations under the
Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.10.
9.11 Secured Cash Management Agreements and Secured Hedge Agreements. No Cash Management Bank or
Hedge Bank that obtains the benefits of Section 8.03, any Guaranty or any Collateral by virtue of
the provisions hereof or of any Guaranty or any Collateral Document shall have any right to notice
of any action or to consent to, direct or object to any action hereunder or under any other Loan
Document or otherwise in respect of the Collateral (including the release or impairment of any
Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly
provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the
contrary, the Administrative Agent shall not be required to verify the payment of, or that other
satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash
Management
Agreements and Secured Hedge Agreements unless the Administrative Agent has received written notice
of such Obligations, together with such supporting documentation as the Administrative Agent may
request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.
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10.01 Guaranty. The Parent hereby, absolutely and unconditionally guarantees, as a guaranty of
payment and performance and not merely as a guaranty of collection, prompt payment when due,
whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at
all times thereafter, of any and all of the Obligations, whether for principal, interest, premiums,
fees, indemnities, damages, costs, expenses or otherwise, of each Loan Party to the Secured
Parties, and whether arising hereunder or under any other Loan Document, any Secured Cash
Management Agreement or any Secured Hedge Agreement (including all renewals, extensions,
amendments, refinancings and other modifications thereof and all costs, attorneys’ fees and
expenses incurred by the Secured Parties in connection with the collection or enforcement thereof).
The Administrative Agent’s books and records showing the amount of the Obligations shall be
admissible in evidence in any action or proceeding, and shall be binding upon the Parent, and
conclusive for the purpose of establishing the amount of the Obligations, absent manifest error.
This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of
the Obligations or any instrument or agreement evidencing any Obligations, or by the existence,
validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by
any fact or circumstance relating to the Obligations which might otherwise constitute a defense to
the obligations of the Parent under this Guaranty, and the Parent hereby irrevocably waives any
defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.
10.02 Rights of Lenders. The Parent consents and agrees that the Secured Parties may, at any time
and from time to time, without notice or demand, and without affecting the enforceability or
continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or
otherwise change the time for payment or the terms of the Obligations or any part thereof;
(b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of
any security for the payment of this Guaranty or any Obligations; (c) apply such security and
direct the order or manner of sale thereof as the Administrative Agent, the L/C Issuer and the
Lenders in their sole discretion may determine; and (d) release or substitute one or more of any
endorsers or other guarantors of any of the Obligations. Without limiting the generality of the
foregoing, the Parent consents to the taking of, or failure to take, any action which might in any
manner or to any extent vary the risks of the Parent under this Guaranty or which, but for this
provision, might operate as a discharge of the Parent.
10.03
Certain Waivers. The Parent waives (a) any defense arising by reason of any disability or
other defense of the Borrower, any other Loan Party, or any other guarantor, or the cessation from
any cause whatsoever (including any act or omission of any Secured Party) of the liability of the
Borrower or any other Loan Party; (b) any defense based on any claim that the Parent’s obligations
exceed or are more burdensome than those of the Borrower or any other Loan Party; (c) the benefit
of any statute of limitations affecting such Senior Guarantor’s liability hereunder; (d) any right
to proceed against the Borrower or any other Loan Party, proceed against or exhaust any security
for the Obligations, or pursue any other remedy in the power of any Secured Party whatsoever;
(e) any benefit of and any right to participate in any security now or hereafter held by any
Secured Party; and (f) to the fullest extent permitted by law, any and all other defenses or
benefits that may be derived from or afforded by applicable Law limiting the liability of or
exonerating guarantors or sureties. The Parent expressly waives all setoffs and counterclaims and
all presentments, demands for payment or performance, notices of nonpayment or nonperformance,
protests, notices of protest, notices of dishonor and all other notices or
demands of any kind or nature whatsoever with respect to the Obligations, and all notices of
acceptance of this Guaranty or of the existence, creation or incurrence of new or additional
Obligations. The Parent waives any rights and defenses that are or may become available to it by
reason of §§ 2787 to 2855, inclusive, and §§ 2899 and 3433 of the California Civil Code. As
provided below, this Guaranty shall be governed by, and construed in accordance with, the laws of
the State of
New York. The foregoing waivers and the provisions hereinafter set forth in this
Guaranty which pertain to California law are included solely out of an abundance of caution, and
shall not be construed to mean that any of the above-referenced provisions of California law are in
any way applicable to this Guaranty or the Obligations.
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10.04 Obligations Independent. The obligations of the Parent hereunder are those of primary
obligor, and not merely as surety, and are independent of the Obligations and the obligations of
any other guarantor, and a separate action may be brought against the Parent to enforce this
Guaranty whether or not the Borrower or any other person or entity is joined as a party.
10.05 Subrogation. The Parent shall not exercise any right of subrogation, contribution,
indemnity, reimbursement or similar rights with respect to any payments it makes under this
Guaranty until all of the Obligations and any amounts payable under this Guaranty have been
indefeasibly paid and performed in full and the Commitments and the Facilities are terminated. If
any amounts are paid to the Parent in violation of the foregoing limitation, then such amounts
shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the
Secured Parties to reduce the amount of the Obligations, whether matured or unmatured.
10.06 Termination; Reinstatement. This Guaranty is a continuing and irrevocable guaranty of all
Obligations now or hereafter existing and shall remain in full force and effect until all
Obligations and any other amounts payable under this Guaranty are indefeasibly paid in full in
cash, the Commitments and the Facilities with respect to the Obligations are terminated, and all
Letters of Credit have terminated. Notwithstanding the foregoing, this Guaranty shall continue in
full force and effect or be revived, as the case may be, if any payment by or on behalf of the
Borrower or any other Loan Party is made, or any of the Secured Parties exercises its right of
setoff, in respect of the Obligations and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by any of the Secured Parties in their
discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or
such setoff had not occurred and whether or not the Secured Parties are in possession of or have
released this Guaranty and regardless of any prior revocation, rescission, termination or
reduction. The obligations of the Parent under this paragraph shall survive termination of this
Guaranty.
10.07 Subordination. The Parent hereby subordinates the payment of all obligations and
indebtedness of the Borrower or any other Loan Party owing to the Parent, whether now existing or
hereafter arising, including but not limited to any obligation of the Borrower or any other Loan
Party to the Parent as subrogee of the Secured Parties or resulting from the Parent’s performance
under this Guaranty, to the indefeasible payment in full in cash of all Obligations. If the
Secured Parties so request, any such obligation or indebtedness of the Borrower or any other Loan
Party to the Parent shall be enforced and performance received by the Parent as trustee for the
Secured Parties and the proceeds thereof shall be paid over to the Secured Parties on account of
the Obligations, but without reducing or affecting in any manner the liability of the Parent under
this Guaranty.
10.08 Stay of Acceleration. If acceleration of the time for payment of any of the Obligations is
stayed, in connection with any case commenced by or against the Parent or the Borrower or any other
Loan Party under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be
payable, jointly and severally, by the Parent immediately upon demand by the Secured Parties.
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10.09 Condition of Borrower. The Parent acknowledges and agrees that it has the sole
responsibility for, and has adequate means of, obtaining from the Borrower, the other Loan Parties,
and any other guarantor such information concerning the financial condition, business and
operations of the Borrower, the other Loan Parties, and any such other guarantor as it requires,
and that none of the Secured Parties has any duty, and it is not relying on the Secured Parties at
any time, to disclose to it any information relating to the business, operations or financial
condition of the Borrower, the other Loan Parties, or any other guarantor (the Parent waiving any
duty on the part of the Secured Parties to disclose such information and any defense relating to
the failure to provide the same).
10.10 Additional Guarantor Waivers and Agreements.
(a) The Parent understands and acknowledges that if the Secured Parties foreclose
judicially or nonjudicially against any real property security for the Obligations, that
foreclosure could impair or destroy any ability that the Parent may have to seek
reimbursement, contribution, or indemnification from the Borrower or others based on any
right the Parent may have of subrogation, reimbursement, contribution, or indemnification
for any amounts paid by the Parent under this Guaranty. The Parent further understands and
acknowledges that in the absence of this paragraph, such potential impairment or destruction
of the Parent’s rights, if any, may entitle the Parent to assert a defense to this Guaranty
based on Section 580d of the California Code of Civil Procedure as interpreted in Union Bank
x. Xxxxxxx, 265 Cal. App. 2d 40 (1968). By executing this Guaranty, the Parent freely,
irrevocably, and unconditionally: (i) waives and relinquishes that defense and agrees that
it will be fully liable under this Guaranty even though the Secured Parties may foreclose,
either by judicial foreclosure or by exercise of power of sale, any deed of trust securing
the Obligations; (ii) agrees that the Parent will not assert that defense in any action or
proceeding which the Secured Parties may commence to enforce this Guaranty;
(iii) acknowledges and agrees that the rights and defenses waived by the Parent in this
Guaranty include any right or defense that the Parent may have or be entitled to assert
based upon or arising out of any one or more of §§ 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure or § 2848 of the California Civil Code; and
(iv) acknowledges and agrees that the Secured Parties are relying on this waiver in creating
the Obligations, and that this waiver is a material part of the consideration which the
Secured Parties are receiving for creating the Obligations.
(b) The Parent waives all rights and defenses that it may have because any of the
Obligations is secured by real property. This means, among other things: (i) the Secured
Parties may collect from the Parent without first foreclosing on any real or personal
property collateral pledged by the other Loan Parties; and (ii) if the Secured Parties
foreclose on any real property collateral pledged by the other Loan Parties: (A) the amount
of the Obligations may be reduced only by the price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth more than the sale price, and (B) the
Secured Parties may collect from the Parent even if the Secured Parties, by foreclosing on
the real property collateral, have destroyed any right the Parent may have to collect from
the Borrower or any other Loan Party. This is an unconditional and irrevocable waiver of
any rights and defenses the Parent may have because any of the Obligations is secured by
real property. These rights and defenses include, but are not limited to, any rights or
defenses based upon § 580a, 580b, 580d, or 726 of the California Code of Civil Procedure.
(c) The Parent waives any right or defense it may have at law or equity, including
California Code of Civil Procedure § 580a, to a fair market value hearing or action to
determine a deficiency judgment after a foreclosure.
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11.01
Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom,
shall be effective unless in writing signed by the Required Lenders and the Borrower or the
applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given;
provided,
however, that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01 (other than Section 4.01(b)(i) or
(c)), or, in the case of the initial Credit Extension, Section 4.02, without the written
consent of each Lender;
(b) without limiting the generality of clause (a) above, waive any condition set forth
in Section 4.02 as to any Credit Extension under a particular Facility without the written
consent of the Required Revolving Lenders or the applicable Required Incremental Term
Facility Lenders, as the case may be;
(c) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of such Lender;
(d) postpone any date fixed by this Agreement or any other Loan Document for any
payment (other than mandatory prepayments under Sections 2.05(b)(i) or (ii)) of principal,
interest, fees or other amounts due to any Lender hereunder or under such other Loan
Document without the written consent of such Lender entitled to such payment;
(e) reduce the principal of, or the rate of interest specified herein on, any Loan or
L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 11.01) any
fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender entitled to such amount; provided, however, that only the consent of
the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to
waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default
Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein or
in the definition of Applicable Margin) even if the effect of such amendment would be to
reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;
(f) change (i)
Section 8.03 in a manner that would alter the pro rata sharing of
payments required thereby without the written consent of each Lender or (ii) the order of
application of any reduction in the Commitments or any prepayment of Loans among the
Facilities from the application thereof set forth in the applicable provisions of
Section 2.05(b) or
2.06(b), respectively, in any manner that materially and adversely
affects the Lenders under a Facility without the written consent of (A) if such Facility is
the Revolving Credit Facility, the Required Revolving Lenders, and (B) if such Facility is
an Incremental Term Facility, the applicable Incremental Term Loan Facility Lenders;
(g) change (i) any provision of this Section 11.01 or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder (other than the definitions specified in clause (ii) of this
Section 11.01(g)), without the written consent of each Lender or (ii) the definition of
“Required Revolving
Lenders,” or “Required Incremental Term Facility Lenders” without the written consent
of each Lender under the applicable Facility;
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(h) release all or substantially all of the Collateral in any transaction or series of
related transactions, without the written consent of each Lender;
(i) release all or substantially all of the value of the Guaranty, without the written
consent of each Lender, except to the extent the release of any Subsidiary from the Guaranty
is permitted pursuant to Section 9.10 (in which case such release may be made by the
Administrative Agent acting alone); or
(j) impose any greater restriction on the ability of any Lender under a Facility to
assign any of its rights or obligations hereunder without the written consent of (i) if such
Facility is an Incremental Term Facility, the applicable Required Incremental Term Facility
Lenders, and (ii) if such Facility is the Revolving Credit Facility, the Required Revolving
Lenders;
and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed
by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C
Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be
issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing
Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required above, affect the rights
or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iv) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by
the parties thereto. 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.
If any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and that has been approved by
the Required Lenders (or that requires the consent of each Revolving Credit Lender or each
applicable Incremental Term Facility Lender, as the case may be, and that has been approved by the
Required Revolving Lender or the applicable Required Incremental Term Facility Lender, as
applicable, the Borrower may replace such non-consenting Lender in accordance with Section 11.13;
provided that such amendment, waiver, consent or release can be effected as a result of the
assignment contemplated by such Section (together with all other such assignments required by the
Borrower to be made pursuant to this paragraph).
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b)
below), all notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or registered
mail or sent by fax or email as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:
(i) if to a Loan Party, the Administrative Agent, the L/C Issuer or the Swing
Line Lender, to the address, fax number, electronic mail address or telephone number
specified for such Person on Schedule 11.02; and
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(ii) if to any other Lender, to the address, fax number, electronic mail
address or telephone number specified in its Administrative Questionnaire.
Notices and other communications sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when delivered; notices and other
communications sent by fax shall be deemed to have been given when sent (except that, if not given
during normal business hours for the recipient, shall be deemed to have been given at the opening
of business on the next business day for the recipient). Notices and other communications
delivered through electronic communications to the extent provided in subsection (b) below shall be
effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders and the
L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, provided that the foregoing shall not apply to notices to any Lender
or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable,
has notified the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to
an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the
intended recipient (such as by the “return receipt requested” function, as available, return e-mail
or other written acknowledgement), provided that if such notice or other communication is not sent
during the normal business hours of the recipient, such notice or communication shall be deemed to
have been sent at the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website shall be deemed received
upon the deemed receipt by the intended recipient at its e-mail address as described in the
foregoing clause (i) of notification that such notice or communication is available and identifying
the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS
MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no
event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to the Parent, the Borrower, any Lender, the L/C Issuer or any
other Person for losses, claims, damages, liabilities or expenses of any kind (whether in
tort, contract or otherwise) arising out of the Parent’s, the Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet, except to
the extent that such losses, claims, damages, liabilities or expenses are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Agent Party; provided, however, that in
no event shall any Agent Party have any liability to the Parent, the Borrower, any
Lender, the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).
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(d) Change of Address, Etc. Each of the Parent, the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address, fax or telephone
number for notices and other communications hereunder by notice to the other parties hereto.
Each other Lender may change its address, fax or telephone number for notices and other
communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer
and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative
Agent from time to time to ensure that the Administrative Agent has on record (i) an
effective address, contact name, telephone number, fax number and electronic mail address to
which notices and other communications may be sent and (ii) accurate wire instructions for
such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or
on behalf of such Public Lender to at all times have selected the “Private Side Information”
or similar designation on the content declaration screen of the Platform in order to enable
such Public Lender or its delegate, in accordance with such Public Lender’s compliance
procedures and applicable Law, including United States Federal and state securities Laws, to
make reference to Borrower Materials that are not made available through the “Public Side
Information” portion of the Platform and that may contain material non-public information
with respect to the Loan Parties or their respective securities for purposes of United
States Federal or state securities laws.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify the Administrative Agent, the L/C
Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice purportedly given
by or on behalf of the Borrower. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the Administrative Agent,
and each of the parties hereto hereby consents to such recording.
11.03
No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, the L/C Issuer or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided, and provided under each
other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
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Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C
Issuer; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from
exercising on its own behalf the rights and remedies that inure to its benefit (solely in its
capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer
or the Swing Line Lender from exercising the rights
and remedies that inure to its benefit
(solely in its capacity as L/C Issuer or Swing Line
Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from
exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.13),
or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf
during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and
provided, further, that if at any time there is no Person acting as Administrative Agent hereunder
and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters
set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any
Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to
it and as authorized by the Required Lenders.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable
fees, charges and disbursements of counsel for the Administrative Agent), in connection with
the syndication of the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder
and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the L/C Issuer), in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section and its rights under or with respect to any
environmental provisions contained or referred to in this Agreement, or (B) in connection
with Loans made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of such Loans
or Letters of Credit. This Section 11.04(a) shall not apply to Taxes which shall be
exclusively governed by Section 3.01 of this Agreement.
(b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of
any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims, causes of action, judgments,
damages, liabilities (including strict liability) and related expenses (including the fees,
charges and disbursements of any counsel for any Indemnitee, the cost of preparation, review
and distribution of any reports of investigation or any Environmental Assessments authorized
pursuant to Section 6.14 of this Agreement or by any other Loan Document, and the cost of
preparation, review and distribution of any studies or reports relating to the performance
of any cleanup, remediation, monitoring, removal or similar work required by any
Environmental Law or otherwise necessary for the Administrative Agent and the other Secured
Parties to have the full commercial use and benefit of any real property collateral as
contemplated by Loan Documents), of any kind and character, contingent or otherwise, matured
or unmatured, known or unknown, foreseeable or unforeseeable, incurred or suffered by any
Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any
other Loan Party arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions contemplated
hereby or thereby, or, in the case of the Administrative Agent (and
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any sub-agent thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit), (iii) the
presence of any Hazardous Materials on, under or about any property now or formerly owned or
operated by a Loan Party or any of its Subsidiaries, any actual or alleged Release or
threatened Release of Hazardous Materials on, to, under, about or from any property now or
formerly owned or operated by a Loan Party or any of its Subsidiaries or as a result of the
operations of such Parties, any filing or imposition of any environmental Lien on or against
any such property, or any Environmental Liability related in any way to a Loan Party or any
of its Subsidiaries, (iv) the breach of any of the environmental representations,
warranties, or covenants in this Agreement, (v) any violation of Environmental Laws by the
Loan Parties or any of their Subsidiaries, or by any third party on or affecting any
property now or formerly owned or operated by a Loan Party or any of its Subsidiaries, or
(vi) any actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory, whether brought
by a third party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE
OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE);
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee, (y) result from a claim
brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad
faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the
Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on
such claim as determined by a court of competent jurisdiction or (z) result solely from
release of Hazardous Materials or the violation of Environmental Laws that first occurs at a
property after such property has been transferred to Indemnitee or its successors or assigns
by foreclosure or deed-in-lieu of foreclosure. For the avoidance of doubt, this Section
11.04(b) shall not apply to Taxes, which shall be exclusively governed by Section 3.01 of
this Agreement.
(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid
by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be,
such Lender’s Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that
the unreimbursed expense or indemnified loss, claim, damage, liability or related expense,
as the case may be, was incurred by or asserted against the Administrative Agent (or any
such sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of
any of the foregoing acting for the Administrative Agent (or any such sub-agent) or L/C
Issuer in connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).
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(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable Law, the Borrower shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated hereby,
the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of
the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for
any damages arising from the use by unintended recipients of any information or other
materials distributed to such unintended recipients by such Indemnitee through
telecommunications, electronic or other information transmission systems in connection with
this Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby other than for direct or actual damages resulting from the gross negligence or
willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of
a court of competent jurisdiction.
(e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any
Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
(g) Provisions with Respect to California Real Property. The General Partner, the
Parent, the Borrower, and each other Loan Party, the Administrative Agent and the other
Secured Parties, acknowledge and agree that to the extent that California law is applicable,
the representations, warranties, covenants, indemnities, waivers and other provisions
contained in Sections 5.09, 6.02(g) (insofar as Section 6.02(g) relates to Environmental
Laws, Environmental Permits or Hazardous Materials), 6.03(b) (insofar as Section 6.03(b)
relates to Environmental Laws), 6.13, 6.14 and 11.04 (insofar as Section 11.04 relates to
Environmental Laws, Hazardous Materials and the breach of any environmental representations,
warranties or covenants) of this Agreement as the same relate to any real property
Collateral that is located in the State of California are intended to constitute, and do
constitute, “environmental provisions” as that term is defined in Section 736(f)(2) of the
California Code of Civil Procedure. To the extent that California law is applicable,
pursuant to Section 736 of the California Code of Civil Procedure, any action by the
Administrative Agent or any other Secured Party for the recovery of damages or enforcement
of this Section shall not constitute an action within the meaning of Section 726(a) of the
California Code of Civil Procedure or constitute a money judgment for a deficiency or a
deficiency judgment within the meaning of Sections 580a, 580b, 580d or 726(b) of the
California Code of Civil Procedure. Further, the General Partner, the Parent, the Borrower,
each other Loan Party, and the Indemnitees mutually intend that to the extent that
California law is applicable and if recovery of damages, injunctive or other equitable
relief, or other enforcement of any environmental provisions shall not be available to the
Administrative Agent or any other Secured Party under or pursuant to Section 736 of the
California Code of Civil Procedure, such damages, injunctive or other equitable relief, or
other enforcement of any environmental provisions shall be recoverable and available under
the law of the State of California other than Section 736 of the California Code of Civil
Procedure, as contemplated in Section 736(d) of the California Code of Civil Procedure.
Without limiting the foregoing, Administrative Agent and the other Secured Parties shall
also have all rights and remedies set forth in Section 726.5 of the California Code of Civil
Procedure with respect to any real property Collateral located in the State of California.
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11.05
Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made
to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C
Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the Administrative Agent,
the L/C Issuer or such
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection
with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such setoff had not
occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative
Agent upon demand its applicable share (without duplication) of any amount so recovered from or
repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date
such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in
effect. The obligations of the Lenders and the L/C Issuer under
clause (b) of the preceding
sentence shall survive the payment in full of the Obligations and the termination of this
Agreement.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that neither the Borrower nor any other Loan Party may
assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of Section 11.06(b), (ii) by way of participation in
accordance with the provisions of Section 11.06(d), or (iii) by way of pledge or assignment
of a security interest subject to the restrictions of Section 11.06(f) (and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other
than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the
L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment(s) and the Loans (including for purposes of this Section 11.06(b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment under any Facility and the Loans at the time
owing to it under such Facility or in the case of an assignment to a Lender,
an Affiliate of a Lender or an Approved Fund, no minimum amount need be
assigned; and
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(B) in any case not described in subsection (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the Commitment is not then in effect,
the principal outstanding balance of the Loans of the assigning Lender
subject to each such assignment, determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000 in the
case of any assignment in respect of either the
Revolving Credit Facility or any Incremental Term Facility, unless each
of the Administrative Agent and, so long as no Event of Default has occurred
and is continuing, the Borrower otherwise consents (each such consent not to
be unreasonably withheld or delayed); provided, however, that concurrent
assignments to members of an Assignee Group and concurrent assignments from
members of an Assignee Group to a single Eligible Assignee (or to an
Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount
has been met;
(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not (A) apply to the Swing Line
Lender’s rights and obligations in respect of Swing Line Loans or (B) prohibit any
Lender from assigning all or a portion of its rights and obligations among separate
Facilities on a non-pro rata basis;
(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in
addition:
(A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in
respect of (1) any Revolving Credit Commitment, if such assignment is to a
Person that is not a Lender with a Commitment in respect of the Revolving
Credit Facility, an Affiliate of such a Lender or an Approved Fund with
respect to such a Lender or (2) any Incremental Term Facility Loan, to a
Person that is not a Lender, an Affiliate of a Lender or an Approved Fund;
(C) the consent of the L/C Issuer (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more
Letters of Credit (whether or not then outstanding); and
(D) the consent of the Swing Line Lender (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment in
respect of the Revolving Credit Facility.
(iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee in the amount of $3,500; provided, however, that
the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a
Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.
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Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Upon request, the Borrower
(at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section 11.06(d).
(c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amounts of and interest rates on the
Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”). The entries in the Register shall be conclusive, and the Borrower,
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 Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C
Issuer shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. In the event that any Lender sells a
participation, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf
of the Borrower, maintain, or cause to be maintained, a register, on which it enters the
name of all Participants to whom such participation is sold and the principal amount (and
stated interest thereon) of the portion of the Commitment, Loans and/or other obligations
that are the subject of such sale (the “Participant Register”). The Participant Register
shall be available for inspection by the Borrower and the Administrative Agent at any
reasonable time and from time to time upon reasonable prior notice. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, waiver or other modification described in the first proviso to
Section 11.01 that affects such Participant. Subject to subsection (e) of this Section, the
Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
Section 11.06(b). To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 11.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.13 as though it were a Lender.
106
(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any)
to secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall
release such Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(g) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Revolving Credit Commitment and Revolving Credit Loans pursuant to Section 11.06(b), Bank of
America may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer
and/or (ii) upon 30 days’ notice to the Borrower, resign as Swing Line Lender. In the event
of any such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled
to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided, however, that no failure by the Borrower to appoint any such successor shall
affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case
may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers,
privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as L/C Issuer and all L/C
Obligations with respect thereto (including the right to require the Lenders to make Base
Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).
If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the
Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the right to require the
Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing
Line Lender, (a) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case
may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for
the Letters of Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to Bank of America to effectively assume the obligations of Bank
of America with respect to such Letters of Credit.
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11.07
Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the
Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and
representatives;
provided
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential, (b) to the extent requested
by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to the extent required
by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
any Eligible Assignee invited to be a Lender pursuant to
Section 2.15(b) or
Section 2.16(b) or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to a Loan Party and its obligations, (g) with the consent of the Borrower or the Parent or
(h) to the extent such Information (i) becomes publicly available other than as a result of a
breach of this
Section or (ii) becomes available to the Administrative Agent, any Lender, the L/C
Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than a
Loan Party or a Subsidiary thereof.
For purposes of this Section, “Information” means all information received from any Loan Party
or any Subsidiary thereof relating to any Loan Party or any Subsidiary thereof or their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by any Loan Party or any
Subsidiary thereof. Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Loan Parties or their
respective Subsidiaries, as the case may be, (b) it has developed compliance procedures regarding
the use of material non-public information and (c) it will handle such material non-public
information in accordance with applicable Law, including United States Federal and state securities
Laws.
(a) If an Event of Default shall have occurred and be continuing, each Lender, the L/C
Issuer and each of their respective Affiliates is hereby authorized at any time and from
time to time, after obtaining the prior written consent of the Administrative Agent, to the
fullest extent permitted by applicable Law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time
held and other obligations (in whatever currency) at any time owing by such Lender, the L/C
Issuer or any such Affiliate to or for the credit or the account of the Borrower or any
other Loan Party against any and all of the obligations of the Borrower or such Loan Party
now or hereafter existing under this Agreement or any other Loan Document to such Lender or
the L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have made
any demand under this Agreement or any other Loan Document and although such obligations of
the Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or
office of such Lender or the L/C Issuer different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender, the L/C Issuer and
their respective Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their respective
Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower
and the Administrative Agent promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such setoff and
application.
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(b) The L/C Issuer and each Lender, in its capacity as a Lender and in its capacity as
a Hedge Bank, and each other Hedge Bank, by its acceptance of the benefits of the Collateral
Documents creating Liens to secure Obligations arising under Secured Hedge Agreements,
agrees that it will not, without the prior written consent of the Administrative Agent,
exercise any right to set off or apply any deposits of any kind, or any other obligations
owing by it to or for the order of the Borrower or any other Loan Party, against any
Obligations arising under Secured Hedge Agreements or against any other amounts owed by the
Borrower or another Loan Party to such Lender or against other amounts secured by Liens on
Collateral; provided that nothing contained in this Section or elsewhere in this Agreement
shall impair the right of any Hedge Bank to declare an early termination date in respect of
any Secured Hedge Agreement or to undertake payment or close-out netting or to otherwise
setoff trades or transactions then existing under such Secured Hedge Agreements.
