CREDIT AGREEMENT dated as of March 31, 2008 among GRITEL HOLDING CO., INC., as Holdings, TELEPHONICS CORPORATION, as the Borrower, The LENDERS Party Hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent J.P. MORGAN SECURITIES INC., as Sole...
Β
Β
dated
as
of
March
31,
2008
among
GRITEL
HOLDING CO., INC.,
as
Holdings,
TELEPHONICS
CORPORATION,
as
the
Borrower,
The
LENDERS Party Hereto
and
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
____________
$100,000,000
____________
X.X.
XXXXXX SECURITIES INC.,
as
Sole
Lead Arranger and Sole Bookrunner
Β
TABLE
OF
CONTENTS
Β
Β | Β |
Page
|
Β | Β | Β |
ARTICLE
I DEFINITIONS
|
1
|
|
SECTION
1.01
|
Defined
Terms
|
1
|
SECTION
1.02
|
Terms
Generally
|
22
|
SECTION
1.03
|
Accounting
Terms; GAAP
|
22
|
SECTION
1.04
|
Currencies;
Currency Equivalents; Euro
|
23
|
Β | Β | Β |
ARTICLE
II THE CREDITS
|
24
|
|
SECTION
2.01
|
The
Commitments
|
24
|
SECTION
2.02
|
Loans
and Borrowings
|
24
|
SECTION
2.03
|
Requests
for Borrowings
|
24
|
SECTION
2.04
|
Letters
of Credit
|
26
|
SECTION
2.05
|
Funding
of Borrowings
|
30
|
SECTION
2.06
|
Interest
Elections
|
30
|
SECTION
2.07
|
Swingline
Commitment
|
32
|
SECTION
2.08
|
Procedure
and Refunding of Swingline Loans
|
32
|
SECTION
2.09
|
Termination,
Reduction and Increase of the Commitments
|
34
|
SECTION
2.10
|
Repayment
of Loans; Evidence of Debt
|
35
|
SECTION
2.11
|
Prepayment
of Loans
|
36
|
SECTION
2.12
|
Fees
|
38
|
SECTION
2.13
|
Interest
|
39
|
SECTION
2.14
|
Alternate
Rate of Interest
|
39
|
SECTION
2.15
|
Increased
Costs
|
40
|
SECTION
2.16
|
Break
Funding Payments
|
41
|
SECTION
2.17
|
Taxes
|
42
|
SECTION
2.18
|
Payments
Generally; Pro Rata Treatment; Sharing of Set-offs
|
44
|
SECTION
2.19
|
Mitigation
Obligations; Replacement of Lenders
|
46
|
Β | Β | Β |
ARTICLE
III GUARANTEE
|
47
|
|
SECTION
3.01
|
The
Guarantee
|
47
|
SECTION
3.02
|
Obligations
Unconditional
|
47
|
SECTION
3.03
|
Reinstatement
|
48
|
SECTION
3.04
|
Subrogation
|
48
|
SECTION
3.05
|
Remedies
|
48
|
SECTION
3.06
|
Continuing
Guarantee
|
49
|
SECTION
3.07
|
General
Limitation on Guarantee Obligations
|
49
|
Β
-
i -
Β
Page
Β
ARTICLE
IV REPRESENTATIONS AND WARRANTIES
|
49
|
|
SECTION
4.01
|
Organization;
Powers
|
49
|
SECTION
4.02
|
Authorization;
Enforceability
|
49
|
SECTION
4.03
|
Governmental
Approvals; No Conflicts
|
49
|
SECTION
4.04
|
Financial
Condition; No Material Adverse Change
|
50
|
SECTION
4.05
|
Properties
|
50
|
SECTION
4.06
|
Litigation
and Environmental Matters
|
50
|
SECTION
4.07
|
Compliance
with Laws and Contractual Obligations
|
51
|
SECTION
4.08
|
Investment
Company Status
|
51
|
SECTION
4.09
|
Taxes
|
51
|
SECTION
4.10
|
ERISA;
Employee Benefit Plans
|
51
|
SECTION
4.11
|
Disclosure
|
52
|
SECTION
4.12
|
Use
of Credit
|
52
|
SECTION
4.13
|
Burdensome
Agreements
|
52
|
SECTION
4.14
|
Labor
Matters
|
52
|
SECTION
4.15
|
Security
Documents
|
52
|
SECTION
4.16
|
Holdings
|
53
|
SECTION
4.17
|
Parent
Real Estate Assets
|
53
|
Β
|
Β | Β |
ARTICLE
V CONDITIONS
|
53
|
|
SECTION
5.01
|
Effective
Date
|
53
|
SECTION
5.02
|
Each
Credit Event
|
53
|
Β
|
Β | Β |
ARTICLE
VI AFFIRMATIVE COVENANTS
|
55
|
|
SECTION
6.01
|
Financial
Statements and Other Information
|
55
|
SECTION
6.02
|
Notices
of Material Events
|
57
|
SECTION
6.03
|
Existence;
Conduct of Business
|
58
|
SECTION
6.04
|
Payment
of Obligations
|
58
|
SECTION
6.05
|
Maintenance
of Properties
|
58
|
SECTION
6.06
|
Maintenance
of Insurance
|
58
|
SECTION
6.07
|
Books
and Records
|
58
|
SECTION
6.08
|
Inspection
Rights
|
58
|
SECTION
6.09
|
Compliance
with Laws and Contractual Obligations
|
59
|
SECTION
6.10
|
Use
of Proceeds and Letters of Credit
|
59
|
SECTION
6.11
|
Collateral;
Further Assurances
|
59
|
Β
|
Β | Β |
ARTICLE
VII NEGATIVE COVENANTS
|
61
|
|
SECTION
7.01
|
Indebtedness;
Guarantees
|
61
|
SECTION
7.02
|
Liens
|
63
|
SECTION
7.03
|
Mergers,
Consolidations, Etc
|
64
|
Β
-
ii -
Β
Page
Β
SECTION
7.04
|
Dispositions
|
64
|
SECTION
7.05
|
Lines
of Business
|
65
|
SECTION
7.06
|
Investments
and Acquisitions
|
66
|
SECTION
7.07
|
Restricted
Payments
|
67
|
SECTION
7.08
|
Transactions
with Affiliates
|
68
|
SECTION
7.09
|
Restrictive
Agreements
|
68
|
SECTION
7.10
|
Swap
Agreements
|
69
|
SECTION
7.11
|
Financial
Covenants
|
69
|
SECTION
7.12
|
Stock
Issuance
|
69
|
SECTION
7.13
|
Modifications
of Certain Documents
|
70
|
SECTION
7.14
|
Passive
Holding Company Status
|
70
|
Β
|
Β | Β |
ARTICLE
VIII EVENTS OF DEFAULT
|
70
|
|
Β
|
Β | Β |
ARTICLE
IX THE ADMINISTRATIVE AGENT
|
73
|
|
Β
|
Β | Β |
ARTICLE
X MISCELLANEOUS
|
75
|
|
SECTION
10.01
|
Notices
|
75
|
SECTION
10.02
|
Waivers;
Amendments.
|
75
|
SECTION
10.03
|
Expenses;
Indemnity; Damage Waiver
|
77
|
SECTION
10.04
|
Successors
and Assigns
|
78
|
SECTION
10.05
|
Survival
|
81
|
SECTION
10.06
|
Counterparts;
Integration; Effectiveness
|
81
|
SECTION
10.07
|
Severability
|
82
|
SECTION
10.08
|
Right
of Setoff
|
82
|
SECTION
10.09
|
Governing
Law; Jurisdiction; Consent to Service of Process
|
82
|
SECTION
10.10
|
WAIVER
OF JURY TRIAL
|
83
|
SECTION
10.11
|
Judgment
Currency
|
83
|
SECTION
10.12
|
Headings
|
84
|
SECTION
10.13
|
Confidentiality
|
84
|
SECTION
10.14
|
USA
PATRIOT ACT
|
84
|
SECTION
10.15
|
Releases
of Liens
|
84
|
Β
-
iii -
SCHEDULE
1.01 - Commitments
SCHEDULE
1.01(a) - Additional Costs
SCHEDULE
4.06(a) - Litigation
SCHEDULE
4.06(b) - Environmental Matters
SCHEDULE
4.13 - Burdensome Agreements
SCHEDULE
4.14 - Labor Matters
SCHEDULE
4.15 - UCC Filing Jurisdictions
SCHEDULE
4.17 - Parent Real Estate Assets
SCHEDULE
7.01(a) - Existing Indebtedness
SCHEDULE
7.01(b) - Existing Guarantees
SCHEDULE
7.02 - Existing Liens
SCHEDULE
7.06 - Existing Investments
SCHEDULE
7.09 - Restrictive Agreements
SCHEDULE
10.01 - Addresses for Notice
EXHIBIT
A
|
-
|
Form
of Assignment and Assumption
|
EXHIBIT
B
|
-
|
Form
of Guarantee and Collateral
Agreement
|
EXHIBIT
C
|
-
|
Form
of Opinion of Corporate Counsel to the
Borrower
|
EXHIBIT
D
|
-
|
Form
of Opinion of Special Counsel to the
Borrower
|
Β
-
iv -
Β
CREDIT
AGREEMENT, dated as of March 31, 2008, among GRITEL HOLDING CO., INC., a
Delaware corporation (βHoldingsβ),
TELEPHONICS CORPORATION, a Delaware corporation (the βBorrowerβ),
the
several banks and other financial institutions or entities from time to time
parties to this Agreement, and JPMORGAN CHASE BANK, N.A., as administrative
agent (in such capacity, the βAdministrative
Agentβ).
Β
The
parties hereto hereby agree as follows:
Β
ARTICLE
I
DEFINITIONS
Β
SECTION
1.01Β Β Defined
Terms.
As used
in this Agreement, the following terms have the meanings specified
below:
Β
βABRβ,
when
used in reference to any Loan or Borrowing, refers to whether such Loan, or
the
Loans comprising such Borrowing, are denominated in Dollars and bearing interest
at a rate determined by reference to the Alternate Base Rate.
Β
βAdditional
Costβ
shall
mean, in relation to any Borrowing that is denominated in English Pounds
Sterling, for any Interest Period, the cost as calculated by the Administrative
Agent in accordance with Schedule 1.01(a) imputed to each Lender participating
in such Borrowing of compliance with the mandatory liquid assets requirements
of
the Bank of England or the European Central Bank, as applicable, during that
Interest Period, expressed as a percentage.
Β
βAdjusted
LIBO Rateβ
means,
for the Interest Period for any Eurocurrency Borrowing, an interest rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a)Β the LIBO Rate for such Interest Period multiplied
by
(b)Β the Statutory Reserve Rate for such Interest Period, provided,
however, that, if such Eurocurrency Borrowing is denominated in English Pounds
Sterling, then the βAdjusted LIBO Rateβ shall be the LIBO Rate in effect for
such Interest Period plus the Additional Cost.
Β
βAdjusted
Net Incomeβ
means,
for any period, the aggregate income (or loss) for such period of the Borrower
and its Subsidiaries which shall be an amount equal to net revenues and other
proper items of income, plus
all
extraordinary, non-recurring or unusual non-cash losses for such period,
plus
all
extraordinary, non-recurring or unusual cash losses for such period not
exceeding in the aggregate $2,500,000 for such period, plus
minority
interest in earnings of consolidated Subsidiaries for such period, less any
and
all items that are treated as expenses under GAAP, less,
without
duplication, any cash payments made during such period in respect of the
non-cash losses referred to above subsequent to the fiscal quarter in which
the
relevant non-cash losses were reflected as a charge, less
Federal,
state and local income taxes and income taxes expensed for taxes payable to
jurisdictions outside of the United States of America, less
minority
interests in losses of consolidated Subsidiaries for such period, less
all
extraordinary, non-recurring and unusual non-cash gains for such period, as
determined in accordance with GAAP.
Β
Β
βAdministrative
Agentβ
has
the
meaning set forth in the preamble hereto. It is understand that, without
limiting the other provisions of this Agreement, the Administrative Agent may
utilize the services of its Affiliates (including X.X. Xxxxxx Europe Limited)
in
connection with administrative matters related to Foreign
Currencies.
Β
βAdministrative
Agentβs Accountβ
means,
for each Currency, an account in respect of such Currency designated by the
Administrative Agent in a notice to the Borrower and the Lenders.
Β
βAdministrative
Questionnaireβ
means
an Administrative Questionnaire in a form supplied by the Administrative
Agent.
Β
βAffiliateβ
means,
with respect to a specified 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.
Β
βAggregate
Available Commitmentsβ
means,
at any time, the aggregate amount of Available Commitments of all the Lenders
at
such time.
Β
βAggregate
Commitmentβ
means,
at any time, the aggregate amount of the Commitments of all the Lenders at
such
time, as such amount is subject to reduction or increase in accordance with
the
terms hereof. The initial amount of the Aggregate Commitment is
$100,000,000.
Β
βAggregate
Foreign Currency Sublimit Dollar Amountβ
means
$25,000,000.
Β
βAggregate
LCΒ Exposureβ
means,
at any time, the sum of (a)Β the aggregate undrawn amount of all outstanding
Letters of Credit at such time plus
(b)Β the aggregate amount of all LCΒ Disbursements that have not yet
been reimbursed by or on behalf of the Borrower at such time.
Β
βAggregate
Letter of Credit Sublimit Amountβ
means
$25,000,000.
Β
βAggregate
Revolving Credit Exposureβ
means,
at any time, the sum of (a)Β the aggregate outstanding principal amount of
the Loans of all the Lenders at such time, plus
(b)Β the aggregate amount of LCΒ Exposures of all the Lenders at such
time.
Β
βAgreed
Foreign Currencyβ
means,
at any time, any of English Pounds Sterling, euro and, with the agreement of
each Lender, any other Foreign Currency, so long as, in respect of any such
specified Currency or other Foreign Currency, at such time (a)Β such
Currency is dealt with in the London interbank deposit market, (b)Β such
Currency is freely transferable and convertible into Dollars in the London
foreign exchange market and (c)Β no central bank or other governmental
authorization in the country of issue of such Currency (including, in the case
of the euro, any authorization by the European Central Bank) is required to
permit use of such Currency by any Lender for making any Loan hereunder and/or
to permit the Borrower to borrow and repay the principal thereof and to pay
the
interest thereon, unless such authorization has been obtained and is in full
force and effect.
Β
2
Β
βAgreementβ
means
this Credit Agreement.
Β
βAlternate
Base Rateβ
means,
for any day, a rate per annum equal to the greater of (a)Β the Prime Rate in
effect on such day and (b)Β the Federal Funds Effective Rate in effect on
such day plus
0.50%.
Any change in the Alternate Base Rate due to a change in the Prime Rate or
the
Federal Funds Effective Rate shall be effective from and including the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
Β
βApplicable
Percentageβ
means,
with respect to any Lender, the percentage of the Aggregate Commitment
represented by such Lenderβs Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any
assignments.
Β
βApplicable
Rateβ
means,
for any day, with respect to any ABRΒ Loan or Eurocurrency Loan, or with
respect to the commitment fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption βABRΒ Spreadβ,
βEurocurrency Spreadβ or βCommitment Fee Rateβ, respectively, based upon the
Leverage Ratio as of the most recent determination date:
Β
Leverage
Ratio:
|
ABR
Spread
|
Eurocurrency
Spread
|
Commitment
Fee
Rate
|
Category
1
Β
Greater
than or equal to 2.00:1.00
|
Β
1.00%
|
Β
2.00%
|
Β
0.35%
|
Category
2
Β
Greater
than or equal to 1.00:1.00 but less than 2.00:1.00
|
Β
0.75%
|
Β
1.75%
|
Β
0.30%
|
Category
3
Β
Less
than 1.00:1.00
|
Β
0.50%
|
Β
1.50%
|
Β
0.25%
|
For
purposes of the foregoing, (i)Β the Leverage Ratio shall be determined as of
the end of each fiscal quarter of each fiscal year of the Borrower based upon
the Borrowerβs consolidated financial statements delivered pursuant to
SectionΒ 6.01(a) orΒ (b), as applicable, (ii) until the delivery of the
financial statements for the first fiscal quarter commencing on or after the
Effective Date pursuant to Section 6.01 (a) or (b), as applicable, the ABR
Spread shall be 0.75%, the Eurocurrency Spread shall be 1.75% and the Commitment
Fee Rate shall be 0.30%, and (iii)Β each change in the Applicable Rate
resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the date three Business Days after delivery
to the Administrative Agent of such consolidated financial statements indicating
such change and ending on the date immediately preceding the effective date
of
the next such change; provided
that the
Leverage Ratio shall be deemed to be in Category 1 (A)Β at any time that an
Event of Default has occurred and is continuing or (B)Β if the Borrower
fails to deliver the consolidated financial statements required to be delivered
by it pursuant to SectionΒ 6.01(a) orΒ (b), during the period from the
expiration of the time for delivery thereof until such consolidated financial
statements are delivered.
Β
3
Β
βApproved
Fundβ
means
any Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by
(a)Β a Lender, (b)Β an Affiliate of a Lender or (c)Β an entity or an
Affiliate of an entity that administers or manages a Lender.
Β
βArrangerβ
means
X.X. Xxxxxx Securities Inc., in its capacity as the Sole Lead Arranger and
Sole
Bookrunner in respect of the arrangement of the Commitments.