11.09
Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “
Maximum Rate”). If the
Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.
11.10
Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts
(and by different parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Agreement
and the other Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery
of a manually executed counterpart of this Agreement.
11.11
Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.
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11.12
Severability. If any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which comes as close as
possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
11.13
Replacement of Lenders.
If any Lender requests compensation under
Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender is a Defaulting
Lender or if any other circumstance exists hereunder that gives the Borrower the right to replace a
Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and consents required
by,
Section 11.06), all of its interests, rights and obligations under this Agreement and the
related Loan Documents to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment),
provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b);
(b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will
result in a reduction in such compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
(a)
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF
NEW YORK.
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(b)
SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF
THE COURTS OF THE STATE OF
NEW YORK SITTING IN MANHATTAN COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER
LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C
ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN
THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN
PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
11.15
California Judicial Reference. If any action or proceeding is filed in a court of the
State of California by or against any party hereto in connection with any of the transactions
contemplated by this Agreement or any other Loan Document, (a) the court shall, and is hereby
directed to, make a general reference pursuant to California Code of Civil Procedure
Section 638 to
a referee (who shall be a single active or retired judge) to hear and determine all of the issues
in such action or proceeding (whether of fact or of law) and to report a statement of decision,
provided that at the option of any party to such proceeding, any such issues pertaining to a
"
provisional remedy” as defined in California Code of Civil Procedure
Section 1281.8 shall be heard
and determined by the court, and (b) without limiting the generality of
Section 11.04, the Borrower
shall be solely responsible to pay all fees and expenses of any referee appointed in such action or
proceeding.
11.16
Real Property Collateral Located in the State of California. Notwithstanding anything
to the contrary contained herein or in the other Loan Documents, the provisions of
Sections 5.09,
6.02(g) (insofar as
Section 6.02(g) relates to Environmental Laws, Environmental Permits or
Hazardous Materials),
6.03(b) (insofar as
Section 6.03(b) relates to Environmental Laws),
6.13,
6.14 and
11.04 (insofar as
Section 11.04 relates to Environmental Laws, Hazardous Materials and the
breach of any environmental representations, warranties or covenants), (A) shall not be secured by
any real property Collateral located in the State of California notwithstanding that any such real
property Collateral may secure any or all other obligations of Borrower or any other Loan Party
under this Agreement or any other Loan Documents, and (B) shall not limit or impair any rights or
remedies of the Administrative Agent or
any other Secured Party against the Borrower, the Parent, or any other Loan Party, or any
Subsidiaries of any Loan Party under any Environmental Laws, including any rights of contribution
or indemnification.
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11.17
Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
11.18 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction
contemplated hereby (including in connection with any amendment, waiver or other modification
hereof or of any other Loan Document), each of the Borrower, the Parent and the General Partner
acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i)(A) the arranging
and other services regarding this Agreement provided by the Administrative Agent, BAS and the other
Arranger are arm’s-length commercial transactions between the Borrower, the Parent, the General
Partner and their respective Affiliates, on the one hand, and the Administrative Agent, and the
other Arranger, on the other hand, (B) each of the Borrower, the Parent and the General Partner has
consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) each of the Borrower, the Parent and the General Partner is capable of
evaluating, and understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (ii)(A) the Administrative Agent, BAS and each
other Arranger each is and has been acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent
or fiduciary for the Borrower, the Parent, the General Partner or any of their respective
Affiliates, or any other Person and (B) neither the Administrative Agent, BAS nor any other
Arranger has any obligation to the Borrower, the Parent , the General Partner or any of their
respective Affiliates with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, BAS
and the other Arranger(s) and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrower, the Parent, the General
Partner and their respective Affiliates, and neither the Administrative Agent, BAS nor any other
Arranger has any obligation to disclose any of such interests to the Borrower, the Parent, the
General Partner or any of their respective Affiliates. To the fullest extent permitted by law,
each of the Borrower, the Parent and the General Partner hereby waives and releases any claims that
it may have against the Administrative Agent, BAS and the other Arranger(s) with respect to any
breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.
11.19
Electronic Execution of Assignments and Certain Other Documents.
The words
“execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in
any amendment or other modification hereof (including waivers and consents) shall be deemed to
include electronic signatures or the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually executed signature or the use of
a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act,
the
New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
112
11.20 USA PATRIOT Act. EACH LENDER THAT IS SUBJECT TO THE ACT (AS HEREINAFTER DEFINED) AND
THE ADMINISTRATIVE AGENT (FOR ITSELF AND NOT ON BEHALF OF ANY LENDER) HEREBY NOTIFIES THE GENERAL
PARTNER, THE PARENT AND THE BORROWER 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 EACH LOAN PARTY, WHICH INFORMATION INCLUDES
THE NAME AND ADDRESS OF EACH LOAN PARTY AND OTHER INFORMATION THAT WILL ALLOW SUCH LENDER OR THE
ADMINISTRATIVE AGENT, AS APPLICABLE, TO IDENTIFY EACH LOAN PARTY IN ACCORDANCE WITH THE ACT. THE
GENERAL PARTNER, THE PARENT AND THE BORROWER SHALL, PROMPTLY FOLLOWING A REQUEST BY THE
ADMINISTRATIVE AGENT OR ANY LENDER, PROVIDE ALL DOCUMENTATION AND OTHER INFORMATION THAT THE
ADMINISTRATIVE AGENT OR SUCH LENDER REQUESTS IN ORDER TO COMPLY WITH ITS ONGOING OBLIGATIONS UNDER
APPLICABLE “KNOW YOUR CUSTOMER” AN ANTI-MONEY LAUNDERING RULES AND REGULATIONS, INCLUDING THE ACT.
11.21 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[Remainder of Page Is Intentionally Blank]
113
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.
|
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BORROWER:
SUBURBAN PROPANE, L.P.
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By: |
/s/ Xxxxxxx X. Xxxxxxx
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Name: |
Xxxxxxx X. Xxxxxxx |
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Title: |
Chief Financial Officer |
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PARENT:
SUBURBAN PROPANE PARTNERS, L.P.
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By: |
/s/ Xxxxxxx X. Xxxxxxx
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Name: |
Xxxxxxx X. Xxxxxxx |
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Title: |
Chief Financial Officer |
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[Remainder of Page Is Intentionally Blank]
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BANK OF AMERICA, N.A., as
Administrative Agent
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By: |
/s/ Xxxxxxx Xxxxx
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President |
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BANK OF AMERICA, N.A., as a Lender,
L/C Issuer and Swing Line Lender
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By: |
/s/ Xxxxxxxx X. Xxxxx
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Name: |
Xxxxxxxx X. Xxxxx |
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Title: |
Principal |
|
[Remainder of Page Is Intentionally Blank]
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
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By: |
/s/ Xxxxxxxxx X. Xxxxx
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Name: |
Xxxxxxxxx X. Xxxxx |
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Title: |
Managing Director |
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CAPITAL ONE, N.A.,
as a Lender
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By: |
/s/ Xxxxxxx Xxxxx
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President |
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RBS CITIZENS, N.A.,
as a Lender
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By: |
/s/ Xxxxxxx X. Xxxxxxxxxx
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|
Name: |
Xxxxxxx X. Xxxxxxxxxx |
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Title: |
Senior Vice President |
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HSBC BANK USA, NATIONAL ASSOCIATION,
as a Lender
|
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By: |
/s/ Xxxxxxx Kid
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|
Name: |
Xxxxxxx Kid |
|
|
|
Title: |
Officer |
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TORONTO DOMINION (NEW YORK) LLC,
as a Lender
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By: |
/s/ Xxxxx Xxxxxx
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|
Name: |
Xxxxx Xxxxxx |
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Title: |
Vice President |
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SOVEREIGN BANK,
as a Lender
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By: |
/s/ Xxxxxx X. Xxxxxxx
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|
Name: |
Xxxxxx X. Xxxxxxx |
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Title: |
Senior Vice President |
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CRÉDIT INDUSTRIEL ET COMMERCIAL,
as a Lender
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By: |
/s/ Xxxxx X'Xxxxx
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|
Name: |
Xxxxx X'Xxxxx |
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Title: |
Managing Director |
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By: |
/s/ Xxxxxx Xxxxxx
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|
Name: |
Xxxxxx Xxxxxx |
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|
Title: |
Managing Director |
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ISRAEL DISCOUNT BANK OF NEW YORK,
as a Lender
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By: |
/s/ Xxxxx X. Xxxxxx
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|
Name: |
Xxxxx X. Xxxxxx |
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|
Title: |
First Vice President |
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By: |
/s/ Xxxxxxx Xxxxxxxxxx
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Name: |
Xxxxxxx Xxxxxxxxxx |
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Title: |
Vice President |
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JPMORGAN CHASE BANK, N.A.,
as a Lender
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By: |
/s/ Xxxxxx Xxxxxxxxx
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|
Name: |
Xxxxxx Xxxxxxxxx |
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Title: |
Associate |
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XXXXXXX XXXXX BANK, FSB,
as a Lender
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By: |
/s/ Xxxxxxx XxXxxxxx
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Name: |
Xxxxxxx XxXxxxxx |
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Title: |
Senior Vice President |
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CITIBANK, N.A.,
as a Lender
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By: |
/s/ Xxxxxxxxx X. Xxxxxxxxx
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|
Name: |
Xxxxxxxxx X. Xxxxxxxxx |
|
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Title: |
Senior Vice President |
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XXXXXXX SACHS BANK USA,
as a Lender
|
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By: |
/s/ Xxxx Xxxxxx
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Name: |
Xxxx Xxxxxx |
|
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Title: |
Authorized Signatory |
|
|
SCHEDULE 1.01(a)
AGWAY SUBSIDIARIES; INACTIVE SUBSIDIARIES
Agway Subsidiaries
Suburban Albany Property, LLC, a Delaware limited liability company
Suburban Xxxxxx Xxxxxx Street Property, LLC, a Delaware limited liability company
Suburban Canton Buck Street Property, LLC, a Delaware limited liability company
Xxxxxxxx Xxxxxx Xxxxx 00 Property, LLC, a Delaware limited liability company
Suburban Chambersburg Fifth Avenue Property, LLC, a Delaware limited liability company
Suburban Xxxxxxxxx Depot Property, LLC, a Delaware limited liability company
Suburban Gettysburg Property, LLC, a Delaware limited liability company
Suburban Lewistown Property, LLC, a Delaware limited liability company
Suburban MA Surplus Property, LLC, a Delaware limited liability company
Suburban Xxxxx Property, LLC, a Delaware limited liability company
Suburban Middletown North Street Property, LLC, a Delaware limited liability company
Suburban New Xxxxxxx Xxxxx Street Property, LLC, a Delaware limited liability company
Suburban NJ Property Acquisitions, LLC, a Delaware limited liability company
Suburban NJ Surplus Property, LLC, a Delaware limited liability company
Suburban NY Property Acquisitions, LLC, a Delaware limited liability company
Suburban NY Surplus Property, LLC, a Delaware limited liability company
Suburban PA Property Acquisitions, LLC, a Delaware limited liability company
Suburban PA Surplus Property, LLC, a Delaware limited liability company
Suburban Rochester Property, LLC, a Delaware limited liability company
Suburban Sodus Property, LLC, a Delaware limited liability company
Suburban Temple Property, LLC, a Delaware limited liability company
Suburban Xxxxxxx Property, LLC, a Delaware limited liability company
Suburban Verbank Property, LLC, a Delaware limited liability company
Suburban Vineland Property, LLC, a Delaware limited liability company
Suburban VT Property Acquisitions, LLC, a Delaware limited liability company
Suburban Xxxxxx Property, LLC, a Delaware limited liability company
Suburban Washington Property, LLC, a Delaware limited liability company
Inactive Subsidiaries1
Suburban Propane Gas Corporation, a New Jersey corporation
Plateau, Inc., a New Mexico corporation
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|
|
1 |
|
Please note that papers have been filed for
dissolution; these entities may be officially dissolved prior to closing. |
Schedule 1.01(a) — Page 1
SCHEDULE 1.01(b)
EXISTING LETTERS OF CREDIT
|
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Issuing Bank |
|
Face Amount |
|
|
Expiration |
|
Beneficiary |
|
|
|
|
|
|
|
|
|
Bank of America, N.A. |
|
$ |
27,415,000 |
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|
Xxxxx 0, 0000 |
|
Xxxxxxx Mutual Insurance Company |
|
Bank of America, N.A. |
|
$ |
24,400,000 |
|
|
March 1, 2010 |
|
Indemnity Insurance Cp. of North America |
|
Wachovia Bank, N.A. |
|
$ |
5,000,000.00 |
|
|
April 15, 2010 |
|
New York Independent System |
|
Wachovia Bank, N.A. |
|
$ |
125,000.00 |
|
|
October 25, 2010 |
|
Columbia Gas Transmission |
|
Wachovia Bank, N.A. |
|
$ |
90,000.00 |
|
|
April 3, 2010 |
|
Texas Eastern Transmission |
|
Wachovia Bank, N.A. |
|
$ |
70,000.00 |
|
|
January 28, 2010 |
|
Tennessee Gas Pipeline Company |
|
Wachovia Bank, N.A. |
|
$ |
33,000.00 |
|
|
January 15, 2010 |
|
Empire Pipeline |
|
Wachovia Bank, N.A. |
|
$ |
33,000.00 |
|
|
January 15, 2010 |
|
National Fuel Gas Supply Corp |
Schedule 1.01(b) — Page 1
SCHEDULE 2.01
COMMITMENTS
AND APPLICABLE PERCENTAGES
|
|
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|
|
Revolving Credit Applicable |
|
Lender |
|
Revolving Credit Commitment |
|
|
Percentage |
|
|
|
|
|
|
|
|
|
|
Bank of America, N.A. |
|
$ |
30,000,000.00 |
|
|
|
12.000000000 |
|
|
Wachovia Bank, National Association |
|
$ |
29,000,000.00 |
|
|
|
11.600000000 |
|
|
Capital One N.A. |
|
$ |
28,000,000.00 |
|
|
|
11.200000000 |
|
|
RBS Citizens, N.A. |
|
$ |
28,000,000.00 |
|
|
|
11.200000000 |
|
|
HSBC Bank USA, NA |
|
$ |
18,000,000.00 |
|
|
|
7.200000000 |
|
|
Toronto Dominion (New York) LLC |
|
$ |
18,000,000.00 |
|
|
|
7.200000000 |
|
|
Sovereign Bank |
|
$ |
18,000,000.00 |
|
|
|
7.200000000 |
|
|
Israel Discount Bank of New York |
|
$ |
16,000,000.00 |
|
|
|
6.400000000 |
|
|
JPMorgan Chase Bank, N.A. |
|
$ |
14,000,000.00 |
|
|
|
5.600000000 |
|
|
Xxxxxxx Xxxxx Bank, FSB |
|
$ |
14,000,000.00 |
|
|
|
5.600000000 |
|
|
Citibank N.A. |
|
$ |
14,000,000.00 |
|
|
|
5.600000000 |
|
|
Xxxxxxx Sachs Bank USA |
|
$ |
5,000,000.00 |
|
|
|
2.000000000 |
|
|
Crédit Industriel et Commercial |
|
$ |
18,000,000.00 |
|
|
|
7.200000000 |
|
|
|
|
|
|
|
|
|
Total |
|
$ |
250,000,000.00 |
|
|
|
100.000000000 |
% |
|
|
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|
Schedule 2.01 — Page 1
SCHEDULE 5.13
SUBSIDIARIES AND OTHER
EQUITY INVESTMENTS; LOAN PARTIES
Part
(a) — Subsidiaries1
|
• |
|
Suburban Propane Partners, L.P. |
|
|
• |
|
Suburban Propane, L.P. |
|
|
• |
|
Suburban Sales & Service, Inc. |
|
|
• |
|
Gas Connection, LLC (d/b/a HomeTown Hearth & Grill) |
|
|
• |
|
Suburban Franchising, LLC |
|
|
• |
|
Suburban Heating Oil Partners, LLC (d/b/a Suburban Propane) |
|
|
• |
|
Suburban Plumbing New Jersey LLC |
|
|
• |
|
Agway Energy Services, LLC. |
|
|
• |
|
Suburban Energy Finance Corp. |
|
|
• |
|
Suburban LP Holding, Inc. |
|
|
• |
|
Suburban LP Holding, LLC |
|
|
|
|
|
|
|
|
|
|
|
Number of |
|
|
|
|
|
|
|
|
Shares |
|
Number of Shares |
|
Par |
|
Owner(s) of Equity |
Entity Name |
|
Authorized |
|
Issued/Outstanding |
|
value |
|
Interest/Member(s) |
|
|
|
|
|
|
|
|
|
Suburban Propane
Partners, L.P.
|
|
N/A
|
|
32,797,020
|
|
N/A
|
|
general partner interest:
Suburban Energy Services Group LLC
limited partner interests:
100% Investing Public |
|
|
|
|
|
|
|
|
|
Suburban Propane,
L.P.
|
|
N/A
|
|
N/A
|
|
N/A
|
|
general partner interest:
Suburban Energy Services
Group LLC
limited partner interests:
99.9% Suburban Propane
Partners, L.P.
0.1% Suburban L.P. Holdings, LLC |
|
|
|
|
|
|
|
|
|
Suburban LP
Holding, Inc.
|
|
1,000 shares of
Common Stock
|
|
100
|
|
$0.01 per share
|
|
100% Suburban Propane
Partners, L.P. |
|
|
|
1 |
|
(*= Agway Subsidiaries and Inactive Subsidiaries are
listed on Schedule 1.01(a). The member for all of the Agway Subsidiaries
listed on Schedule 1.01(a) is Gas Connection, LLC (formerly Gas Connection,
Inc.).) |
Schedule 5.13 — Page 1
|
|
|
|
|
|
|
|
|
|
|
Number of |
|
|
|
|
|
|
|
|
Shares |
|
Number of Shares |
|
Par |
|
Owner(s) of Equity |
Entity Name |
|
Authorized |
|
Issued/Outstanding |
|
value |
|
Interest/Member(s) |
|
|
|
|
|
|
|
|
|
Suburban LP
Holding, LLC
|
|
N/A
|
|
N/A
|
|
N/A
|
|
50% Suburban LP Holding, Inc
50% Suburban Propane
Partners, L.P. |
|
|
|
|
|
|
|
|
|
Suburban Propane
Gas Corporation
(Dissolution papers
have been filed)
|
|
1,000 shares of
Common Stock
|
|
1,000
|
|
$1.00 per share
|
|
Suburban Propane, L.P. |
|
|
|
|
|
|
|
|
|
Plateau, Inc.
(Dissolution papers
have been filed)
|
|
50,000 shares of
Common Stock
|
|
26,471
|
|
$5.00 per share
|
|
Suburban Propane, L.P. |
|
|
|
|
|
|
|
|
|
Suburban Energy
Finance Corp.
|
|
1,000 shares of
Common Stock
|
|
1,000
|
|
$0.01 per share
|
|
100% Suburban Propane
Partners, L.P. |
|
|
|
|
|
|
|
|
|
Suburban Sales &
Service, Inc.
|
|
2,000 shares of
Common Stock
|
|
2,000
|
|
no par value
|
|
Suburban Propane, L.P |
|
|
|
|
|
|
|
|
|
Gas Connection, LLC
(d/b/a HomeTown
Hearth & Grill)
|
|
N/A
|
|
N/A
|
|
N/A
|
|
100%: Suburban Sales &
Service, Inc. |
|
|
|
|
|
|
|
|
|
Suburban
Franchising, LLC
|
|
N/A
|
|
N/A
|
|
N/A
|
|
100%: Suburban Sales &
Service, Inc. |
|
|
|
|
|
|
|
|
|
Suburban Heating
Oil Partners, LLC
(d/b/a Suburban
Propane)
|
|
N/A
|
|
N/A
|
|
N/A
|
|
100%: Gas Connection, LLC |
|
|
|
|
|
|
|
|
|
Suburban Plumbing
New Jersey LLC
|
|
N/A
|
|
N/A
|
|
N/A
|
|
Suburban Sales & Service,
Inc.: 45%
Suburban Heating Oil
Partners, LLC: 45%
Xxxxxxxx Xxxxxx: 10%
|
|
|
|
|
|
|
|
|
|
Agway Energy
Services, LLC
|
|
N/A
|
|
N/A
|
|
N/A
|
|
100%: Gas Connection, LLC |
Part (b) — Other Equity Investments
None.
Schedule 5.13 — Page 2
SCHEDULE 7.02
EXISTING INDEBTEDNESS
None.
Schedule 7.02 — Page 1
SCHEDULE 11.02
ADMINISTRATIVE AGENT’S OFFICE,
CERTAIN ADDRESSES FOR NOTICES
LOAN PARTIES:
[Name of Loan Party]
[c/o] Suburban Propane, L.P.
Xxx Xxxxxxxx Xxxxx
000 Xxxxx 00 West
X.X. Xxx 000
Xxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: A. Xxxxx X’Xxxxxxxx
Telephone: (000)000-0000
Telecopier: (000)000-0000
Electronic Mail: XXxxxxxxxx@xxxxxxxxxxxxxxx.xxx
Website Address: xxx.xxxxxxxxxxxxxxx.xxx
U.S. Taxpayer Identification Number: 00-0000000
ADMINISTRATIVE AGENT:
Administrative Agent’s Office
(for payments and Requests for Credit Extensions including Swing Line Loans):
Bank of America, N.A.
000 Xxxx Xxxxxx
Mail Code: TX1-492-14-04
Xxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Electronic Mail: xxxxx.xxxxx@xxxxxxxxxxxxx.xxx
Account No.: 1292000883
Ref: Suburban Propane L.P.
ABA# 000000000
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Mail Code: CA5-701-05-19
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Manduk
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Electronic Mail: xxxxxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
Schedule 11.02 — Page 1
With a CC to:
Bank of America, N.A.
Natural Resources
000 Xxxxxxx Xxxxxx
Mail Code: MA5-100-09-01
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Electronic Mail: xxxxxxxx.x.xxxxx@xxxxxxxxxxxxx.xxx
L/C ISSUER:
Bank of America, N.A.
Trade Operations
Mail Code: CA9-705-07-05
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Electronic Mail: xxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
Schedule 11.02 — Page 2
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ,
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 26, 2009 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Suburban
Propane, L.P., a Delaware limited partnership (the “Borrower”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The undersigned hereby requests (select one):
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o |
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Borrowing of [Revolving Credit][Incremental Term Facility] Loans |
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o |
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conversion or continuation of [Revolving Credit] [Incremental Term Facility] Loans |
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1. |
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On (a Business Day). |
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2. |
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In the amount of $ |
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3. |
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Comprised of
[Type of Loan requested] |
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4. |
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For Eurodollar Rate Loans: with an Interest Period of months. |
The Revolving Credit Borrowing requested herein complies with the proviso to the first
sentence of Section 2.01of the Agreement.] 3
The Borrower hereby represents and warrants that (i) the representations and warranties
of the Borrower and each other Loan Party contained in Article V of the Agreement or in any
other Loan Document, or which are contained in any document furnished at any time under or
in connection therewith, shall be true and correct on and as of the date of the Borrowing or
the conversion or continuation of Loans requested herein, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they
shall be true and correct as of such earlier date, and except that the representations and
warranties contained in Sections 5.05(a), (b), (c) and (d) of the Agreement shall be deemed
to refer to the most recent statements furnished pursuant to Sections 6.01(a), (b), (c) and
(d) of the Agreement, respectively; and (ii) no Default shall exist, or would result from
the Borrowing or the conversion or continuation of Loans requested herein, or from the
application of the proceeds thereof.
[Signature Page to Follow]
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3 |
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Include this sentence in the case of a Revolving Credit Borrowing. |
Exhibit A — Page 1
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SUBURBAN PROPANE, L.P.
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By: |
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Name: |
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Title: |
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Exhibit A — Page 2
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ,
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To: |
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Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent |
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 26, 2009 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Suburban
Propane, L.P., a Delaware limited partnership (the “Borrower”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The undersigned hereby requests a Swing Line Loan:
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1. |
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On (a Business Day). |
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2. |
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In the amount of $ . |
The Borrower hereby represents and warrants that (i) the representations and warranties of
the Borrower and each other Loan Party contained in Article V of the Agreement or in any other Loan
Document, or which are contained in any document furnished at any time under or in connection
therewith, shall be true and correct on and as of the date of the Swing Line Borrowing requested
herein, except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such earlier date, and except that
the representations and warranties contained in Sections 5.05(a), (b), (c) and (d) of the Agreement
shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a), (b),
(c) and (d) of the Agreement, respectively; and (ii) no Default shall exist, or would result from
the Swing Line Borrowing requested herein or from the application of the proceeds thereof.
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SUBURBAN PROPANE, L.P.
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By: |
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Name: |
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Title: |
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Exhibit B — Page 1
EXHIBIT C
FORM OF REVOLVING CREDIT NOTE
___________, ____
FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
or registered assigns (the “Lender”), in accordance with the provisions of
the Agreement (as hereinafter defined), the principal amount of each Revolving Credit Loan from
time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of
June 26, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement;” the terms defined therein being used herein as therein defined),
among the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit
Loan from the date of such Loan until such principal amount is paid in full, at such interest rates
and at such times as provided in the Agreement. Except as otherwise provided in Section 2.04(f) of
the Agreement with respect to Swing Line Loans, all payments of principal and interest shall be
made to the Administrative Agent for the account of the Lender in Dollars in immediately available
funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder,
such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the
date of actual payment (and before as well as after judgment) computed at the per annum rate set
forth in the Agreement.
This Revolving Credit Note is one of the Revolving Credit Notes referred to in the Agreement,
is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. This Revolving Credit Note is also entitled to the benefits of the
Guaranty and is secured by the Collateral. Upon the occurrence and continuation of one or more of
the Events of Default specified in the Agreement, all amounts then remaining unpaid on this
Revolving Credit Note shall become, or may be declared to be, immediately due and payable all as
provided in the Agreement. Revolving Credit Loans made by the Lender shall be evidenced by one or
more loan accounts or records maintained by the Lender in the ordinary course of business. The
Lender may also attach schedules to this Revolving Credit Note and endorse thereon the date, amount
and maturity of its Revolving Credit Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving Credit
Note.
Exhibit C — Page 1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
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SUBURBAN PROPANE, L.P.
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By: |
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Name: |
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Title: |
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Signature Page to
Form of Revolving Credit Note
LOANS AND PAYMENTS WITH RESPECT THERETO
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Amount of |
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Outstanding |
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End of |
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Principal or |
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Principal |
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Type of Loan |
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Amount of |
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Interest |
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Interest Paid |
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Balance This |
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Notation |
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Date |
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Made |
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Loan Made |
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Period |
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This Date |
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Date |
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Made By |
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EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: , ____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 26, 2009 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Suburban
Propane, L.P., a Delaware limited partnership (the “Borrower”), Suburban Propane Partners, L.P., a
Delaware limited partnership (the “Parent”), the Lenders from time to time party thereto, and Bank
of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The undersigned Responsible Officer4 hereby certifies as of the date hereof that
he/she is the of each of the Parent and the Borrower, and that,
as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent
on the behalf of the Borrower and the Parent, and that:
[Use following paragraphs 1 and 2 for fiscal year-end financial statements]
1. The Parent has delivered the year-end audited financial statements required by
Section 6.01(a) of the Agreement for the fiscal year of the Parent ended as of the above date,
together with the report and opinion of an independent certified public accountant required by such
Section.
2. The Borrower has delivered the year-end unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal year of the Borrower ended as of the above date.
Such consolidated financial statements fairly present the financial condition, results of
operations, partners’ capital and cash flows of the Borrower and its Subsidiaries in accordance
with GAAP as at such date and for such period.
[Use following paragraphs 1 and 2 for fiscal quarter-end financial statements]
1. The Parent has delivered the unaudited financial statements required by Section 6.01(c) of
the Agreement for the fiscal quarter of the Parent ended as of the above date. Such consolidated
financial statements fairly present the financial condition, results of operations, partners’
capital and cash flows of the Parent and its Subsidiaries in accordance with GAAP as at such date
and for such period, subject only to normal year-end audit adjustments and the absence of
footnotes.
2. The Borrower has delivered the unaudited financial statements required by Section 6.01(d)
of the Agreement for the fiscal quarter of the Borrower ended as of the above date. Such
consolidated financial statements fairly present the financial condition, results of operations,
partners’ capital and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such
date and for such period, subject only to normal year-end audit adjustments and the absence of
footnotes.
|
|
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4 |
|
This certificates should be from the chief executive officer, chief
financial officer, treasurer, or controller of the Parent and the
Borrower, as applicable. |
Exhibit D — Page 1
3. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower and Parent during the accounting period covered
by such financial statements.
4. A review of the activities of the Borrower and the Parent during such fiscal period has
been made under the supervision of the undersigned with a view to determining whether during such
fiscal period the Borrower, the Parent, and the other Loan Parties performed and observed all its
Obligations under the Loan Documents, and
[select one:]
[to the best knowledge of the undersigned, during such fiscal period, the Borrower, the
Parent, and the other Loan Parties performed and observed each covenant and condition of the Loan
Documents applicable to it, and no Default has occurred and is continuing.]
—or—
[to the best knowledge of the undersigned, the following covenants or conditions have not been
performed or observed and the following is a list of each such Default and its nature and status:]
5. The financial covenant analyses and information set forth on Schedules 1 and 2 attached
hereto are true and accurate on and as of the date of this Certificate.
6. Attached hereto as Schedule 3 are updates to all Schedules to the Security Agreement to the
extent that information therein has become inaccurate or incomplete.
[Use the following paragraph 7 for fiscal year-end financial statements]
7. Attached hereto as Schedule 4 is a report summarizing the insurance coverage specifying
type, amount and carrier) in effect for each Loan Party and its Subsidiaries and containing such
additional information as the Administrative Agent has reasonably specified.
Exhibit D — Page 2
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SUBURBAN PROPANE PARTNERS, L.P.
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By: |
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Name: |
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Title: |
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SUBURBAN PROPANE, L.P.
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By: |
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Name: |
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Title: |
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Exhibit D — Page 3
For the Quarter/Year ended , ____ (“Statement Date”)
SCHEDULE 1
to the Compliance Certificate
($ in 000’s)
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I. Section 7.11 (a) – Consolidated Interest Coverage Ratio. |
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A. Consolidated EBITDA of the Borrower for Measurement Period ending on above date (“Subject
Period”): |
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1. Consolidated Net Income for Subject Period: |
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$ |
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2. Consolidated Interest Charges for Subject Period: |
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$ |
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3. Provision for income taxes for Subject Period: |
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$ |
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4. Depreciation expenses for Subject Period: |
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$ |
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5. Amortization expenses for Subject Period: |
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$ |
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6. Extraordinary non-cash losses for Subject Period: |
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$ |
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7. Make whole or premium paid in connection with |
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$ |
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prepayment of Parent Notes for Subject Period: |
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8. Cash restructuring charges for Subject Period
(not to exceed $5 million during the term of the
Credit Agreement): |
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$ |
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9. Non-recurring non-cash reductions of
Consolidated Net Income for Subject Period: |
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$ |
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10. Extraordinary gains and other non-recurring
gains for Subject Period: |
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$ |
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11. Income from Agway Subsidiaries and Inactive
Subsidiaries and non-cash gains from the sale of
Agway Subsidiaries and Inactive Subsidiaries and
their respective properties: |
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$ |
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12. Consolidated EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5
+ 6 + 7 + 8 + 9 – 10 – 11): |
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$ |
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|
13. If Permitted Acquisition(s) was/were made during
the Subject Period, indicate pro forma
adjustment for such acquisition(s) and attach
separate explanation: |
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$ |
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14. Unrealized gains under FASB Statement No. 133 in
connection with hedging agreements for Subject
Period: |
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$ |
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15. Unrealized losses under FASB Statement No. 133
in connection with hedging agreements for
Subject Period: |
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$ |
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16. Consolidated EBITDA after pro forma adjustment
for Permitted Acquisition(s) and exclusion of
unrealized gains and losses under FASB 133
(Lines I.A.12 + I.A.13 – I.A.14 + I.A.15): |
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$ |
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B. Consolidated Interest Charges for Subject Period: |
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$ |
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C. Consolidated Interest Coverage Ratio (Line I.A.16 ¸ Line I.B): |
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to 1.00 |
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Minimum required: 2.50 to 1.00 |
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Schedule 1 to
Compliance Certificate
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II. Section 7.11 (b) – Total Consolidated Leverage Ratio. |
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A. Consolidated Total Debt of the Parent at Statement Date: |
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$ |
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B. Consolidated EBITDA of the Parent for Subject Period: |
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1. Consolidated Net Income for Subject Period: |
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$ |
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2. Consolidated Interest Charges for Subject Period: |
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$ |
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3. Provision for income taxes for Subject Period: |
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$ |
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4. Depreciation expenses for Subject Period: |
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$ |
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5. Amortization expenses for Subject Period: |
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$ |
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6. Extraordinary non-cash losses for Subject Period: |
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$ |
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7. Make whole or premium paid in connection with
prepayment of Parent Notes for Subject Period: |
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$ |
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8. Cash restructuring charges for Subject Period
(not to exceed $5 million during the term of the
Credit Agreement): |
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$ |
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9. Non-recurring non-cash reductions of
Consolidated Net Income for Subject Period: |
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$ |
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10. Extraordinary gains and other non-recurring
gains for Subject Period: |
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$ |
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11. Income from Agway Subsidiaries and Inactive
Subsidiaries and non-cash gains from the sale of
Agway Subsidiaries and Inactive Subsidiaries and
their respective properties: |
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$ |
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12. Consolidated EBITDA (Lines II.B.1 + 2 + 3 + 4 +
5 + 6 + 7 + 8 + 9 – 10 – 11): |
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$ |
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13. If Permitted Acquisition(s) was/were made during
the Subject Period, indicate pro forma
adjustment for such acquisition(s) and attach
separate explanation: |
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$ |
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14. Unrealized gains under FASB Statement No. 133 in
connection with hedging agreements for Subject
Period: |
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$ |
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15. Unrealized losses under FASB Statement No. 133
in connection with hedging agreements for
Subject Period: |
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$ |
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16. Consolidated EBITDA after pro forma adjustment
for Permitted Acquisition(s) (Lines II.B.12 +
II.B.13 – II.B.14 + II.B.15): |
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$ |
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C. Total Consolidated Leverage Ratio (Line II.A ¸ Line II.B.16): |
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to 1.00 |
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Maximum permitted: 4.50 to 1.00 |
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Schedule 1 to
Compliance Certificate
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III. Section 7.11(c) – Senior Secured Consolidated Leverage Ratio. |
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A. Senior Secured Indebtedness of the Borrower at Statement Date: |
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$ |
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B. Consolidated EBITDA of the Borrower for Subject Period (Line I.A.16 above): |
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$ |
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C. Senior Secured Consolidated Leverage Ratio (Line III.A ¸ Line III.B): |
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to 1.00 |
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Maximum required: 3.00 to 1.00 |
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Schedule 1 to
Compliance Certificate
For the Quarter/Year ended ___________________(“Statement Date”)
SCHEDULE 2
to the Compliance Certificate
($ in 000’s)
Consolidated EBITDA of the Borrower
(in accordance with the definition of Consolidated EBITDA
as set forth in the Agreement)
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Quarter |
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Four Quarters |
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Ended on the |
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Ended on the |
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Consolidated |
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Quarter |
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Quarter |
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Quarter |
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Statement |
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Statement |
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EBITDA of the Borrower |
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Ended |
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Ended |
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Ended |
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Date |
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Date |
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Consolidated
Net Income |
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+ Consolidated
Interest Charges |
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+ income taxes |
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+ depreciation expense |
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+ amortization expense |
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+ extraordinary
non-cash losses |
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+ make whole or
premium paid |
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+ cash restructuring
charges (not to
exceed $5 million
during the term of
the Credit Agreement) |
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+ non-recurring
non-cash expenses |
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- extraordinary gains
and other
non-recurring gains |
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- income and non-cash
gains attributable to
Agway Subsidiaries
and Inactive
Subsidiaries |
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Schedule 2 to
Compliance Certificate
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Quarter |
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Four Quarters |
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Ended on the |
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Ended on the |
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Consolidated |
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Quarter |
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Quarter |
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Quarter |
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Statement |
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Statement |
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EBITDA of the Borrower |
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Ended |
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Ended |
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Ended |
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Date |
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Date |
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= Consolidated EBITDA
(prior to pro forma
adjustments for
Permitted
Acquisitions and
exclusion of
unrealized gains and
losses reported under
FASB 133) |
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Pro forma
adjustment for
Permitted
Acquisitions
(attach
separate
explanation for
pro forma
adjustments
made) |
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Unrealized
gains reported
under FASB 133 |
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Unrealized
losses reported
under FASB 133 |
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= Consolidated EBITDA
(after pro forma
adjustments for
Permitted
Acquisitions and
exclusion of
unrealized gains and
losses reported under
FASB 133) |
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Schedule 2 to
Compliance Certificate
Consolidated EBITDA of the Parent
(in accordance with the definition of Consolidated EBITDA
as set forth in the Agreement)
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Quarter |
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Four Quarters |
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Ended on the |
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Ended on the |
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Consolidated |
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Quarter |
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Quarter |
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Quarter |
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Statement |
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Statement |
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EBITDA of the Parent |
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Ended |
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Ended |
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Ended |
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Date |
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Date |
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Consolidated
Net Income |
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+ Consolidated
Interest Charges |
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+ income taxes |
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+ depreciation
expense |
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+ amortization
expense |
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+ extraordinary
non-cash losses |
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+ make whole or
premium paid |
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+ cash restructuring
charges (not to
exceed $5 million
during the term of
the Credit
Agreement) |
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+ non-recurring
non-cash expenses |
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- extraordinary
gains and other
non-recurring gains |
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- income and
non-cash gains
attributable to
Agway Subsidiaries
and Inactive
Subsidiaries |
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= Consolidated
EBITDA (prior to pro
forma adjustments
for Permitted
Acquisitions and
exclusion of
unrealized gains and
losses reported
under FASB 133) |
|
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|
Pro forma
adjustment for
Permitted
Acquisitions
(attach
separate
explanation
for pro forma
adjustments
made) |
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|
Unrealized
gains reported
under FASB 133 |
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|
Unrealized
losses
reported under
FASB 133 |
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= Consolidated
EBITDA (after pro
forma adjustments
for Permitted
Acquisitions and
exclusion of
unrealized gains and
losses reported
under FASB 133) |
|
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Schedule 2 to
Compliance Certificate
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective
Date set forth below and is entered into by and between [the][each]5 Assignor identified
in item 1 below ([the][each, an] “Assignor”) and [the][each]6 Assignee identified in
item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]7 hereunder are several and not
joint.]8 Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (the “Credit Agreement”), receipt of a copy of which
is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facilities9) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its
capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee
pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned
Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except
as expressly provided in this Assignment and Assumption, without representation or warranty by
[the][any] Assignor.
|
|
|
5 |
|
For bracketed language here and elsewhere in this form relating to
the Assignor(s), if the assignment is from a single Assignor, choose the first
bracketed language. If the assignment is from multiple Assignors, choose the
second bracketed language. |
|
6 |
|
For bracketed language here and elsewhere in this form relating to
the Assignee(s), if the assignment is to a single Assignee, choose the first
bracketed language. If the assignment is to multiple Assignees, choose the
second bracketed language. |
|
7 |
|
Select as appropriate. |
|
8 |
|
Include bracketed language if there are either multiple Assignors
or multiple Assignees. |
|
9 |
|
Include all applicable subfacilities. |
Exhibit E — Page 1
|
|
|
|
|
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]] |
3. |
|
Borrower: Suburban Propane, L.P. |
|
4. |
|
Administrative Agent: Bank of America, N.A., as the administrative agent under the
Credit Agreement |
|
5. |
|
Credit Agreement: Credit Agreement, dated as of June 26, 2009, among Suburban
Propane, L.P., the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer, and Swing Line Lender |
|
6. |
|
Assigned Interest: |
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|
Aggregate |
|
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|
Percentage |
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Amount of |
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|
Amount of |
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|
Assigned of |
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|
Facility |
|
|
Commitment/Loans |
|
|
Commitment/Loans |
|
|
Commitment/ |
|
|
CUSIP |
|
Assignor[s]10 |
|
Assignee[s]11 |
|
|
Assigned12 |
|
|
for all Lenders13 |
|
|
Assigned |
|
|
Loans14 |
|
|
Number |
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$ |
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|
$ |
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|
% |
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|
$ |
|
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|
$ |
|
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|
% |
|
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|
$ |
|
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|
$ |
|
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|
% |
|
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|
Effective Date: , 20_____
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
|
|
|
10 |
|
List each Assignor, as appropriate. |
|
11 |
|
List each Assignee, as appropriate. |
|
12 |
|
Fill in the appropriate terminology for the types of facilities
under the Credit Agreement that are being assigned under this Assignment (e.g.
“Revolving Credit Commitment”, “Incremental Term Facility Commitment”, etc.). |
|
13 |
|
Amounts in this column and in the column immediately to the right
to be adjusted by the counterparties to take into account any payments or
prepayments made between the Trade Date and the Effective Date. |
|
14 |
|
Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder. |
|
15 |
|
To be completed if the Assignor and the Assignee intend that the
minimum assignment amount is to be determined as of the Trade Date. |
Exhibit E — Page 2
The terms set forth in this Assignment and Assumption are hereby agreed to:
|
|
|
|
|
|
ASSIGNOR
[NAME OF ASSIGNOR]
|
|
|
By: |
|
|
|
|
Title: |
|
|
|
|
|
|
ASSIGNEE
[NAME OF ASSIGNEE]
|
|
|
By: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
[Consented to and]16 Accepted:
|
|
|
BANK OF AMERICA, N.A., as
Administrative Agent |
|
|
|
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|
By: |
|
|
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|
Title:
|
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|
[Consented to:]17 |
|
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By: |
|
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|
Title:
|
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|
|
|
16 |
|
To be added only if the consent of the Administrative Agent is
required by the terms of the Credit Agreement. |
|
17 |
|
To be added only if the consent of the Borrower and/or other
parties (e.g. Swing Line Lender, L/C Issuer) is required by the terms of the
Credit Agreement. |
Signature Page to
Form of Assignment and Assumption
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.01. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.02. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 11.06(b)(iii),
(v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under
Section 11.06(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall
be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of
[the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it
is sophisticated with respect to decisions to acquire assets of the type represented by [the][such]
Assigned Interest and either it, or the Person exercising discretion in making its decision to
acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has
received a copy of the Credit Agreement, and has received or has been accorded the opportunity to
receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof,
as applicable, and such other documents and information as it deems appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase
[the][such] Assigned Interest, (vi) it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender,
attached hereto is any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it
will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any
other Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Loan Documents,
and (ii) it will perform in accordance with their terms all of the obligations which by the terms
of the Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments
in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and
other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the
Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after
the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.
Annex 1 to
Assignment and Assumption
EXHIBIT F
This Guaranty Agreement (this “Guaranty”) is executed effective as of June 26, 2009.
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in consideration of credit
and/or financial accommodation heretofore or hereafter from time to time made or granted to
SUBURBAN PROPANE, L.P., a Delaware limited partnership (the “Borrower”), or any other Loan
Party pursuant to that certain Credit Agreement, dated as of even date herewith, by and between
Borrower, the financial institutions party thereto (collectively, the “Lenders”), and Bank
of America, N.A., as administrative agent for the Lenders (“Administrative Agent”), an L/C
Issuer, and Swing Line Lender (as amended, restated, extended, supplemented or otherwise modified
in writing from time to time, the “Credit Agreement”), each of the Persons now or hereafter
signatories hereto (each a “Guarantor,” and, collectively, the “Guarantors”) hereby
furnishes in favor of Administrative Agent, the Lenders, the Hedge Banks and the Cash Management
Banks (each a “Guaranteed Party” and collectively, the “Guaranteed Parties”) its
joint and several guaranty of the Guaranteed Obligations (as hereinafter defined) as follows:
1. Reference to Credit Agreement. Reference is hereby made to the representations, warranties
and covenants of the Loan Parties set forth in Articles V, VI, and VII of the Credit Agreement.
Each Guarantor (i) reaffirms that each such representation and warranty is true and correct in
every material respect with respect to such Guarantor to the extent that such representation and
warranty refers to such Guarantor, and (ii) agrees, with respect to the covenants, to take, or
refrain from taking, as the case may be, each action that is necessary to be taken or not taken, as
the case may be, so that no Default or Event of Default is caused by the failure to take such
action or to refrain from taking such action by such Guarantor or any of its Subsidiaries. If the
Credit Agreement shall cease to remain in effect for any reason whatsoever during any period and
any part of the Guaranteed Obligations (as hereinafter defined) remain unpaid, then the terms,
covenants, and agreements set forth therein applicable to the Guarantors shall nevertheless
continue in full force and effect as obligations of each Guarantor under this Guaranty. All
capitalized terms used but not defined herein shall have the meaning assigned to such term in the
Credit Agreement.
2. Guaranty. Each Guarantor hereby, jointly and severally, absolutely and unconditionally
guarantees, as a guaranty of payment and performance and not merely as a guaranty of collection,
the prompt payment in full in Dollars when due, whether at stated maturity, by required prepayment,
upon acceleration, demand or otherwise, and at all times thereafter, of any and all existing and
future indebtedness and liabilities of every kind, nature and character, direct or indirect,
absolute or contingent, liquidated or unliquidated, voluntary or involuntary and whether for
principal, interest, premiums, fees indemnities, damages, costs, expenses or otherwise, of any Loan
Party arising under (i) any Loan Document or otherwise with respect to any Loan or Letter of
Credit, (ii) any Secured Hedge Agreement, and (iii) any Secured Cash Management Agreement, (in each
case, including all renewals, extensions, amendments, refinancings and other modifications thereof
and all costs, attorneys’ fees and expenses incurred by any Guaranteed Party in connection with the
collection or enforcement thereof), and whether recovery upon such indebtedness and liabilities may
be or hereafter become unenforceable or shall be an allowed or disallowed claim under any
proceeding or case commenced by or against such Guarantor, the Borrower or any other Loan Party
under the Bankruptcy Code (Title 11, United States Code), any successor statute or any other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally (collectively, “Debtor Relief Laws”), and including interest
that accrues after the commencement by or against the Borrower or any other Loan Party of any
proceeding under any Debtor Relief Laws whether or not the claim for such interest is
Exhibit F — Page 1
allowed in
such proceeding (collectively, the “Guaranteed Obligations”). The books and records of the Guaranteed Parties
showing the amount of the Guaranteed Obligations shall be admissible in evidence in any action or
proceeding, and shall be binding upon the Guarantors and conclusive for the purpose of establishing
the amount of the Guaranteed Obligations. This Guaranty shall not be affected by the genuineness,
validity, regularity or enforceability of the Guaranteed Obligations or any instrument or agreement
evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection,
non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the
Guaranteed Obligations which might otherwise constitute a defense to the obligations of any
Guarantor under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now
have or hereafter acquire in any way relating to any or all of the foregoing. [Anything contained
herein to the contrary notwithstanding, to the extent that the obligations of any Non-Parent
Guarantor hereunder would be subject to avoidance as a fraudulent transfer or conveyance under
Section 548 of the Bankruptcy Code (Title 11, United States Code) or any comparable provisions of
any similar federal or state Law, the obligations of such Guarantor hereunder at any time shall be
limited to an aggregate amount equal to the largest amount that would not render its obligations
hereunder subject to such avoidance provisions. As used herein, a “Non-Parent Guarantor” shall
mean a Guarantor that does not directly or indirectly own Equity Interests in the
Borrower.]1
3. No Setoff or Deductions; Taxes; Payments. Each Guarantor represents and warrants that it
is organized and resident in the United States of America. Each Guarantor shall make all payments
hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless such Guarantor is compelled by law
to make such deduction or withholding. If any such obligation (other than one arising with respect
to taxes based on or measured by the income or profits of the Guaranteed Parties) is imposed upon
any Guarantor with respect to any amount payable by it hereunder, such Guarantor will pay to the
Administrative Agent, on behalf of the Guaranteed Parties, on the date on which such amount is due
and payable hereunder, such additional amount in U.S. dollars as shall be necessary to enable the
Guaranteed Parties to receive the same net amount which the Guaranteed Parties would have received
on such due date had no such obligation been imposed upon such Guarantor. Each Guarantor will
deliver promptly to the Administrative Agent, on behalf of the Guaranteed Parties, certificates or
other valid vouchers for all taxes or other charges deducted from or paid with respect to payments
made by such Guarantor hereunder. The obligations of each Guarantor under this paragraph shall
survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
4. Rights of Guaranteed Parties. Each Guarantor consents and agrees that the Guaranteed
Parties may, at any time and from time to time, without notice or demand, and without affecting the
enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise,
discharge, accelerate or otherwise change the time for payment or the terms of the Guaranteed
Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to
perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any
Guaranteed Obligations; (c) apply such security and direct the order or manner of sale thereof as
the Guaranteed Parties in their sole discretion may determine; and (d) release or substitute one or
more of any endorsers or other guarantors of any of the Guaranteed Obligations. Without limiting
the generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any
action which might in any manner or to any extent vary the risks of such Guarantor under this
Guaranty or which, but for this provision, might operate as a discharge of such Guarantor.
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1 |
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Bracketed language is not applicable to General
Partner Guaranty. |
Exhibit F — Page 2
5. Certain Waivers. Each Guarantor waives (a) any defense arising by reason of any disability
or other defense of the Borrower, any other Loan Party or any other guarantor, or the cessation
from any cause whatsoever (including any act or omission of the Guaranteed Parties) of the
liability of the Borrower or any other Loan Party; (b) any defense based on any claim that such
Guarantor’s obligations exceed or are more burdensome than those of the Borrower or any other Loan
Party; (c) the benefit of any statute of limitations affecting such Guarantor’s liability
hereunder; (d) any right to require the Guaranteed Parties to proceed against the Borrower or any
other Loan Party, proceed against or exhaust any security for the Indebtedness, or pursue any other
remedy in the Guaranteed Parties’ power whatsoever; (e) any benefit of and any right to participate
in any security now or hereafter held by the Guaranteed Parties; and (f) to the fullest extent
permitted by law, any and all other defenses or benefits that may be derived from or afforded by
applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor
expressly waives all setoffs and counterclaims and all presentments, demands for payment or
performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of
dishonor and all other notices or demands of any kind or nature whatsoever with respect to the
Guaranteed Obligations, and all notices of acceptance of this Guaranty or of the existence,
creation or incurrence of new or additional Guaranteed Obligations.
6. Obligations Independent. The obligations of each Guarantor hereunder are those of primary
obligor, and not merely as surety, and are independent of the Guaranteed Obligations and the
obligations of any other guarantor, and a separate action may be brought against such Guarantor to
enforce this Guaranty whether or not the Borrower, any other Loan Party or any other person or
entity is joined as a party.
7. Subrogation. Each Guarantor shall not exercise any right of subrogation, contribution,
indemnity, reimbursement or similar rights with respect to any payments it makes under this
Guaranty until all of the Guaranteed Obligations and any amounts payable under this Guaranty have
been indefeasibly paid and performed in full in cash, the Commitments of the Lenders under the
Credit Agreement and the other Loan Documents are terminated, and all Letters of Credit have
terminated. If any amounts are paid to a Guarantor in violation of the foregoing limitation, then
such amounts shall be held in trust for the benefit of the Guaranteed Parties and shall forthwith
be paid to the Administrative Agent, on behalf of the Guaranteed Parties, to reduce the amount of
the Guaranteed Obligations, whether matured or unmatured.
8. Termination; Reinstatement. This Guaranty is a continuing and irrevocable guaranty of all
Guaranteed Obligations now or hereafter existing and shall remain in full force and effect until
(a) all Guaranteed Obligations and any other amounts payable under this Guaranty are indefeasibly
paid in full in cash; (b) the Commitments of the Lenders under the Credit Agreement and the other
Loan Documents are terminated; and (c) all Letters of Credit have terminated. Notwithstanding the
foregoing, this Guaranty (a) may be released by an instrument in writing as provided in Sections
9.10 and 11.01 of the Credit Agreement; and (b) shall continue in full force and effect or be
revived, as the case may be, if any payment by or on behalf of the Borrower, any other Loan Party
or any Guarantor is made, or a Guaranteed Party exercises its right of setoff, in respect of the
Guaranteed Obligations and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by such Guaranteed Party in its discretion) to
be repaid to a trustee, receiver or any other party, in connection with any proceeding under any
Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not
occurred and whether or not such Guaranteed Party is in possession of or has released this Guaranty
and regardless of any prior revocation, rescission, termination or reduction. The obligations of
each Guarantor under this paragraph shall survive termination of this Guaranty.
Exhibit F — Page 3
9. Subordination. Each Guarantor hereby subordinates the payment of all obligations and
indebtedness of the Borrower or any other Loan Party owing to such Guarantor, whether now existing
or hereafter arising, including but not limited to any obligation of the Borrower or any other Loan
Party to such Guarantor as subrogee of a Guaranteed Party or resulting from such Guarantor’s
performance under this Guaranty, to the indefeasible payment in full in cash of all Guaranteed
Obligations. If the Guaranteed Parties so request, during the continuation of an Event of Default,
any such obligation or indebtedness of the Borrower or any Loan Party to such Guarantor shall be
enforced and performance received by such Guarantor as trustee for the Guaranteed Parties and the
proceeds thereof shall be paid over to the Administrative Agent, on behalf of the Guaranteed
Parties, on account of the Guaranteed Obligations, but without reducing or affecting in any manner
the liability of such Guarantor under this Guaranty. Notwithstanding the foregoing, payments may
be made on such obligations or indebtedness owing to any Guarantor unless the Administrative Agent
has requested that no such payments be made or received during the continuation of an Event of
Default.
10. Stay of Acceleration. In the event that acceleration of the time for payment of any of
the Guaranteed Obligations is stayed, in connection with any case commenced by or against any
Guarantor, the Borrower or any Loan Party under any Debtor Relief Laws, or otherwise, all such
amounts shall nonetheless be payable by the Guarantor immediately upon demand by the Guaranteed
Parties.
11. Expenses. Each Guarantor shall pay, jointly and severally, on demand all out-of-pocket
expenses (including attorneys’ fees and expenses and the allocated cost and disbursements of
internal legal counsel) in any way relating to the enforcement or protection of the Guaranteed
Parties’ rights under this Guaranty or in respect of the Guaranteed Obligations, including any
incurred during any “workout” or restructuring in respect of the Guaranteed Obligations and any
incurred in the preservation, protection or enforcement of any rights of the Guaranteed Parties in
any proceeding any Debtor Relief Laws. The obligations of each Guarantor under this paragraph
shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
12. Miscellaneous. No failure by the Guaranteed Parties to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy or power hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law or in equity. The
unenforceability or invalidity of any provision of this Guaranty shall not affect the
enforceability or validity of any other provision herein. Unless otherwise agreed by the
Guaranteed Parties and each Guarantor in writing, this Guaranty is not intended to supersede or
otherwise affect any other guaranty now or hereafter given by any Guarantor for the benefit of the
Guaranteed Parties or any term or provision thereof.