Β
βAssignment
and Assumptionβ
means
an assignment and assumption entered into by a Lender and an assignee (with
the
consent of any party whose consent is required by SectionΒ 10.04), and
accepted by the Administrative Agent, in the form of ExhibitΒ A or any other
form approved by the Administrative Agent.
Β
βAssuming
Lenderβ
has
the
meaning set forth in Section 2.09(c).
Β
βAvailability
Periodβ
means
the period from and including the Effective Date to but excluding the earlier
of
the Commitment Termination Date and the date of termination of the
Commitments.
Β
βAvailable
Commitmentβ
means,
as to any Lender at any time, an amount equal to the excess, if any, of (a)
such
Lenderβs Commitment then in effect over (b) such Lenderβs Revolving Credit
Exposure then outstanding; provided
that in
calculating any Lenderβs Revolving Credit Exposure for the purpose of
determining such Lenderβs Available Commitment pursuant to Section 2.12(a), the
aggregate principal amount of Swingline Loans then outstanding shall be deemed
to be zero.
Β
βBoardβ
means
the Board of Governors of the Federal Reserve System of the United States of
America.
Β
βBorrowerβ
has
the
meaning set forth in the preamble hereto.
Β
βBorrower
Obligationsβ
has
the
meaning assigned to such term in the Guarantee and Collateral
Agreement.
Β
4
Β
βBorrowingβ
means
(a)Β all ABRΒ Loans made, converted or continued on the same date or
(b)Β all Eurocurrency Loans denominated in the same Currency that have the
same Interest Period.
Β
βBorrowing
Requestβ
means
a
request by the Borrower for a Borrowing in accordance with
SectionΒ 2.03.
Β
βBusiness
Dayβ
means
any day (a)Β that is not a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to remain closed,
(b)Β if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, a continuation or conversion of or into, or the
Interest Period for, a Eurocurrency Borrowing, or to a notice by the Borrower
with respect to any such borrowing, payment, prepayment, continuation,
conversion, or Interest Period, that is also a day on which dealings in deposits
denominated in the Currency of such Borrowing are carried out in the London
interbank market, (c)Β if such day relates to a borrowing or continuation
of, a payment or prepayment of principal of or interest on, or the Interest
Period for, any Borrowing denominated in any Foreign Currency (other than euro),
or to a notice by the Borrower with respect to any such borrowing, continuation,
payment, prepayment or Interest Period, that is also a day on which commercial
banks and the London foreign exchange market settle payments in the Principal
Financial Center for such Foreign Currency and (d)Β if such day relates to a
borrowing or continuation of, a payment or prepayment of principal of or
interest on, or the Interest Period for, any Borrowing denominated in euro
(or
any notice with respect thereto), that is also a TARGET Day.
Β
βCapital
Expendituresβ
means,
for any period, expenditures (including the aggregate amount of Capital Lease
Obligations incurred during such period) made by the Borrower or any of its
Subsidiaries to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements, but excluding repairs)
during such period computed in accordance with GAAP.
Β
βCapital
Lease Obligationsβ
of
any
Person means the obligations of such Person to pay rent or other amounts under
any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person
under GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
Β
βCapital
Stockβ
means
(a)Β in the case of a corporation, capital stock, (b)Β in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, (c)Β in
the case of a limited liability company, membership units (whether common or
preferred), (d)Β in the case of a partnership, partnership interests
(whether general or limited) and (e)Β any other equivalent ownership
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing
Person.
Β
βChange
of Controlβ
means
(a)Β (i) the acquisition of ownership, directly or indirectly, beneficially
or of record, by any Person or group (within the meaning of the Exchange Act
and
the rules of the SEC thereunder as in effect on the date hereof), of shares
representing more than 30% (the percentage so acquired, the βthird-party
percentageβ)
of the
aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of the Control Person and (ii) if a Permitted Change of Control
Transaction has occurred prior to such time, the Parent, directly or indirectly,
does not own more than the third-party percentage of the aggregate ordinary
voting power represented by the issued and outstanding Capital Stock of the
Control Person, (b)Β during any period of 25 consecutive calendar months,
the ceasing of those individuals (the βContinuing
Directorsβ)
who
(i) were directors of the Control Person on the first day of each such period,
or (ii) subsequently became directors of the Control Person and whose initial
election or initial nomination for election subsequent to that date was approved
by a majority of the Continuing Directors then on the board of directors of
the
Control Person, to constitute a majority of the board of directors of the
Control Person, or (c) (i) prior to the occurrence of a Permitted Change of
Control Transaction, the Parent ceasing to own, beneficially and of records,
all
of the outstanding Capital Stock of Holdings or (ii) prior to the occurrence
of
a Holdings Change of Control Transaction, Holdings ceasing to own, beneficially
and of record, all of the outstanding Capital Stock of the Borrower (other
than,
in each case, in connection with a Permitted Change of Control Transaction).
Β
5
Β
βChange
in Lawβ
means
(a)Β the adoption of any law, rule or regulation after the date of this
Agreement, (b)Β any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (c)Β compliance by any Lender or the Issuing
Lender (or, for purposes of SectionΒ 2.15(b), by any lending office of such
Lender or by such Lenderβs or the Issuing Lenderβs holding company, if any) with
any request, guideline or directive (whether or not having the force of law)
of
any Governmental Authority made or issued after the date of this
Agreement.
Β
βCodeβ
means
the Internal Revenue Code of 1986, as amended from time to time.
Β
βCollateralβ
means
all property of the Loan Parties, now owned or hereafter acquired, upon which
a
Lien is purported to be created by any Security Document.
Β
βCollateral
Accountβ
has
the
meaning assigned to such term in the Guarantee and Collateral
Agreement.
Β
βCommitmentβ
means,
with respect to each Lender at any time, the commitment of such Lender to make
Loans and to participate in Swingline Loans and Letters of Credit, expressed
as
an amount representing the maximum aggregate amount of such Lenderβs Revolving
Credit Exposure hereunder, as such commitment may be (a)Β reduced or
increased from time to time pursuant to SectionΒ 2.09 and (b)Β reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to SectionΒ 10.04. The initial amount of each Lenderβs Commitment
is set forth on ScheduleΒ 1.01, or in the Assignment and Assumption pursuant
to which such Lender shall have assumed its Commitment, as
applicable.
Β
βCommitment
Increaseβ
has
the
meaning set forth in Section 2.09(c).
Β
βCommitment
Increase Dateβ
has
the
meaning set forth in Section 2.09(c).
Β
βCommitment
Termination Dateβ
means
March 31, 2013 (or if such date is not a Business Day, the immediately preceding
Business Day).
Β
6
Β
βConsolidated
EBITDAβ
means,
for any period, the sum of (i) Adjusted Net Income, (ii) Consolidated Interest
Expense, (iii) depreciation and amortization expense deducted in determining
Adjusted Net Income, (iv) foreign, Federal, state and local income taxes
deducted in determining Adjusted Net Income, in each case, for such period,
computed in accordance with GAAP, and (v) to the extent deducted in determining
Adjusted Net Income, transaction costs, fees and expenses relating to the
execution and delivery of this Agreement.
Β
βConsolidated
Fixed Charge Coverage Ratioβ
means,
for any period, the ratio of (a) Consolidated EBITDA for such period,
minus
the
aggregate amount actually paid by the Borrower and its Subsidiaries during
such
period on account of Capital Expenditures (excluding Capital Expenditures
financed with Indebtedness other than any Loans but including repayments of
any
such Indebtedness) to (b) Consolidated Interest Expense for such
period.
Β
βConsolidated
Funded Debtβ
means,
at any date, the aggregate principal amount of all Indebtedness for borrowed
money of the Borrower and its Subsidiaries at such date, determined on a
consolidated basis in accordance with GAAP.
Β
βConsolidated
Interest Expenseβ
means,
for any period, total cash interest expense (including that attributable to
Capital Lease Obligations) of the Borrower and its Subsidiaries for such period
with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries (including all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankersβ acceptance financing and net
costs under Swap Agreements in respect of interest rates to the extent such
net
costs are allocable to such period in accordance with GAAP).
Β
βConsolidated
Leverage Ratioβ
means,
as at the last day of any period, the ratio of (a) Consolidated Funded Debt
on
such day to (b) Consolidated EBITDA for such period.
Β
βConsolidated
Net Incomeβ
means,
for any period, the consolidated net income (or loss) of the Borrower and its
Subsidiaries for such period as determined on a consolidated basis in accordance
with GAAP.
Β
βConsolidated
Net Worthβ
means,
at any date, all amounts that would, in conformity with GAAP, be included on
a
consolidated balance sheet of the Borrower and its Subsidiaries under
stockholdersβ equity at such date.
Β
βConsolidated
Pre-tax Incomeβ
means,
for any period, Consolidated Net Income for such period plus
foreign,
Federal, state and local income taxes deducted in determining Consolidated
Net
Income for such period.
Β
βContractual
Obligationβ
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.
Β
βControlβ
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. βControllingβ
and
βControlledβ
have
meanings correlative thereto.
Β
7
Β
βControl
Personβ
means,
prior to a Permitted Change of Control Transaction, the Parent, and, thereafter,
the Borrower (or Holdings, if such Permitted Change of Control Transaction
is a
Parent Change of Control Transaction and a Holdings Change of Control
Transaction has not occurred).
Β
βCurrencyβ
means
Dollars or any Foreign Currency.
Β
βDefaultβ
means
any event or condition which constitutes an Event of Default or which upon
notice, lapse of time or both would, unless cured or waived, become an Event
of
Default.
Β
βDisclosed
Mattersβ
means
the actions, suits and proceedings disclosed in ScheduleΒ 4.06(a) and the
environmental matters disclosed in ScheduleΒ 4.06(b).
Β
βDollar
Equivalentβ
means,
with respect to any Borrowing denominated in any Foreign Currency, the amount
of
Dollars that would be required to purchase the amount of the Foreign Currency
of
such Borrowing on the date two Business Days prior to the date of such Borrowing
(or, in the case of any determination made under SectionΒ 2.11(b) or
redenomination under the last sentence of SectionΒ 2.18(a), on the date of
determination or redenomination therein referred to), based upon the spot
selling rate at which the Administrative Agent offers to sell such Foreign
Currency for Dollars in the London foreign exchange market at approximately
11:00Β a.m., London time, for delivery two Business Days later.
Β
βDollarsβ
or
β$β
refers
to lawful money of the United States of America.
Β
βDomestic
Subsidiaryβ
means
any Subsidiary of the Borrower organized under the laws of any jurisdiction
within the United States of America.
Β
βEffective
Dateβ
means
the date on which the conditions specified in SectionΒ 5.01 are satisfied
(or waived in accordance with SectionΒ 10.02).
Β
βEnvironmental
Lawsβ
means
all laws, rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, release or
threatened release of any Hazardous Material or to health and safety
matters.
Β
βEnvironmental
Liabilityβ
means
any liability, contingent or otherwise (including any liability for damages,
costs of environmental remediation, fines, penalties or indemnities), of any
Group Member directly or indirectly resulting from or based upon
(a)Β violation of any Environmental Law, (b)Β the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c)Β exposure to any Hazardous Materials, (d)Β the release or
threatened release of any Hazardous Materials into the environment or
(e)Β any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the
foregoing.
Β
βERISAβ
means
the Employee Retirement Income Security Act of 1974, as amended from time to
time.
Β
8
Β
βERISA
Affiliateβ
means
any trade or business (whether or not incorporated) that, together with any
Group Member, is treated as a single employer under Section 414(b) or (c) of
the
Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414(m) of the
Code.
Β
βERISA
Eventβ
means
(a) any Reportable Event; (b) the existence with respect to any Plan of a
Prohibited Transaction; (c) any failure by any Plan to satisfy the minimum
funding standards (within the meaning of Section 412 of the Code or Section
302
of ERISA), whether or not waived; (d) the filing pursuant to Section 412 of
the
Code or Section 303 of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan, the failure to make by its due date
a
required installment under Section 414(m) of the Code with respect to any Plan
or the failure by any Group Member or any of its ERISA Affiliates to make any
required contribution to a Multiemployer Plan; (e) the incurrence by any Group
Member or any of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Plan, including but not limited to the
imposition of any Lien in favor of the PBGC or any Plan; (f) a determination
that any Plan is, or is expected to be, in βat riskβ status (within the meaning
of Title IV of ERISA); (g) the receipt by any Group Member or any of its ERISA
Affiliates from the PBGC or a plan administrator of any notice relating to
an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan under Section 4042 of ERISA; (h) the incurrence by any Group Member
or
any of its ERISA Affiliates of any liability with respect to the withdrawal
or
partial withdrawal from any Plan or Multiemployer Plan; or (i) the receipt
by
any Group Member or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from a Group Member or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, Insolvent, in reorganization or
in
endangered or critical status, or in reorganization within the meaning of
Section 432 of the Code or Section 305 or Title IV of ERISA.
Β
βEurocurrencyβ,
when
used in reference to any Loan or Borrowing, refers to whether such Loan, or
the
Loans comprising such Borrowing, are bearing interest at a rate determined
by
reference to the Adjusted LIBO Rate.
Β
βeuroβ
means
the single currency of Participating Member States of the European Union, which
shall be an Agreed Foreign Currency and a Foreign Currency under this
Agreement.
Β
βEvent
of Defaultβ
has
the
meaning set forth in ArticleΒ VIII.
Β
βExchange
Actβ
means
the Securities Exchange Act of 1934, as amended.
Β
βExcluded
Foreign Subsidiaryβ
means
any Foreign Subsidiary in respect of which either (a) the pledge of more than
66% of the Capital Stock of such Subsidiary as collateral or (b) the
guaranteeing by such Subsidiary of the Obligations, would, in the good faith
judgment of the Borrower, result in adverse tax consequences to the
Borrower.
Β
βExcluded
Taxesβ
means,
with respect to the Administrative Agent, any Lender, the Issuing Lender or
any
other recipient of any payment to be made by or on account of any obligation
of
the Borrower hereunder, (a)Β income or franchise taxes imposed on (or
measured by) its net income or any similar tax imposed in lieu of net income
taxes, by the United States of America or by the jurisdiction under the laws
of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, (b)Β any branch profits taxes imposed on any Lender by the United
States of America or any similar tax imposed by any jurisdiction referred to
in
clause (a), and (c)Β in the case of a Non-U.S. Lender (other than an
assignee pursuant to a request by the Borrower under SectionΒ 2.19(b)), any
United States withholding tax that is imposed on amounts payable to such
Non-U.S. Lender at the time such Non-U.S. Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Non-U.S. Lenderβs failure to comply with SectionΒ 2.17(e), except to the
extent that such Non-U.S. 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
SectionΒ 2.17(a).
Β
9
Β
βExisting
Credit Agreementβ
means
the Amended and Restated Credit Agreement, dated as of December 20, 2006, among
Griffon Corporation, as a borrower, Telephonics Corporation, as a borrower,
the
lenders party thereto from time to time, and JPMCB, as administrative
agent.
Β
βExisting
Letters of Creditβ
has
the
meaning set forth in Section 2.04(a).
Β
βFederal
Funds Effective Rateβ
means,
for any day, the weighted average (rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as published
on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if
such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations
for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
Β
βFinancial
Officerβ
means
the chief financial officer, principal accounting officer, treasurer or
controller of the Borrower.
Β
βForeign
Currencyβ
means
at any time any Currency other than Dollars.
Β
βForeign
Currency Equivalentβ
means,
with respect to any amount in Dollars, the amount of any Foreign Currency that
could be purchased with such amount of Dollars using the reciprocal of the
foreign exchange rate(s) specified in the definition of the term βDollar
Equivalentβ, as determined by the Administrative Agent.
Β
βForeign
Planβ
means
each employee benefit plan (within the meaning of Section 3(3) of ERISA, whether
or not subject to ERISA) that is not subject to US law and is maintained or
contributed to by any Group Member or any ERISA Affiliate.
Β
βForeign
Subsidiaryβ
means
any Subsidiary of the Borrower that is not a Domestic Subsidiary.
Β
βGAAPβ
means
generally accepted accounting principles in the United States of
America.
Β
10
Β
βGovernmental
Authorityβ
means
the government of the United States of America, any other nation or any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
Β
βGroup
Membersβ
means
the collective reference to Holdings, the Borrower and their respective
Subsidiaries, provided
that,
upon the consummation of a Holdings Change of Control Transaction, Holdings
shall cease to be a βGroup Memberβ and shall cease to be bound by the provisions
of the Loan Documents.
Β
βGuaranteeβ
of
or
by any Person (the βguarantorβ)
means
any obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of
any
other Person (the βprimary
obligorβ)
in any
manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a)Β to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
or
to purchase (or to advance or supply funds for the purchase of) any security
for
the payment thereof, (b)Β to purchase or lease property, securities or
services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c)Β to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d)Β as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness or obligation;
provided
that the
term Guarantee shall not include endorsements for collection or deposit in
the
ordinary course of business.
Β
βGuarantee
andΒ Collateral
Agreementβ
means
the Guarantee and Collateral Agreement to be made by the Loan Parties in favor
of Administrative Agent, substantially in the form of ExhibitΒ B, as the
same shall be modified and supplemented and in effect from time to
time.
Β
βGuaranteed
Obligationsβ
has
the
meaning set forth in Section 3.01.
Β
βGuarantorsβ
means
the collective reference to Holdings and the Subsidiary Guarantors; provided
that,
notwithstanding anything contained in this Agreement to the contrary, upon
the
consummation of a Holdings Change of Control Transaction, Holdings shall cease
to be a Guarantor and shall automatically be released from its obligations
as a
Guarantor under the Loan Documents.