13. Condition of Borrower. Each Guarantor acknowledges and agrees that it has the sole
responsibility for, and has adequate means of, obtaining from the Borrower, the other Loan Parties
and any other guarantor such information concerning the financial condition, business and
operations of the Borrower, the other Loan Parties and any such other guarantor as such Guarantor
requires, and that the Guaranteed Parties have no duty, and such Guarantor is not relying on the
Guaranteed Parties at any time, to disclose to such Guarantor any information relating to the
business, operations or financial condition of the Borrower, the other Loan Parties or any other
guarantor (the guarantor waiving any duty on the part of the Guaranteed Parties to disclose such
information and any defense relating to the failure to provide the same).
Exhibit F — Page 4
14. Setoff. If and to the extent any payment is not made when due hereunder, each Guarantor
authorizes each Guaranteed Party and each of their respective Affiliates at any time and from time
to time, after obtaining the prior written consent of the Administrative Agent, to the fullest
extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Guaranteed Party or any such Affiliate to or for the
credit or the account of such Guarantor against any and all of the Guaranteed Obligations,
irrespective of whether or not such Guaranteed Party shall have made any demand under this Guaranty
or any other Loan Document and although such Guaranteed Obligations may be contingent or unmatured
or are owed to a branch or office of such Guaranteed Party different from the branch or office
holding such deposit or obligated on such indebtedness. The rights of each Guaranteed Party and
their respective Affiliates under this Paragraph 14 are in addition to other rights and
remedies (including other rights of setoff) that such Guaranteed Party or their respective
Affiliates may have. Each Guaranteed Party agrees to notify the applicable Guarantors promptly
after any such setoff and application, provided that the failure to give such notice shall not
affect the validity of such setoff and application. Any payment obtained pursuant to this
Paragraph 14 (or in any other manner directly from the Guarantors, or any of them) by any
Guaranteed Party shall be remitted to Administrative Agent and distributed among the Guaranteed
Parties in accordance with the provisions of Paragraph 18 below.
15. Representations and Warranties. Each Guarantor represents and warrants that (a) it is
duly organized and in good standing under the laws of the jurisdiction of its organization and has
full capacity and right to make and perform this Guaranty, and all necessary authority has been
obtained; (b) this Guaranty constitutes its legal, valid and binding obligation enforceable in
accordance with its terms; (c) the making and performance of this Guaranty does not and will not
violate the provisions of any applicable law, regulation or order, and does not and will not result
in the breach of, or constitute a default or require any consent under, any material agreement,
instrument, or document to which it is a party or by which it or any of its property may be bound
or affected; and (d) all consents, approvals, licenses and authorizations of, and filings and
registrations with, any governmental authority required under applicable law and regulations for
the making and performance of this Guaranty have been obtained or made and are in full force and
effect.
16. Indemnification and Survival. Without limitation on any other obligations of the
Guarantors or remedies of the Guaranteed Parties under this Guaranty, each Guarantor shall, to the
fullest extent permitted by law, indemnify, defend and save and hold harmless each Guaranteed Party
from and against, and shall pay, jointly and severally, on demand, any and all damages, losses,
liabilities and expenses (including attorneys’ fees and expenses and the allocated cost and
disbursements of internal legal counsel) that may be suffered or incurred by such Guaranteed Party
in connection with or as a result of any failure of any Guaranteed Obligations to be the legal,
valid and binding obligations of the Borrower or the other Loan Parties enforceable against the
Borrower or the other Loan Parties in accordance with their terms. The obligations of each
Guarantor under this paragraph shall survive the payment in full of the Guaranteed Obligations and
termination of this Guaranty.
17. Assignment. This Guaranty shall (a) bind each Guarantor and its successors and assigns,
provided that such Guarantor may not assign its rights or obligations under this Guaranty without
the prior written consent of the Administrative Agent and each Lender (and any attempted assignment
without such consent shall be void), and (b) inure to the benefit of the Guaranteed Parties and
their respective successors and assigns and the Administrative Agent and each Lender may, without
notice to any Guarantor and without affecting any Guarantor’s obligations hereunder, assign, sell
or grant participations in the Guaranteed Obligations and this Guaranty, in whole or in part. Each
Guarantor agrees that each Guaranteed Party may disclose to any assignee of or participant in, or
any prospective assignee of or participant in, any of its rights or obligations of all or part of
the Guaranteed Obligations any and all information in the Guaranteed Party’s possession concerning
such Guarantor, this Guaranty and any security for this Guaranty.
Exhibit F — Page 5
18. Application of Payments. Any payment received by Administrative Agent from any Guarantor
(or from any Lender pursuant to Xxxxxxxxx 00 xxxxx), xxxxx xx applied by Administrative
Agent in accordance with the Credit Agreement.
19. Further Assurances. Each Guarantor agrees that at any time and from time to time, at the
expense of such Guarantor, to promptly execute and deliver all further instruments and documents,
and take all further action, that may be necessary, or that Administrative Agent may reasonably
request, to enable Administrative Agent to protect and to exercise and enforce the rights and
remedies of the Guaranteed Parties hereunder.
20. [Addition of Guarantors. The initial Guarantors hereunder shall be each of the
Subsidiaries of Parent that are signatories hereto and that are listed on Schedule 1
attached hereto. From time to time subsequent to the time hereof, additional Subsidiaries of
Parent may become parties hereto as additional Guarantors (each an “Additional Guarantor”)
by executing a supplement to this Guaranty Agreement in the form of Exhibit A attached
hereto (or such other form as may be satisfactory to the Administrative Agent). Upon delivery of
any such supplement to Administrative Agent, notice of which is hereby waived by Guarantors, each
such Additional Guarantor shall be a Guarantor and shall be a party hereto as if such Additional
Guarantor were an original signatory hereof. Each Guarantor expressly agrees that its obligations
arising hereunder shall not be affected or diminished by the addition or release of any other
Guarantor hereunder, or by any election by Administrative Agent or any Lenders not to cause any
Subsidiary to become an Additional Guarantor hereunder. This Guaranty Agreement shall be fully
effective as to any Guarantor that is or becomes a party hereto regardless of whether any such
person becomes or fails to become or ceases to be a Guarantor hereunder].2
21. Notices. All notices, requests and other communications provided for hereunder shall be
in writing and given to Administrative Agent as provided in Section 11.02 of the Credit Agreement.
All communications and notices hereunder to the Guarantors shall be given to the Guarantors at
their respective addresses set forth on Schedule 11.02 of the Credit Agreement or at such other
address as shall be designated by Guarantors in a written notice to Administrative Agent.
22. Joint and Several Obligations. Each Guarantor acknowledges that (i) this Guaranty is a
master Guaranty pursuant to which other Subsidiaries of the Borrower now or hereafter may become
parties, and (ii) the guaranty obligations of each of the Guarantors hereunder are joint and
several.
23. Right of Contribution. Each Guarantor hereby agrees that to the extent that a Guarantor
shall have paid more than its proportionate share of any payment made hereunder, such Guarantor
shall be entitled to seek and receive contribution from and against any other Guarantor hereunder
which has not paid its proportionate share of such payment. Each Guarantor’s right of contribution
shall be subject to the terms and conditions of Paragraph 7 above. The provisions of this
Paragraph 23 shall in no respect limit the obligations and liabilities of any Guarantor to
the Guaranteed Parties, and each Guarantor shall remain liable to the Guaranteed Parties for the
full amount guaranteed by such Guarantor hereunder.
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2 |
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This Section is not applicable to General Partner
Guaranty. |
Exhibit F — Page 6
24. Additional Waivers and Agreements of Guarantors.
(a) Each Guarantor understands and acknowledges that if the Guaranteed Parties foreclose
judicially or nonjudicially against any real property security for the Guaranteed Obligations, that
foreclosure could impair or destroy any ability that such Guarantor may have to seek reimbursement,
contribution, or indemnification from the Borrower or others based on any right such Guarantor may
have of subrogation, reimbursement, contribution, or indemnification for any amounts paid by such
Guarantor under this Guaranty. Each Guarantor further understands and acknowledges that in the
absence of this paragraph, such potential impairment or destruction of such Guarantor’s rights, if
any, may entitle such Guarantor to assert a defense to this Guaranty based on Section 580d of the
California Code of Civil Procedure as interpreted in Union Bank x. Xxxxxxx, 265 Cal. App.
2d 40 (1968). By executing this Guaranty, each Guarantor freely, irrevocably, and unconditionally:
(i) waives and relinquishes that defense and agrees that such Guarantor will be fully liable under
this Guaranty even though the Guaranteed Parties may foreclose, either by judicial foreclosure or
by exercise of power of sale, any deed of trust securing the Guaranteed Obligations; (ii) agrees
that such Guarantor will not assert that defense in any action or proceeding which the Guaranteed
Parties may commence to enforce this Guaranty; (iii) acknowledges and agrees that the rights and
defenses waived by such Guarantor in this Guaranty include any right or defense that such Guarantor
may have or be entitled to assert based upon or arising out of any one or more of Sections 580a,
580b, 580d, or 726 of the California Code of Civil Procedure or Section 2848 of the California
Civil Code; and (iv) acknowledges and agrees that the Guaranteed Parties are relying on this waiver
in creating the Guaranteed Obligations, and that this waiver is a material part of the
consideration which the Guaranteed Parties are receiving for creating the Guaranteed Obligations.
(b) Each Guarantor waives all rights and defenses that such Guarantor may have because of any
of the Guaranteed Obligations is secured by real property. This means, among other things: (i)
the Guaranteed Parties may collect from any Guarantor without first foreclosing on any real or
personal property collateral pledged by the Borrower or the other Loan Parties; and (ii) if the
Guaranteed Parties foreclose on any real property collateral pledged by the Borrower of the other
Loan Parties: (A) the amount of the Guaranteed Obligations may be reduced only by the price for
which that collateral is sold at the foreclosure sale, even if the collateral is worth more than
the sale price, and (B) the Guaranteed Parties may collect from any Guarantor even if the
Guaranteed Parties, by foreclosing on the real property collateral, has destroyed any right a
Guarantor may have to collect from the Borrower or any other Loan Party. This is an unconditional
and irrevocable waiver of any rights and defenses each Guarantor may have because any of the
Guaranteed Obligations is secured by real property. These rights and defenses include, but are not
limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California
Code of Civil Procedure.
(c) Each Guarantor waives any right or defense it may have at law or equity, including
California Code of Civil Procedure Section 580a, to a fair market value hearing or action to
determine a deficiency judgment after a foreclosure.
25. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE.
Exhibit F — Page 7
26. SUBMISSION TO JURISDICTION. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
SITTING IN MANHATTAN COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW
YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH GUARANTOR HERETO AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY GUARANTEED PARTY MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
27. WAIVER OF VENUE. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH 26 ABOVE. EACH GUARANTOR HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
28. SERVICE OF PROCESS. EACH GUARANTOR IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE
MANNER PROVIDED FOR NOTICES IN SECTION 11.02 OF THE CREDIT AGREEMENT. NOTHING IN THIS GUARANTY
WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.
29. Waiver of Jury Trial. EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH GUARANTOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER GUARNATORS HAVE
BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
30. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
[31. Limited Recourse Obligations.
(a) The liability of Guarantor arising out of this Guaranty is limited to and shall be solely
paid out of Collateral on which it has granted a Lien and the proceeds thereof. Nothing herein
contained shall be construed to prevent the Guaranteed Parties from exercising and enforcing their
remedies against such Collateral, nor shall anything herein contained be deemed to be a release or
impairment of the Liens granted by Guarantor to secure the Obligations.
Exhibit F — Page 8
(b) No recourse shall be had for the payment of the Guaranteed Obligations, or upon any
obligation, covenant or agreement in this Guaranty, against any member, stockholder, officer,
employee or director, as such, of Guarantor; it being expressly agreed and understood that
Guarantor’s obligations under this Guaranty, the Credit Agreement and the other Loan Documents are
solely limited liability company obligations of Guarantor, and that no personal liability shall
attach to, or be incurred by, any such member, stockholder, officer, employee or director, as
such]3.
Remainder of Page Intentionally Blank.
Signature(s) Page to Follow.
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Bracketed language is applicable to General Partner Guaranty only. |
Exhibit F — Page 9
EXECUTED as of the day and year first above written.
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[INSERT SIGNATURE BLOCKS FOR GUARANTORS] |
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Name:
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Signature Page to
Continuing Guaranty
SCHEDULE 121
INITIAL GUARANTORS
Suburban LP Holding, Inc., a Delaware corporation
Suburban LP Holding, LLC, a Delaware limited liability company
Suburban Sales & Service, Inc., a Delaware corporation
Gas Connection, LLC, an Oregon limited liability company (dba HomeTown Hearth & Grill)
Suburban Franchising, LLC, a Nevada limited liability company
Suburban Plumbing New Jersey LLC, a Delaware limited liability company
Suburban Heating Oil Partners, LLC, a Delaware limited liability company (dba Suburban Propane)
Agway Energy Services, LLC, a Delaware limited liability company
Suburban Energy Finance Corp., a Delaware corporation
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21 |
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This Schedule 1 is not applicable to General Partner
Guaranty. |
Schedule 1 to
Continuing Guaranty
This Supplement to Continuing Guaranty is dated as of and is made by , a
(“Additional Guarantor”), in favor of Bank of America, N.A., as
Administrative Agent and the other Guaranteed Parties as defined in the Guaranty Agreement
hereinafter referenced. All capitalized terms not defined herein shall have the meaning ascribed
to them in the Guaranty Agreement hereinafter referenced or in the Credit Agreement hereinafter
referenced.
WHEREAS, SUBURBAN PROPANE, L.P., a Delaware limited partnership (the “Borrower”), Bank
of America, N.A., as administrative agent (“Administrative Agent”), an L/C Issuer and Swing
Line Lender, and certain financial institutions (collectively, the “Lenders”) have entered
in to that certain Credit Agreement dated as of June 26, 2009 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Credit Agreement”);
and
WHEREAS, in connection with the Credit Agreement, certain Subsidiaries of the Parent (each a
“Guarantor,” and, collectively, the “Guarantors”) entered into a Continuing
Guaranty agreement dated as of June 26, 2009 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Guaranty Agreement”);
1. Additional Guarantor hereby elects to become a Guarantor for purposes of the Credit
Agreement, effective from the date hereof, and agrees to perform all of the obligations of a
Guarantor under, and to be bound in all respects by the terms of, the Guaranty Agreement (including
without limitation all waivers, releases, indemnifications and submissions set forth therein), all
of which terms are incorporated herein by reference, as if Additional Guarantor were a signatory
party thereto; and, accordingly, Additional Guarantor hereby, jointly and severally with the other
Guarantors party to the Guaranty Agreement, unconditionally and irrevocably guarantees the prompt
performance and payment in full in Dollars when due (whether at stated maturity, by acceleration or
otherwise) of the Guaranteed Obligations, and further agrees to pay all costs, fees and expenses
(including, without limitation, counsel fees, and the allocated cost and disbursements of in-house
counsel) incurred by the Administrative Agent or any other Guaranteed Party in enforcing any rights
under the Guaranty Agreement, in all respects upon the terms set forth in the Guaranty Agreement.
2. Henceforth, all references to the “Guarantors,” or each individual “Guarantor,” in the
Guaranty Agreement shall be deemed to include Additional Guarantor, in addition to the other
Guarantors, as if Additional Guarantor were a signatory party thereto.
Exhibit A to
Continuing Guaranty
3. Additional Guarantor hereby represents and confirms that the representations and
warranties set forth in the Guaranty Agreement and the representations and warranties set forth in
the Credit Agreement with respect to each of the Loan Parties are true and correct in all material
respects with respect to Additional Guarantor on and as of the date hereof (and after giving effect
hereto), as if set forth herein in their entirety.
4. This Supplement to Continuing Guaranty shall be governed by and construed in accordance
with the laws of the State of New York. Acceptance and notice of acceptance hereof are hereby
waived in all respects.
5. THIS SUPPLEMENT TO CONTINUING GUARANTY AND THE GUARANTY AGREEMENT INCORPORATED HEREIN BY
REFERENCE REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Signature Page to Follow]
Exhibit A to
Continuing Guaranty
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[NAME OF ADDITIONAL GUARANTOR]
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By: |
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Name: |
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Title: |
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Exhibit A to
Continuing Guaranty
EXHIBIT G
FORM OF SECURITY AGREEMENT
THIS PLEDGE, ASSIGNMENT, AND SECURITY AGREEMENT (this “Security Agreement”) is executed as of
June 26, 2009, by Suburban Propane Partners, L.P., a Delaware limited partnership (“Parent”),
Suburban Propane, L.P., a Delaware limited partnership (“Borrower”), each of the Subsidiaries of
Parent set forth on the signature pages hereof (collectively with Parent, Borrower and any
Additional Grantor (as hereafter defined), “Grantors”), and BANK OF AMERICA, N.A., a national
banking association, as Administrative Agent (as hereafter defined) for Secured Parties (as
hereafter defined).
WHEREAS, Borrower and Parent have entered into that certain Credit Agreement dated as of even
date herewith (as the same may be amended, modified, supplemented, renewed, replaced, restated, or
otherwise modified from time to time, the “Credit Agreement”) among Borrower, Parent, the lenders
now or hereafter a party to the Credit Agreement (together with their respective permitted
successors and/or assigns, “Lenders”), Bank of America, N.A., as a Lender and as Administrative
Agent (together with its permitted successors and/or assigns, in such capacity, “Administrative
Agent”) for the Lenders.
SECTION 1
DEFINITIONS
1.1. Certain Definitions. Unless otherwise defined herein, or the context hereof
otherwise requires, each term defined in either the Credit Agreement or the UCC is used in this
Security Agreement with the same meaning; provided that, if the definition given to such term in
the Credit Agreement conflicts with the definition given to such term in the UCC, the Credit
Agreement definition shall control to the extent legally allowable; and if any definition given to
such term in Article 9 of the UCC conflicts with the definition given to such term in any other
chapter of the UCC, the Article 9 definition shall prevail. As used herein, the following terms
have the meanings indicated:
Additional Grantor means each additional Person who grants a Lien on any Collateral after the
date hereof in accordance with Section 4.16. hereof.
Administrative Agent has the meaning set forth in the Recitals, together with any other Person
serving in the capacity of administrative agent or similar capacity under any agreement entered
into as a refinancing, increase of, replacement, amendment, supplement or increase to the Credit
Agreement.
Borrower has the meaning set forth in the [Preamble] [Recitals].
Collateral has the meaning set forth in Section 2.1.
Collateral Notes has the meaning set forth in Section (b) hereof.
Exhibit G — Page 1
Collateral Note Security has the meaning set forth in Section (b) hereof.
Collateral Records means books, records, ledger cards, files, correspondence, customer lists,
blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks
and related data processing software and similar items that at any time evidence or contain
information relating to any of the Collateral or are otherwise necessary or helpful in the
collection thereof or realization thereupon.
Collateral Support means all property (real or personal) assigned, hypothecated or otherwise
securing any Collateral and shall include any security agreement or other agreement granting a Lien
or security interest in such real or personal property.
Commodity Account means any “commodity account,” as such term is defined in Section
9.102(a)(14) of the UCC, and all sub-accounts thereof.
Control has the meaning set forth in Sections 7.106, 8.106, 9.104, 9.105, 9.106, or 9.107 of
the UCC, as applicable.
Control Agreement means, with respect to any Collateral consisting of Pledged Equity
Interests, Deposit Accounts, Securities Accounts, Commodities Accounts, electronic chattel paper,
and letter-of-credit rights, an agreement evidencing that Administrative Agent has Control of such
Collateral, which agreement shall be in form and upon terms acceptable to Administrative Agent.
Controlled Foreign Corporation means a “controlled foreign corporation” as defined in the
Internal Revenue Code of 1986.
Copyrights means all United States and foreign copyrights (including community designs),
including copyrights in software and databases, and all Mask Works (as defined under 17 U.S.C. 901
of the U.S. Copyright Act), whether registered or unregistered, and, with respect to any and all of
the foregoing: (a) all registrations and applications therefor, including the registrations and
applications referred to on Schedule 3.14, (b) all extensions and renewals thereof, (c) all rights
corresponding thereto throughout the world, (d) all rights to xxx for past, present, and future
infringements thereof, and (e) all products and proceeds of the foregoing, including any income,
royalties, and awards and any claim by any Grantor against third parties for past, present, or
future infringement of any Copyright or any Copyright licensed under any Copyright License.
Copyright Licenses means any and all agreements providing for the granting of any right in or
to Copyrights (whether a Grantor is licensee or licensor thereunder), including each agreement
referred to on Schedule 3.14.
Credit Agreement has the meaning set forth in the Recitals.
Deposit Accounts means any “deposit account” as such term is defined in Section 9.102(a)(29)
of the UCC, including those deposit accounts identified on Schedule 3.8 and any account which is a
replacement or substitute for any of such accounts, together with all monies, instruments,
certificates, checks, drafts, wire transfer receipts, and other property deposited therein and all
balances therein, but excluding special accounts, trust accounts, or escrow accounts maintained by
any Grantor in a fiduciary capacity or as an agent for unrelated third parties.
Excluded Payroll Account means any Deposit Account established by a Grantor after the date
hereof (a) into which such Grantor deposits funds due to employees for wages on the next payroll
date and/or amounts legally required to be withheld for taxes with respect thereto, and (b) which
contains no funds for any purpose other than the foregoing.
Exhibit G — Page 2
General Intangibles means: any “general intangibles” as such term is defined in
Section 9.102(a)(42) of the UCC.
Governmental Approvals means all authorizations, consents, approvals, licenses, and exemptions
of, registrations and filings with, and reports to, all Governmental Authorities.
Grantors has the meaning set forth in the Preamble.
Instrument means any “instrument” as such term is defined in Section 9.102(a)(47) of the UCC.
Intellectual Property means, collectively, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets, and the
Trade Secret Licenses of the Grantors.
Investment Related Property means: (a) any “investment property”, as such term is defined in
Section 9.102(a)(49) of the UCC; and (b) all Pledged Equity Interests (regardless of whether such
interest is classified as investment property under the UCC).
Lenders has the meaning set forth in the Recitals, together with any other lender under any
agreement entered into as a refinancing, replacement, amendment, restatement supplement, or
increase of the Credit Agreement.
Obligations has the meaning set forth in the Credit Agreement.
Obligor means any Person obligated with respect to any of the Collateral, whether as an
account debtor, obligor on an instrument, issuer of securities, or otherwise.
Parent has the meaning set forth in the Preamble.
Patent Licenses means all agreements providing for the granting of any right in or to Patents
(whether a Grantor is licensee or licensor thereunder), including each agreement referred to on
Schedule 3.14.
Patents means all United States and foreign patents, certificates of invention, or similar
industrial property rights, and applications for any of the foregoing, including: (a) each patent
and patent application referred to on Schedule 3.14; (b) all reissues, divisions, continuations,
continuations-in-part, extensions, renewals, and reexaminations thereof; (c) all rights
corresponding thereto throughout the world, (d) all inventions and improvements described therein;
(e) all rights to xxx for past, present and future infringements thereof; (f) all licenses, claims,
damages, and proceeds of suit arising therefrom; and (g) all products and Proceeds of the
foregoing, including any income, royalties, and awards and any claim by any Grantor against third
parties for past, present, or future infringement of any Patent or any Patent licensed under any
Patent License.
Permitted Collateral Dispositions means a disposition of Collateral permitted under the terms
of the Credit Agreement and the other Loan Documents.
Permitted Liens means Liens created by this Security Agreement and other Liens permitted under
the terms of the Credit Agreement and the other Loan Documents.
Exhibit G — Page 3
Pledged Equity Interests means all Pledged Stock, Pledged LLC Interests, and Pledged
Partnership Interests.
Pledged LLC Interests means (i) all interests owned by a Grantor in any limited liability
company, including all limited liability company interests listed on Schedule 3.8 and the
certificates, if any, representing such limited liability company interests and any interest of
such Grantor on the books and records of such limited liability company or on the books and records
of any securities intermediary pertaining to such interest, (ii) all dividends, distributions,
cash, warrants, rights, options, instruments, securities and other property or proceeds from time
to time received, receivable, or otherwise distributed in respect of or in exchange for any or all
of such limited liability company interests, (iii) all rights of a Grantor under the Organizational
Documents of such limited liability company, and (iv) any and all other rights and privileges
incident to such limited liability company interests.
Pledged Partnership Interests means (i) all interests owned by a Grantor in any general
partnership, limited partnership, limited liability partnership or other partnership, including all
partnership interests listed on Schedule 3.8 and the certificates, if any, representing such
partnership interests and any interest of such Grantor on the books and records of such partnership
or on the books and records of any securities intermediary pertaining to such interest, (ii) all
dividends, distributions, cash, warrants, rights, options, instruments, securities and other
property or proceeds from time to time received, receivable, or otherwise distributed in respect of
or in exchange for any or all of such partnership interests, (iii) all rights of a Grantor under
the Organizational Documents of partnership, and (iv) any and all other rights and privileges
incident to such partnership interests.
Pledged Stock means (i) all shares of capital stock owned by a Grantor in any Person,
including all shares of capital stock described on Schedule 3.8, and the certificates, if any,
representing such shares and any interest of such Grantor in the entries on the books of the issuer
of such shares or on the books of any securities intermediary pertaining to such shares, (ii) all
dividends, distributions, cash, warrants, rights, options, instruments, securities, and other
property or proceeds from time to time received, receivable, or otherwise distributed in respect of
or in exchange for any or all of such shares, (iii) all rights of a Grantor under the
Organizational Documents of such Person, and (iv) any and all other rights and privileges incident
to such capital stock.
Receivables means any “account” as such term is defined in Section 9102(a)(2) of the UCC.
Secured Obligations means the “Obligations” as defined in the Credit Agreement, whether or not
(a) such Obligations arise or accrue before or after the filing by or against any Grantor of a
petition under the Bankruptcy Code, or any similar filing by or against any Grantor under the laws
of any jurisdiction, or any bankruptcy, insolvency, receivership or other similar proceeding,
(b) such Obligations are allowable under Section 502(b)(2) of the Bankruptcy Code or under any
other insolvency proceedings, (c) the right of payment in respect of such Obligations is reduced to
judgment, or (d) such Obligations are liquidated, unliquidated, similar, dissimilar, related,
unrelated, direct, indirect, fixed, contingent, primary, secondary, joint, several, or joint and
several, matured, disputed, undisputed, legal, equitable, secured, or unsecured.
Secured Parties means the Administrative Agent, the L/C Issuers (as defined in the Credit
Agreement), the Lenders, the Hedge Banks (as defined in the Credit Agreement) and the Cash
Management Banks (as defined in the Credit Agreement).
Securities Account means any “securities account”, as such term is defined in Section 8.501(a)
of the UCC, and all sub-accounts thereof.
Exhibit G — Page 4
Security Interest means the security interest granted and the pledge and assignment made under
Section 2.1.
Supporting Obligations means all “supporting obligations” as defined in Section 9.102(a)(77)
of the UCC.
Trademark Licenses means any and all agreements providing for the granting of any right in or
to Trademarks (whether a Grantor is licensee or licensor thereunder), including each agreement
referred to on Schedule 3.14.
Trademarks means all United States and foreign trademarks, trade names, corporate names,
company names, business names, fictitious business names, Internet domain names, service marks,
certification marks, collective marks, logos, other source or business identifiers, designs and
general intangibles of a like nature, all registrations and applications for any of the foregoing,
including: (a) the registrations and applications referred to on Schedule 3.14; (b) all extensions
or renewals of any of the foregoing; (c) all of the goodwill of the business connected with the use
of and symbolized by the foregoing; (d) the right to xxx for past, present and future infringement
or dilution of any of the foregoing or for any injury to goodwill; and (e) all products and
Proceeds of the foregoing, including any income, royalties, and awards and any claim by any Grantor
against third parties for past, present, or future infringement of any Trademark or any Trademark
licensed under any Trademark License.
Trade Secret Licenses means any and all agreements providing for the granting of any right in
or to Trade Secrets (whether a Grantor is licensee or licensor thereunder).
Trade Secrets means all trade secrets and all other confidential or proprietary information
and know-how, whether or not such Trade Secret has been reduced to a writing or other tangible
form, including all documents and things embodying, incorporating, or referring in any way to such
Trade Secret, including: (a) the right to xxx for past, present and future misappropriation or
other violation of any Trade Secret; and (b) all products and Proceeds of the foregoing, including
any income, royalties, and awards and any claim by any Grantor against third parties for past,
present, or future infringement of any Trade Secrets or any Trade Secrets licensed under any Trade
Secret License.
Vehicles has the meaning set forth in Section (f).
UCC and Uniform Commercial Code each means the Uniform Commercial Code as adopted in the
applicable jurisdiction from time to time.
1.2. Principals Of Construction. References in this Security Agreement to “Sections,”
“Exhibits,” and “Schedules” are to sections, exhibits, and schedules in this Security Agreement
unless otherwise indicated. References in this Security Agreement to any document, instrument, or
agreement (a) shall include all exhibits, schedules, and other attachments thereto, (b) shall
include all documents, instruments, or agreements issued or executed in replacement thereof, to the
extent permitted hereby, and (c) shall mean such document, instrument, or agreement, or replacement
or predecessor thereto, as amended, supplemented, restated, or otherwise modified from time to time
to the extent permitted hereby and by any applicable Loan Document and in effect at any given time.
Wherever from the context it appears appropriate, each term stated in either the singular or
plural shall include the singular and plural, and pronouns stated in the masculine, feminine, or
neuter gender shall include the masculine, the feminine and the neuter. Any reference herein to
any Person shall be construed to include such Person’s successors and assigns. The words
“include”, “includes” and “including” shall be deemed to be followed by the phrase “without
limitation”. Furthermore, any reference to any law shall include all statutory and regulatory
provisions consolidating, amending, replacing, or interpreting such law, and any reference to
any law or regulation shall, unless otherwise specified, refer to such law or regulation as
amended, modified, or supplemented from time to time. Titles and captions of sections,
subsections, and clauses in this Security Agreement are for convenience only, and neither limit nor
amplify the provisions of this Security Agreement.
Exhibit G — Page 5
SECTION 2
GRANT OF SECURITY INTEREST
2.1. Security Interest. To secure the prompt and complete payment and performance of the
Secured Obligations when due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including the payment of amounts that would become due but for
the operation of the automatic stay under Section 362(a) of the Bankruptcy Code or any similar
provisions of other applicable Laws), each Grantor hereby grants to Administrative Agent (for the
benefit of the Secured Parties) a continuing security interest in, and Lien upon, and a right of
set off against, and hereby pledges, collaterally transfers and assigns to Administrative Agent
(for the benefit of the Secured Parties) as security, all personal property of such Grantor,
whether now owned or hereafter acquired or existing, and wherever located (together with all other
collateral security for the Secured Obligations at any time granted to or held or acquired by or
under the Control of Administrative Agent, collectively, the “Collateral”), including:
(a) All personal property and fixture property of every kind and nature
including, without limitation, all accounts, chattel paper (whether tangible or
electronic), goods (including inventory, equipment (and any accessions thereto),
software (specifically including, but not limited to, all accounting software),
Instruments, investment property, documents, Deposit Accounts, Securities Accounts,
Commodities Accounts, money, commercial tort claims, letter-of-credit rights,
supporting obligations, Tax refunds, and General Intangibles (including payment
intangibles);
(b) All promissory notes and other instruments payable to any Grantor,
including, without limitation, all inter-company notes from Subsidiaries and those
set forth on Schedule 3.8 (“Collateral Notes”) and all Liens any Grantor may have, or
be entitled to, under all present and future loan agreements, security agreements,
pledge agreements, deeds of trust, mortgages, guarantees, or other documents assuring
or securing payment of or otherwise evidencing the Collateral Notes, including,
without limitation, those set forth on Schedule 3.8 (“Collateral Note Security”);
(c) All Investment Related Property;
(d) All Intellectual Property;
(e) All present and future automobiles, trucks, truck tractors, trailers,
semi-trailers, or other motor vehicles or rolling stock, now owned or hereafter
acquired by such Grantor (collectively, the “Vehicles”);
(f) All present and future distributions, income, increases, profits,
combinations, reclassifications, improvements, and products of, accessions,
attachments, and other additions to, tools, parts, and equipment used in connection
with, and substitutes and replacements for, all or part of the Collateral described
above;
(g) All present and future security for the payment to any Grantor of any of the
Collateral described above and goods which gave or will give rise to any such
Collateral or are evidenced, identified, or represented therein or thereby;
Exhibit G — Page 6
(h) All products and proceeds of the Collateral listed above (including, but not
limited to, all claims to items referred to in the Collateral listed above) and (x)
all claims of any Grantor against third parties for (i) loss of, damage to, or
destruction of, and (ii) payments due or to become due under leases, rentals and
hires of, any or all of the Collateral listed above and (y) proceeds payable under,
or unearned premiums with respect to, policies of insurance in whatever form; and
(i) To the extent not otherwise included above, all Collateral Records and
Supporting Obligations relating to any of the foregoing.
If the security interest granted hereby in any rights of any Grantor under any contract included in
the Collateral is expressly prohibited by such contract, then the Security Interest hereby granted
therein nonetheless remains effective to the extent allowed by Article 9 of the UCC or other
applicable Law but is otherwise limited by that prohibition. In addition, subject to Section (h),
the Collateral shall not include the outstanding capital stock of a Controlled Foreign Corporation
in excess of two-thirds of the voting power of all classes of capital stock of such Controlled
Foreign Corporation entitled to vote.
Furthermore, notwithstanding anything to the contrary contained herein, to the extent that the
grant of the Security Interest by any Non-Parent Grantor pursuant to this Section 2.1. would be
subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy
Code (Title 11, United States Code) or any comparable provisions of any similar federal or state
Law, then the Security Interest shall be enforceable to the maximum extent possible without causing
such Security Interest to be subject to such avoidance provisions, and this Security Agreement is
automatically amended to carry out the intent of this sentence. As used herein, a “Non-Parent
Grantor” shall mean a Grantor that does not directly or indirectly own Equity Interests in the
Borrower.
The Security Interest in the Collateral granted by Parent herein or in any other Loan Document
shall not secure obligations arising under Secured Cash Management Agreements and under Secured
Hedge Agreements to the extent prohibited by the Parent Note Indenture or, if the Parent Notes have
been refinanced, by the indenture executed in connection with such Parent Refinancing Notes. The
Security Interest is granted as security only and shall not subject any Secured Party or any holder
of the Secured Obligations to, or transfer or in any way modify, any obligations or liability of
any Grantor with respect to any of the Collateral.
2.2.
Authorization to File Financing Statements. Each Grantor hereby irrevocably
authorizes Administrative Agent at any time and from time to time to file in any UCC jurisdiction
any initial financing statements and amendments thereto that (a) indicate the Collateral (i) as all
assets of such Grantor or words of similar effect, regardless of whether any particular asset
comprised in the Collateral falls within the scope of
Article 9 of the UCC, or (ii) as being of an
equal or lesser scope or with greater detail, and (b) contain any other information required by
Part 5 of
Article 9 of the UCC for the sufficiency or filing office acceptance of any financing
statement or amendment, including (A) whether such Grantor is an organization, the type of
organization and any organization identification number issued to such Grantor and (B) in the case
of a financing statement filed as a fixture filing or indicating Collateral as as-extracted
collateral or timber to be cut, a sufficient description of real property to which the Collateral
relates. Each Grantor agrees to furnish any such information to Administrative Agent promptly upon
request.
Exhibit G — Page 7
Each Grantor represents and warrants to Administrative Agent that:
3.1. Loan Documents. Certain representations and warranties in the Loan Documents to
which such Grantor is a party are applicable to such Grantor or its assets or operations, and each
such representation and warranty is true and correct.
3.2. Title; Authorization; Enforceability; Perfection. (a) Each Grantor has good and
valid rights in and title to the Collateral with respect to which it has purported to grant a
Security Interest hereunder, free and clear of all Liens except for Permitted Liens, and has full
power and authority to grant to Administrative Agent the Security Interest in such Collateral; (b)
the execution and delivery by each Grantor of this Security Agreement has been duly authorized, and
this Security Agreement constitutes a legal, valid, and binding obligation of such Grantor and
creates a Security Interest enforceable against such Grantor in all now owned and hereafter
acquired Collateral; (c) (i) upon the filing of all UCC financing statements naming each Grantor as
“debtor” and Administrative Agent as “secured party” and describing the Collateral in the filing
offices set forth opposite such Grantor’s name on Schedule 3.5
hereof, (ii) upon delivery of all Instruments, chattel paper, certificated Pledged Equity
Interests, and Collateral Notes to Administrative Agent, (iii) upon sufficient identification of
commercial tort claims, (iv) upon execution of a Control Agreement establishing Administrative
Agent’s Control with respect to each Deposit Account (other than Excluded Payroll Accounts),
Securities Account, Commodity Account, and uncertificated Pledged Equity Interest, (v) upon consent
of the issuer or any nominated Person with respect to letter of credit rights, and (vi) to the
extent not subject to Article 9 of the UCC, upon recordation of the Security Interests granted
hereunder in Intellectual Property in the applicable intellectual property registries, including
the United States Patent and Trademark Office and the United States Copyright Office, the Security
Interest granted to Administrative Agent hereunder constitutes valid and perfected first priority
Liens on the Collateral (other than Vehicles and Excluded Payroll Accounts) (subject in the case of
priority only to the rights of the United States government (including any agency or department
thereof) with respect to United States government Receivables constituting any of the Collateral).
3.3. Conflicting Legal Requirements and Contracts. Neither the execution and delivery by
any Grantor of this Security Agreement, the creation and perfection of the Security Interest in the
Collateral, nor compliance by such Grantor with the terms and provisions hereof will (a) violate
(i) any legal requirement binding on such Grantor, (ii) such Grantor’s organizational documents, or
(iii) the provisions of any indenture, instrument, or material agreement to which such Grantor is a
party or is subject, or by which it, or a material portion of its property, is bound; or (b)
conflict with or constitute a default under, or result in the creation or imposition of any Lien
pursuant to, the terms of any such indenture, instrument, or agreement (other than any Lien of
Administrative Agent for the benefit of Secured Parties).
3.4. Governmental Authority. No authorization, approval, or other action by, and no
notice to or filing with, any Governmental Authority is required either (a) for the pledge by any
Grantor of the Collateral (other than Vehicles) pursuant to this Security Agreement or for the
execution, delivery, or performance of this Security Agreement by any Grantor (other than the
filing of financing statements on Form UCC-1 and filing Copyright Security Agreements with the
United States Copyright Office as provided for herein), or (b) for the exercise by Administrative
Agent of the voting or other rights provided for in this Security Agreement or the remedies in
respect of the Collateral pursuant to this Security Agreement (except as may be required in
connection with the disposition of the Pledged Equity Interests by legal requirements affecting the
offering and sale of securities generally).
Exhibit G — Page 8
3.5. Grantor Information. Each Grantor’s exact legal name, jurisdiction of organization,
type of entity, state issued organizational identification number, and the location of its
principal place of business or chief executive office are disclosed on Schedule 3.5. No Grantor has done in the last five (5) years, or currently does, business under any other name
(including any trade-name or fictitious business name) except for those names set forth on Schedule
3.5. Except as provided on Schedule 3.5, no Grantor has changed its name, jurisdiction of organization, principal place of business, or
chief executive office (or principal residence if such Grantor is a natural Person) or its
corporate structure in any way (e.g., by merger, consolidation, change in corporate form or
otherwise) within the past five (5) years.
3.6. Property Locations. The location of each Grantor’s books and records are located
solely at the locations described on Schedule 3.6 (provided that duplicate copies may be located at
other locations). The location of each Grantor’s inventory, equipment, and fixtures are located
solely at the locations described on Schedule 3.6. All of such locations are owned by a Grantor
except for locations (a) which are leased by a Grantor as lessee and designated in Part B of
Schedule 3.6, and (b) at which inventory is held in a public warehouse or is otherwise held by a
bailee or on consignment as designated in Part C of Schedule 3.6, with respect to which inventory
such Grantor has delivered, to the extent required by the terms of the Credit Agreement, bailment
agreements, warehouse receipts, financing statements, or other documents satisfactory to
Administrative Agent to protect Administrative Agent’s security interest in such inventory.
3.7. No Financing Statements or Control Agreements. Other than the financing statements
and Control Agreements with respect to the Security Interest, there are no other financing
statements or Control Agreements covering any Collateral, other than those evidencing Permitted
Liens.
3.8. Collateral. Schedule 3.8 accurately lists all Pledged Equity Interests, Collateral
Notes, Collateral Note Security, commercial tort claims, and all letters of credit rights, in which
any Grantor has any right, title, or interest. All information supplied by any Grantor to
Administrative Agent or any Secured Party with respect to any of the Collateral (in each case taken
as a whole with respect to any particular Collateral) is true, correct, and complete in all
material respects.
3.9. Deposit, Commodity, and Securities Accounts. Schedule 3.8 correctly identifies all
Deposit Accounts, Commodity Accounts, and Securities Accounts in which a Grantor has an interest
and the institutions holding such Deposit Accounts, Commodity Accounts and Securities Accounts.
Each Grantor is the sole account holder of each such Deposit Accounts, Commodity Accounts and
Securities Accounts, and such Grantor has not consented to, and is not otherwise aware of, any
Person (other than Administrative Agent) having Control over, or any other interest in, any such
Deposit Accounts, Commodity Accounts and Securities Accounts or the property credited thereto. To
the extent each such Deposit Account, Commodity Account, and Securities Account is subject to a
Control Agreement, each such Control Agreement is in full force and effect and is sufficient to
perfect a first priority security interest in favor of Administrative Agent in and to each such
Deposit Account, Commodity Account, and Securities Account.
3.10. Accounts; General Intangibles. All Collateral that is accounts, chattel paper,
Instruments, or General Intangibles is free from any claim for credit, deduction, or allowance of
an Obligor and free from any defense, condition, dispute, setoff, or counterclaim, except any such
claims as arise in the ordinary course of business and do not materially impair the value of the
Collateral, taken as a whole.
3.11. Letter of Credit Rights. All letters of credit to which any Grantor has rights are
listed on Schedule 3.8, and such Grantor has obtained the consent of each issuer or the nominated
Person of any letter of credit to the assignment of the proceeds of the letter of credit to
Administrative Agent.
Exhibit G — Page 9
3.12. Instruments; Chattel Paper; Collateral Notes; and Collateral Note Security. All
chattel paper and Instruments, including the Collateral Notes, have been delivered to
Administrative Agent, together with corresponding endorsements duly executed by the appropriate
Grantor in favor of Administrative Agent, and such endorsements have been duly and validly executed
and are binding and enforceable against such Grantor in accordance with their terms. Each Grantor
has title to its respective Instruments, chattel paper, Collateral Notes, and Collateral Note
Security.
3.13. Investment Related Property.
(a) Schedule 3.8 sets forth all of the Pledged Stock, Pledged LLC Interests, and
Pledged Partnership Interests owned by any Grantor, and such Pledged Equity Interests
constitute the percentage of issued and outstanding shares of stock, percentage of
membership interests, percentage of partnership interests, or percentage of
beneficial interest of the respective issuers thereof indicated on such Schedule.
(b) Except as set forth on Schedule 3.13, no Grantor has acquired any Equity
Interests of another entity or substantially all the assets of another entity within
the past five (5) years.
(c) Each Grantor is the record and beneficial owner of the Pledged Equity
Interests owned by it free of all Liens, rights, or claims of other Persons other
than Permitted Liens, and there are no outstanding warrants, options, or other rights
to purchase, or shareholder, voting trust or similar agreements outstanding with
respect to, or property that is convertible into, or that requires the issuance or
sale of, any such Pledged Equity Interests, except as set forth on Schedule 3.13.
(d) No consent of any Person including any other general or limited partner, any
other member of a limited liability company, any other shareholder, or any other
trust beneficiary is necessary or desirable in connection with the creation,
perfection, or first priority status of the Security Interest in any Pledged Equity
Interests or the exercise by Administrative Agent of the voting or other rights
provided for in this Security Agreement or the exercise of remedies in respect
thereof, other than such as have been obtained and are in full force and effect.
(e) None of the Pledged LLC Interests or Pledged Partnership Interests are or
represent interests in issuers that (a) are registered as investment companies or (b)
are dealt in or traded on securities exchanges or markets.
(f) Except as otherwise set forth on Schedule 3.13, all of the Pledged LLC
Interests and Pledged Partnership Interests are or represent interests in issuers
that have not opted to be treated as securities under the uniform commercial code of
any jurisdiction.
(g) (a) Each Grantor has delivered to Administrative Agent all stock
certificates or other instruments or documents representing or evidencing the Pledged
Equity Interests to the extent that the Pledged Equity Interest are certificated,
together with corresponding assignment or transfer powers duly executed in blank by
such Grantor, and such powers have been duly and validly executed and are binding and
enforceable against such Grantor in accordance with their terms; and (b) to the
extent such Pledged Equity Interests are uncertificated securities, each Grantor has
taken all actions necessary or desirable to establish Administrative Agent’s Control
over such Pledged Equity Interests.
Exhibit G — Page 10
3.14. Intellectual Property.
(a) All of the Intellectual Property material to the business of such Grantor is
subsisting, valid, and enforceable. The information contained on Schedule 3.14 is
true, correct, and complete. All issued Patents, Patent Licenses, Trademarks,
Trademark Licenses, Copyrights, Copyright Licenses, Trade Secrets, and Trade Secret
Licenses of each Grantor are identified on Schedule 3.14.
(b) Each Grantor is the sole and exclusive owner of the entire and unencumbered
right, title, and interest in and to the Intellectual Property purported to be owned
by such Grantor free and clear of any Liens, including any pledges, assignments,
licenses, user agreements, and covenants by such Grantor not to xxx third Persons,
other than Permitted Liens.
(c) To the best of each Grantor’s knowledge, no third party is infringing, or in
such Grantor’s reasonable business judgment, may be infringing, any of such Grantor’s
rights under its Intellectual Property.
(d) Each Grantor has performed and will continue to perform all acts and has
paid and will continue to pay all required fees and Taxes to maintain each and every
item of the Intellectual Property material to such Grantor’s business in full force
and effect throughout the world, as applicable.
(e) Each of the Patents and Trademarks identified on Schedule 3.14 has been
properly registered with the United States Patent and Trademark Office and each of
the Copyrights identified on Schedule 3.14 has been properly registered with the
United States Copyright Office.
(f) To the best of each Grantor’s knowledge, no claims with respect to the
Intellectual Property material to the business of such Grantor have been asserted and
are pending (a) to the effect that the sale, licensing, pledge, or use of any of the
products of such Grantor’s business infringes any other party’s valid copyright,
trademark, service xxxx, trade secret, or other intellectual property right, (b)
against the use by such Grantor of any Intellectual Property used in such Grantor’s
business as currently conducted, or (c) challenging the ownership or use by such
Grantor of any of the Intellectual Property that such Grantor purports to own or use,
nor, to such Grantor’s knowledge, is there a valid basis for such a claim described
in this Section 3.14. (f) to the extent such claim could, or could reasonably be
expected to result in, a Material Adverse Effect.
The foregoing representations and warranties will be true and correct in all respects with
respect to any additional Collateral or additional specific descriptions of certain Collateral
delivered to Administrative Agent in the future by Grantor. The failure of any of these
representations or warranties or any description of Collateral therein to be accurate or complete
shall not impair the Security Interest in any such Collateral.
Exhibit G — Page 11
From and after the date of this Security Agreement and until the Secured Obligations are paid
in full, all Letters of Credit have expired or been cancelled, and this Security Agreement is
irrevocably terminated:
4.1. Loan Documents. Each Grantor shall comply with, perform, and be bound by all
covenants and agreements set forth in the Credit Agreement and the other Loan Documents that are
applicable to it, its assets, or its operations, each of which is hereby ratified and confirmed.
4.2. General.
(a) Inspection; Records and Reports. Each Grantor will keep accurate
and complete records of the Collateral (including proceeds), and these records will
reflect all material facts known to such Grantor concerning the Collateral. Each
Grantor shall maintain, at the address set forth on Schedule 3.6 as the location of
the books and records, a current record of where all Collateral is located. In
addition, from time to time at the request of Administrative Agent or any Secured
Party, deliver to Administrative Agent such information regarding each Grantor as
Administrative Agent may reasonably request.
(b) Schedules. At the time the Borrower provides a Compliance
Certificate pursuant to the Credit Agreement, each Grantor shall update all Schedules
hereto to the extent that any information therein with respect to such Grantor shall
become inaccurate or incomplete. Each reference to a schedule contained in Article 3
shall be deemed a reference to such schedule as updated from time to time in
accordance with this Section (b). Any Grantor’s failure to describe any Collateral
required to be listed on any schedule hereto shall not impair the Security Interest
in the Collateral.
(c) Financing Statements and Other Actions; Defense of Title. Each
Grantor will deliver to Administrative Agent all financing statements and execute and
deliver Control Agreements and other documents and take such other actions as may
from time to time be requested by Administrative Agent or any Secured Party in order
to maintain a first priority perfected security interest in (and, in the case of
Investment Related Property, Deposit Accounts, Commodity Accounts, Securities
Accounts, letter-of-credit-rights, and electronic chattel paper, Control of) such
Collateral, now owned or hereafter acquired; provided, that no Grantor shall be
required to deliver Control Agreements with respect to Excluded Payroll Accounts; and
provided, further that no Grantor shall be required to deliver Control Agreements or
take any action to perfect a Security Interest in Vehicles or other titled goods
except as required by the Credit Agreement. Each Grantor will take any and all
actions necessary to defend title to the Collateral against all Persons and to defend
the Security Interest and the priority thereof against any Lien not expressly
permitted hereunder.
(d) Change in Location, Jurisdiction of Organization, or Name. No
Grantor will (a) maintain its principal place of business or chief executive office
at a location other than a location specified on Schedule 3.6, (b) change its name or
taxpayer identification number, (c) change its mailing address, or (d) change its
jurisdiction of organization, in each case unless such Grantor shall have given
Administrative Agent not less than twenty (20) days’ prior written notice thereof (or
such other time period as may be agreed by Administrative Agent). Prior to making
any of the foregoing changes, each Grantor shall execute and deliver all such
additional documents and perform all additional acts as
Administrative Agent, in its sole discretion, may request in order to continue
or maintain the existence and priority of the Security Interest.
Exhibit G — Page 12
(e) Notices. Each Grantor will promptly notify Administrative Agent of
(a) any change in any material fact or circumstances represented or warranted by
Grantor with respect to any of the Collateral or Secured Obligations, (b) any claim,
action, or proceeding affecting title to any material part of the Collateral or the
Security Interest and, at the request of Administrative Agent, appear in and defend,
at such Grantor’s expense, any such action or proceeding, (c) any material damage to
or loss of Collateral, and (d) the occurrence of any other event or condition
(including, without limitation, matters as to Lien priority) that could have a
material adverse effect on the Collateral (taken as a whole) or the Security
Interest.
(f) Other Financing Statements. No Grantor will authorize any other
financing statement naming it as debtor covering any portion of the Collateral, other
than financing statements evidencing Permitted Liens and financing statements
permitted under Section 7.01 of the Credit Agreement.
(g) Compliance with Agreements. Each Grantor shall comply in all
material respects with all mortgages, deeds of trust, Instruments, and other
agreements binding on its properties or business except to the extent that
non-compliance could not, or could not reasonably be expected to result in, a
Material Adverse Effect.
4.3. Perform Obligations. Each Grantor will perform in all material respects all of its
duties under and in connection with each transaction to which the Collateral, or any part thereof,
relates, so that the amounts thereof shall actually become payable by each Obligor thereunder.
Furthermore, notwithstanding anything to the contrary contained herein, (a) each Grantor shall
remain liable under its contracts, agreements, documents, and instruments included in the
Collateral to the extent set forth therein to perform all of its duties and obligations thereunder
to the same extent as if this Security Agreement had not been executed, (b) the exercise by
Administrative Agent of any of its rights or remedies hereunder shall not release any Grantor from
any of its duties or obligations under the contracts, agreements, documents, and instruments
included in the Collateral, and (c) none of Administrative Agent or the Secured Parties shall have
any indebtedness, liability, or obligation under any of the contracts, agreements, documents, and
instruments included in the Collateral by reason of this Security Agreement, and none of
Administrative Agent or the Secured Parties shall be obligated to perform any of the obligations or
duties of any Grantor thereunder or to take any action to collect or enforce any claim for payment
assigned hereunder.
4.4. Investment Related Property.
(a) Delivery. To the extent that any Investment Property constituting
part of the Collateral is certificated, each Grantor will deliver to Administrative
Agent all stock certificates or other instruments, or documents representing or
evidencing such Investment Related Property, together with corresponding undated
assignment or transfer powers duly executed in blank by Grantor (which powers have
been duly and validly executed and are binding and enforceable against Grantor in
accordance with their terms). To the extent any Investment Related Property
constituting part of the Collateral is an uncertificated security, each applicable
Grantor will deliver to Administrative Agent an executed Control Agreement with
respect to such Investment Related Property.
Exhibit G — Page 13
(b) No Modification of Rights and Obligation. Without the prior written
consent of Administrative Agent, no Grantor shall vote to enable or take any other
action
to amend or terminate any partnership agreement, limited liability company
agreement, certificate of incorporation, by-laws, or other organizational documents
in any way that materially changes the rights of such Grantor with respect to any
Investment Related Property or adversely affects the validity, perfection, or
priority of the Security Interest.
(c) Investment Related Property that are not Securities. No Grantor
shall vote to enable or take any other action to cause any issuer of any Pledged
Partnership Interests or Pledged LLC Interests which are not securities (for purposes
of the UCC) on the date hereof to elect or otherwise take any action to cause such
Pledged Partnership Interests or Pledged LLC Interests to be treated as securities
for purposes of the UCC; provided, however, notwithstanding the foregoing, if any
issuer of any Pledged Partnership Interests or Pledged LLC Interests takes any such
action in violation of the foregoing in this Section (c), such Grantor shall promptly
after obtaining knowledge thereof notify Administrative Agent in writing of any such
election or action and, in such event, shall take all steps necessary or advisable to
establish Administrative Agent’s Control thereof.
(d) Performance of Underlying Obligations. Each Grantor shall comply
with all of its obligations in all material respects under any partnership agreement
or limited liability company agreement relating to Pledged Partnership Interests or
Pledged LLC Interests and shall enforce all of its rights with respect to any
Investment Related Property.
(e) Changes in Capital Structure of Issuers. Without the prior written
consent of Administrative Agent, no Grantor shall vote to enable or take any other
action to cause or permit any issuer of any Pledged Equity Interest to merge or
consolidate unless all the outstanding capital stock or other Equity Interests of the
surviving or resulting corporation, limited liability company, partnership, or other
entity which is issued to any Grantor is, upon such merger or consolidation, pledged
and perfected hereunder; provided that if the surviving or resulting Grantors upon
any such merger or consolidation involving an issuer which is a Controlled Foreign
Corporation, then such Grantor shall only be required to pledge equity interests in
accordance with Section 2.1. .