Β
βHazardous
Materialsβ
means
all explosive or radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances
or
wastes of any nature regulated pursuant to any Environmental Law.
Β
βHoldingsβ
has
the
meaning set forth in the preamble hereto.
Β
11
Β
βHoldings
Change of Control Transactionβ
means
a
βspin-offβ transaction or sale to third parties in which the Borrower ceases to
be a wholly-owned Subsidiary of Holdings.
Β
βImmaterial
Subsidiaryβ
means,
as of any date, any Subsidiary with total assets of less than 5% of consolidated
assets, and total revenues of less than 5% of annual consolidated revenues,
of
the Borrower and its Subsidiaries, collectively, as reflected on the most recent
financial statements delivered pursuant to Section 6.01 prior to such date,
provided
that the
aggregate assets or annual revenues of all Immaterial Subsidiaries (as reflected
on the most recent financial statements delivered pursuant to Section 6.01
prior
to such date) may not exceed 10% of consolidated assets or annual consolidated
revenues, respectively, of the Borrower and its Subsidiaries, collectively,
at
any time (and the Borrower will designate in writing to the Administrative
Agent
from time to time the Subsidiaries which will cease to be treated as βImmaterial
Subsidiariesβ in order to comply with the foregoing limitation).
Β
βIncreasing
Lenderβ
has
the
meaning set forth in Section 2.09(c).
Β
βIndebtednessβ
of
any
Person means, without duplication, (a)Β all obligations of such Person for
borrowed money or with respect to deposits or advances of any kind, (b)Β all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c)Β all obligations of such Person under conditional sale or
other title retention agreements relating to property acquired by such Person,
(d)Β all obligations of such Person in respect of the deferred purchase
price of property or services (excluding current accounts payable incurred
in
the ordinary course of business), (e)Β all Indebtedness of others secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed,
(f)Β all Guarantees by such Person of Indebtedness of others, (g)Β all
Capital Lease Obligations of such Person, (h)Β all obligations, contingent
or otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty and (i)Β all obligations, contingent or otherwise,
of such Person in respect of bankersβ acceptances. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Personβs ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
Β
βIndemnified
Taxesβ
means
Taxes other than Excluded Taxes.
Β
βInsolventβ
with
respect to any Multiemployer Plan, means insolvent within the meaning of Section
4245 of ERISA.
Β
βInterest
Election Requestβ
means
a
request by a Borrower to convert or continue a Borrowing in accordance with
SectionΒ 2.06.
Β
βInterest
Payment Dateβ
means
(a)Β with respect to any ABRΒ Loan (other than any Swingline Loan), each
Quarterly Date, (b)Β with respect to any Eurocurrency Loan, the last day of
each Interest Period therefor and, in the case of any Interest Period of more
than three monthsβ duration, each day prior to the last day of such Interest
Period that occurs at three-month intervals after the first day of such Interest
Period, and (c) with respect to any Swingline Loan, the day that such Loan
is
required to be repaid.
Β
12
Β
βInterest
Periodβ
means,
for any Eurocurrency Loan or Borrowing, the period commencing on the date of
such Loan or Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months (or, if available to all
Lenders, nine or twelve months) thereafter or, with respect to such portion
of
any Eurocurrency Loan or Borrowing denominated in a Foreign Currency that is
scheduled to be repaid on the Commitment Termination Date, a period of less
than
one monthβs duration commencing on the date of such Loan or Borrowing and ending
on the Commitment Termination Date, as specified in the applicable Borrowing
Request or Interest Election Request; provided
that,
(i)Β if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business
Day,
and (ii)Β any Interest Period (other than an Interest Period pertaining to a
Eurocurrency Borrowing denominated in a Foreign Currency that ends on the
Commitment Termination Date that is permitted to be of less than one monthβs
duration as provided in this definition) that commences on the last Business
Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Loan initially shall be the date on which such Loan is
made and thereafter shall be the effective date of the most recent conversion
or
continuation of such Loan, and the date of a Borrowing comprising Loans that
have been converted or continued shall be the effective date of the most recent
conversion or continuation of such Loans.
Β
βInvestmentβ
means,
by any Person, (a) the amount paid or committed to be paid, or the value of
property or services contributed or committed to be contributed, by such person
for or in connection with the acquisition by such Person of any stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of any other Person and (b) the amount of any advance, loan or extension of
credit by such Person, to any other Person, or guaranty or other similar
obligation of such Person with respect to any Indebtedness of such other Person
(other than Indebtedness constituting trade payables in the ordinary course
of
business), and (without duplication) any amount committed to be advanced, loans,
or extended by such Person to any other Person, or any amount the payment of
which is committed to be assured by a guaranty or similar obligation by such
Person for the benefit of, such other Person.
Β
βIssuing
Lenderβ
means
JPMCB, in its capacity as the issuer of Letters of Credit hereunder, and its
successors in such capacity as provided in SectionΒ 2.04(j). The Issuing
Lender may, in its discretion, arrange for one or more Letters of Credit to
be
issued by Affiliates of the Issuing Lender, in which case the term βIssuing
Lenderβ shall include any such Affiliate with respect to Letters of Credit
issued by such Affiliate.
Β
βJPMCBβ
means
JPMorgan Chase Bank, N.A.
Β
βLCΒ Disbursementβ
means
a
payment made by the Issuing Lender pursuant to a Letter of Credit.
Β
13
βLCΒ Exposureβ
means,
with respect to each Lender at any time, such Lenderβs Applicable Percentage of
the Aggregate LCΒ Exposure at such time.
Β
βLendersβ
means
the Persons listed on ScheduleΒ 1.01 and any other Person that shall have
become a party hereto pursuant to an Assignment and Assumption, other than
any
such Person that ceases to be a party hereto pursuant to an Assignment
and
Assumption or an instrument entered into pursuant to Section
2.09(c).
Β
βLetter
of Creditβ
means
any standby letter of credit issued pursuant to this Agreement.
Β
βLetter
of Credit Documentsβ
means,
with respect to any Letter of Credit, collectively, any application therefor
and
any other agreements, instruments, guarantees or other documents (whether
general in application or applicable only to such Letter of Credit) governing
or
providing for (a)Β the rights and obligations of the parties concerned or at
risk with respect to such Letter of Credit or (b)Β any collateral security
for any of such obligations, each as the same may be modified and supplemented
and in effect from time to time.
Β
βLIBO
Rateβ
means,
(a) for the Interest Period for any Eurocurrency Borrowing denominated
in any
Currency other than euro, the rate appearing on the Screen at approximately
11:00Β a.m., London time, two Business Days prior to the commencement of
such Interest Period (or, in the case of any Eurocurrency Borrowing denominated
in English Pounds Sterling, on the first day of such Interest Period),
as LIBOR
for deposits denominated in such Currency with a maturity comparable to
such
Interest Period and (b) for the Interest Period for any Eurocurrency Borrowing
denominated in euro, the rate appearing on the Reuters Screen EURIBOR01
Page (it
being understood that this rate is the Euro interbank offered rate (known
as the
βEURIBOR Rateβ) sponsored by the Banking Federation of the European Union (known
as the βFBEβ) and the Financial Markets Association (known as the βACIβ)) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for deposits in euro
with a
maturity comparable to such Interest Period. In the event that such rate
is not
available on the Screen at such time for any reason, then, unless the last
sentence of SectionΒ 10.11 is applicable, the LIBO Rate for such Interest
Period shall be the rate at which deposits in such Currency in the amount
of
$5,000,000 and for a maturity comparable to such Interest Period are offered
by
the principal London office of the Administrative Agent in immediately
available
funds in the London interbank market at approximately 11:00Β a.m., London
time, two Business Days prior to the commencement of such Interest Period.
Β
βLIBORβ
means,
for any Currency, the rate at which deposits denominated in such Currency
are
offered to leading banks in the London interbank market.
Β
βLienβ
means,
with respect to any asset, (a)Β any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such
asset,
(b)Β the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing
lease
having substantially the same economic effect as any of the foregoing)
relating
to such asset and (c)Β in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.
Β
14
Β
βLoan
Documentsβ
means,
collectively, this Agreement, the Letter of Credit Documents and the Security
Documents.
Β
βLoan
Partyβ
means
the Borrower and any Guarantor.
Β
βLoansβ
means
the loans made by the Lenders to the Borrower pursuant to this
Agreement.
Β
βLocal
Timeβ
means,
with respect to any Loan denominated in or any payment to be made in any
Currency, the local time in the Principal Financial Center for the Currency
in
which such Loan is denominated or such payment is to be made.
Β
βManagement
Agreementβ
means
that certain Management Agreement, dated as of September 30, 1977, between
the
Parent, as successor of Instrument System Corporation, and the Borrower.
Β
βMargin
Stockβ
means
βmargin stockβ within the meaning of Regulations T, U and X of the
Board.
Β
βMaterial
Adverse Effectβ
means
a
material adverse effect on (a)Β the business, assets, property, operation or
condition (financial or otherwise) of the Group Members, taken as a whole,
(b)Β validity or enforceability of the material provisions of any of the
Loan Documents or (c)Β the material rights or remedies of the Administrative
Agent and the Lenders hereunder or under any of the other Loan
Documents.
Β
βMaterial
Indebtednessβ
means
Indebtedness (other than the Loans and Letters of Credit), or obligations
in
respect of one or more Swap Agreements, of Parent or any one or more Group
Members in an aggregate principal amount exceeding $7,500,000. For purposes
of
determining Material Indebtedness, the βprincipal
amountβ
of
the
obligations of any Person in respect of any Swap Agreement at any time
shall be
the maximum aggregate amount (giving effect to any netting agreements)
that such
Person would be required to pay if such Swap Agreement were terminated
at such
time.
Β
βMultiemployer
Planβ
means
a
multiemployer plan as defined in SectionΒ 4001(a)(3) of ERISA.
Β
βNon-U.S.
Lenderβ
means
any Lender that is organized under the laws of a jurisdiction other than
the
United States of America, any State thereof or the District of
Columbia.
Β
βObligationsβ
has
the
meaning assigned to such term in the Guarantee and Collateral Agreement.
Β
βOther
Taxesβ
means
any and all present or future stamp or documentary taxes or any other excise
or
property taxes, charges or similar levies arising from any payment made
under
any Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, any Loan Document.
Β
15
Β
βParentβ
means
Griffon Corporation, a Delaware corporation.
Β
βParent
Change of Control Transactionβ
means
a
βspin-offβ transaction or sale to third parties in which Holdings ceases to be a
wholly-owned Subsidiary of the Parent.
Β
βParent
Letters of Creditβ
means
outstanding letters of credit issued by JPMCB issued for the account of
the
Parent under the Existing Credit Agreement in an aggregate amount not to
exceed
$13,000,000.
Β
βParent
Real Estate Assetsβ
means
the real property assets owned by the Parent Real Estate Subsidiaries as
of the
Effective Date.
Β
βParent
Real Estate Subsidiariesβ
means
the collective reference to ISC Farmingdale, Inc. and ISC Park Avenue,
Inc.
Β
βParticipantβ
has
the
meaning set forth in SectionΒ 10.04(c).
Β
βParticipating
Member Stateβ
means
any member state of the European Community that adopts or has adopted the
euro
as its lawful currency in accordance with the legislation of the European
Union
relating to the European Monetary Union.
Β
βPBGCβ
means
the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and
any successor entity performing similar functions.
Β
βPermitted
Acquisitionβ
means
the acquisition by the Borrower or any Subsidiary Guarantor of any Person
or of
any division or line of business of any Person (whether a Person, or division
or
line of business, an βEligible
Businessβ),
either by merger, consolidation, purchase of stock, or purchase of all
or a
substantial part of the assets of such Eligible Business (any such type
of
transaction is referred to in this Agreement as an βacquisitionβ
and
the
principal agreement relating thereto, whether a stock purchase agreement,
an
asset purchase agreement, a merger agreement or otherwise, is referred
to in
this Agreement as the βacquisition
agreementβ);
provided
that (a)
in the case of any acquisition by any of the Borrowerβs wholly-owned Subsidiary
Guarantors, such Subsidiary Guarantor remains a wholly-owned Subsidiary
Guarantor of the Borrower, (b) with respect to acquisitions of Foreign
Subsidiaries and/or assets located outside the United States of America,
the
aggregate consideration paid in connection therewith shall not exceed $5,000,000
in any fiscal year, (c) the Borrower or such Subsidiary Guarantor, as
applicable, shall have complied with all of the requirements of Section
6.11
with respect thereto, (d) after giving effect to such acquisition on a
pro forma
basis, the Consolidated Leverage Ratio for the period of the four consecutive
fiscal quarters of the Borrower most recently ended prior to such acquisition
for which financial statements have been delivered shall not exceed, with
respect to any period ending on or before March 31, 2012, 2.50 to 1.0,
or with
respect to any period ending after March 31, 2012, but ending on or before
the
Commitment Termination Date, 2.25 to 1.0, (e) no Default shall have occurred
and
be continuing immediately before and after giving affect to such Permitted
Acquisition or result from the consummation thereof, and (f) each of the
following conditions shall have been satisfied (and the Borrower shall
have
delivered to the Administrative Agent a certificate to the effect that
the
conditions under paragraph (a) to (e) above and this paragraph (f) have
been
satisfied):
Β
16
Β
(i)Β Β such
transaction shall not be a βhostileβ acquisition or other βhostileβ transaction
(i.e., such transaction shall not be opposed by the board of directors
(or
similar governing body) of the Eligible Business), provided
that (i)
in the event the Borrower or such Subsidiary Guarantor, as applicable,
proposes
to initiate such transaction as hostile transaction with the intent to
subsequently obtain the approval of the board of directors of the Eligible
Business, the Borrower or such Subsidiary Guarantor, as applicable, may
notify
the Administrative Agent and each Lender in writing in advance of the initiation
of such proposed transaction together with any information concerning such
transaction as the Administrative Agent or any Lender may request, and
(ii) the
Administrative Agent and each Lender shall have approved such transaction
in
writing prior to the initiation of such transaction, with the approval
of each
Lender not to be unreasonably withheld, the Borrower or the Subsidiary
Guarantor, as applicable, may proceed with such transaction as long as
the
transaction ultimately is approved by the board of directors (or similar
governing body) of the Eligible Business (and a majority of which were
members
of such board of directors (or similar governing body) at the time such
transaction was initiated) and is otherwise in accordance with the terms
of this
Agreement; and
Β
(ii)Β Β such
acquisition (1) if such acquisition is a stock acquisition, shall be of
greater
than 50% of the issued and outstanding Capital Stock of such Eligible Business,
whether by purchase or as a result of merger or consolidation (provided
that the
Borrower or such Subsidiary Guarantor, as applicable, shall be the surviving
corporation in any such merger or consolidation), and in any event shall
consist
of shares of Capital Stock with sufficient voting rights which entitles
the
Borrower or such Subsidiary Guarantor, as applicable, to elect a majority
of the
directors of such Eligible Business and to control the outcome of any
shareholder votes with respect to the shareholders of such Eligible Business
and
(2) if such acquisition is an asset acquisition, shall be of all or a
substantial part of an Eligible Business.
Β
βPermitted
Change of Control Transactionsβ
means
a
Parent Change of Control Transaction or a Holdings Change of Control
Transaction.
Β
βPermitted
Investmentsβ
means:
Β
(a)Β Β direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any
agency
thereof to the extent such obligations are backed by the full faith and
credit
of the United States of America), in each case maturing within three years
from
the date of acquisition thereof;
Β
(b)Β Β investments
in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating
obtainable from Standard & Poorβs Ratings Services or from Xxxxxβx Investors
Services, Inc.;
Β
(c)Β Β investments
in certificates of deposit, bankerβs acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed
by or
placed with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the
United
States of America or any State thereof which has a combined capital and
surplus
and undivided profits of not less than $500,000,000; and
Β
17
Β
(d)Β Β money
market funds that (i)Β comply with the criteria set forth in SEC Rule 2a-7
under the Investment Company Act of 1940, (ii)Β are rated AAA by S&P and
Aaa by Moodyβs and (iii)Β have portfolio assets of at least
$5,000,000,000.
Β
βPermitted
Liensβ
means:
Β
(a)Β Β Liens
imposed by law for taxes, assessments and governmental charges or claims
that
are not yet due or are being contested in compliance with
SectionΒ 6.04;
Β
(b)Β Β landlordsβ,
carriersβ, warehousemenβs, mechanicsβ, materialmenβs, repairmenβs and other like
Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being contested
in
compliance with SectionΒ 6.04;
Β
(c)Β Β pledges,
deposits and statutory trusts made in the ordinary course of business in
compliance with workersβ compensation, unemployment insurance and other social
security laws or regulations;
Β
(d)Β Β deposits
and other Liens to secure industrial revenue bonds, the performance of
bids,
trade contracts (other than for borrowed money), government contracts,
leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case, in the ordinary course of
business;
Β
(e)Β Β judgment
liens in respect of judgments that do not constitute an Event of Default
under
paragraph (k) of ArticleΒ VIII;
Β
(f)Β Β easements,
zoning restrictions, rights-of-way, licenses, covenants and similar encumbrances
on real property imposed by law or arising in the ordinary course of business
that do not secure any monetary obligations and do not materially detract
from
the value of the affected property or interfere with the ordinary conduct
of
business of the Group Members, taken as a whole;
Β
(g)Β Β any
interest or title of a lessor under any lease entered into by the Borrower
or
any Subsidiary in the ordinary course of its business and covering only
the
assets so leased, and any financing statement filed in connection with
any such
lease;
Β
(h)Β Β
receipt
of progress payments and advances from customers in the ordinary course
of
business to the extent the same creates a Lien by operation of law on the
related inventory and proceeds thereof;
Β
(i)Β Β Liens
held by third parties on consigned goods incurred in the ordinary course
of
business;
Β
18
Β
(j)Β Β bankers'
liens and rights to setoff with respect to deposit accounts and Liens
encumbering margin deposits or brokerage accounts, in each case, incurred
in the
ordinary course of business;
Β
(k)Β Β Liens
on
insurance policies and the proceeds thereof securing the financing of the
insurance premiums with the providers of such insurance or their Affiliates
in
respect thereof; and
Β
(l)Β Β Liens
on
any assets that are the subject of an agreement for a disposition thereof
expressly permitted under Section 7.04 that arise due to the existence
of such
agreement.
Β
βPersonβ
means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
Β
βPlanβ
means
any employee pension benefit plan, as defined in Section 3(2) of ERISA
(other
than a Multiemployer Plan), subject to the provisions of Title IV of ERISA
or
Section 412 of the Code or Section 302 of ERISA, and in respect of which
any
Loan Party or any ERISA Affiliate is (or, if such plan were terminated,
would
under Section 4069 of ERISA be deemed to be) an βemployerβ as defined in Section
3(5) of ERISA.
Β
βPrime
Rateβ
means
the rate of interest per annum publicly announced from time to time by
JPMCB as
its prime rate in effect at its principal office in New York City; each
change
in the Prime Rate shall be effective from and including the date such change
is
publicly announced as being effective.
Β
βPrincipal
Financial Centerβ
means,
in the case of any Currency, the principal financial center where such
Currency
is cleared and settled, as determined by the Administrative Agent.
Β
βProhibited
Transactionβ
has
the
meaning assigned to such term in Section 406 of ERISA and Section 4975(f)(3)
of
the Code.
Β
βQuarterly
Datesβ
means
the last Business Day of September, December, March and June in each year,
the
first of which shall be the first such day after the date hereof.
Β
βRefunded
Swingline Loansβ
has
the
meaning set forth in SectionΒ 2.08.
Β
βRegisterβ
has
the
meaning set forth in SectionΒ 10.04.
Β
βRelated
Partiesβ
means,
with respect to any specified Person, such Personβs Affiliates and the
respective directors, officers, employees, agents and advisors of such
Person
and such Personβs Affiliates.
Β
βReportable
Eventβ
means
any βreportable event,β as defined in Section 4043C() of ERISA or the
regulations issued thereunder, other than those events as to which the
30-day
notice period referred to in Section 4043(c) of ERISA has been waived,
with
respect to a Plan (other than a Plan maintained by an ERISA Affiliate that
is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section
414 of the Code).
Β
19
Β
βRequired
Lendersβ
means,
at any time, Lenders having Revolving Credit Exposures and Available Commitments
representing more than 50% of the sum of the Aggregate Revolving Credit
Exposures and the Aggregate Available Commitments at such time.
Β
βRequirement
of Lawβ
means,
as to any Person, the Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person, and any law, treaty,
rule
or regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any
of its
property or to which such Person or any of its property is subject.
Β
βRestricted
Paymentβ
means
any dividend or other distribution (whether in cash, securities or other
property) with respect to any shares of any class of Capital Stock of any
Group
Member, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any
such
shares of Capital Stock of any Group Member or any option, warrant or other
right to acquire any such shares of Capital Stock of any Group
Member.
Β
βRevolving
Credit Exposureβ
means,
with respect to any Lender at any time, the sum of (a) the outstanding
principal
amount of Loans held by such Lender then outstanding, (b) such Lenderβs
LCΒ Exposure at such time and (c) such Lenderβs Applicable Percentage of the
aggregate principal amount of Swingline Loans then outstanding.
Β
βScreenβ
means,
for any Currency, the relevant display page for LIBOR for such Currency
(as
determined by the Administrative Agent) on the Telerate Service; provided
that, if
the Administrative Agent determines that there is no such relevant display
page
for LIBOR for such Currency, βScreenβ means the relevant display page for LIBOR
for such Currency (as determined by the Administrative Agent) on the Xxxxxx
Monitor Money Rates Service.
Β
βSECβ
means
the Securities and Exchange Commission, or any regulatory body that succeeds
to
the functions thereof.
Β
βSecured
Partyβ
has
the
meaning assigned to such term in the Guarantee and Collateral Agreement.
Β
βSecurity
Documentsβ
means,
collectively, the Guarantee and Collateral Agreement, other security documents
hereafter delivered to the Administrative Agent granting a Lien on any
property
of any Person to secure the obligations and liabilities of any Loan Party
under
any Loan Document and all Uniform Commercial Code financing statements
required
by the terms of any such agreement to be filed with respect to the security
interests created pursuant thereto.
Β
βStatutory
Reserve Rateβ
means,
for the Interest Period for any Eurocurrency Borrowing, a fraction (expressed
as
a decimal), the numerator of which is the number one and the denominator
of
which is the number one minus
the
arithmetic mean, taken over each day in such Interest Period, of the aggregate
of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board
to
which the Administrative Agent is subject for eurocurrency funding (currently
referred to as βEurocurrency liabilitiesβ in RegulationΒ D of the Board).
Such reserve percentages shall include those imposed pursuant to such
RegulationΒ D. Eurocurrency Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit
of or
credit for proration, exemptions or offsets that may be available from
time to
time to any Lender under such RegulationΒ D or any comparable regulation.
The Statutory Reserve Rate shall be adjusted automatically on and as of
the
effective date of any change in any reserve percentage.
Β
20
Β
βSubsidiaryβ
means,
with respect to any Person (the βparentβ)
at any
date, any corporation, limited liability company, partnership, association
or
other entity the accounts of which would be consolidated with those of
the
parent in the parentβs consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well
as any
other corporation, limited liability company, partnership, association
or other
entity (a)Β of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power
or, in
the case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held, or (b)Β that is, as of such
date, otherwise Controlled, by the parent or one or more subsidiaries of
the
parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise specified, βSubsidiaryβ means a Subsidiary of the
Borrower.
Β
βSubsidiary
Guarantorβ
means
each Subsidiary of the Borrower other than any Excluded Foreign Subsidiary
or
Immaterial Subsidiary.
Β
βSwap
Agreementβ
means
any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities, equity or debt instruments
or
securities, or economic, financial or pricing indices or measures of economic,
financial or pricing risk or value or any similar transaction or any combination
of these transactions; provided
that no
phantom stock or similar plan providing for payments only on account of
services
provided by current or former directors, officers, employees or consultants
of
the Borrower or its Subsidiaries shall be a Swap Agreement.
Β
βSwingline
Commitmentβ
means
the obligation of the Swingline Lender to make Swingline Loans pursuant
to
Section 2.07 in an aggregate principal amount at any one time outstanding
not to
exceed $5,000,000.
Β
βSwingline
Lenderβ
means
JPMCB, in its capacity as the lender of Swingline Loans.
Β
βSwingline
Loansβ
has
the
meaning set forth in Section 2.07.
Β
βSwingline
Participation Amountβ
has
the
meaning set forth in Section 2.08.
Β
βTARGET
Dayβ
means
any day on which the Trans-European Automated Real-time Gross Settlement
Express
Transfer payment system (or any successor settlement system as determined
by the
Administrative Agent) is open for the settlement of payments in
euro.
Β
21
Β
βTaxesβ
means
any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
Β
βTransactionsβ
means
the execution, delivery and performance by each Loan Party of this Agreement
and
the other Loan Documents to which such Loan Party is intended to be a party,
the
borrowing of Loans and the issuance of Letters of Credit hereunder.
Β
βTypeβ,
when
used in reference to any Loan or Borrowing, refers to whether the rate
of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
Β
βWithdrawal
Liabilityβ
means
liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part
I of
Subtitle E of Title IV of ERISA.
Β
SECTION
1.02Β Β Terms
Generally.
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
βincludeβ, βincludesβ and βincludingβ shall be deemed to be followed by the
phrase βwithout limitationβ. The word βwillβ shall be construed to have the same
meaning and effect as the word βshallβ. Unless the context requires otherwise
(a)Β any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or
other document as from time to time amended, supplemented or otherwise
modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b)Β any reference herein to any Person shall be
construed to include such Personβs successors and assigns, (c)Β the words
βhereinβ, βhereofβ and βhereunderβ, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d)Β all references herein to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles and Sections of,
and
Exhibits and Schedules to, this Agreement and (e)Β the words βassetβ and
βpropertyβ 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.
Β
SECTION
1.03Β Β Accounting
Terms; GAAP.
Except
as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time
to
time; provided
that, if
the Borrower notifies the Administrative Agent that the Borrower requests
an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on
the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision
hereof
for such purpose), regardless of whether any such notice is given before
or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall
have been
withdrawn or such provision amended in accordance herewith. To enable the
ready
and consistent determination of compliance with the covenants set forth
in
ArticleΒ VII, the Borrower will not change the last day of its fiscal year
from September 30, or the last days of the first three fiscal quarters
in each
of its fiscal years from December 31, March 31 and June 30,
respectively.
Β
22
Β
SECTION
1.04Β Β Currencies;
Currency Equivalents; Euro.
At any
time, any reference in the definition of the term βAgreed Foreign Currencyβ or
in any other provision of this Agreement to the Currency of any particular
nation means the lawful currency of such nation at such time whether or
not the
name of such Currency is the same as it was on the date hereof. Except
as
provided in SectionΒ 2.11(b) and the last sentence of SectionΒ 2.18(a),
for purposes of determining (i)Β whether the amount of any Borrowing,
together with all other Borrowings then outstanding or to be borrowed at
the
same time as such Borrowing, or whether the Aggregate Revolving Credit
Exposure
would, in either case, exceed the Aggregate Commitment, (ii)Β the Aggregate
Available Commitments and (iii)Β the outstanding aggregate principal amount
of Borrowings, the outstanding principal amount of any Borrowing that is
denominated in any Foreign Currency shall be deemed to be the Dollar Equivalent
of the amount of the Foreign Currency of such Borrowing determined as of
the
date of such Borrowing (determined in accordance with the last sentence
of the
definition of the term βInterest Periodβ). Wherever in this Agreement in
connection with a Borrowing or Loan an amount, such as a required minimum
or
multiple amount, is expressed in Dollars, but such Borrowing or Loan is
denominated in a Foreign Currency, such amount shall be the relevant Foreign
Currency Equivalent of such Dollar amount (rounded to the nearest 1,000
units of
such Foreign Currency).
Β
Each
obligation hereunder of any party hereto that is denominated in a Currency
of a
country that is not a Participating Member State on the date hereof shall,
effective from the date on which such country becomes a Participating Member
State, be redenominated in euro in accordance with the legislation of the
European Union applicable to the European Monetary Union; provided
that, if
and to the extent that any such legislation provides that any such obligation
of
any such party payable within such Participating Member State by crediting
an
account of the creditor can be paid by the debtor either in euro or such
Currency, such party shall be entitled to pay or repay such amount either
in
euro or in such Currency. If the basis of accrual of interest or fees expressed
in this Agreement with respect to an Agreed Foreign Currency of any country
that
becomes a Participating Member State after the date on which such currency
becomes an Agreed Foreign Currency shall be inconsistent with any convention
or
practice in the interbank market for the basis of accrual of interest or
fees in
respect of the euro, such convention or practice shall replace such expressed
basis effective as of and from the date on which such country becomes a
Participating Member State; provided
that,
with respect to any Borrowing denominated in such currency that is outstanding
immediately prior to such date, such replacement shall take effect at the
end of
the Interest Period therefor. Without prejudice to the respective liabilities
of
the Borrower to the Lenders and of the Lenders to the Borrower under or
pursuant
to this Agreement, each provision of this Agreement shall be subject to
such
reasonable changes of construction as the Administrative Agent may from
time to
time reasonably specify to be necessary or appropriate to reflect the
introduction or changeover to the euro in any country that becomes a
Participating Member State after the date hereof.
Β
23
Β
ARTICLE
II
THE
CREDITS
Β
SECTION
2.01Β Β The
Commitments.
Subject
to the terms and conditions set forth herein, each Lender agrees to make
Loans
in Dollars or in any Agreed Foreign Currency to the Borrower from time
to time
during the Availability Period in an aggregate principal amount that will
not
result in (a)Β such Lenderβs Revolving Credit Exposure exceeding such
Lenderβs Commitment, (b)Β the Aggregate Revolving Credit Exposure exceeding
the Aggregate Commitment or (c)Β the aggregate amount of Revolving Credit
Exposures denominated in Foreign Currencies exceeding the Aggregate Foreign
Currency Sublimit Dollar Amount. Within the foregoing limits and subject
to the
terms and conditions set forth herein, the Borrower may borrow, prepay
and
reborrow Loans.
Β
SECTION
2.02Β Β Loans
and Borrowings.
Β
(a)Β Β Obligations
of Lenders.
Each
Loan shall be made as part of a Borrowing consisting of Loans of the same
Currency and Type made by the Lenders ratably in accordance with their
respective Commitments. The failure of any Lender to make any Loan required
to
be made by it shall not relieve any other Lender of its obligations hereunder;
provided
that the
Commitments of the Lenders are several and no Lender shall be responsible
for
any other Lenderβs failure to make Loans as required.
Β
(b)Β Β Type
of Loans.
Subject
to SectionΒ 2.14, each Borrowing shall be constituted entirely of
ABRΒ Loans or of Eurocurrency Loans denominated in a single Currency as the
Borrower may request in accordance herewith. Each ABRΒ Loan shall be
denominated in Dollars. Each Lender at its option may make any Eurocurrency
Loan
by causing any domestic or foreign branch or Affiliate of such Lender to
make
such Loan; provided
that any
exercise of such option shall not affect the obligation of the Borrower
to repay
such Loan in accordance with the terms of this Agreement.
Β
(c)Β Β Minimum
Amounts; Limitation on Number of Borrowings.
Each
Eurocurrency Borrowing shall be in an aggregate amount of $1,000,000 or
a larger
multiple of $100,000. Each ABRΒ Borrowing shall be in an aggregate amount
equal to $500,000 or a larger multiple of $100,000; provided
that an
ABRΒ Borrowing may be in an aggregate amount that is equal to the Aggregate
Available Commitments, that is required to finance the reimbursement of
an
LCΒ Disbursement as contemplated by SectionΒ 2.04(f) or that is required
to finance the participation in Swingline Loans as contemplated by Section
2.08.
Borrowings of more than one Currency and Type may be outstanding at the
same
time; provided
that
there shall not at any time be more than a total of ten Eurocurrency Borrowings
outstanding.
Β
(d)Β Β Limitations
on Interest Periods.
Notwithstanding any other provision of this Agreement, the Borrower shall
not be
entitled to request (or to elect to convert to or continue as a Eurocurrency
Borrowing) any Borrowing if the Interest Period requested therefor would
end
after the Commitment Termination Date.
Β
SECTION
2.03Β Β Requests
for Borrowings.
Β
24
Β
(a)Β Β Notice
by the Borrower.
To
request a Borrowing, the Borrower shall notify the Administrative Agent
of such
request by telephone (or, in the case of Eurocurrency Borrowings denominated
in
Foreign Currencies, in writing) (i)Β in the case of a Eurocurrency Borrowing
denominated in Dollars, not later than 11:00Β a.m., New York City time,
three Business Days before the date of the proposed Borrowing, (ii)Β in the
case of a Eurocurrency Borrowing denominated in English Pounds Sterling
or euro,
not later than 11:00Β a.m., London time, four Business Days before the date
of the proposed Borrowing, (iii)Β in the case of a Eurocurrency Borrowing
denominated in any Agreed Foreign Currency other than English Pounds Sterling
or
euro, not later than 11:00Β a.m., London time, five Business Days before the
date of the proposed Borrowing, or (iv)Β in the case of an
ABRΒ Borrowing, not later than 11:00Β a.m., New York City time, one
Business Day before the date of the proposed Borrowing; provided
that any
such notice of an ABRΒ Borrowing to finance the reimbursement of an
LCΒ Disbursement as contemplated by SectionΒ 2.04(f) or to finance
participations in Swingline Loans as contemplated by Section 2.08 may be
given
not later than 11:00Β a.m., New York City time, on the date of the proposed
Borrowing. Each such Borrowing Request shall be irrevocable and, in the
case of
requests by telephone, shall be confirmed promptly by hand delivery or
telecopy
to the Administrative Agent of a written Borrowing Request in a form approved
by
the Administrative Agent and signed by the Borrower.
Β
(b)Β Β Content
of Borrowing Requests.
Each
telephonic and written Borrowing Request shall specify the following information
in compliance with SectionΒ 2.02:
Β
(i)Β Β the
aggregate amount and Currency of the requested Borrowing;
Β
(ii)Β Β the
date
of such Borrowing, which shall be a Business Day;
Β
(iii)Β Β in
the
case of a Borrowing denominated in Dollars, whether such Borrowing is to
be an
ABRΒ Borrowing or a Eurocurrency Borrowing;
Β
(iv)Β Β in
the
case of a Eurocurrency Borrowing, the Interest Period therefor, which shall
be a
period contemplated by the definition of the term βInterest Periodβ and
permitted under SectionΒ 2.02(d); and
Β
(v)Β Β the
location and number of the Borrowerβs account to which funds are to be
disbursed, which shall comply with the requirements of
SectionΒ 2.05.