(f) Consent of Grantor. Each Grantor consents to the grant by each other
Grantor of the Security Interest in all Investment Related Property to Administrative
Agent and, without limiting the foregoing, following the occurrence of an Event of
Default, consents to the transfer of any Pledged Partnership Interest and any Pledged
LLC Interest to Administrative Agent or its nominee and to the substitution of
Administrative Agent or its nominee as a partner in any partnership or as a member in
any limited liability company with all the rights and powers related thereto.
(g) Voting of Pledged Equity Interests. Prior to the occurrence of an
Event of Default, each Grantor is entitled to exercise all voting rights pertaining
to any Pledged Equity Interests; provided, however, that no vote shall be cast or
consent, waiver, or ratification given or action taken which would violate any
provision of this Security Agreement, Section 7.12 of the Credit Agreement, or any
provision of any other Loan Document. After the occurrence and during the
continuation of an Event of Default, the right to vote any Pledged Equity Interests
shall be vested exclusively in Administrative Agent upon notice from the
Administrative Agent to such Grantor. To this end, each Grantor hereby irrevocably
constitutes and appoints Administrative Agent the proxy and attorney-in-fact of such
Grantor, with full power of substitution, to vote, and to act with respect to, any
and all Pledged Equity Interests standing in the name of such Grantor or with respect
to which such Grantor is entitled to vote and act, subject to the agreement that
such proxy may be exercised only if an Event of Default has occurred and is
continuing. The proxy herein granted is coupled with an interest, is irrevocable,
and shall continue until the termination of this Security Agreement pursuant to
Section 6.1. .
Exhibit G — Page 14
(h) Controlled Foreign Corporations. Immediately upon the amendment of
the Internal Revenue Code to allow the pledge of greater than two-thirds of the
voting power of capital stock in a Controlled Foreign Corporation without potential
adverse Tax consequences, each applicable Grantor shall promptly (i) pledge to the
Administrative Agent a first priority continuing security interest in, and Lien upon,
such greater portion of capital stock of each such Controlled Foreign Corporation,
and (ii) execute and deliver to Administrative Agent all such other assignments,
certificates, supplemental documents, and financing statements, and do all other acts
or things as Administrative Agent may reasonably request in order to create,
evidence, and perfect such security interest and Lien.
4.5. Collateral in Trust. Each Grantor will hold in trust (and not commingle with other
assets of Grantor) for Administrative Agent all Collateral that is chattel paper, Instruments,
Collateral Notes, Pledged Investment Property in certificated form, or documents at any time
received by Grantor, endorse each such Instrument to the order of Administrative Agent (but the
failure of the same to be so endorsed shall not impair the Security Interest thereon), and promptly
deliver same to Administrative Agent.
(a) Control. Each Grantor will execute all documents and take any
action required by Administrative Agent in order for Administrative Agent to obtain
Control with respect to Collateral consisting of Commodities Accounts, Securities
Accounts, Deposit Accounts (other than Excluded Payroll Accounts), uncertificated
Investment Related Property, and “letter-of-credit rights”, and electronic chattel
paper. If any Grantor at any time holds or acquires an interest in any electronic
chattel paper or any “transferable record,” as that term is defined in the federal
Electronic Signatures in Global and National Commerce Act, or in the Uniform
Electronic Transactions Act as in effect in any relevant jurisdiction, such Grantor
shall promptly notify Administrative Agent thereof and, at the request of
Administrative Agent, take such action as Administrative Agent may reasonably request
to vest in Administrative Agent control under the UCC of such electronic chattel
paper or control under the federal Electronic Signatures in Global and National
Commerce Act or, as the case may be, the Uniform Electronic Transactions Act, as so
in effect in such jurisdiction, of such transferable record.
4.6. Intellectual Property.
(a) Maintenance of Rights. Each Grantor shall preserve and maintain all
of its material rights in the Intellectual Property that is material in its business
and protect such Intellectual Property from infringement, unfair competition,
cancellation, or dilution by all appropriate action necessary in such Grantor’s
reasonable business judgment, including the commencement and prosecution of legal
proceedings to recover damages for infringement and to defend and preserve its rights
in the Intellectual Property.
(b) No Abandonment. No Grantor may abandon any of the Intellectual
Property necessary to the conduct of its business in the exercise of such Grantor’s
reasonable business judgment.
(c) Licenses. (a) Without the prior written consent of Administrative
Agent, no Grantor shall sell or assign any of its interest in any of the Intellectual
Property that is material in its business, other than sales or assignments in the
ordinary course of business for full and fair consideration or as otherwise permitted
pursuant to and in accordance with
the Loan Documents; and (b) each Grantor shall maintain the quality of any and
all products and services with respect to which the Intellectual Property that is
material in its business is used.
Exhibit G — Page 15
(d) Additional Intellectual Property. Each Grantor shall execute and
deliver any and all documents, each in form and substance satisfactory to
Administrative Agent, as Administrative Agent may reasonably request to evidence and
perfect Administrative Agent’s Lien on any Intellectual Property.
(e) Obligation upon Default. After the occurrence and during the
continuation of an Event of Default, each Grantor shall use its reasonable efforts to
obtain any consents, waivers, or agreements necessary to enable Administrative Agent
to exercise its rights and remedies with respect to the Intellectual Property.
(f) Security Agreements. Unless otherwise agreed to by the
Administrative Agent, each Debtor will execute and deliver to the Administrative
Agent for filing in (i) the United States Copyright Office a short-form copyright
security agreement substantially in the form attached hereto as Exhibit A, (ii) the
United States Patent and Trademark Office a short-form patent security agreement
substantially in the form attached hereto as Exhibit B and (iii) the United States
Patent and Trademark Office a short-form trademark security agreement substantially
in the form attached hereto as Exhibit C (in each case with such changes as may be
agreed to by the Administrative Agent). Upon request of the Administrative Agent,
each Debtor shall execute and deliver, and have recorded, any and all additional
agreements, instruments, documents, and papers as the Administrative Agent may
reasonably request to evidence the Administrative Agent’s security interest in any
Intellectual Property and the goodwill and general intangibles of such Debtor
relating thereto or represented thereby.
4.7. Deposit, Commodity, and Securities Accounts. With respect to any Deposit Account,
Commodity Account or Securities Account, each Grantor shall (a) maintain such accounts at the
institutions described on Schedule 3.8 or such additional institutions as to which such Grantor has
complied with clause (b) hereof; (b) deliver to each depository bank and security intermediary, a
Control Agreement in form and substance satisfactory to Administrative Agent, with respect to each
such account (other than Excluded Payroll Accounts) and obtain the execution of such Control
Agreements; (c) deliver to Administrative Agent all certificates or Instruments, if any, now or
hereafter representing or evidencing such Deposit Accounts (other than Excluded Payroll Accounts),
Commodity Accounts, or Securities Accounts accompanied by duly executed instruments of transfer or
assignments in blank, all in form and substance satisfactory to Administrative Agent. Without
Administrative Agent’s prior written consent, no Grantor shall establish any additional Deposit
Accounts (other than Excluded Payroll Accounts), Securities Accounts, or Commodities Accounts
unless such accounts are subject to Administrative Agent’s exclusive Control.
4.8. Commercial Tort Claims. If any Grantor at any time holds or acquires a commercial
tort claim, such Grantor shall (a) as promptly as practicable forward to Administrative Agent
written notification of any and all commercial tort claims, including any and all actions, suits,
and proceedings before any court or Governmental Authority by or affecting such Grantor; and
(b) execute and deliver such statements, documents, and notices and do and cause to be done all
such things as may be required by Administrative Agent, or required by applicable Laws, including
all things which may from time to time be necessary under the UCC to fully create, preserve,
perfect, and protect the priority of the Security Interest in any commercial tort claims.
Exhibit G — Page 16
4.9. Letters-of-Credit Rights. If any Grantor is at any time a beneficiary under a letter
of credit now or hereafter issued in favor of any Grantor, such Grantor shall promptly notify
Administrative Agent thereof in writing and, at Administrative Agent’s request, such Grantor shall,
pursuant to an agreement in form and substance satisfactory to Administrative Agent, either
(a) arrange for the issuer or any confirmer of such letter of credit to consent to an assignment to
Administrative Agent of the proceeds of any drawing under the letter of credit or (b) arrange for
Administrative Agent to become the transferee beneficiary of the letter of credit, with
Administrative Agent agreeing, in each case, that the proceeds of any drawing under the letter of
credit are to be applied to the Secured Obligations as provided in the Credit Agreement.
4.10. Modification of Accounts. In accordance with prudent business practices, endeavor
to collect or cause to be collected from each account debtor under its accounts, as and when due,
any and all amounts owing under such accounts. Except in the ordinary course of business and so
long as an Event of Default has occurred and is continuing, each Grantor shall not (i) grant any
extension of time for any payment with respect to any of the accounts, (ii) compromise, compound,
or settle any of the accounts for less than the full amount thereof, (iii) release, in whole or in
part, any Person liable for payment of any of the accounts, (iv) allow any credit or discount for
payment with respect to any account other than trade discounts granted in the ordinary course of
business, (v) release any Lien or guaranty securing any account, or (vi) modify or substitute, or
permit the modification or substitution of, any contract to which any of the Collateral which is
accounts relates.
4.11. Federal, State or Municipal Claims. Each Grantor will notify Administrative Agent
of any Collateral which constitutes a claim against a Governmental Authority, or any
instrumentality or agency thereof, the assignment of which claim is restricted by federal, state,
or municipal law.
4.12. Certificates of Title. Upon the request of Administrative Agent to the extent
required pursuant to Section 6.12(b) of the Credit Agreement, if certificates of title are issued
or outstanding with respect to any of the Vehicles or other Collateral, each Grantor shall cause
the Security Interest to be properly noted thereon.
4.13. Impairment of Collateral. No Grantor shall use any of the Collateral, or permit the
same to be used, (i) for any unlawful purpose, (ii) in any manner that is reasonably likely,
individually or in the aggregate, to materially adversely impair the value or usefulness of the
Collateral, or (iii) in any manner inconsistent with the provisions or requirements of any policy
of insurance thereon.
4.14. Insurance. Each Grantor will bear the full risk of loss from any loss of any nature
whatsoever with respect to the Collateral. At its own cost and expense, each Grantor shall (i)
keep all its insurable properties and properties in which such Grantor has an interest insured
against such hazards, and for such amounts, as is customary in the case of companies engaged in
businesses similar to such Grantor’s; and (ii) furnish Administrative Agent with (x) evidence of
the maintenance of such policies at least thirty (30) days before any expiration date (y) copies of
all policies upon request of Administrative Agent, and (z) appropriate loss payable endorsements in
form and substance satisfactory to Administrative Agent, naming Administrative Agent as loss payee
and providing that the insurer will provide Administrative Agent with at least thirty (30) days
notice prior to cancellation. After the occurrence of an Event of Default, Administrative Agent
may require each Grantor to instruct the insurance carriers that in the event of any loss
thereunder, the carriers shall make payment for such loss to Administrative Agent and not to
Grantor and Administrative Agent jointly. All loss recoveries received by Administrative Agent
upon any such insurance, following the occurrence of an Event of Default, may be applied to the
Secured Obligations by Administrative Agent in accordance with the terms of the Credit Agreement,
and any deficiency thereon shall be paid by Grantors to Administrative Agent, on demand.
Exhibit G — Page 17
4.15. Further Assurances. At Grantors’ expense and Administrative Agent’s request
(i) file or cause to be filed such applications and take such other actions as Administrative Agent
may request to obtain the consent or approval of any Governmental Authority to Administrative
Agent’s rights hereunder
in or with respect to the Collateral or the other Loan Documents, including, without limitation,
the right to sell all the Collateral after the occurrence of an Event of Default, without
additional consent or approval from such Governmental Authority (and, because each Grantor agrees
that Administrative Agent’s remedies at law for failure of Grantors to comply with this provision
would be inadequate and that such failure would not be adequately compensable in damages, each
Grantor agrees that its covenants in this provision may be specifically enforced); (ii) from time
to time promptly execute and deliver to Administrative Agent all such other assignments,
certificates, supplemental documents, and financing statements, and do all other acts or things as
Administrative Agent may reasonably request in order to more fully create, evidence, perfect,
continue, and preserve the priority of the Security Interest and to carry out the provisions of
this Security Agreement; and (iii) pay all filing fees in connection with any financing,
continuation, or termination statement or other instrument with respect to the Security Interests.
4.16. Additional Grantors. Upon the execution and delivery by any person of a security
agreement supplement in form and substance satisfactory to Administrative Agent (each a “Security
Agreement Supplement”), (a) such person shall be and become a Grantor hereunder and each reference
in this Security Agreement and the other Loan Documents to “Grantor” shall also mean and be a
reference to such person, and (b) the supplemental Schedules 3.5, 3.6, 3.8, 3.13 and 3.14 attached
to each Security Agreement Supplement shall be incorporated into and become a part of Schedules
3.5, 3.6, 3.8, 3.13 and 3.14 respectively, hereto, and Administrative Agent may attach such
supplemental exhibits to such Schedules; and each reference to such Schedules means and be a
reference to such Schedules as supplemented pursuant to each Security Agreement Supplement.
4.17. Future Assets of Grantors. Each Grantor shall ensure that the documents which
govern its future Investments do no restrict the ability of such Grantor to subject any such
Investment to the Lien and Security Interest of this Security Agreement and the other Loan
Documents.
5.1. Remedies. On and after the occurrence of an Event of Default, Administrative Agent
may exercise any and all of the following rights and remedies:
(a) Contractual Remedies. Those rights and remedies provided in this
Security Agreement or any other Loan Document, provided that this Section (a) shall
not limit any rights or remedies available to Administrative Agent prior to the
occurrence of an Event of Default.
(b) Legal Remedies. Those rights and remedies available to a secured
party under the UCC (whether or not the UCC applies to the affected Collateral) or
under any other applicable Laws (including, subject to the provisions of Section
11.08 of the Credit Agreement, any Law governing the exercise of a bank’s right of
setoff or bankers’ lien) when a debtor is in default under a security agreement,
including applying by appropriate judicial proceedings for the appointment of a
receiver for all or any part of the Collateral (and Grantors hereby consent to such
appointment).
(c) Disposition of Collateral. Without notice, except as specifically
provided in Section (c) or elsewhere herein, sell, lease, assign, grant an option, or
options to purchase or otherwise dispose of the Collateral or any part thereof in one
or more parcels at public or private sale or at any broker’s board or on any
securities exchange, for cash, on credit or for future delivery, and upon such other
terms as Administrative Agent may deem commercially reasonable. Neither
Administrative Agent’s compliance with any applicable state or federal Law in the
conduct of such sale, nor its disclaimer of any warranties relating to the
Collateral, shall be considered to affect the commercial reasonableness of such
sale. Each Grantor hereby waives (to the extent permitted by applicable Laws)
all rights of redemption, stay, and/or appraisal which it now has or may at any time
in the future have under any rule of law or statute now existing or hereafter
enacted.
Exhibit G — Page 18
(d) Distributions. Upon request of the Administrative Agent, cause all
payments and distributions made to any Grantor upon or with respect to the Collateral
to be paid or delivered to Administrative Agent, and each Grantor agrees to take all
such action as Administrative Agent may deem necessary or appropriate to cause all
such payments and distributions to be made to Administrative Agent. Further,
Administrative Agent shall have the right, at any time after the occurrence of an
Event of Default, to notify and direct any issuer to thereafter make all payments,
dividends, and any other distributions payable in respect thereof directly to
Administrative Agent. Such issuer shall be fully protected in relying on the written
statement of Administrative Agent that it then holds a Security Interest which
entitles it to receive such payments and distributions. Any and all money and other
property paid over to or received by Administrative Agent hereunder shall be retained
by Administrative Agent as additional Collateral hereunder and may be applied in
accordance with Section 5.10.
(e) Control. Administrative Agent shall have the right, at any time
after the occurrence of an Event of Default, pursuant to the applicable Control
Agreement, to notify and direct each institution in which any Grantor maintains a
Deposit Account, Commodities Account, or Securities Account that is subject to a
Control Agreement, to thereafter take all instructions with respect thereto solely
from Administrative Agent, to hold each Deposit Account, Commodities Account, and
Securities Account (together with all monies, Instruments, certificates, checks,
drafts, wire transfer receipts, trust receipts, securities, Investments, or other
assets therein) solely for the benefit of Administrative Agent, and thereafter to
make any payments and any other distributions payable in respect thereto directly to
Administrative Agent, and to provide all statements or reports to Administrative
Agent relative to such Deposit Accounts, Commodities Accounts, and Securities
Accounts. Each such institution shall be fully protected in relying on the written
statement of Administrative Agent that it then holds a Security Interest which
entitles it to exercise Control over such assets. Any and all money and other
property paid over to or received by Administrative Agent hereunder shall be retained
by Administrative Agent as additional Collateral hereunder and may be applied in
accordance with Section 5.10. The Administrative Agent shall not have the right to
exercise control over Deposit Accounts, Commodities Accounts or Securities Accounts
unless an Event of Default exists.
(f) Use of Premises. Administrative Agent shall be entitled to occupy
and use any premises owned or leased by any Grantor where any of the Collateral or
any records relating to the Collateral are located until the Secured Obligations are
paid or the Collateral is removed therefrom, whichever first occurs, without any
obligation to pay such Grantor for such use and occupancy.
5.2. Grantors’ Obligations Upon an Event of Default.
(a) Assembly of Collateral. Upon the request of Administrative Agent,
on and after the occurrence of an Event of Default, each Grantor will assemble and
make available to Administrative Agent the Collateral and all records relating
thereto at any place or places specified by Administrative Agent.
Exhibit G — Page 19
(b) Secured Party Access. Upon the request of Administrative Agent, on
and after the occurrence of an Event of Default, each Grantor will permit
Administrative Agent, by Administrative Agent’s representatives and agents, to enter
any premises where all or any part of the Collateral, or the books and records
relating thereto, or both, are located, to take possession of all or any part of the
Collateral and to remove all or any part of the Collateral.
(c) Notice of Disposition of Collateral. Each Grantor hereby waives
notice of the time and place of any public sale or the time after which any private
sale or other disposition of all or any part of the Collateral may be made. To the
extent such notice may not be waived under applicable Law, any notice of the time and
place of any public sale or the time after which any private sale or other
disposition of all or any part of the Collateral may be made shall be deemed
reasonable if sent to any Grantor, addressed as set forth in Section 6.16. , at least
ten (10) days prior to (a) the date of any such public sale or (b) the time after
which any such private sale or other disposition may be made. Administrative Agent
shall not be obligated to make any sale or other disposition of the Collateral
regardless of notice having been given; provided that, if any of the Collateral
threatens to decline speedily in value or is of the type customarily sold on a
recognized market, Administrative Agent may sell or otherwise dispose of the
Collateral without notification, advertisement, or other notice of any kind, provided
that any such Collateral that is of a type continuously sold on a recognized market
is sold on such market. Subject to the provisions of applicable Laws, Administrative
Agent may postpone or cause the postponement of the sale of all or any portion of the
Collateral by announcement at the time and place of such sale, and such sale may,
without further notice, to the extent permitted by applicable Laws, be made at the
time and place to which the sale was postponed, or Administrative Agent may further
postpone such sale by announcement made at such time and place.
5.3. Condition of Collateral; Warranties. Administrative Agent has no obligation to
clean-up or otherwise prepare the Collateral for sale. Administrative Agent may sell the
Collateral without giving any warranties as to the Collateral. Administrative Agent may
specifically disclaim any warranties of title or the like. This procedure will not be considered
to adversely affect the commercial reasonableness of any sale of the Collateral.
5.4. Collection of Receivables. Upon the occurrence of an Event of Default,
Administrative Agent may at any time, by giving Grantors written notice, elect to require that the
Receivables be paid directly to Administrative Agent. In such event, each Grantor shall, and shall
permit Administrative Agent to, promptly notify the Obligors with respect to the Receivables of
Administrative Agent’s interest therein and direct such Account Debtors to make payment of all
amounts then or thereafter due under the Receivables directly to Administrative Agent. Upon
receipt of any such notice from Administrative Agent, each Grantor shall thereafter hold in trust
for Administrative Agent, all amounts and proceeds received by it with respect to the Receivables
and immediately and at all times thereafter deliver to Administrative Agent all such amounts and
proceeds in the same form as so received, whether by cash, check, draft or otherwise, with any
necessary endorsements. Administrative Agent shall hold and apply funds so received as provided by
the terms of Section 5.10. . Administrative Agent shall have the right in its own name or in the
name of the applicable Grantor to demand, collect, receive, receipt for, xxx for, compound, and
give acquittances for any and all amounts due or to become due with respect to Collateral; to take
control of cash and other proceeds of any Collateral; to endorse the name of the applicable Grantor
on any notes, acceptances, checks, drafts, money orders, or other evidences of payment on
Collateral that may come into the possession of Administrative Agent or any Administrative Agent;
to sign the name of the applicable Grantor on any invoice or xxxx of lading relating to any
Collateral, on any drafts against Obligors or other Persons making payment with respect to
Collateral, on assignments and verifications of accounts or other Collateral and on notices to
Obligors making payment with respect to Collateral; to send requests for verification of
obligations to any Obligor;
Exhibit G — Page 20
and to do all other acts and things necessary to carry out the intent
of this Security Agreement. If after the occurrence of an Event of Default, any Obligor fails or
refuses to make payment on any Collateral when due, Administrative Agent is authorized, in its sole
discretion, either in its own name or in the name of Grantors, to take such action as
Administrative Agent shall deem appropriate for the collection of any amounts owed with respect to
the Collateral or upon which a delinquency exists. Each Grantor agrees that Administrative Agent
may at any time and from time to time, if an Event of Default has occurred, compromise with the
Obligor on any Receivable, accept in full payment of any Receivable such amount as Administrative
Agent in its sole discretion shall determine or abandon any Receivable, and any such action by
Administrative Agent shall be commercially reasonable so long as Administrative Agent acts in good
faith based on information known to it at the time it takes any such action. Regardless of any
other provision hereof, however, Administrative Agent shall never be liable for its failure to
collect, or for its failure to exercise diligence in the collection of, any amounts owed with
respect to the Collateral, nor shall it be under any duty whatsoever to anyone except Grantors to
account for funds that it shall actually receive hereunder.
5.5. Cash Collateral Account. Upon the occurrence of an Event of Default, Administrative
Agent shall have, and Grantor hereby grants to Administrative Agent, the right and authority to
transfer all funds on deposit in the Deposit Accounts (other than the Excluded Deposit Accounts),
Securities Accounts, and Commodities Accounts to a Cash Collateral Account (herein so called)
maintained with a depository institution acceptable to Administrative Agent and subject to the
exclusive direction, domain, and Control of Administrative Agent, and no disbursements or
withdrawals shall be permitted to be made by any Grantor from such Cash Collateral Account. Such
Cash Collateral Account shall be subject to the Security Interest herein created, and each Grantor
hereby grants a security interest to Administrative Agent (for the benefit of Secured Parties) in
and to, such Cash Collateral Account and all monies, checks, drafts, and other items ever received
by Grantor for deposit therein. Furthermore, Administrative Agent shall have the right, at any
time in its discretion after an Event of Default without notice to any Grantor, (i) to transfer to
or to register in the name of Administrative Agent or any nominee any Collateral consisting of
certificates of deposit or deposit instruments, Instruments, Investments, or Investment Related
Property constituting Deposit Accounts (other than Excluded Payroll Accounts), Securities Accounts,
or Commodities Accounts and shall have the right to exchange such certificates or instruments
representing Deposit Accounts (other than Excluded Payroll Accounts) for certificates or
instruments of smaller or larger denominations and (ii) to take and apply against the Secured
Obligations any and all funds then or thereafter on deposit in the Cash Collateral Account or
otherwise constituting Deposit Accounts (other than Excluded Payroll Accounts).
5.6. Intellectual Property. After the occurrence of an Event of Default, Administrative
Agent may require that each Grantor assign all of its right, title, and interest in and to the
Intellectual Property or any part thereof to Administrative Agent or such other Person as
Administrative Agent may designate pursuant to documents satisfactory to Administrative Agent. If
no Event of Default has occurred, Grantors shall have the exclusive right and license to use the
Intellectual Property in the ordinary course of business and the exclusive right to grant to other
persons licenses and sublicenses with respect to the Intellectual Property for full and fair
consideration.
5.7. Record Ownership of Securities. After the occurrence of an Event of Default,
Administrative Agent may have any Pledged Equity Interests or other Investment Property that is in
the possession of Administrative Agent, or its nominee or nominees, registered in its name, or in
the name of its nominee or nominees on behalf of Administrative Agent; and, as to any Pledged
Equity Interest or other Investment Related Property so registered, Administrative Agent shall (if
applicable) execute and deliver (or cause to be executed and delivered) to the applicable Grantor
all such proxies, powers of
attorney, dividend coupons or orders, and other documents as such Grantor may reasonably request
for the purpose of enabling such Grantor to exercise any voting rights and powers which it is
entitled to exercise under this Security Agreement or to receive any dividends and other
distributions and payments in respect of such Collateral or proceeds thereof which it is authorized
to receive and retain under this Security Agreement.
Exhibit G — Page 21
5.8. Investment Related Property. Each Grantor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, or the rules and regulations
promulgated thereunder (collectively, the “Securities Act”) and applicable state securities laws,
Administrative Agent may be compelled, with respect to any sale of all or any part of the
Investment Related Property conducted without prior registration or qualification of such
Investment Related Property under the Securities Act and/or such state securities laws, to limit
purchasers to those who will agree, among other things, to acquire the Investment Related Property
for their own account, for investment and not with a view to the distribution or resale thereof.
Each Grantor acknowledges that any such private sale may be at prices and on terms less favorable
than those obtainable through a public sale without such restrictions (including a public offering
made pursuant to a registration statement under the Securities Act) and, notwithstanding such
circumstances, each Grantor agrees that any such private sale shall be deemed to have been made in
a commercially reasonable manner and that Administrative Agent shall have no obligation to engage
in public sales and no obligation to delay the sale of any Investment Related Property for the
period of time necessary to permit the issuer thereof to register it for a form of public sale
requiring registration under the Securities Act or under applicable state securities laws, even if
such issuer would, or should, agree to so register it. Upon the occurrence of an Event of Default,
Administrative Agent may exercise its right to sell any or all of the Investment Related Property,
and upon written request, each Grantor shall and shall use its best efforts to cause, each issuer
of any Investment Related Property to be sold hereunder, from time to time to furnish to
Administrative Agent all such information as Administrative Agent may request in order to determine
the number and nature of interest, shares, or other instruments included in the Investment Related
Property which may be sold by Administrative Agent in exempt transactions under the Securities Act
and the rules and regulations of the Securities and Exchange Commission thereunder. In case of any
sale of all or any part of the Investment Related Property on credit or for future delivery, such
Collateral so sold may be retained by Administrative Agent until the selling price is paid by the
purchaser thereof, but Administrative Agent shall not incur any liability in case of the failure of
such purchaser to take up and pay for such assets so sold and in case of any such failure, such
Collateral may again be sold upon like notice. Administrative Agent, instead of exercising the
power of sale herein conferred upon them, may proceed by a suit or suits at law or in equity to
foreclose security interests created hereunder and sell such Investment Related Property, or any
portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
5.9. Sales on Credit. If Administrative Agent sells any of the Collateral upon credit,
Grantors will be credited only with payments actually made by the purchaser, received by the
Administrative Agent, and applied to the indebtedness of the purchaser. In the event the purchaser
fails to pay for the Collateral, Administrative Agent may resell the Collateral and Grantors shall
be credited with the proceeds of the sale.