Β
(c)Β Β Notice
by the Administrative Agent to the Lenders.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lenderβs Loan to be made as part of the
requested Borrowing.
Β
(d)Β Β Failure
to Elect.
If no
election as to the Currency of a Borrowing is specified, then the requested
Borrowing shall be denominated in Dollars. If no election as to the Type
of a
Borrowing is specified, then the requested Borrowing shall be an
ABRΒ Borrowing unless an Agreed Foreign Currency has been specified, in
which case the requested Borrowing shall be a Eurocurrency Borrowing denominated
in such Agreed Foreign Currency. If no Interest Period is specified with
respect
to any requested Eurocurrency Borrowing, (i)Β if the Currency specified for
such Borrowing is Dollars (or if no Currency has been so specified), the
requested Borrowing shall be made instead as an ABRΒ Borrowing, and
(ii)Β if the Currency specified for such Borrowing is an Agreed Foreign
Currency, the Borrower shall be deemed to have selected an Interest Period
of
one monthβs duration.
Β
25
Β
SECTION
2.04Β Β Letters
of Credit.
Β
(a)Β Β General.
Subject
to the terms and conditions set forth herein, in addition to the Loans
provided
for in SectionΒ 2.01, the Borrower may request the Issuing Lender to issue,
at any time and from time to time during the Availability Period, Letters
of
Credit denominated in Dollars for its own account in such form as is acceptable
to the Issuing Lender in its reasonable determination. Letters of Credit
issued
hereunder shall constitute utilization of the Commitments. The Letters
of Credit
issued or continued for the account of the Borrower under the Existing
Credit
Agreement and outstanding on the Effective Date (the βExisting
Letters of Creditβ)
shall
be Letters of Credit for all purposes of this Agreement and the other Loan
Documents.
Β
(b)Β Β Notice
of Issuance, Amendment, Renewal or Extension.
To
request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall hand
deliver
or telecopy (or transmit by electronic communication, if arrangements for
doing
so have been approved by the Issuing Lender) to the Issuing Lender and
the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a
Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to
expire
(which shall comply with paragraphΒ (d) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such
other
information as shall be necessary to prepare, amend, renew or extend such
Letter
of Credit. If requested by the Issuing Lender, the Borrower also shall
submit a
letter of credit application on the Issuing Lenderβs standard form in connection
with any request for a Letter of Credit. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted
by the
Borrower to, or entered into by the Borrower with, the Issuing Lender relating
to any Letter of Credit, the terms and conditions of this Agreement shall
control.
Β
(c)Β Β Limitations
on Amounts.
A
Letter of Credit shall be issued, amended, renewed or extended only if
(and upon
issuance, amendment, renewal or extension of each Letter of Credit the
Borrower
shall be deemed to represent and warrant that), after giving effect to
such
issuance, amendment, renewal or extension (i)Β the Aggregate
LCΒ Exposure shall not exceed the Aggregate Letter of Credit Sublimit
Amount, (ii)Β the Aggregate Revolving Credit Exposure shall not exceed the
Aggregate Commitment and (iii)Β the aggregate amount of Revolving Credit
Exposures denominated in Foreign Currencies shall not exceed the Aggregate
Foreign Currency Sublimit Dollar Amount.
Β
(d)Β Β Expiration
Date.
Each
Letter of Credit shall expire at or prior to the close of business on the
date
that is five Business Days prior to the Commitment Termination
Date.
Β
26
Β
(e)Β Β Participations.
By the
issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing
the amount thereof) by the Issuing Lender, and without any further action
on the
part of the Issuing Lender or the Lenders, the Issuing Lender hereby grants
to
each Lender, and each Lender hereby acquires from the Issuing Lender, a
participation in such Letter of Credit equal to such Lenderβs Applicable
Percentage of the aggregate amount available to be drawn under such Letter
of
Credit. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit
is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter
of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments.
Β
In
consideration and in furtherance of the foregoing, each Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for account
of
the Issuing Lender, such Lenderβs Applicable Percentage of each
LCΒ Disbursement made by the Issuing Lender promptly upon the request of the
Issuing Lender at any time from the time of such LCΒ Disbursement until such
LCΒ Disbursement is reimbursed by the Borrower or at any time after any
reimbursement payment is required to be refunded to the Borrower for any
reason.
Such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Such payment obligation shall be absolute and
unconditional and shall not be affected by any circumstance, including
(i) any
setoff, counterclaim, recoupment, defense or other right that such Lender
or the
Borrower may have against the Issuing Lender, the Borrower or any other
Person
for any reason whatsoever, (ii) the occurrence or continuance of a Default
or
the failure to satisfy any of the other conditions specified in Article
V, (iii)
any adverse change in the condition (financial or otherwise) of the Borrower,
(iv) any breach of this Agreement or any other Loan Document by the Borrower,
any other Loan Party or any other Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
Each such payment shall be made in the same manner as provided in
SectionΒ 2.05 with respect to Loans made by such Lender (and
SectionΒ 2.05 shall apply, mutatisΒ mutandis,
to the
payment obligations of the Lenders), and the Administrative Agent shall
promptly
pay to the Issuing Lender the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from
the
Borrower pursuant to paragraph (f) of this Section, the Administrative
Agent
shall distribute such payment to the Issuing Lender or, to the extent that
the
Lenders have made payments pursuant to this paragraph to reimburse the
Issuing
Lender, then to such Lenders and the Issuing Lender as their interests
may
appear. Any payment made by a Lender pursuant to this paragraph to reimburse
the
Issuing Lender for any LCΒ Disbursement shall not constitute a Loan and
shall not relieve the Borrower of its obligation to reimburse such
LCΒ Disbursement.
Β
(f)Β Β Reimbursement.
If the
Issuing Lender shall make any LCΒ Disbursement in respect of a Letter of
Credit, the Borrower shall reimburse the Issuing Lender in respect of such
LCΒ Disbursement by paying to the Administrative Agent an amount equal to
such LCΒ Disbursement not later than 12:00Β noon, New York City time, on
(i)Β the Business Day that the Borrower receives notice of such
LCΒ Disbursement, if such notice is received prior to 10:00Β a.m., New
York City time, or (ii)Β the Business Day immediately following the day that
such Borrower receives such notice, if such notice is not received prior
to such
time, provided
that, if
such LCΒ Disbursement is not less than $500,000, the Borrower may, subject
to the conditions to borrowing set forth herein, request in accordance
with
SectionΒ 2.03 that such payment be financed with an ABRΒ Borrowing in an
equivalent amount and, to the extent so financed, such Borrowerβs obligation to
make such payment shall be discharged and replaced by the resulting
ABRΒ Borrowing.
Β
27
Β
If
the
Borrower fails to make such payment when due, the Administrative Agent
shall
notify each Lender of the applicable LCΒ Disbursement, the payment then due
from the Borrower in respect thereof and such Lenderβs Applicable Percentage
thereof.
Β
(g)Β Β Obligations
Absolute.
The
Borrowerβs obligation to reimburse LCΒ Disbursements as provided in
paragraphΒ (f) of this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms
of
this Agreement under any and all circumstances whatsoever and irrespective
of
(i)Β any lack of validity or enforceability of any Letter of Credit, or any
term or provision therein, (ii)Β any draft or other document presented under
a Letter of Credit proving to be forged, fraudulent or invalid in any respect
or
any statement therein being untrue or inaccurate in any respect,
(iii)Β payment by the Issuing Lender under a Letter of Credit against
presentation of a draft or other document that does not comply strictly
with the
terms of such Letter of Credit, and (iv)Β any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might,
but for
the provisions of this Section, constitute a legal or equitable discharge
of the
Borrowerβs obligations hereunder.
Β
Neither
the Administrative Agent, the Lenders nor the Issuing Lender, nor any of
their
Related Parties, shall have any liability or responsibility by reason of
or in
connection with the issuance or transfer of any Letter of Credit by the
Issuing
Lender or any payment or failure to make any payment thereunder (irrespective
of
any of the circumstances referred to in the preceding sentence), or any
error,
omission, interruption, loss or delay in transmission or delivery of any
draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error
in
interpretation of technical terms or any consequence arising from causes
beyond
the control of the Issuing Lender; provided
that the
foregoing shall not be construed to excuse the Issuing Lender from liability
to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to
the
extent permitted by applicable law) suffered by the Borrower that are caused
by
the Issuing Lenderβs gross negligence or willful misconduct when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that:
Β
(i)Β Β the
Issuing Lender may accept documents that appear on their face to be in
substantial compliance with the terms of a Letter of Credit without
responsibility for further investigation, regardless of any notice or
information to the contrary, and may make payment upon presentation of
documents
that appear on their face to be in substantial compliance with the terms
of such
Letter of Credit;
Β
(ii)Β Β the
Issuing Lender shall have the right, in its sole discretion, to decline
to
accept such documents and to make such payment if such documents are not
in
strict compliance with the terms of such Letter of Credit; and
Β
28
Β
(iii)Β Β this
sentence shall establish the standard of care to be exercised by the Issuing
Lender when determining whether drafts and other documents presented under
a
Letter of Credit comply with the terms thereof (and the parties hereto
hereby
waive, to the extent permitted by applicable law, any standard of care
inconsistent with the foregoing).
Β
(h)Β Β Disbursement
Procedures.
The
Issuing Lender shall, within a reasonable time following its receipt thereof,
examine all documents purporting to represent a demand for payment under
a
Letter of Credit. The Issuing Lender shall promptly after such examination
notify the Administrative Agent and the Borrower by telephone (confirmed
by
telecopy) of such demand for payment and whether the Issuing Lender has
made or
will make an LCΒ Disbursement thereunder; provided
that any
failure to give or delay in giving such notice shall not relieve the Borrower
of
its obligation to reimburse the Issuing Lender and the Lenders with respect
to
any such LCΒ Disbursement.
Β
(i)Β Β Interim
Interest.
If the
Issuing Lender shall make any LCΒ Disbursement, then, unless the Borrower
shall reimburse such LCΒ Disbursement in full on the date such
LCΒ Disbursement is made, the unpaid amount thereof shall bear interest, for
each day from and including the date such LCΒ Disbursement is made to but
excluding the date that the Borrower reimburses such LCΒ Disbursement, at
the rate per annum then applicable to ABRΒ Loans; provided
that, if
the Borrower fails to reimburse such LCΒ Disbursement when due pursuant to
paragraphΒ (f) of this Section, then SectionΒ 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for account of the
Issuing
Lender, except that interest accrued on and after the date of payment by
any
Lender pursuant to paragraphΒ (f) of this Section to reimburse the Issuing
Lender shall be for account of such Lender to the extent of such
payment.
Β
(j)Β Β Replacement
of the Issuing Lender.
The
Issuing Lender may be replaced at any time by written agreement between
the
Borrower, the Administrative Agent, the replaced Issuing Lender and the
successor Issuing Lender. The Administrative Agent shall notify the Lenders
of
any such replacement of the Issuing Lender. At the time any such replacement
shall become effective, the Borrower shall pay all unpaid fees accrued
for
account of the replaced Issuing Lender pursuant to 2.12(b). From and after
the
effective date of any such replacement, (i)Β the successor Issuing Lender
shall have all the rights and obligations of the replaced Issuing Lender
under
this Agreement with respect to Letters of Credit to be issued thereafter
and
(ii)Β references herein to the term βIssuing Lenderβ shall be deemed to
refer to such successor or to any previous Issuing Lender, or to such successor
and all previous Issuing Lenders, as the context shall require. After the
replacement of an Issuing Lender hereunder, the replaced Issuing Lender
shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Lender under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be required to issue
additional Letters of Credit.
Β
(k)Β Β Cash
Collateralization.
If an
Event of Default shall occur and be continuing and the Borrower receives
notice
from the Administrative Agent or the Required Lenders (or, if the maturity
of
the Loans has been accelerated, Lenders with LCΒ Exposures representing more
than 50% of the Aggregate LCΒ Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall immediately deposit
into the Collateral Account (or such other collateral account as the
Administrative Agent shall establish for such purpose) an amount in cash
equal
to, the Aggregate LCΒ Exposure as of such date plus
any
accrued and unpaid interest thereon; provided
that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand
or
other notice of any kind, upon the occurrence of any Event of Default described
in paragraph (h) orΒ (i) of ArticleΒ VIII. Such deposit shall be held by
the Administrative Agent in the Collateral Account as Collateral in the
first
instance for the Aggregate LCΒ Exposure under this Agreement and thereafter
for the payment of the βSecured Obligationsβ under and as defined in the
Guarantee and Collateral Agreement, and for these purposes the Borrower
hereby
grants a security interest to the Administrative Agent for the benefit
of the
Secured Parties in the Collateral Account (or such other collateral account,
as
applicable) and in any financial assets (as defined in the Uniform Commercial
Code) or other property held therein.
Β
29
Β
SECTION
2.05Β Β Funding
of Borrowings.
Β
(a)Β Β Funding
by Lenders.
Each
Lender shall make each Loan to be made by it hereunder on the proposed
date
thereof by wire transfer of immediately available funds by 12:00Β noon,
Local Time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders. The Administrative Agent
will
make such Loans available to the Borrower by promptly crediting the amounts
so
received, in like funds, to an account of the Borrower designated by the
Borrower in the applicable Borrowing Request; provided
that
ABRΒ Borrowings made to finance the reimbursement of an LCΒ Disbursement
as provided in SectionΒ 2.04(f) shall be remitted by the Administrative
Agent to the Issuing Lender and Loans made to repay Refunded Swingline
Loans
pursuant to Section 2.08(b) shall be remitted by the Administrative Agent
to the
Swingline Lender.
Β
(b)Β Β Presumption
by the Administrative Agent.
Unless
the Administrative Agent shall have received notice from a Lender prior
to the
proposed date of any Borrowing that such Lender will not make available
to the
Administrative Agent such Lenderβs share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such
date in
accordance with paragraphΒ (a) of this Section 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 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 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 (i)Β in the case of such Lender, the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation
or
(ii)Β in the case of the Borrower, the interest rate applicable to
ABRΒ Loans, in each case together with any related reasonable out-of-pocket
costs incurred by the Administrative Agent. If such Lender pays such amount
to
the Administrative Agent, then such amount shall constitute such Lenderβs Loan
included in such Borrowing.
Β
SECTION
2.06Β Β Interest
Elections.
Β
(a)Β Β Elections
by the Borrower.
The
Loans constituting each Borrowing initially shall be of the Type specified
in
the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing,
shall have the Interest Period specified in such Borrowing Request. Thereafter,
the Borrower may elect to convert such Borrowing to a Borrowing of a different
Type or to continue such Borrowing as a Borrowing of the same Type and,
in the
case of a Eurocurrency Borrowing, may elect the Interest Period therefor,
all as
provided in this Section; provided
that
(i)Β a Borrowing denominated in one Currency may not be continued as, or
converted to, a Borrowing in a different Currency, (ii)Β no Eurocurrency
Borrowing denominated in a Foreign Currency may be continued if, after
giving
effect thereto, the Aggregate Revolving Credit Exposure would exceed the
Aggregate Commitment, and (iii)Β a Eurocurrency Borrowing denominated in a
Foreign Currency may not be converted to a Borrowing of a different Type.
The
Borrower may elect different options with respect to different portions
of the
affected Borrowing, in which case each such portion shall be allocated
ratably
among the Lenders holding the Loans constituting such Borrowing, and the
Loans
constituting each such portion shall be considered a separate
Borrowing.
Β
30
Β
(b)Β Β Notice
of Elections.
To make
an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone (or, in the case of
Borrowings in Foreign Currencies, in writing) by the time that a Borrowing
Request would be required under SectionΒ 2.03 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made
on
the effective date of such election. Each such Interest Election Request
shall
be irrevocable and, in the case of requests by telephone, shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a
written
Interest Election Request in a form approved by the Administrative Agent
and
signed by the Borrower.
Β
(c)Β Β Content
of Interest Election Requests.
Each
telephonic and written Interest Election Request shall specify the following
information in compliance with SectionΒ 2.02:
Β
(i)Β Β the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which
case the
information to be specified pursuant to clausesΒ (iii) andΒ (iv) of this
paragraph shall be specified for each resulting Borrowing);
Β
(ii)Β Β the
effective date of the election made pursuant to such Interest Election
Request,
which shall be a Business Day;
Β
(iii)Β Β whether,
in the case of a Borrowing denominated in Dollars, the resulting Borrowing
is to
be an ABRΒ Borrowing or a Eurocurrency Borrowing; and
Β
(iv)Β Β if
the
resulting Borrowing is a Eurocurrency Borrowing, the Interest Period therefor
after giving effect to such election, which shall be a period contemplated
by
the definition of the term βInterest Periodβ and permitted under
SectionΒ 2.02(d).
Β
(d)Β Β Notice
by the Administrative Agent to the Lenders.
Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lenderβs
portion of each resulting Borrowing.
Β
(e)Β Β Failure
to Elect; Events of Default.