5.10. Application of Proceeds. Administrative Agent shall apply the proceeds of any sale
or other disposition of the Collateral in accordance with the terms and conditions of the Credit
Agreement. Any surplus remaining shall be delivered to Grantors or as a court of competent
jurisdiction may direct. If the proceeds of any sale or disposition are insufficient to pay the
Secured Obligations in full, Grantors shall remain liable for any deficiency and the fees of any
attorneys employed by Administrative Agent to collect such deficiency.
Exhibit G — Page 22
5.11. Performance. If any Grantor fails to keep the Collateral in good repair, working
order, and condition, as required by this Security Agreement, the other Loan Documents, and any
applicable Loan Document, or fails to pay when due all Taxes on any of the Collateral in the manner
required by this
Security Agreement, the other Loan Documents and any applicable Loan Document, or fails to preserve
the priority of the Security Interest in any of the Collateral, or fails to keep the Collateral
insured as required by this Security Agreement, or otherwise fails to perform any of its
obligations under this Security Agreement, the other Loan Documents, or any applicable Loan
Document with respect to the Collateral, then Administrative Agent may, at its option, but without
being required to do so, make such repairs, pay such Taxes, prosecute or defend any suits in
relation to the Collateral, or insure and keep insured the Collateral in any amount deemed
appropriate by Administrative Agent, or take all other action which any Grantor is required, but
has failed or refused, to take under this Security Agreement and the other Loan Documents. Each
Grantor shall, jointly and severally, reimburse Administrative Agent for any amounts paid by
Administrative Agent pursuant to this Section 5.11. . Each Grantor’s obligation to reimburse
Administrative Agent pursuant to the preceding sentence shall be a Secured Obligation payable on
demand.
5.12. Use and Operation of Collateral. Should any Collateral come into the possession of
Administrative Agent, Administrative Agent may use or operate such Collateral for the purpose of
preserving it or its value pursuant to the order of a court of appropriate jurisdiction or in
accordance with any other rights held by Administrative Agent in respect of such Collateral. Each
Grantor covenants to promptly reimburse and pay to Administrative Agent, at Administrative Agent’s
request, the amount of all reasonable expenses (including, without limitation, the cost of any
insurance and payment of Taxes or other charges) incurred by Administrative Agent in connection
with its custody and preservation of Collateral, and all such expenses, costs, Taxes, and other
charges shall bear interest at the Default Rate until repaid and, together with such interest,
shall be payable by Grantors to Administrative Agent upon demand and shall become part of the
Secured Obligations. However, the risk of accidental loss or damage to, or diminution in value of,
Collateral is on Grantors, and Administrative Agent shall have no liability whatever for failure to
obtain or maintain insurance, nor to determine whether any insurance ever in force is adequate as
to amount or as to the risks insured. With respect to Collateral that is in the possession of
Administrative Agent, Administrative Agent shall have no duty to fix or preserve rights against
prior parties to such Collateral and shall never be liable for any failure to use diligence to
collect any amount payable in respect of such Collateral, but shall be liable only to account to
Grantors for what it may actually collect or receive thereon. The provisions of this Section 5.12.
are applicable whether or not an Event of Default exists.
5.13. Power of Attorney. Each Grantor hereby irrevocably constitutes and appoints
Administrative Agent and any officer or agent thereof, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority in the name of such Grantor
or in its own name, to take, upon the occurrence and during the continuation of an Event of Default
and from time to time thereafter, any and all action and to execute any and all documents and
instruments which Administrative Agent at any time and from time to time deems necessary or
desirable to accomplish the purposes of this Security Agreement and, without limiting the
generality of the foregoing, each Grantor hereby gives Administrative Agent the power and right on
behalf of such Grantor and in its own name to do any of the following after the occurrence and
during the continuation of an Event of Default) and from time to time thereafter, without notice to
or the consent of Grantor:
(a) to transfer any and all funds on deposit in the Deposit Accounts (other than
Excluded Payroll Accounts) to the Cash Collateral Account as set forth herein;
(b) to receive, endorse, and collect any drafts or other instruments or
documents in connection with the exercise of any rights or remedies pursuant to this
Security Agreement;
(c) to use the Intellectual Property or to grant or issue any exclusive or
non-exclusive license under the Intellectual Property to anyone else, and to perform
any act
necessary for the Administrative Agent to assign, pledge, convey, or otherwise
transfer title in or dispose of the Intellectual Property to any other Person;
Exhibit G — Page 23
(d) to demand, xxx for, collect, or receive, in the name of the applicable
Grantor or in its own name, any money or property at any time payable or receivable
on account of or in exchange for any of the Collateral and, in connection therewith,
endorse checks, notes, drafts, acceptances, money orders, documents of title or any
other instruments for the payment of money under the Collateral or any policy of
insurance;
(e) to pay or discharge Taxes, Liens, or other encumbrances levied or placed on
or threatened against the Collateral;
(f) to notify post office authorities to change the address for delivery of each
Grantor to an address designated by Administrative Agent and to receive, open, and
dispose of mail addressed to any Grantor; and
(g) (a) to direct account debtors and any other parties liable for any payment
under any of the Collateral to make payment of any and all monies due and to become
due thereunder directly to Administrative Agent or as Administrative Agent shall
direct; (b) to receive payment of and receipt for any and all monies, claims, and
other amounts due and to become due at any time in respect of or arising out of any
Collateral; (c) to sign and endorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors, assignments, proxies,
stock powers, verifications, and notices in connection with accounts and other
documents relating to the Collateral; (d) to commence and prosecute any suit, action,
or proceeding at Law or in equity in any court of competent jurisdiction to collect
the Collateral or any part thereof and to enforce any other right in respect of any
Collateral; (e) to defend any suit, action, or proceeding brought against any Grantor
with respect to any Collateral; (f) to settle, compromise, or adjust any suit,
action, or proceeding described above and, in connection therewith, to give such
discharges or releases as Administrative Agent may deem appropriate; (g) to exchange
any of the Collateral for other property upon any merger, consolidation,
reorganization, recapitalization, or other readjustment of the issuer thereof and, in
connection therewith, deposit any of the Collateral with any committee, depositary,
transfer agent, registrar, or other designated agency upon such terms as
Administrative Agent may determine; (h) to add or release any guarantor, indorser,
surety, or other party to any of the Collateral; (i) to renew, extend, or otherwise
change the terms and conditions of any of the Collateral; (j) to endorse the
applicable Grantor’s name on all applications, documents, papers, and instruments
necessary or desirable in order for Administrative Agent to use or maintain any of
the Intellectual Property; (k) to make, settle, compromise or adjust any claims under
or pertaining to any of the Collateral (including claims under any policy of
insurance); (l) to execute (if necessary) on behalf of each Grantor any financing
statements or continuation statements with respect to the Security Interests created
hereby, and to do any and all acts and things to protect and preserve the Collateral,
including, without limitation, the protection and prosecution of all rights included
in the Collateral; and (m) to sell, transfer, pledge, convey, make any agreement with
respect to or otherwise deal with any of the Collateral as fully and completely as
though Administrative Agent were the absolute owner thereof for all purposes, and to
do, at Administrative Agent’s option and Grantors’ expense, at any time, or from time
to time, all acts and things which Administrative Agent deems necessary to protect,
preserve, maintain, or realize upon the Collateral and Administrative Agent’s
security interest therein.
Exhibit G — Page 24
This power of attorney is a power coupled with an interest and shall be irrevocable until this
Security Agreement is terminated in accordance with Section 6.1. Administrative Agent shall be
under no duty to exercise or withhold the exercise of any of the rights, powers, privileges, and
options expressly or implicitly granted to Administrative Agent in this Security Agreement, and
shall not be liable for any failure to do so or any delay in doing so. None of Administrative
Agent nor any Person designated by Administrative Agent shall be liable for any act or omission or
for any error of judgment or any mistake of fact or law except for their willful misconduct, gross
negligence, or violation of law as determined by a court of competent jurisdiction in a final and
nonappealable judgment. This power of attorney is conferred on Administrative Agent solely to
protect, preserve, maintain, and realize upon its Security Interest in the Collateral.
Administrative Agent shall not be responsible for any decline in the value of the Collateral and
shall not be required to take any steps to preserve rights against prior parties or to protect,
preserve, or maintain any Lien given to secure the Collateral. Each Grantor ratifies and approves
all acts of such attorney in the absence of its willful misconduct or gross negligence.
5.14. Subrogation. If any of the Secured Obligations are given in renewal or extension or
applied toward the payment of indebtedness secured by any Lien, Administrative Agent and Secured
Parties shall be, and are hereby, subrogated to all of the rights, titles, interests, and Liens
securing the indebtedness so renewed, extended, or paid.
5.15. Indemnification . Each Grantor hereby assumes all liability for the Collateral, for
the Security Interest, and for any use, possession, maintenance, and management of, all or any of
the Collateral, including, without limitation, any Taxes arising as a result of, or in connection
with, the transactions contemplated herein, and agrees to assume liability for, and to indemnify
and hold Administrative Agent and each Secured Party harmless from and against, any and all claims,
causes of action, or liability, for injuries to or deaths of Persons and damage to property,
howsoever arising from or incident to such use, possession, maintenance, and management, whether
such Persons be agents or employees of such Grantor or of third parties, or such damage be to
property of such Grantor or of others, and any actual or alleged presence or release of hazardous
materials on or from any property owned or operated by any Grantor or any of its Subsidiaries or
any environmental liability related in any way to any Grantor or any of its Subsidiaries. Each
Grantor agrees to indemnify, save, and hold Administrative Agent and each Secured Party harmless
from and against, and covenants to defend Administrative Agent and each Secured Party against, any
and all losses, damages, claims, costs, penalties, liabilities, and expenses (collectively,
“Claims”), including, without limitation, court costs and attorneys’ fees, and any of the foregoing
ARISING FROM THE NEGLIGENCE OF ADMINISTRATIVE AGENT AND EACH SECURED PARTY, OR ANY OF THEIR
RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, ADVISORS, EMPLOYEES, OR REPRESENTATIVES, howsoever arising
or incurred because of, incident to, or with respect to Collateral or any use, possession,
maintenance, or management thereof; provided, however, that the indemnity set forth in this Section
5.15. will not apply to Claims caused by the gross negligence or willful misconduct of
Administrative Agent or any Secured Party or any of its officers, employees, agents, advisors, or
representatives, as determined by a court of competent jurisdiction in a final and nonappealable
judgment.
6.1. Termination. This Security Agreement shall continue in effect (notwithstanding the
fact that from time to time there may be no Secured Obligations outstanding) until all of the
Secured Obligations have been indefeasibly paid and performed in full and no commitments of any
Secured Party which would give rise to any Secured Obligations are outstanding under the Credit
Agreement or the other Loan Documents; provided that the termination of this Security Agreement
under this Section 6.1. is subject to Section 6.5.
Exhibit G — Page 25
6.2. Joint and Several Obligations of Grantors.
(a) Each Grantor is accepting joint and several liability hereunder with each
other Grantor party to this Security Agreement in consideration of the financial
accommodation to be provided by the holders of the Secured Obligations, for the
mutual benefit, directly and indirectly, of each Grantor and in consideration of the
undertakings of each Grantor to accept joint and several liability for the
obligations of each of them.
(b) Each Grantor jointly and severally hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several liability
with the other Grantors with respect to the payment and performance of all of the
Secured Obligations, it being the intention of the parties hereto that all the
Secured Obligations shall be the joint and several obligations of each Grantor
without preferences or distinction among them.
6.3. NO RELEASE OF GRANTORS. THE OBLIGATIONS OF GRANTORS UNDER THIS SECURITY AGREEMENT
SHALL NOT BE REDUCED, LIMITED OR TERMINATED, NOR SHALL GRANTORS BE DISCHARGED FROM ANY OBLIGATION
HEREUNDER, FOR ANY REASON WHATSOEVER (other than pursuant to Section 6.1.) including (and whether
or not the same shall have occurred or failed to occur once or more than once and whether or not
Grantors shall have received notice thereof): (i) the taking or accepting of any other security or
assurance for any or all of the Secured Obligations; (ii) any release, surrender, exchange,
subordination, or loss of any security or assurance at any time existing in connection with any or
all of the Secured Obligations; (iii) the modification of, amendment to, or waiver of compliance
with any terms of any of the Loan Documents without the notification or consent of any Grantor,
except as required therein (the right to such non-excepted notification or consent being herein
specifically waived by each Grantor); (iv) the insolvency, bankruptcy, or lack of corporate or
trust power of any party at any time liable for the payment of any or all of the Secured
Obligations, whether now existing or hereafter occurring; (v) any renewal, extension, or
rearrangement of the payment of any or all of the Secured Obligations, either with or without
notice to or consent of any Grantor, or any adjustment, indulgence, forbearance, or compromise that
may be granted or given by Administrative Agent or any Secured Party to any Grantor or to any other
Guarantor; (vi) any neglect, delay, omission, failure, or refusal of Administrative Agent or any
Secured Party to take or prosecute any action in connection with any other agreement, document,
guaranty, or instrument evidencing, securing, or assuring the payment of all or any of the Secured
Obligations; (vii) any failure of Administrative Agent or any Secured Party to notify any Grantor
of any renewal, extension, or assignment of the Secured Obligations or any part thereof, or the
release of any Collateral or other security, or of any other action taken or refrained from being
taken by Administrative Agent or any Secured Party against any Grantor or any new agreement between
or among Administrative Agent or one or more Secured Parties and any Grantor, it being understood
that except as expressly provided herein, neither Administrative Agent nor any Secured Party shall
be required to give Grantors any notice of any kind under any circumstances whatsoever with respect
to or in connection with the Secured Obligations, including notice of acceptance of this Security
Agreement or any Collateral ever delivered to or for the account of Administrative Agent hereunder;
(viii) the illegality, invalidity, or unenforceability of all or any part of the Secured
Obligations against any party obligated with respect thereto by reason of the fact that the Secured
Obligations, or the interest paid or payable with respect thereto, exceeds the amount permitted by
applicable Laws, the act of creating the Secured Obligations, or any part thereof, is ultra xxxxx,
or the officers, partners, or trustees creating same acted in excess of their authority, or for any
other reason; (ix) if any payment by any party obligated with respect thereto is held to constitute
a preference under applicable Laws or for any other reason Administrative Agent or any Secured
Party is required to refund such payment or pay the amount thereof to someone else; or (x) ANY
OTHER ACT OR FAILURE TO ACT OR ANY OTHER EVENT OR CIRCUMSTANCE THAT (a) VARIES THE RISK OF GRANTORS
UNDER THIS SECURITY AGREEMENT OR (b) BUT FOR THE PROVISIONS HEREOF, WOULD, AS A MATTER OF
APPLICABLE LAW OR EQUITY, OPERATE TO REDUCE,
LIMIT OR TERMINATE THE OBLIGATIONS OF GRANTORS HEREUNDER OR DISCHARGE GRANTORS FROM ANY OBLIGATION
HEREUNDER.
Exhibit G — Page 26
6.4. Subordination of Certain Claims. Any and all rights and claims of Grantors against
Borrower or against any other Person or property, arising by reason of any payment by any Grantors
to any Secured Party pursuant to the provisions, or in respect, of this Security Agreement shall be
subordinate, junior and subject in right of payment to the prior and indefeasible payment in full
of all Secured Obligations, and until such time, Grantors defer all rights of subrogation,
contribution, or any similar right and until such time agree not to enforce any such right or
remedy Grantors may now or hereafter have against Borrower, any endorser, any other Grantor or any
other guarantor of all or any part of the Secured Obligations and any right to participate in, or
benefit from, any security given to Administrative Agent to secure any of the Secured Obligations.
All Liens and security interests of Grantors, whether now or hereafter arising and howsoever
existing, in assets of Grantors or any assets securing the Secured Obligations shall be and hereby
are subordinated to the rights and interests of Administrative Agent and in those assets until the
prior and indefeasible final payment in full of all Secured Obligations. If any amount shall be
paid to Grantors contrary to the provisions of this Section 6.4. at any time when any of the
Secured Obligations shall not have been indefeasibly paid in full, such amount shall be held in
trust for the benefit of Administrative Agent and shall forthwith be turned over to Administrative
Agent in kind in the form received (duly endorsed if necessary) to be credited and applied against
the Secured Obligations, whether matured or unmatured, in accordance with the terms of the Credit
Agreement.
6.5. Recovered Payments. The Secured Obligations shall be deemed not to have been paid,
observed or performed, and Grantors’ obligations under this Security Agreement in respect thereof
shall continue and not be discharged, to the extent that any payment, observance, or performance
thereof by any Grantor is recovered from or paid over by or for the account of Administrative Agent
for any reason, including as a preference or fraudulent transfer or by virtue of any subordination
(whether present or future or contractual or otherwise) of the Secured Obligations, whether such
recovery or payment over is effected by any judgment, decree or order of any court or governmental
agency, by any plan of reorganization or by settlement or compromise by Administrative Agent or
Secured Parties (whether or not consented to by Grantors) of any claim for any such recovery or
payment over. Each Grantor hereby expressly waives the benefit of any applicable statute of
limitations and agrees that it shall be liable hereunder whenever such a recovery or payment over
occurs.
6.6. Waivers. Each Grantor waives demand, notice, protest, notice of acceptance of this
Agreement, notice of loans made, credit extended, Collateral received or delivered or other action
taken in reliance hereon and all other demands and notices of any description. With respect to
both the Secured Obligations and the Collateral, each Grantor assents to any extension or
postponement of the time of payment or any other indulgence, to any substitution, exchange or
release of or failure to perfect any security interest in any Collateral, to the addition or
release of any party or person primarily or secondarily liable, to the acceptance of partial
payment thereon and the settlement, compromising or adjusting of any thereof, all in such manner
and at such time or times as the Administrative Agent may deem advisable. The Administrative Agent
shall have no duty as to the collection or protection of the Collateral or any income thereon, nor
as to the preservation of rights against prior parties, nor as to the preservation of any rights
pertaining thereto beyond the safe custody thereof. Each Grantor further waives any and all other
suretyship defenses. Further, to the fullest extent permitted by applicable Laws, each Grantor
waives (i) any right to require Administrative Agent or any Secured Party to proceed against any
other Person, to exhaust its rights in Collateral, or to pursue any other right which
Administrative Agent or any Secured Party may have; (ii) with respect to the Secured Obligations,
presentment and demand for payment, protest, notice of protest and nonpayment, and notice of the
intention to accelerate; and (iii) all rights of marshaling in respect of any and all of the
Collateral. Each Grantor agrees that this Security Agreement, the Security Interest and all
rights, remedies, powers and privileges provided to the
Administrative Agent under this Security Agreement are in addition to and not in any way affected
or limited by any other security now or at any time held by the Administrative Agent (for the
benefit of the Secured Parties) to secure payment and performance of the Secured Obligations.
Exhibit G — Page 27
6.7. No Waiver; Amendments. No delay or omission of Administrative Agent to exercise any
right or remedy granted under this Security Agreement shall impair such right or remedy or be
construed to be a waiver of any Event of Default, or an acquiescence therein, and any single or
partial exercise of any such right or remedy shall not preclude any other or further exercise
thereof or the exercise of any other right or remedy. No waiver, amendment, or other variation of
the terms, conditions, or provisions of this Security Agreement whatsoever shall be valid unless in
writing entered into by Grantors and Administrative Agent and then only to the extent in such
writing specifically set forth. All rights and remedies contained in this Security Agreement or
afforded by applicable Laws shall be cumulative and all shall be available to Administrative Agent
until the Secured Obligations have been paid in full.
6.8. Specific Performance of Certain Covenants. Each Grantor acknowledges and agrees that
a breach of any of the covenants contained in Sections (c), (h), 4.5., 5.4., 5.5., 5.6., 5.10., or 5.11., will cause irreparable injury to Administrative Agent and Secured Parties, that
Administrative Agent and Secured Parties have no adequate remedy at law in respect of such breaches
and therefore agrees, without limiting the right of Administrative Agent or Secured Parties to seek
and obtain specific performance of other obligations of such Grantor contained in this Security
Agreement, that the covenants of such Grantor contained in the Sections referred to in this
Section 6.8. shall be specifically enforceable against such Grantor.
6.9. Survival. All representations and warranties of each Grantor contained in this
Security Agreement shall survive the execution and delivery of this Security Agreement. Without
prejudice to the survival of any other obligation of each Grantor hereunder, the obligations of
each Grantor under Sections 6.10. and 5.15. shall survive termination of this Security Agreement.
6.10. Expenses. Grantors shall jointly and severally reimburse Administrative Agent for
any and all out-of-pocket expenses and internal charges (including reasonable attorneys’, auditors’
and accountants’ fees and reasonable time charges of attorneys, paralegals, auditors and
accountants who may be employees of Administrative Agent) paid or incurred by Administrative Agent
in connection with the preparation, execution, delivery, and administration, of this Security
Agreement and in the audit, analysis, administration, collection, preservation or sale of the
Collateral (including the expenses and charges associated with any periodic or special audit of the
Collateral). In addition, Grantors shall be jointly and severally obligated to pay all of the costs
and expenses incurred by Administrative Agent, including attorneys’ fees and court costs, in
obtaining or liquidating the Collateral, in enforcing payment of the Secured Obligations, or in the
prosecution or defense of any action or proceeding by or against Administrative Agent or any
Grantor concerning any matter arising out of or connected with this Security Agreement, any
Collateral or the Secured Obligations, including any of the foregoing arising in, arising under or
related to a case under any bankruptcy, insolvency, or similar law. Any and all costs and expenses
incurred by each Grantor in the performance of actions required pursuant to the terms hereof shall
be borne solely by such Grantor.
6.11. Releases. The Administrative Agent shall subordinate or release its Liens on
Collateral, or release a Grantor from this Security Agreement, as provided in Section 9.10 of the
Credit Agreement.
6.12. Multiple Counterparts. This Security Agreement has been executed in a number of
identical counterparts, each of which shall be deemed an original for all purposes and all of which
constitute, collectively, one agreement; but, in making proof of this Security Agreement, it shall
not be necessary to produce or account for more than one such counterpart.
Exhibit G — Page 28
6.13. Parties Bound; Assignment. This Security Agreement shall be binding on each Grantor
and each Grantor’s successors, and assigns and shall inure to the benefit of Administrative Agent
and Secured Parties and their respective successors and assigns.
(a) Administrative Agent is the agent for each Secured Party, the Security
Interest and all rights granted to Administrative Agent hereunder or in connection
herewith are for the benefit of each Secured Party, and Administrative Agent may,
subject to the terms and conditions of the Credit Agreement, without the joinder of
any Secured Party, exercise any and all rights in favor of Administrative Agent or
Secured Parties hereunder, including, without limitation, conducting any foreclosure
sales hereunder, and executing full or partial releases hereof, amendments or
modifications hereto, or consents or waivers hereunder. The rights of each Secured
Party vis-à-vis Administrative Agent and each other Secured Party are subject to the
Credit Agreement and may (to the extent permitted under the Credit Agreement) be
subject to one or more separate agreements between or among such parties, but no
Grantor need inquire about any such agreement or be subject to any terms thereof
unless such Grantor specifically joins therein; and consequently, no Grantor nor any
Grantor’s successors or assigns shall be entitled to any benefits or provisions of
any such separate agreements or be entitled to rely upon or raise as a defense, in
any manner whatsoever, the failure or refusal of any party thereto to comply with the
provisions thereof except to the extent the Borrower’s consent is expressly required
under the Credit Agreement to consent to certain amendments thereunder.
(b) No Grantor may, without the prior written consent of Administrative Agent
and Secured Parties, assign any of its rights, duties, or obligations hereunder.
6.14. Governing Law. The laws of the State of New York and of the
United States of America shall govern the rights and duties of the parties to this Security
Agreement and the validity, construction, enforcement, and interpretation of this Security
Agreement, except to the extent that the laws of another jurisdiction govern the creation,
perfection, validity, or enforcement of Liens under this Security Agreement.
6.15. Jurisdiction; Consent to Service of Process; Waiver of Jury
Trial.
(a) EACH GRANTOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
SITTING IN MANHATTAN COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES
HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN
ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS SECURITY AGREEMENT OR IN ANY OTHER
LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY SECURED
PARTY MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS SECURITY AGREEMENT OR ANY
OTHER LOAN DOCUMENT AGAINST ANY GRANTOR OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
Exhibit G — Page 29
(b) EACH GRANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN SECTION
(a). EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE
OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(c) EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN
SECTION 11.02 OF THE CREDIT AGREEMENT. NOTHING IN THIS
SECURITY AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
(d) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION (d).
6.16. Notices. All notices, requests and other communications provided for hereunder
shall be in writing and given to Administrative Agent as provided in Section 11.02 of the Credit
Agreement. All communications and notices hereunder to the Grantors shall be given to the Grantors
at their respective addresses set forth on Schedule 11.02 of the Credit Agreement or at such other
address as shall be designated by Grantors in a written notice to Administrative Agent.
6.17. Non-Liability of Administrative Agent and Secured Parties. None of Administrative
Agent or any Secured Party shall have any fiduciary responsibilities to any Grantor; and no
provision in this Security Agreement or in any of the other Loan Documents, and no course of
dealing between or among any of the parties hereto, shall be deemed to create any fiduciary duty
owing by Administrative Agent or any Secured Party to any other Secured Party, any Grantor, or any
Subsidiary of any Grantor. None of Administrative Agent or any Secured Party undertakes any
responsibility to any Grantor to review or inform any Grantor of any matter in connection with any
phase of any Grantor’s business or operations.
6.18. Severability of Provisions. Any provision of this Security Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only
to the extent of such
prohibition or unenforceability without invalidating the remainder of such provision or the
remaining provisions or affecting the validity or enforceability of such provision in any other
jurisdiction.
Exhibit G — Page 30
6.19. Entirety. THIS SECURITY AGREEMENT (AS AMENDED IN WRITING FROM TIME TO TIME) AND THE
OTHER WRITTEN LOAN DOCUMENTS EXECUTED BY ANY GRANTOR OR ANY OF ITS SUBSIDIARIES AND, AS APPLICABLE,
ANY OF ADMINISTRATIVE AGENT OR ANY SECURED PARTY REPRESENT THE FINAL AGREEMENT BETWEEN GRANTORS AND
THEIR RESPECTIVE SUBSIDIARIES, ADMINISTRATIVE AGENT, AND THE SECURED PARTIES, AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY SUCH PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN SUCH PARTIES.
6.20. Construction. Administrative Agent and each Grantor acknowledge that each of them
has had the benefit of legal counsel of its own choice and has been afforded an opportunity to
review this Security Agreement and the other Loan Documents with its legal counsel and that this
Security Agreement and the other Loan Documents shall be construed as if jointly drafted by
Administrative Agent and Grantors.
6.21. USA Patriot Act. Each of the Secured Parties that is subject to the Act (as
hereinafter defined) and Administrative Agent (for itself and not on behalf of any Secured Party)
hereby notifies each Grantor 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 Grantors, which information includes the name and address of
Grantors and other information that will allow such Administrative Agent or each Secured Party, as
applicable, to identify Grantor in accordance with the Act. Each Grantor shall, promptly following
a request for information by Administrative Agent or any Secured Party, provide all documentation
and other information that Administrative Agent or any such Secured Party requests in order to
comply with its ongoing obligations under applicable “know your customer” and anti-money laundering
rules and regulations, including the Act.
[Remainder of Page Intentionally Blank.
Signature Page to Follow.]
Exhibit G — Page 31
IN WITNESS WHEREOF, each Grantor and Administrative Agent have caused this Security Agreement
to be executed and delivered by their respective officers thereunto duly authorized as of the date
first written above.