If the
Borrower fails to deliver a timely and complete Interest Election Request
with
respect to a Eurocurrency Borrowing prior to the end of the Interest Period
therefor, then, unless such Borrowing is repaid as provided herein, (i)Β if
such Borrowing is denominated in Dollars, at the end of such Interest Period
such Borrowing shall be converted to an ABRΒ Borrowing, and (ii)Β if
such Borrowing is denominated in a Foreign Currency, such Borrower shall
be
deemed to have selected an Interest Period of one monthβs duration.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request
of the
Required Lenders, so notifies the Borrower, then, so long as an Event of
Default
is continuing (A)Β no outstanding Borrowing denominated in Dollars may be
converted to or continued as a Eurocurrency Borrowing, (B)Β unless repaid,
each Eurocurrency Borrowing denominated in Dollars shall be converted to
an
ABRΒ Borrowing at the end of the Interest Period therefor and (C)Β no
outstanding Eurocurrency Borrowing denominated in a Foreign Currency may
have an
Interest Period of more than one monthβs duration.
Β
31
Β
SECTION
2.07Β Β Swingline
Commitment.
Β
(a)Β Β Subject
to the terms and conditions hereof, the Swingline Lender agrees to make
a
portion of the credit otherwise available to the Borrower under the Commitments
from time to time during the Availability Period by making swing line loans
in
Dollars (βSwingline
Loansβ)
to the
Borrower; provided
that (i)
the aggregate principal amount of Swingline Loans outstanding at any time
shall
not exceed the Swingline Commitment then in effect (notwithstanding that
the
Swingline Loans outstanding at any time, when aggregated with the Swingline
Lenderβs other outstanding Loans, may exceed the Swingline Commitment then in
effect) and (ii) the Borrower shall not request, and the Swingline Lender
shall
not make, any Swingline Loan if, after giving effect to the making of such
Swingline Loan, the Aggregate Available Commitments would be less than
zero.
During the Availability Period, the Borrower may use the Swingline Commitment
by
borrowing, repaying and reborrowing, all in accordance with the terms and
conditions hereof. Swingline Loans shall be ABR Loans only.
Β
(b)Β Β The
Borrower shall repay to the Swingline Lender the then unpaid principal
amount of
each Swingline Loan on the earlier of the Commitment Termination Date and
the
first date after such Swingline Loan is made that is the 15th or last day
of a
calendar month and is at least five Business Days after such Swingline
Loan is
made; provided
that on
each date that a Loan is borrowed, the Borrower shall repay all Swingline
Loans
then outstanding.
Β
SECTION
2.08Β Β Procedure
and Refunding of Swingline Loans.
Β
(a)Β Β Whenever
the Borrower desires that the Swingline Lender make Swingline Loans it
shall
give the Swingline Lender irrevocable telephonic notice confirmed promptly
in
writing (which telephonic notice must be received by the Swingline Lender
not
later than 2:00 P.M., New York City time, on the proposed Borrowing Date),
specifying (i) the amount to be borrowed and (ii) the requested Borrowing
Date
(which shall be a Business Day during the Availability Period). Each Borrowing
under the Swingline Commitment shall be in an amount equal to $100,000
or a
whole multiple of $100,000 in excess thereof. Not later than 3:00 P.M.,
New York
City time, on the Borrowing Date specified in a notice in respect of Swingline
Loans, the Swingline Lender shall make available to the Administrative
Agent at
the Funding Office an amount in immediately available funds equal to the
amount
of the Swingline Loan to be made by the Swingline Lender. The Administrative
Agent shall make the proceeds of such Swingline Loan available to the Borrower
on such Borrowing Date by depositing such proceeds in the account of the
Borrowing with the Administrative Agent on such Borrowing Date in immediately
available funds.
Β
32
Β
(b)Β Β The
Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs
the
Swingline Lender to act on its behalf), on one Business Dayβs notice given by
the Swingline Lender no later than 12:00 Noon, New York City time, request
each
Lender to make, and each Lender hereby agrees to make, a Loan, in an amount
equal to such Lenderβs Applicable Percentage of the aggregate amount of the
Swingline Loans (the βRefunded
Swingline Loansβ)
outstanding on the date of such notice, to repay the Swingline Lender.
Each
Lender shall make the amount of such Loan available to the Administrative Agent
at the Funding Office in immediately available funds, not later than 10:00
A.M.,
New York City time, one Business Day after the date of such notice. The
proceeds
of such Loans shall be immediately made available by the Administrative
Agent to
the Swingline Lender for application by the Swingline Lender to the repayment
of
the Refunded Swingline Loans. The Borrower irrevocably authorizes the Swingline
Lender to charge the Borrowerβs accounts with the Administrative Agent (up to
the amount available in each such account) in order to immediately pay
the
amount of such Refunded Swingline Loans to the extent amounts received
from the
Lenders are not sufficient to repay in full such Refunded Swingline Loans.
Β
(c)Β Β If
prior
to the time a Loan would have otherwise been made pursuant to Section 2.08(b),
one of the events described in paragraph (h) or (i) of Article VII shall
have
occurred and is continuing with respect to the Borrower or if for any other
reason, as determined by the Swingline Lender in its sole discretion, Loans
may
not be made as contemplated by Section 2.08(b), each Lender shall, on the
date
such Loan was to have been made pursuant to the notice referred to in Section
2.08(b), purchase for cash an undivided participating interest in the then
outstanding Swingline Loans by paying to the Swingline Lender an amount
(the
βSwingline
Participation Amountβ)
equal
to (i) such Lenderβs Applicable Percentage times (ii) the sum of the aggregate
principal amount of Swingline Loans then outstanding that were to have
been
repaid with such Loans.
Β
(d)Β Β Whenever,
at any time after the Swingline Lender has received from any Lender such
Lenderβs Swingline Participation Amount, the Swingline Lender receives any
payment on account of the Swingline Loans, the Swingline Lender will distribute
to such Lender its Swingline Participation Amount (appropriately adjusted,
in
the case of interest payments, to reflect the period of time during which
such
Lenderβs participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Lenderβs pro rata portion of
such payment if such payment is not sufficient to pay the principal of
and
interest on all Swingline Loans then due); provided,
however,
that in
the event that such payment received by the Swingline Lender is required
to be
returned, such Lender will return to the Swingline Lender any portion thereof
previously distributed to it by the Swingline Lender.
Β
(e)Β Β Each
Lenderβs obligation to make the Loans referred to in Section 2.08(b) and to
purchase participating interests pursuant to Section 2.08(c) shall be absolute
and unconditional and shall not be affected by any circumstance, including
(i)
any setoff, counterclaim, recoupment, defense or other right that such
Lender or
the Borrower may have against the Swingline Lender, the Borrower or any
other
Person for any reason whatsoever, (ii) the occurrence or continuance of
a
Default or the failure to satisfy any of the other conditions specified
in
Article V, (iii) any adverse change in the condition (financial or otherwise)
of
the Borrower, (iv) any breach of this Agreement or any other Loan Document
by
the Borrower, any other Loan Party or any other Lender or (v) any other
circumstance, happening or event whatsoever, whether or not similar to
any of
the foregoing.
Β
33
Β
SECTION
2.09Β Β Termination,
Reduction and Increase of the Commitments.
Β
(a)Β Β Scheduled
Termination.
Unless
previously terminated, the Commitments of the Lenders shall terminate on
the
Commitment Termination Date.
Β
(b)Β Β Voluntary
Termination or Reduction.
The
Borrower may at any time terminate, or from time to time reduce, the Aggregate
Commitment, provided
that
(i)Β each reduction of the Aggregate Commitment pursuant to this Section
shall be in an amount that is $500,000 or a larger multiple of $100,000
and
(ii)Β the Borrower shall not terminate or reduce the Aggregate Commitment
if, after giving effect to any concurrent prepayment of the Loans in accordance
with SectionΒ 2.11, the Aggregate Revolving Credit Exposure would exceed the
Aggregate Commitment. The Borrower shall notify the Administrative Agent
of any
election to terminate or reduce the Aggregate Commitment under this
paragraphΒ (b) at least three Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective
date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered
by the
Borrower pursuant to this Section shall be irrevocable; provided
that a
notice of such termination may state that such notice is conditioned upon
the
effectiveness of other credit facilities, in which case such notice may
be
revoked by the Borrower (by notice to the Administrative Agent on or prior
to
the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Aggregate Commitment shall be permanent.
Each
reduction of the Aggregate Commitment shall be made ratably among the Lenders
in
accordance with their respective Commitments.
Β
(c)Β Β Increase
of Commitment.
Β
(i)Β Β Requests
for Commitment Increase.
The
Borrower may, at any time (but in no event more than three times), propose
that
the Aggregate Commitment hereunder be increased (each such proposed increase
being a βCommitment
Increaseβ)
by
having an existing Lender agree to increase its then existing Commitment
(each
an βIncreasing
Lenderβ)
and/or
by adding as a new Lender hereunder any Person identified by the Borrower
which
shall agree to provide a Commitment hereunder (each an βAssumingΒ Lenderβ),
in
each case with the consent of the Administrative Agent and the Issuing
Lender
(such consent in each case not to be unreasonably withheld), by notice
to the
Administrative Agent specifying the amount of the relevant Commitment Increase,
the Lender or Lenders providing for such Commitment Increase and the date
on
which such increase is to be effective (the βCommitment
Increase Dateβ),
which
shall be a Business Day at least three Business Days after delivery of
such
notice and 30 days prior to the Commitment Termination Date; provided
that:
Β
(A)Β Β |
the
minimum amount of the Commitment of any Assuming Lender, and the
minimum
amount of the increase of the Commitment of any Increasing Lender,
as part
of such Commitment Increase shall be $10,000,000 or a larger multiple
of
$1,000,000;
|
Β
34
Β
(B)Β Β |
the
aggregate amount of all such Commitment Increases hereunder shall
not
exceed $50,000,000;
|
Β
(C)Β Β |
no
Default shall have occurred and be continuing on such Commitment
Increase
Date or shall result from the proposed Commitment Increase;
and
|
Β
(D)Β Β |
the
representations and warranties contained in this Agreement and
the other
Loan Documents shall be true and correct on and as of the Commitment
Increase Date as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made
as of a
specific date, as of such specific date).
|
Β
(ii)Β Β Effectiveness
of Commitment Increase.
Each
Commitment Increase (and the increase of the Commitment of each Increasing
Lender and/or the new Commitment of each Assuming Lender, as applicable,
resulting therefrom) shall become effective as of the relevant Commitment
Increase Date upon receipt by the Administrative Agent, on or prior to
9:00Β a.m., New York time, on such Commitment Increase Date, of (A)Β a
certificate of a duly authorized officer of the Borrower stating that the
conditions with respect to such Commitment Increase under this
paragraphΒ (c) have been satisfied and (B)Β an agreement, in form and
substance satisfactory to the Borrower and the Administrative Agent, pursuant
to
which, effective as of such Commitment Increase Date, the Commitment of
each
such Increasing Lender shall be increased or each such Assuming Lender,
as
applicable, shall undertake a Commitment, duly executed by such Increasing
Lender or Assuming Lender, as the case may be, and the Borrower and acknowledged
by the Administrative Agent. Upon the Administrative Agentβs receipt of a fully
executed agreement from each Increasing Lender and/or Assuming Lender referred
to in clauseΒ (B) above, together with the certificate referred to in
clauseΒ (A) above, the Administrative Agent shall record the information
contained in each such agreement in the Register and give prompt notice
of the
relevant Commitment Increase to the Borrower and the Lenders (including,
if
applicable, each Assuming Lender). On each Commitment Increase Date, the
Borrower shall simultaneously (i) prepay in full the outstanding Loans
(if any)
held by the Lenders immediately prior to giving effect to the relevant
Commitment Increase, (ii) if the Borrower shall have so requested in accordance
with this Agreement, borrow new Loans from all Lenders (including, if
applicable, any Assuming Lender) such that, after giving effect thereto,
the
Loans (in the respective Currencies) are held ratably by the Lenders in
accordance with their respective Commitments (after giving effect to such
Commitment Increase) and (iii) pay to the Lenders the amounts, if any,
payable
under Section 2.16.
Β
SECTION
2.10Β Β Repayment
of Loans; Evidence of Debt.
Β
35
Β
(a)Β Β Repayment.
The
Borrower hereby unconditionally promises to pay to the Administrative Agent
for
account of the Lenders the outstanding principal amount of the Loans on
the
Commitment Termination Date.
Β
(b)Β Β Manner
of Payment.
Prior
to any repayment or prepayment of any Borrowings hereunder, the Borrower
shall
select the Borrowing or Borrowings to be paid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection
not
later than 11:00Β a.m., New York City time, three Business Days before the
scheduled date of such repayment. If the Borrower fails to make a timely
selection of the Borrowing or Borrowings to be repaid or prepaid, such
payment
shall be applied, first, to pay any outstanding ABRΒ Borrowings and, second,
to other Borrowings in the order of the remaining duration of their respective
Interest Periods (the Borrowing with the shortest remaining Interest Period
to
be repaid first). Each payment of a Borrowing shall be applied ratably
to the
Loans included in such Borrowing.
Β
(c)Β Β Maintenance
of Records by Lenders.
Each
Lender shall maintain in accordance with its usual practice an account
or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts and Currency
of
principal and interest payable and paid to such Lender from time to time
hereunder.
Β
(d)Β Β Maintenance
of Records by the Administrative Agent.
The
Administrative Agent shall maintain accounts in which it shall record
(i)Β the amount and Currency of each Loan made hereunder, the Type thereof
and each Interest Period therefor, (ii)Β the amount and Currency of any
principal or interest due and payable or to become due and payable from
the
Borrower to each Lender hereunder and (iii)Β the amount and Currency of any
sum received by the Administrative Agent hereunder for account of the Lenders
and each Lenderβs share thereof.
Β
(e)Β Β Effect
of Entries.
The
entries made in the accounts maintained pursuant to paragraphΒ (c)
orΒ (d) of this Section shall be primaΒ facie
evidence
of the existence and amounts of the obligations recorded therein; provided
that the
failure of any Lender or the Administrative Agent to maintain such accounts
or
any error therein shall not in any manner affect the obligation of the
Borrower
to repay the Loans in accordance with the terms of this Agreement.
Β
(f)Β Β Promissory
Notes.
Any
Lender may request that Loans made by it to the Borrower be evidenced by
a
promissory note of the Borrower. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to such Lender
(or,
if requested by such Lender, to such Lender and its registered assigns)
in a
principal amount equal to such Lenderβs Commitment and in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by such promissory
note
and interest thereon shall at all times (including after assignment pursuant
to
SectionΒ 10.04) be represented by one or more promissory notes in such form
payable to the payee named therein (or, if such promissory note is a registered
note, to such payee and its registered assigns).
Β
SECTION
2.11Β Β Prepayment
of Loans.
Β
(a)Β Β Optional
Prepayments.
The
Borrower shall have the right at any time and from time to time to prepay
any
Borrowing in whole or in part, without premium or penalty, subject to the
requirements of this Section; provided
that, if
a Eurocurrency Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the Borrower shall also pay any amounts
owing pursuant to Section 2.16. Partial prepayments of Loans (other than
Swingline Loans) shall be in an aggregate principal amount of $500,000
or a
whole multiple thereof. Partial prepayments of Swingline Loans shall be
in an
aggregate principal amount of $100,000 or a whole multiple thereof.
Β
36
Β
(b)Β Β Mandatory
Prepayments Due to Currency Fluctuations.
On each
Quarterly Date and promptly upon the receipt by the Administrative Agent
of a
Currency Valuation Notice (as defined below), the Administrative Agent
shall
determine the aggregate outstanding principal amount of the Loans to the
extent
there shall be any Loans denominated in any Foreign Currency at such time.
For
the purpose of this determination, the outstanding principal amount of
any Loan
that is denominated in any Foreign Currency shall be deemed to be the Dollar
Equivalent of the amount in the Foreign Currency of such Loan, determined
as of
such Quarterly Date or, in the case of a Currency Valuation Notice received
by
the Administrative Agent prior to 11:00Β a.m., London time, on a Business
Day, on such Business Day or, in the case of a Currency Valuation Notice
otherwise received, on the first Business Day after such Currency Valuation
Notice is received. Upon making such determination, the Administrative
Agent
shall promptly notify the Lenders and the Borrower thereof. If, on the
date of
such determination, the aggregate outstanding principal amount of the Loans
denominated in Foreign Currencies exceeds 105% of the Aggregate Foreign
Currency
Sublimit Dollar Amount or the Aggregate Revolving Credit Exposure exceeds
the
Aggregate Commitment, the Borrower shall, if requested by the Required
Lenders
(through the Administrative Agent), prepay, without premium, penalty or
any
reduction in the Commitments, the Loans in such amounts as shall be necessary
so
that after giving effect thereto the aggregate outstanding principal amount
of
the Loans does not exceed the Aggregate Foreign Currency Sublimit Dollar
Amount;
provided
that, if
a Loan is prepaid on any day other than the last day of the Interest Period
applicable thereto, the Borrower shall also pay any amounts owing pursuant
to
Section 2.16. For purposes hereof, βCurrency
Valuation Noticeβ
means
a
notice given by the Required Lenders to the Administrative Agent stating
that
such notice is a βCurrency Valuation Noticeβ and requesting that the
Administrative Agent determine the aggregate outstanding principal amount
of the
Loans. The Administrative Agent shall not be required to make more than
one
valuation determination pursuant to Currency Valuation Notices within any
rolling three month period.
Β
(c)Β Β Notices,
Etc.
The
Borrower shall notify the Administrative Agent by telephone (confirmed
by
telecopy) of any prepayment hereunder (i)Β in the case of prepayment of a
Eurocurrency Borrowing, not later than 11:00Β a.m., New York City time (or,
in the case of a Borrowing denominated in a Foreign Currency, 11:00Β a.m.,
London time), three Business Days before the date of prepayment or (ii)Β in
the case of prepayment of an ABRΒ Borrowing, not later than 11:00Β a.m.,
New York City time, one Business Day before the date of prepayment. Each
such
notice shall be irrevocable and shall specify the prepayment date, the
principal
amount of each Borrowing or portion thereof to be prepaid and, in the case
of a
mandatory prepayment, a reasonably detailed calculation of the amount of
such
prepayment; provided
that, if
a notice of prepayment is given in connection with a conditional notice
of
termination of the Commitments as contemplated by SectionΒ 2.09, then such
notice of prepayment may be revoked if such notice of termination is revoked
in
accordance with SectionΒ 2.09. Promptly following receipt of any such notice
relating to a Borrowing, the Administrative Agent shall advise the Lenders
of
the contents thereof. Each prepayment of a Borrowing shall be applied ratably
to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied
by
accrued interest to the extent required by SectionΒ 2.13 and shall be made
in the manner specified in SectionΒ 2.10(b).
Β
37
Β
SECTION
2.12Β Β Fees.
Β
(a)Β Β Commitment
Fee.
The
Borrower agrees to pay to the Administrative Agent for account of each
Lender a
commitment fee, which shall accrue at the Applicable Rate on the average
daily
amount of the Available Commitment of such Lender during the period from
and
including the Effective Date to but excluding the earlier of the date such
Commitment terminates and the Commitment Termination Date. Accrued commitment
fees shall be payable on each Quarterly Date and on the earlier of the
date the
Commitments terminate and the Commitment Termination Date, commencing on
the
first such date to occur after the date hereof. All commitment fees shall
be
computed on the basis of a year of 360 days and shall be payable for the
actual
number of days elapsed (including the first day but excluding the last
day). For
purposes of computing commitment fees, the Commitment of a Lender shall
be
deemed to be used to the extent of the outstanding Loans and LCΒ Exposure of
such Lender.
Β
(b)Β Β Letter
of Credit Fees.
The
Borrower agrees to pay (i)Β to the Administrative Agent for account of each
Lender a participation fee with respect to its participations in Letters
of
Credit, which shall accrue at a rate per annum equal to the Applicable
Rate
applicable to interest on Eurocurrency Loans on the average daily amount
of such
Lenderβs LCΒ Exposure (excluding any portion thereof attributable to
unreimbursed LCΒ Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lenderβs
Commitment terminates and the date on which such Lender ceases to have
any
LCΒ Exposure, and (ii)Β to the Issuing Lender a fronting fee, which
shall accrue at the rate of 0.125% per annum on the average daily amount
of the
Aggregate LCΒ Exposure (excluding any portion thereof attributable to
unreimbursed LCΒ Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of
the
Aggregate Commitment and the date on which there ceases to be any
LCΒ Exposure, as well as the Issuing Lenderβs standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees
accrued
through and including each Quarterly Date shall be payable on the third
Business
Day following such Quarterly Date, commencing on the first such date to
occur
after the Effective Date; provided
that all
such fees shall be payable on the date on which the Commitments terminate
and
any such fees accruing after the date on which the Commitments terminate
shall
be payable on demand. Any other fees payable to the Issuing Lender pursuant
to
this paragraph shall be payable within 10 days after demand. All participation
fees and fronting fees shall be computed on the basis of a year of 360
days and
shall be payable for the actual number of days elapsed (including the first
day
but excluding the last day).
Β
(c)Β Β Administrative
Agent Fees.
The
Borrower agrees to pay to the Administrative Agent, for its own account,
fees
payable in the amounts and at the times separately agreed upon between
the
Borrower and the Administrative Agent.
Β
(d)Β Β Payment
of Fees.
All
fees payable hereunder shall be paid on the dates due, in Dollars and
immediately available funds, to the Administrative Agent (or to the Issuing
Lender, in the case of fees payable to it) for distribution, in the case
of
facility fees and participation fees, to the Lenders entitled thereto.
Fees paid
shall not be refundable under any circumstances.
Β
38
Β
SECTION
2.13Β Β Interest.
Β
(a)Β Β ABRΒ Loans.
The
Loans comprising each ABRΒ Borrowing shall bear interest at a rate per annum
equal to the Alternate Base Rate plus
the
Applicable Rate.
Β
(b)Β Β Eurocurrency
Loans.
The
Loans comprising each Eurocurrency Borrowing shall bear interest at a rate
per
annum equal to the Adjusted LIBO Rate for the Interest Period for such
Borrowing
plus
the
Applicable Rate.
Β
(c)Β Β Default
Interest.
Notwithstanding the foregoing, if any principal of or interest on any Loan
or
any fee or other amount payable by the Borrower hereunder is not paid when
due,
whether at stated maturity, upon acceleration, by mandatory prepayment
or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i)Β in the case of overdue principal
of any Loan, 2% plus
the rate
otherwise applicable to such Loan as provided above or (ii)Β in the case of
any other amount, 2% plus
the rate
applicable to ABRΒ Loans as provided in paragraphΒ (a) of this
Section.
Β
(d)Β Β Payment
of Interest.
Accrued
interest on each Loan shall be payable in arrears on each Interest Payment
Date
for such Loan and upon termination of the Commitments; provided
that
(i)Β interest accrued pursuant to paragraphΒ (c) of this Section shall
be payable on demand, (ii)Β in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABRΒ Loan prior to the Commitment
Termination Date), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii)Β in
the event of any conversion of any Eurocurrency Borrowing denominated in
Dollars
prior to the end of the Interest Period therefor, accrued interest on such
Borrowing shall be payable on the effective date of such
conversion.
Β
(e)Β Β Computation.
All
interest hereunder shall be computed on the basis of a year of 360 days,
except
that interest computed by reference to the Alternate Base Rate at times
when the
Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of
a year of 365 days (or 366 days in a leap year), and in each case shall
be
payable for the actual number of days elapsed (including the first day
but
excluding the last day). The applicable Alternate Base Rate or Adjusted
LIBO
Rate shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
Β
SECTION
2.14Β Β Alternate
Rate of Interest.
If
prior to the commencement of the Interest Period for any Eurocurrency Borrowing
(the Currency of such Borrowing herein called the βAffected
Currencyβ):
Β
(a)Β Β the
Administrative Agent determines (which determination shall be conclusive
absent
manifest error) that adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate for the Affected Currency for such Interest Period;
or
Β
(b)Β Β the
Administrative Agent is advised by the Required Lenders that the Adjusted
LIBO
Rate for the Affected Currency for such Interest Period will not adequately
and
fairly reflect the cost to such Lenders of making or maintaining their
respective Loans included in such Borrowing for such Interest
Period;
Β
39
Β
then
the
Administrative Agent shall give notice thereof to the Borrower and the
Lenders
by telephone or telecopy as promptly as practicable thereafter and, until
the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i)Β any Interest
Election Request that requests the conversion of any Borrowing to, or the
continuation of any Borrowing as, a Eurocurrency Borrowing denominated
in the
Affected Currency shall be ineffective and, if the Affected Currency is
Dollars,
such Borrowing (unless prepaid) shall be continued as, or converted to,
an
ABRΒ Borrowing, (ii)Β if the Affected Currency is Dollars and any
Borrowing Request requests a Eurocurrency Borrowing denominated in Dollars,
such
Borrowing shall be made as an ABRΒ Borrowing and (iii)Β if the Affected
Currency is a Foreign Currency, any Borrowing Request that requests a
Eurocurrency Borrowing denominated in the Affected Currency shall be
ineffective.
Β
SECTION
2.15Β Β Increased
Costs.
Β
(a)Β Β Increased
Costs Generally.
If any
Change in Law shall:
Β
(i)Β Β impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for account of, or credit extended
by, any
Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate)
or the Issuing Lender; or
Β
(ii)Β Β impose
on
any Lender or the Issuing Lender or the London interbank market any other
condition affecting this Agreement or Eurocurrency Loans made by such Lender
or
any Letter of Credit or participation therein;
Β
and
the
result of any of the foregoing shall be to increase the cost to such Lenders
of
making or maintaining any Eurocurrency Loan (or of maintaining its obligation
to
make any such Loan) or to increase the cost to such Lender or the Issuing
Lender
of participating in, issuing or maintaining any Letter of Credit or to
reduce
the amount of any sum received or receivable by such Lender or the Issuing
Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Lender, as the case may
be, in
Dollars, such additional amount or amounts as will compensate such Lender
or the
Issuing Lender, as the case may be, for such additional costs incurred
or
reduction suffered.
Β
(b)Β Β Capital
Requirements.
If any
Lender or the Issuing Lender determines that any Change in Law regarding
capital
requirements has or would have the effect of reducing the rate of return
on such
Lenderβs or the Issuing Lenderβs capital or on the capital of such Lenderβs or
the Issuing Lenderβs holding company, if any, as a consequence of this Agreement
or the Loans made by, or participations in Letters of Credit held by, such
Lender, or the Letters of Credit issued by the Issuing Lender, to a level
below
that which such Lender or the Issuing Lender or such Lenderβs or the Issuing
Lenderβs holding company could have achieved but for such Change in Law (taking
into consideration such Lenderβs or the Issuing Lenderβs policies and the
policies of such Lenderβs or the Issuing Lenderβs holding company with respect
to capital adequacy), then from time to time the Borrower will pay to such
Lender or the Issuing Lender, as the case may be, in Dollars, such additional
amount or amounts as will compensate such Lender or the Issuing Lender
or such
Lenderβs or the Issuing Lenderβs holding company for any such reduction
suffered.
Β
40
Β
(c)Β Β Certificates
from Lenders.
A
certificate of a Lender or the Issuing Lender setting forth the amount
or
amounts, in Dollars, necessary to compensate such Lender or the Issuing
Lender
or its holding company, as the case may be, as specified in paragraphΒ (a)
orΒ (b) of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or
the
Issuing Lender, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
Β
(d)Β Β Delay
in Requests.
Failure
or delay on the part of any Lender or the Issuing Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lenderβs or the
Issuing Lenderβs right to demand such compensation; provided
that the
Borrower shall not be required to compensate a Lender or the Issuing Lender
pursuant to this Section for any increased costs or reductions incurred
more
than 270 days prior to the date that such Lender or the Issuing Lender,
as the
case may be, notifies the Borrower of the Change in Law giving rise to
such
increased costs or reductions and of such Lenderβs or the Issuing Lenderβs
intention to claim compensation therefor; providedΒ further
that, if
the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended
to
include the period of retroactive effect thereof.
Β
SECTION
2.16Β Β Break
Funding Payments.
In the
event of (a)Β the payment of any principal of any Eurocurrency Loan other
than on the last day of an Interest Period therefor (including as a result
of an
Event of Default), (b)Β the conversion of any Eurocurrency Loan other than
on the last day of an Interest Period therefor, (c)Β the failure to borrow,
convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice is permitted
to be
revocable under SectionΒ 2.11(d) and is revoked in accordance herewith), or
(d)Β the assignment as a result of a request by the Borrower pursuant to
SectionΒ 2.19(b) of any Eurocurrency Loan other than on the last day of an
Interest Period therefor, then, in any such event, the Borrower shall compensate
each Lender for the loss, cost and expense attributable to such event.
In the
case of a Eurocurrency Loan, the loss to any Lender attributable to any
such
event shall be deemed to include an amount determined by such Lender to
be equal
to the excess, if any, of (i)Β the amount of interest that such Lender would
pay for a deposit equal to the principal amount of such Loan denominated
in the
Currency of such Loan for the period from the date of such payment, conversion,
failure or assignment to the last day of the then current Interest Period
for
such Loan (or, in the case of a failure to borrow, convert or continue,
the
duration of the Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on such deposit
were
equal to the Adjusted LIBO Rate for such Currency for such Interest Period,
over
(ii)Β the amount of interest that such Lender would earn on such principal
amount for such period if such Lender were to invest such principal amount
for
such period at the interest rate that would be bid by such Lender (or an
affiliate of such Lender) for deposits denominated in such Currency from
other
banks in the eurocurrency market at the commencement of such period. A
certificate of any Lender setting forth any amount or amounts that such
Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall
pay
such Lender the amount shown as due on any such certificate within 10 days
after
receipt thereof.
Β
41
Β
SECTION
2.17Β Β Taxes.
Β
(a)Β Β Payments
Free of Taxes.
Any and
all payments by or on account of any obligation of the Borrower hereunder
or
under any other Loan Document shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided
that, if
the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes
from such payments, then (i)Β the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or Issuing Lender (as the case may be) receives an amount
equal to
the sum it would have received had no such deductions been made, (ii)Β the
Borrower shall make such deductions and (iii)Β the Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance
with
applicable law.
Β
(b)Β Β Payment
of Other Taxes by the Borrowers.
In
addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
Β
(c)Β Β Indemnification
by the Borrower.
The
Borrower shall indemnify the Administrative Agent, each Lender and the
Issuing
Lender, within 10 days after written 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)
paid by the Administrative Agent, such Lender or the Issuing Lender, 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.
A certificate as to the amount of such payment or liability delivered to
the
Borrower by a Lender or the Issuing Lender, or by the Administrative Agent
on
its own behalf or on behalf of a Lender or the Issuing Lender, shall be
conclusive absent manifest error.
Β
(d)Β Β Evidence
of Payments.
As soon
as practicable after any payment of Indemnified Taxes or Other Taxes by
the
Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued
by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
Β
(e)Β Β Non-U.S.
Lenders.
Any
Non-U.S. Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower
is
located, or any treaty to which such jurisdiction is a party, with respect
to
payments under this Agreement shall deliver to the Borrower (with a copy
to the
Administrative Agent), at the time or times prescribed by applicable law
or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments
to be
made without withholding or at a reduced rate. Notwithstanding any other
provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver
any documentation pursuant to this paragraph that such Non-U.S. Lender
is not
legally able to deliver.
Β
42
Β
Without
limiting the generality of the foregoing, in the event that the Borrower
is
resident for tax purposes in the United States of America, any Non-U.S.
Lender
shall deliver to the Borrower 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 Non-U.S. Lender becomes a Lender under this Agreement or under an
Assignment and Assumption (and from time to time thereafter upon the request
of
the Borrower or the Administrative Agent, but only if such Non-U.S. Lender
is
legally entitled to do so), whichever of the following is applicable:
Β
(i)Β Β duly
completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States of America
is a
party,
Β
(ii)Β Β duly
completed copies of Internal Revenue Service Form W-8ECI,
Β
(iii)Β Β in
the
case of a Non-U.S. 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 Non-U.S. Lender is not (A) a βbankβ within the meaning of section
881(c)(3)(A) of the Code, (B) a β10 percent shareholderβ of the Borrower within
the meaning of section 881(c)(3)(B) of the Code, or (C) a βcontrolled foreign
corporationβ described in section 881(c)(3)(C) of the Code and (y) duly
completed copies of Internal Revenue Service Form W-8BEN, or
Β
(iv)Β Β any
other
form prescribed by applicable law as a basis for claiming exemption from
or a
reduction in United States of America Federal withholding tax duly completed
together with such supplementary documentation as may be prescribed by
applicable law to permit the Borrower to determine the withholding or deduction
required to be made.
Β
Any
Lender that is not a Non-U.S. Lender shall deliver to Borrower and the
Administrative Agent copies of Internal Revenue Service Form W-9 (in such
number
of copies as shall be requested by the recipient) on or prior to the date
on
which such Lender becomes a Lender under this Agreement or under an Assignment
and Assumption (and from time to time thereafter upon the request of the
Borrower or the Administrative Agent).
Β
(f)Β Β Refunds.
If the
Administrative Agent or a Lender 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 with respect to which the Borrower has paid
additional amounts pursuant to this Section, it shall pay over such refund
to
the Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section with respect to the Taxes
or
Other Taxes giving rise to such refund), net of all out-of-pocket expenses
of
the Administrative Agent or such Lender and without interest (other than
any
interest paid by the relevant Governmental Authority with respect to such
refund); provided
that the
Borrower, upon the request of the Administrative Agent or such Lender,
agrees to
repay the amount paid over to the Borrower (plus any penalties, interest
or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent
or
such Lender is required to repay such refund to such Governmental Authority.
This paragraph (f) shall not be construed to require the Administrative
Agent or
any Lender to make available its tax returns (or any other information
relating
to its taxes which it deems confidential) to the Borrower or any other
Person.
Β
43
Β
SECTION
2.18Β Β Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.
Β
(a)Β Β Payments
by the Borrower.