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GRANTORS: |
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, a |
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By: |
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Name: |
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Title: |
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[INSERT SIGNATURE BLOCKS FOR OTHER GRANTORS] |
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Signature Page to Security Agreement
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ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., a national banking
association, as Administrative Agent for Secured
Parties |
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By: |
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Name: |
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Title: |
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Signature
Page to Security Agreement
(A) |
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Full Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive Office /
Place of Business (or Residence if Grantor is a Natural Person) and Organizational
Identification Number of each Grantor: |
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Chief Executive Office / Place |
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Full Legal |
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Type of |
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Jurisdiction of |
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of Business (or Residence if |
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Name |
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Organization |
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Organization |
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Grantor is a Natural Person) |
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Organization I.D.# |
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(B) |
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Other Names (including any Trade Name or Fictitious Business Name) under which each Grantor
has conducted business for the past five (5) years: |
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Grantor |
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Trade Name or Fictitious Business Name |
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(C) |
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Changes in Name, Jurisdiction of Organization, Chief Executive Office or Sole Place of
Business (or Principal Residence if Grantor is a Natural Person) and Corporate Structure
within past five (5) years: |
(D) |
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Financing Statements: |
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Name of Grantor |
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Filing Jurisdiction(s) |
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Schedule 3.5
(A) |
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Locations owned by Grantor |
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Location of Equipment, Inventory, and |
Name of Grantor |
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Fixtures |
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(B) |
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Locations leased by Grantor as lessee |
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Location of Equipment, Inventory, and |
Name of Grantor |
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Fixtures |
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(C) |
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Locations at which Inventory is held in a public warehouse or is otherwise held by a bailee or
on consignment |
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Location of Equipment, Inventory, and |
Name of Grantor |
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Fixtures |
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Schedule 3.6
(D) |
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Locations of any other Collateral: |
(E) |
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Location(s) of Books and Records: |
Schedule 3.6
(A) |
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Investment Related Property:
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Pledged Stock
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% of |
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Stock |
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No. of |
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Outstanding |
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Stock |
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Class of |
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Certificated |
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Certificate |
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Par |
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Pledged |
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Stock of the |
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Grantor |
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Issuer |
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Stock |
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(Y/N) |
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No. |
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Value |
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Stock |
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Stock Issuer |
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Pledged LLC Interests
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% of Outstanding |
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Limited |
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LLC Interests of the |
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Liability |
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Certificated |
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Certificate No. |
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No. of Pledged |
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Limited Liability |
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Grantor |
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Company |
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(Y/N) |
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(if any) |
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Units |
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Company |
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Pledged Partnership Interests
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Type of |
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Partnership |
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% of Outstanding |
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Interests (e.g., |
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Partnership |
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general or |
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Certificated |
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Certificate |
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Interests |
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Grantor |
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Partnership |
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limited) |
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(Y/N) |
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No. (if any) |
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of the Partnership |
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Schedule 3.8
(B) |
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Securities Accounts, Commodities Accounts, Deposit Account: |
Securities Accounts
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Share of Securities |
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Grantor |
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Intermediary |
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Account Number |
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Account Name |
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Commodity Accounts
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Name of |
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Commodities |
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Grantor |
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Intermediary |
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Account Number |
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Account Name |
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Deposit Accounts
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Name of Depositary |
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Grantor |
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Bank |
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Account Number |
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Account Name |
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Original |
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Outstanding |
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Principal |
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Principal |
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Maturity |
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Collateral Note |
Grantor |
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Issuer |
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Amount |
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Balance |
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Issue Date |
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Date |
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Security |
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Schedule 3.8
(D) |
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Commercial Tort Claims: |
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Name of Grantor |
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Commercial Tort Claims |
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Name of Grantor |
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Description of Letters of Credit |
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Schedule 3.8
Schedule 3.13
EXCEPTIONS
Schedule 3.13
Schedule 3.14
INTELLECTUAL PROPERTY
PATENTS AND PATENT LICENSES
Item A. Patents
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Country |
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Patent No. |
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Issue Date |
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Inventor(s) |
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Title |
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Pending Patent Applications
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Serial No. |
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Title |
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Patent Applications in Preparation
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Expected |
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Docket No. |
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Filing Date |
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Inventor(s) |
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Title |
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Item B. Patent Licenses
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Country or |
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Effective |
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Expiration |
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Subject |
Territory |
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Licensor |
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Licensee |
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Date |
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Date |
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Matter |
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Schedule 3.14
Item A. Trademarks
Registered Trademarks
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Trademark |
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Registration No. |
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Registration Date |
Pending Trademark Applications
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Trademark |
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Serial No. |
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Filing Date |
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Trademark Applications in Preparation
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Expected |
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Products/ |
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Trademark |
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Docket No. |
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Filing Date |
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Services |
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Item B. Trademark Licenses
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Country or |
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Effective |
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Expiration |
Territory |
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Trademark |
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Licensor |
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Licensee |
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Date |
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Date |
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Item C. Material Unregistered Trademarks (not included in Item A above)
Schedule 3.14
COPYRIGHTS AND COPYRIGHT LICNESES
Item A. Copyrights
Registered Copyrights
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Registration No. |
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Registration Date |
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Author(s) |
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Title |
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Copyright Pending Registration Applications
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Serial No. |
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Filing Date |
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Author(s) |
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Title |
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Copyright Registration Applications in Preparation
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Expected |
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Docket No. |
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Filing Date |
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Author(s) |
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Title |
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Item B. Copyright Licenses
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Effective |
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Expiration |
Territory |
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Licensor |
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Licensee |
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Date |
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Date |
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Item C. Material Unregistered Copyrights (not set forth in Item A above)
Schedule 3.14
TRADE SECRET LICENSES
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Effective |
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Expiration |
Trade Secrets |
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Licensor |
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Licensee |
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Date |
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Date |
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Schedule 3.14
EXHIBIT A TO SECURITY AGREEMENT
FORM OF COPYRIGHT SECURITY AGREEMENT
COPYRIGHT SECURITY AGREEMENT, dated as of , 2009, by [Name(s) of Grantors to be
inserted] (each a “Grantor” and, collectively, the “Grantors”), in favor of BANK OF AMERICA, N.A.,
as Administrative Agent (as hereafter defined) for Secured Parties (as hereafter defined).
WHEREAS, pursuant to that certain Credit Agreement dated as of June 26, 2009 (as the same may
be amended, modified, supplemented, renewed, replaced, restated, or otherwise modified from time to
time, the “Credit Agreement”) among Suburban Propane, L.P., as Borrower, Suburban Propane Partners,
L.P., as Parent, Bank of America, N.A., as a lender and as Administrative Agent (together with its
permitted successors and/or assigns, in such capacity, “Administrative Agent”) for the lenders now
or hereafter a party to the Credit Agreement (together with their respective permitted successors
and/or assigns, “Lenders”), the Lenders have severally agreed to make extensions of credit to
Suburban Propane, L.P. upon the terms and subject to the conditions set forth therein; and
Section 1 Defined Terms. Unless otherwise defined herein, terms defined in the Credit
Agreement or in the Security Agreement and used herein have the meaning given to them in the Credit
Agreement or the Security Agreement.
Section 2 Grant of Security Interest in Copyright Collateral. Each Grantor, as collateral
security for the full, prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations of such Grantor, hereby collaterally
assigns, conveys, mortgages, pledges, hypothecates, and transfers to the Administrative Agent for
the benefit of the Secured Parties, and grants to the Administrative Agent for the benefit of the
Secured Parties a lien on and security interest in, all of its right, title and interest in, to and
under the following Collateral of such Grantor (the “Copyright Collateral”):
(a) all of its Copyrights and Copyright Licenses to which it is a party,
including those referred to on Schedule I hereto;
(b) all renewals of the foregoing; and
(c) all Proceeds of the foregoing, including any claim by Grantor against third
parties for past, present, future infringement of any Copyright or Copyright
licensed under any Copyright License.
Section 3 Security Agreement. The security interest granted pursuant to this Copyright
Security Agreement is granted in conjunction with the security interest granted to Administrative
Agent pursuant to the Security Agreement and each Grantor hereby acknowledges and affirms that the
rights and remedies of Administrative Agent with respect to the security interest in the Copyright
Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms
and provisions of which are incorporated by reference herein as if fully set forth herein.
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Very truly yours,
[GRANTORS]
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By: |
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Name: |
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Title: |
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Accepted and Agreed:
BANK OF AMERICA, N.A., as Administrative Agent
for the benefit of the Secured Parties
Exhibit A to Security Agreement
Schedule I
to
Copyright Security Agreement
Copyright Registrations
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A. |
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REGISTERED COPYRIGHTS |
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Copyright, Reg. No., Date |
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B. |
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COPYRIGHT APPLICATIONS |
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C. |
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COPYRIGHT LICENSES |
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Name of Agreement, Parties, Date of Agreement |
Exhibit A to Security Agreement
Schedule I
EXHIBIT B TO SECURITY AGREEMENT
FORM OF PATENT SECURITY AGREEMENT
PATENT SECURITY AGREEMENT, dated as of , 2009, by [Name(s) of Grantors to be
inserted] (each a “Grantor” and, collectively, the “Grantors”), in favor of BANK OF AMERICA, N.A.,
as Administrative Agent (as hereafter defined) for Secured Parties (as hereafter defined).
WHEREAS, pursuant to that certain Credit Agreement dated as of June 26, 2009 (as the same may
be amended, modified, supplemented, renewed, replaced, restated, or otherwise modified from time to
time, the “Credit Agreement”) among Suburban Propane, L.P., as Borrower, Suburban Propane Partners,
L.P., as Parent, Bank of America, N.A., as a lender and as Administrative Agent (together with its
permitted successors and/or assigns, in such capacity, “Administrative Agent”) for the lenders now
or hereafter a party to the Credit Agreement (together with their respective permitted successors
and/or assigns, “Lenders”), the Lenders have severally agreed to make extensions of credit to
Suburban Propane, L.P. upon the terms and subject to the conditions set forth therein; and
Section 1 Defined Terms. Unless otherwise defined herein, terms defined in the Credit
Agreement or in the Security Agreement and used herein have the meaning given to them in the Credit
Agreement or the Security Agreement.
Section 2 Grant of Security Interest in Patent Collateral. Each Grantor, as collateral
security for the full, prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations of such Grantor, hereby collaterally
assigns, conveys, mortgages, pledges, hypothecates and transfers to Administrative Agent for the
benefit of the Secured Parties, and grants to Administrative Agent for the benefit of the Secured
Parties a lien on and security interest in, all of its right, title and interest in, to and under
the following Collateral of such Grantor (the “
Patent Collateral”):
(a) all of its Patents and Patent Licenses to which it is a party, including those
referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing; and
(c) all Proceeds of the foregoing, including any claim by Grantor against third parties
for past, present or future infringement of any Patent or any Patent licensed under any
Patent License.
Section 3 Security Agreement. The security interest granted pursuant to this Patent
Security Agreement is granted in conjunction with the security interest granted to
Administrative Agent pursuant to the Security Agreement and each Grantor hereby acknowledges and
affirms that the rights and remedies of Administrative Agent with respect to the security interest
in the Patent Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference herein as if fully set
forth herein.
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Very truly yours,
[GRANTORS]
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By: |
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Name: |
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Title: |
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Accepted and Agreed:
BANK OF AMERICA, N.A., as Administrative Agent
for the benefit of the Secured Parties
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By: |
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Name: |
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Title: |
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Exhibit B to Security Agreement
Schedule I
to
Patent Security Agreement
Patent Registrations
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A. |
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REGISTERED PATENTS |
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Patent, Reg. No., Date |
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B. |
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PATENT APPLICATIONS |
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C. |
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PATENT LICENSES |
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Name of Agreement, Parties, Date of Agreement |
Exhibit B to Security Agreement
Schedule I
EXHIBIT C TO SECURITY AGREEMENT
FORM OF TRADEMARK SECURITY AGREEMENT
TRADEMARK SECURITY AGREEMENT, dated as of , by [Name(s) of Grantors to be inserted]
(each a “Grantor” and, collectively, the “Grantors”), in favor of BANK OF AMERICA, N.A., as
Administrative Agent (as hereafter defined) for Secured Parties (as hereafter defined).
WHEREAS, pursuant to that certain Credit Agreement dated as of June 26, 2009 (as the same may
be amended, modified, supplemented, renewed, replaced, restated, or otherwise modified from time to
time, the “Credit Agreement”) among Suburban Propane, L.P., as borrower, Suburban Propane Partners,
L.P., as Parent, Bank of America, N.A., as a lender and as Administrative Agent (together with its
permitted successors and/or assigns, in such capacity, “Administrative Agent”) for the lenders now
or hereafter a party to the Credit Agreement (together with their respective permitted successors
and/or assigns, “Lenders”), the Lenders have severally agreed to make extensions of credit to
Suburban Propane, L.P. upon the terms and subject to the conditions set forth therein; and
Section 1 Defined Terms. Unless otherwise defined herein, terms defined in the Credit
Agreement or in the Security Agreement and used herein have the meaning given to them in the Credit
Agreement or the Security Agreement.
Section 2 Grant of Security Interest in Trademark Collateral. Each Grantor, as collateral
security for the full, prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations of such Grantor, hereby collaterally
assigns, conveys, mortgages, pledges, hypothecates and transfers to Administrative Agent for the
benefit of the Secured Parties, and grants to Administrative Agent for the benefit of the Secured
Parties a lien on and security interest in, all of its right, title and interest in, to and under
the following Collateral of such Grantor (the “
Trademark Collateral”):
(a) all of its Trademarks and Trademark Licenses to which it is a party, including those
referred to on Schedule I;
(b) all renewals of the foregoing;
(c) all goodwill of the business connected with the use of, and symbolized by, each Trademark
and each Trademark License; and
(d) all Proceeds of the foregoing, including any claim by Grantor against third parties for
past, present, future (i) infringement or dilution of any Trademark or Trademark licensed under any
Trademark License or (ii) injury to the goodwill associated with any Trademark or any
Trademark licensed under any Trademark License.
Section 3 Security Agreement. The security interest granted pursuant to this Trademark
Security Agreement is granted in conjunction with the security interest granted to Administrative
Agent pursuant to the Security Agreement and each Grantor hereby acknowledges and affirms that the
rights and remedies of Administrative Agent with respect to the security interest in the Trademark
Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms
and provisions of which are incorporated by reference herein as if fully set forth herein.
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Very truly yours,
[GRANTORS]
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By: |
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Name: |
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Title: |
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|
|
|
|
|
|
Accepted and Agreed:
BANK OF AMERICA, N.A., as Administrative Agent
for the benefit of the Secured Parties
|
|
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By: |
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Name: |
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Title: |
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Exhibit C to Security Agreement
Schedule I
to
Trademark Security Agreement
Trademark Registrations
|
A. |
|
REGISTERED TRADEMARKS |
|
|
|
|
Xxxx, Reg. No., Date |
|
|
B. |
|
TRADEMARK APPLICATIONS |
|
|
C. |
|
TRADEMARK LICENSES |
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|
|
|
Name of Agreement, Parties, Date of Agreement |
Exhibit C to Security Agreement
Schedule I
EXHIBIT H
FORM OF OPINION
June __, 2009
Bank of America, N.A.,
as Agent under the Credit Agreement
(as defined below) and the Lenders party thereto
Ladies and Gentlemen:
We have acted as counsel to Suburban Energy Services Group LLC, a Delaware limited liability
company (the “GP”), Suburban Propane Partners, L.P., a Delaware limited partnership
(“Parent”), Suburban Propane, L.P., a Delaware limited partnership (the
“Borrower”), Suburban LP Holding, Inc., a Delaware corporation (“Holding Inc.”),
Suburban LP Holding, LLC, a Delaware limited liability company (“Holding LLC”), Suburban
Energy Finance Corp., a Delaware corporation (“Energy Finance”), Agway Energy Services,
LLC, a Delaware limited liability company (“Agway”), Suburban Sales & Service, Inc., a
Delaware corporation (“Sales & Service”), Suburban Heating Oil Partners, LLC, a Delaware
limited liability company (“Heating Oil”), Suburban Plumbing New Jersey LLC, a Delaware
limited liability company (“Plumbing” and, together with GP, Parent, the Borrower, Holding
Inc., Holding LLC, Energy Finance, Agway, Sales & Service and Heating Oil, the “DE Loan
Parties”), Gas Connection, LLC, an Oregon limited liability company (“Gas Connection”)
and Suburban Franchising, LLC, a Nevada limited liability company (“Franchising” and,
together with Gas Connection and the DE Loan Parties, the “Loan Parties”),in connection
with the preparation, authorization, execution and delivery of, and the consummation of the
transactions contemplated by, the Credit Agreement, dated as of the date hereof (the “Credit
Agreement”), among the Borrower, Parent, Bank of America, N.A., as administrative agent, (the
“Agent”) and the Lenders party thereto. Capitalized terms defined in the Credit Agreement
and used (but not otherwise defined) herein are used herein as so defined.
In so acting, we have examined originals or copies (certified or otherwise identified to our
satisfaction) of the Loan Documents (as defined in Schedule 1 hereto), copies of the financing
statements on Form UCC-1 (the “DE Financing Statements”) attached hereto as Exhibit A to be
filed in the office of the Secretary of State of the State of Delaware with respect to the DE Loan
Parties; and such corporate, partnership and limited liability company records, agreements,
documents and other instruments, and such certificates or comparable documents of public officials
and of officers and representatives of the Loan Parties, and have made such inquiries of such
officers and representatives, as we have deemed relevant and necessary as a basis for the opinions
hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of
all natural persons, the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as certified, conformed or photostatic
copies and the authenticity of the originals of such latter documents. As to all questions of fact
material to these opinions that have not been independently established, we have relied upon
certificates or comparable documents of officers and representatives of the Loan Parties and upon
the representations and warranties of the Loan Parties contained in the Loan Documents. We have
also assumed (i) the existence of each party to the Loan Documents (other than the DE Loan
Parties), (ii) that each party (other than the DE Loan Parties) to the Loan Documents has the
requisite corporate, limited partnership or limited liability company power and authority to enter
into and perform the Loan Documents and (iii) the due authorization, execution and delivery of the
Loan Documents by each party thereto (other than the DE
Loan Parties). As used herein, “to our knowledge” and “of which we are aware” mean the
conscious awareness of facts or other information by any lawyer in our firm actively involved in
the transactions contemplated by the Loan Documents.
Exhibit H — Page 1
Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion
that:
1. (a) Each of GP, Holding LLC, Agway, Heating Oil and Plumbing is a limited liability company
validly existing and in good standing under the laws of the State of Delaware and has all requisite
limited liability company power and authority to own, lease and operate its properties and to carry
on its business as now being conducted.
(b) Each of Parent and Borrower is a limited partnership validly existing and in good standing
under the laws of the State of Delaware and has all requisite limited partnership power and
authority to own, lease and operate its properties and to carry on its business as now being
conducted.
(c) Each of Holding Inc., Sales & Service and Energy Finance is a corporation validly existing
and in good standing under the laws of the State of Delaware and has all requisite corporate power
and authority to own, lease and operate its properties and to carry on its business as now being
conducted.
2. Each DE Loan Party has all requisite corporate, partnership or limited liability company
power and authority to execute and deliver the Loan Documents and to perform its obligations
thereunder. The execution, delivery and performance of each Loan Document by each DE Loan Party
party thereto have been duly authorized by all necessary corporate, partnership or limited
liability company action on the part of such DE Loan Party. Each Loan Document has been duly and
validly executed and delivered by each DE Loan Party party thereto. Assuming the due
authorization, execution and delivery thereof by the other parties thereto, each Loan Document (as
defined in Schedule 1) constitutes the legal, valid and binding obligation of each Loan Party party
thereto, enforceable against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’
rights and remedies generally, and subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity) and except that (A) rights to
indemnification and contribution thereunder may be limited by federal or state securities laws or
public policy relating thereto, (B) no opinion is expressed with respect to rights of set-off and
(C) certain remedial provisions of the Loan Documents are or may be unenforceable in whole or in
part under the laws of the State of New York, but the inclusion of such provisions does not affect
the validity of the Security Agreements, and the Security Agreements contain adequate provisions
for the practical realization of the rights and benefits afforded thereby. No opinion is expressed
in this paragraph as to the attachment, perfection or priority of any liens granted pursuant to the
Loan Documents.
3. The execution and delivery by each Loan Party of each Loan Document party thereto and the
performance by each Loan Party of its obligations thereunder will not conflict with, constitute a
default under or violate (i) any of the terms, conditions or provisions of the Certificate of
Incorporation or Certificate of Formation, as the case may be, or by-laws, limited partnership
agreement or limited liability company agreement, as the case may be, of any DE Loan Party, (ii)
any of the terms, conditions or provisions of any document, agreement or other instrument listed on
Schedule 2 hereto, (iii) New York, Delaware corporate, limited liability company or limited
partnership or federal law or regulation (other than federal and state securities or blue sky laws,
as to which we express no opinion in this paragraph), or (iv) any judgment, writ, injunction,
decree, order or ruling of any court or governmental authority binding on any Loan Party of which
we are aware.
Exhibit H — Page 2
4. No consent, approval, waiver, license or authorization or other action by or filing with
any New York, Delaware corporate, limited liability company or limited partnership or federal
governmental authority is required in connection with the execution and delivery of each Loan
Document by each Loan Party party thereto, the consummation by the Loan Parties of the transactions
contemplated thereby or the performance by the Loan Parties of their obligations thereunder, except
for filings in connection with perfecting security interests, as to which we express no opinion in
this paragraph, and federal and state securities or blue sky laws
5. To our knowledge, there is no litigation, proceeding or governmental investigation pending
or overtly threatened against any Loan Party that relates to any of the transactions contemplated
by the Loan Documents or which, if adversely determined, would have a material adverse effect on
the business, assets or financial condition of the Loan Parties and their subsidiaries taken as a
whole.
6. (a) The execution and delivery of the Security Agreements creates a valid security interest
in the Collateral (as defined in the Security Agreements), as security for the Secured Obligations
(as defined in the Security Agreements). Assuming the filing of the DE Financing Statements with
the Secretary of State of the State of Delaware, such security interests are perfected, to the
extent a security interest in the Collateral may be perfected by the filing of a financing
statement under the Uniform Commercial Code in effect in the State of Delaware (the “DE
UCC”).
(b) The execution and delivery of the Security Agreements creates a valid lien on and security
interest in the Pledged Stock (as defined in the Security Agreements), as security for the Secured
Obligations (as defined in the Security Agreements). Assuming (i) delivery in the State of New
York to the Agent (the “Pledgee”) of all certificates that represent the Pledged Stock,
together with stock powers properly executed in blank with respect thereto, and (ii) that the
Pledgee was without notice of any adverse claim (as such phrase is defined in Section 8-105 of the
Uniform Commercial Code in effect in the State of New York (the “NY UCC” and, together with
the DE UCC, the “UCC”) with respect to the Pledged Stock, such security interest is
perfected and is free of any adverse claim
(c) The execution and delivery of the Security Agreements creates a valid security interest in
each Deposit Account described therein. Upon the execution and delivery of the Deposit Account
Control Agreements (as defined in Schedule 1) by each Loan Party party thereto, the Agent and each
depository bank at which any Deposit Account is maintained, the security interest granted to the
Agent in such Deposit Account will be perfected. We have assumed that (a) each depository bank
party to a Deposit Account Control Agreement is a “bank” (as defined in Section 9-102(a)(8) of the
NY UCC), and (b) each such depository bank’s jurisdiction (within the meaning of Section 9-304(b)
of the NY UCC) is the State of New York.
(d) The execution and delivery of the Security Agreements creates a valid security interest in
each Securities Account described therein and all security entitlements with respect to the
financial assets credited to such Securities Account. Upon the execution and delivery of the
Securities Account Control Agreement (as defined in Schedule 1) by each Loan Party party thereto,
the Agent and the Securities Intermediary maintaining the Securities Account, the security interest
granted to the Agent in each Securities Account and such security entitlements will be perfected.
We have assumed that (a) the Securities Intermediary is a “securities intermediary” (as defined in
Section 8-102(a)(14) of the NY UCC), and (b) the Securities Intermediary’s jurisdiction (within the
meaning of Section 8-110(e) of the NY UCC) is the State of New York.
The opinions in subparagraph (a) and, with respect to subclauses A and B below, subparagraphs
(b), (c) and (d) are subject to the following exceptions:
Exhibit H — Page 3
A. that with respect to rights in the Collateral of any Grantor (as defined in the Security
Agreements), we express no opinion, and have assumed that such Grantor has rights in the
Collateral;
B. that with respect to any Collateral as to which the perfection of a lien or security
interest is governed by the laws of any jurisdiction other than the States of Delaware and New
York, we express no opinion;
C. that with respect to any Collateral which is or may become fixtures (as defined in Section
9-102(a)(41) of the UCC) or a commercial tort claim (as defined in Section 9-102(a)(13) of the
UCC), we express no opinion; and
D. that with respect to transactions excluded from Article 9 of the UCC by Section 9-109
thereof, we express no opinion.
The opinion set forth in subparagraph (b) is also subject to the following exceptions:
E. that with respect to (i) federal tax liens accorded priority under law and (ii) liens
created under Title IV of the Employee Retirement Income Security Act of 1974 which are properly
filed after the date hereof, we express no opinion as to the relative priority of such liens and
the security interests created by the Security Agreements or as to whether such liens may be
adverse claims; and
F. that with respect to any claim (including for taxes) in favor of any state or any of its
respective agencies, authorities, municipalities or political subdivisions which claim is given
lien status and/or priority under any law of such state, we express no opinion as to the relative
priority of such liens and the security interests created by the Security Agreements or as to
whether such liens may be adverse claims.
In addition, the opinions in subparagraphs (a), (b), (c) and (d) are subject to (i) the
limitations on perfection of security interests in proceeds resulting from the operation of Section
9-315 of the UCC; (ii) the limitations with respect to buyers in the ordinary course of business
imposed by Sections 9-318 and 9-320 of the UCC; (iii) the limitations with respect to documents,
instruments and securities imposed by Sections 8-302, 9-312 and 9-331 of the UCC; (iv) the
provisions of Section 9-203 of the UCC relating to the time of attachment; and (v) Section 552 of
Title 11 of the United States Code (the “Bankruptcy Code”) with respect to any Collateral
acquired by a Grantor subsequent to the commencement of a case against or by such Grantor under the
Bankruptcy Code.
We further assume that all filings will be timely made and duly filed as necessary (i) in the
event of a change in the name, identity or corporate structure of any Grantor, (ii) in the event of
a change in the location of any Grantor and (iii) to continue to maintain the effectiveness of the
original filings.
The opinions expressed herein are limited to the laws of the State of New York, the corporate,
limited partnership and limited liability company laws of the State of Delaware, Article 9 of the
DE UCC and the federal laws of the United States, and we express no opinion as to the effect on the
matters covered by this letter of the laws of any other jurisdiction.
Exhibit H — Page 4
The opinions expressed herein are rendered solely for your benefit in connection with the
transactions described herein. Those opinions may not be used or relied upon by any other person,
nor may this letter or any copies hereof be furnished to a third party, filed with a governmental
agency, quoted, cited or otherwise referred to without our prior written consent, other than to
bank regulatory authorities, Eligible Assignees or a successor administrative agent appointed
pursuant to the Credit Agreement.
Very truly yours,
Exhibit H — Page 5
Schedule 1
[TO BE PROVIDED]
Exhibit H
— Page 6
Schedule 2
1. The Indenture, dated as of December 23, 2003, among Suburban Propane Partners, L.P., Suburban
Energy Finance Corp. and The Bank of New York, as trustee, with respect to the 6.875% Senior Notes
due 2013.
2. The Third Amended and Restated Limited Partnership Agreement of Suburban Propane, L.P., as
amended.
3. The Third Amended and Restated Limited Partnership Agreement of Suburban Propane Partners, L.P.,
as amended.
Exhibit H
— Page 7
Exhibit A
Financing Statements
Exhibit H
— Page 8