The
Borrower shall make each payment required to be made by it hereunder (whether
of
principal, interest, fees or reimbursement of LCΒ Disbursements, or of
amounts payable under SectionΒ 2.15, 2.16 or 2.17, or otherwise) or under
any other Loan Document (except to the extent otherwise provided therein)
prior
to 12:00Β noon, Local Time, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such
time on
any date may, in the discretion of the Administrative Agent, be deemed
to have
been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative
Agent at
the Administrative Agentβs Account, except as otherwise expressly provided in
the relevant Loan Document and except payments to be made directly to the
Issuing Lender as expressly provided herein and payments pursuant to
SectionsΒ 2.15, 2.16, 2.17 and 10.03, which shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any
such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder
shall be
due on a day that is not a Business Day, the date for payment shall be
extended
to the next succeeding Business Day and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All amounts owing under this Agreement (including commitment fees, payments
required under SectionΒ 2.15, and payments required under SectionΒ 2.16
relating to any Loan denominated in Dollars, but not including principal
of, and
interest on, any Loan denominated in any Foreign Currency or payments relating
to any such Loan required under SectionΒ 2.16, which are payable in such
Foreign Currency) or under any other Loan Document (except to the extent
otherwise provided therein) are payable in Dollars. Notwithstanding the
foregoing, if the Borrower shall fail to pay any principal of any Loan
when due
(whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise), the unpaid portion of such Loan shall, if such Loan is not
denominated in Dollars, automatically be redenominated in Dollars on the
due
date thereof (or, if such due date is a day other than the last day of
the
Interest Period therefor, on the last day of such Interest Period) in an
amount
equal to the Dollar Equivalent thereof on the date of such redenomination
and
such principal shall be payable on demand; and if the Borrower shall fail
to pay
any interest on any Loan that is not denominated in Dollars, such interest
shall
automatically be redenominated in Dollars on the due date therefor (or,
if such
due date is a day other than the last day of the Interest Period therefor,
on
the last day of such Interest Period) in an amount equal to the Dollar
Equivalent thereof on the date of such redenomination and such interest
shall be
payable on demand.
Β
(b)Β Β Application
of Insufficient Payments.
If at
any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LCΒ Disbursements,
interest and fees then due hereunder, such funds shall be applied
(i)Β first,
to pay
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)Β second,
to pay
principal and unreimbursed LCΒ Disbursements then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
and unreimbursed LCΒ Disbursements then due to such parties.
Β
44
Β
(c)Β Β Pro
Rata Treatment.
Except
to the extent otherwise provided herein: (i)Β each Borrowing shall be made
from the Lenders, each payment of commitment fee under SectionΒ 2.12 shall
be made for account of the Lenders, and each termination or reduction of
the
amount of the Commitments under SectionΒ 2.09 shall be applied to the
respective Commitments of the Lenders, proΒ rata
according to the amounts of their respective Commitments; (ii)Β each
Borrowing shall be allocated proΒ rata
among
the Lenders according to the amounts of their respective Commitments (in
the
case of the making of Loans) or their respective Loans that are to be included
in such Borrowing (in the case of conversions and continuations of Loans);
(iii)Β each payment or prepayment of principal of Loans by the Borrower
shall be made for account of the Lenders proΒ rata
in
accordance with the respective unpaid principal amounts of the Loans held
by
them; and (iv)Β each payment of interest on Loans by the Borrower shall be
made for account of the Lenders proΒ rata
in
accordance with the amounts of interest on such Loans then due and payable
to
the respective Lenders.
Β
(d)Β Β Sharing
of Payments by Lenders.
If any
Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its
Loans or
participations in LCΒ Disbursements resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Loans and
participations in LCΒ Disbursements and accrued interest thereon then due
than the proportion received by any other Lender, then the Lender receiving
such
greater proportion shall purchase (for cash at face value) participations
in the
Loans and participations in LCΒ Disbursements of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of
and
accrued interest on their respective Loans and participations in
LCΒ Disbursements; provided
that,
(i)Β if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be
rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii)Β the provisions of this paragraph shall not be construed
to apply to any payment made by the Borrower pursuant to and in accordance
with
the express terms of this Agreement or any payment obtained by a Lender
as
consideration for the assignment of or sale of a participation in any of
its
Loans or participations in LCΒ Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to
which
the provisions of this paragraph shall apply). The Borrower 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 the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender
were
a direct creditor of the Borrower in the amount of such
participation.
Β
(e)Β Β Presumptions
of Payment.
Unless
the Administrative Agent shall have received notice from the Borrower prior
to
the date on which any payment is due to the Administrative Agent for account
of
the Lenders or the Issuing Lender 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 Lenders or the Issuing Lender, 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 Lenders or the Issuing Lender, 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 Issuing Lender 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 Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
Β
45
Β
(f)Β Β Certain
Deductions by the Administrative Agent.
If any
Lender shall fail to make any payment required to be made by it pursuant
to
SectionΒ 2.04(e), 2.05(b) or 2.18(e), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for account of
such
Lender to satisfy such Lenderβs obligations under such Sections until all such
unsatisfied obligations are fully paid.
Β
SECTION
2.19Β Β Mitigation
Obligations; Replacement of Lenders.
Β
(a)Β Β Designation
of a Different Lending Office.
If any
Lender requests compensation under SectionΒ 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for account of any Lender pursuant to SectionΒ 2.17, then such
Lender shall 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, such designation or assignment (i)Β would eliminate or
reduce amounts payable pursuant to SectionΒ 2.15 orΒ 2.17, as the case
may be, in the future and (ii)Β would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous
to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or
assignment.
Β
(b)Β Β Replacement
of Lenders.
If any
Lender requests compensation under SectionΒ 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for account of any Lender pursuant to SectionΒ 2.17, or if any
Lender defaults in its obligation to fund Loans hereunder, 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
SectionΒ 10.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee
may
be another Lender, if a Lender accepts such assignment); provided
that
(i)Β the Borrower shall have received the prior written consent of the
Administrative Agent (and, if a Commitment is being assigned, the Issuing
Lender), which consent shall not unreasonably be withheld, (ii)Β such Lender
shall have received payment of an amount equal to the outstanding principal
of
its Loans and participations in LCΒ Disbursements, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, 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) and (iii)Β in the case of
any such assignment resulting from a claim for compensation under
SectionΒ 2.15 or payments required to be made pursuant to SectionΒ 2.17,
such assignment will result in a reduction in such compensation or payments.
A
Lender shall not be required to make any such assignment and 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.
Β
46
Β
ARTICLE
III
GUARANTEE
Β
SECTION
3.01Β Β The
Guarantee.
Unless
a Holdings Change of Control Transaction shall have occurred:
Β
(a)Β Β Holdings
hereby unconditionally and irrevocably, guarantees to the Administrative
Agent,
for the ratable benefit of each Secured Party and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations (such obligations
being
herein collectively called the βGuaranteed
Obligationsβ).
Holdings hereby further agrees that its guarantee under this Section constitutes
a guarantee of payment when due and not of collection, and waives any right
to
require that any resort be had by the Administrative Agent or any Secured
Party
to any of the security held for payment of the Borrower Obligations or
to any
balance of any deposit account or credit on the books of the Administrative
Agent or any Secured Party in favor of the Borrower or any other
person.
Β
(b)Β Β The
guarantee contained in this Section shall remain in full force and effect
until
all the Borrower Obligations and the obligations of Holdings under the
guarantee
contained in this Section shall have been satisfied by payment in full,
no
Letter of Credit shall be outstanding and the Commitments shall be terminated,
notwithstanding that from time to time during the term of this Agreement
the
Borrower may be free from any of its Obligations.
Β
(c)Β Β No
payment made by the Borrower, any of the Guarantors, any other guarantor
or any
other Person or received or collected by the Administrative Agent or any
Secured
Party from the Borrower, any of the Guarantors, any other guarantor or
any other
Person by virtue of any action or proceeding or any set-off or appropriation
or
application at any time or from time to time in reduction of or in payment
of
the Borrower Obligations shall be deemed to modify, reduce, release or
otherwise
affect the liability of Holdings hereunder which shall, notwithstanding
any such
payment (other than any payment made by Holdings in respect of the Borrower
Obligations or any payment received or collected from Holdings in respect
of the
Borrower Obligations), remain liable for the Borrower Obligations up to
the
maximum liability of Holdings hereunder until the Borrower Obligations
are paid
in full, no Letter of Credit shall be outstanding and the Commitments are
terminated.
Β
SECTION
3.02Β Β Obligations
Unconditional.
The
obligations of Holdings under SectionΒ 3.01 are absolute and unconditional
irrespective of the value, genuineness, validity, regularity or enforceability
of this Agreement or any other Loan Document, any of the Borrower Obligations
or
any other agreement or instrument referred to herein, or any substitution,
release or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable
law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section that the obligations of Holdings hereunder
shall be absolute and unconditional under any and all circumstances. Without
limiting the generality of the foregoing, it is agreed that the occurrence
of
any one or more of the following shall not alter or impair the liability
of
Holdings hereunder, which shall remain absolute and unconditional as described
above:
Β
47
Β
(a)Β Β at
any
time or from time to time, without notice to Holdings, the time for any
performance of or compliance with any of their respective Guaranteed Obligations
shall be extended, or such performance or compliance shall be
waived;
Β
(b)Β Β any
of
the acts mentioned in any of the provisions of this Agreement or any other
agreement or instrument referred to herein shall be done or
omitted;
Β
(c)Β Β the
maturity of any of the Guaranteed Obligations shall be accelerated, or
any of
the Guaranteed Obligations shall be modified, supplemented or amended in
any
respect, or any right under this Agreement or any other agreement or instrument
referred to herein shall be waived or any other guarantee of any of their
respective Guaranteed Obligations or any security therefor shall be released
or
exchanged in whole or in part or otherwise dealt with; or
Β
(d)Β Β any
lien
or security interest granted to, or in favor of, the Administrative Agent
or any
Secured Party as security for any of the Guaranteed Obligations shall fail
to be
perfected.
Β
Holdings
hereby expressly waives diligence, presentment, demand of payment, protest
and
all notices whatsoever, and any requirement that the Administrative Agent
or any
Secured Party exhaust any right, power or remedy or proceed against the
Borrower
under this Agreement or any other agreement or instrument referred to herein,
or
against any other Person under any other guarantee of, or security for,
any of
their respective Guaranteed Obligations.
Β
SECTION
3.03Β Β Reinstatement.
The
obligations of Holdings under this Article shall be automatically reinstated
if
and to the extent that for any reason any payment by or on behalf of the
Borrower in respect of the relevant Guaranteed Obligations is rescinded
or must
be otherwise restored by any holder of any of such Guaranteed Obligations,
whether as a result of any proceedings in bankruptcy or reorganization
or
otherwise, and Holdings agrees that it will indemnify the Administrative
Agent
and each Secured Party on demand for all reasonable costs and expenses
(including fees of counsel) incurred by the Administrative Agent or each
such
Secured Party in connection with such rescission or restoration, including
any
such costs and expenses incurred in defending against any claim alleging
that
such payment constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.
Β
SECTION
3.04Β Β Subrogation.
Holdings hereby agrees that, until the payment and satisfaction in full
of all
Guaranteed Obligations and the expiration and termination of the Commitments
of
the Lenders under this Agreement, it shall not exercise any right or remedy
arising by reason of any performance by it of its guarantee in
SectionΒ 3.01, whether by subrogation or otherwise, against the Borrower or
any other guarantor of any of the Guaranteed Obligations or any security
for any
of the Guaranteed Obligations.
Β
SECTION
3.05Β Β Remedies.
Holdings agrees that, as between Holdings and the Secured Parties, the
Obligations of the Borrower under this Agreement may be declared to be
forthwith
due and payable as provided in ArticleΒ VIII (and shall be deemed to have
become automatically due and payable in the circumstances provided in
ArticleΒ VIII) for purposes of SectionΒ 3.01 notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such Obligations
from becoming automatically due and payable) as against the Borrower and
that,
in the event of such declaration (or such Obligations being deemed to have
become automatically due and payable), such Obligations (whether or not
due and
payable by the Borrower) shall forthwith become due and payable by Holdings
for
purposes of SectionΒ 3.01.
Β
48
Β
SECTION
3.06Β Β Continuing
Guarantee.
The
guarantee in this Article is a continuing guarantee, and shall apply to
all
Guaranteed Obligations whenever arising.
Β
SECTION
3.07Β Β General
Limitation on Guarantee Obligations.
In any
action or proceeding involving any state corporate law, or any state or
Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of Holdings under SectionΒ 3.01
would otherwise be held or determined to be void, invalid or unenforceable,
or
subordinated to the claims of any other creditors, on account of the amount
of
its liability under SectionΒ 3.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any
further
action by Holdings, any Lender, the Administrative Agent or any other Person,
be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.
Β
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
Β
Holdings
and the Borrower, jointly and severally, represent and warrant to the Lenders
that:
Β
SECTION
4.01Β Β Organization;
Powers.
Each
Group Member is duly organized, validly existing and in good standing under
the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably
be
expected to result in a Material Adverse Effect, is qualified to do business
in,
and is in good standing in, every jurisdiction where such qualification
is
required.
Β
SECTION
4.02Β Β Authorization;
Enforceability.
The
Transactions are within the Borrowerβs and each other Loan Partyβs corporate
powers and have been duly authorized by all necessary corporate and, if
required, by all necessary shareholder action. This Agreement and each
of the
other Loan Documents have been duly executed and delivered by each Loan
Party
party thereto and constitutes, or when executed and delivered by such Loan
Party
will constitute, a legal, valid and binding obligation of such Loan Party,
enforceable against each Loan Party in accordance with its terms, except
as such
enforceability may be limited by (a)Β bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditorsβ rights and (b)Β the application of general
principles of equity (regardless of whether such enforceability is considered
in
a proceeding in equity or at law).
Β
SECTION
4.03Β Β Governmental
Approvals; No Conflicts.
The
Transactions (a)Β do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except
for
(i)Β such as have been obtained or made and are in full force and effect and
(ii)Β filings and recordings in respect of the Liens created pursuant to the
Security Documents, (b)Β will not violate in any material respect any
Requirement of Law, (c)Β will not violate in any material respect or result
in a material default under any Contractual Obligation upon any Group Member
or
its assets, or give rise to a right thereunder to require any payment to
be made
by any such Person, and (d)Β except for the Liens created pursuant to the
Security Documents, will not result in the creation or imposition of any
Lien on
any asset of any Group Member.
Β
49
Β
SECTION
4.04Β Β Financial
Condition; No Material Adverse Change.
Β
(a)Β Β Financial
Condition.
The
Borrower has heretofore furnished to the Lenders its consolidated balance
sheet
and statements of income, stockholdersβ equity and cash flows as of and for the
fiscal years ended September 30, 2006 and September 30, 2007, in each case,
reported on by Xxxxx Xxxxxxxx LLP, and its unaudited consolidated balance
sheet
and the related unaudited consolidated statements of income, stockholdersβ
equity and cash flows for the three-month period ended December 31, 2007.
Such
financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and its
Subsidiaries as of such dates and for such periods and, except with respect
to
such unaudited financial statements for the three-month period ended December
31, 2007, in accordance with GAAP. There are no liabilities of the Borrower
or
any of its Subsidiaries, fixed or contingent, which are material in relation
to
the consolidated financial condition of the Borrower that are not reflected
in
such financial statements or in the notes thereto, other than liabilities
arising in the ordinary course of business since September 30,
2007.
Β
(b)Β Β No
Material Adverse Change.
Since
September 30, 2007, there has not occurred any event, development or
circumstance that has had or could reasonably be expected to have a Material
Adverse Effect.
Β
SECTION
4.05Β Β Properties.
Β
(a)Β Β Property
Generally.
Each
Group Member has good title to, or valid leasehold interests in, all its
real
and personal property material to its business, subject only to Liens permitted
by SectionΒ 7.02 and except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize
such properties for their intended purposes.
Β
(b)Β Β Intellectual
Property.
Each
Group Member owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and, to the Borrowerβs knowledge, the use thereof by any Group Member does not
infringe upon the rights of any other Person except for any such infringements
that, individually or in the aggregate, could not reasonably be expected
to
result in a Material Adverse Effect.
Β
SECTION
4.06Β Β Litigation
and Environmental Matters.
Β
(a)Β Β Actions,
Suits and Proceedings.
There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority now pending against or, to the knowledge of the Borrower, threatened
against or affecting any Group Member that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in
a
Material Adverse Effect (other than the Disclosed Matters) or that involve
this
Agreement or the Transactions.
Β
50
Β
(b)Β Β Environmental
Matters.
Except
for the Disclosed Matters and except with respect to any other matters
that,
individually or in the aggregate, could not reasonably be expected to result
in
a Material Adverse Effect, no Group Member (i)Β has failed to comply with
any Environmental Law or to obtain, maintain or comply with any permit,
license
or other approval required under any Environmental Law, (ii)Β has become
subject to any Environmental Liability, (iii)Β has received notice of any
claim with respect to any Environmental Liability or (iv)Β has actual
knowledge of any event or circumstance which is reasonably expected to
give rise
to any Environmental Liability.
Β
(c)Β Β Disclosed
Matters.
Since
the date of this Agreement, there has been no change in the status of the
Disclosed Matters that, individually or in the aggregate, has resulted
in, or
materially increased the likelihood of, a Material Adverse Effect.
Β
SECTION
4.07Β Β Compliance
with Laws and Contractual Obligations.
Each
Group Member is in compliance with all Requirements of Law applicable to
it or
its property or all Contractual Obligations binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could
not
reasonably be expected to result in a Material Adverse Effect.
Β
SECTION
4.08Β Β Investment
Company Status.
No
Group Member isΒ an βinvestment companyβ as defined in, or subject to
regulation under, the Investment Company Act of 1940.
Β
SECTION
4.09Β Β Taxes.
Each
Group Member has timely filed or caused to be filed all Tax returns and
reports
required to have been filed and has paid or caused to be paid all Taxes
required
to have been paid by it, except (a)Β Taxes that are being contested in good
faith by appropriate proceedings and for which such Person has set aside
on its
books adequate reserves or (b)Β to the extent that the failure to do so
could not reasonably be expected to result in a Material Adverse
Effect.
Β
SECTION
4.10Β Β ERISA;
Employee Benefit Plans.
Β
(a)Β Β No
ERISA
Event has occurred or is reasonably expected to occur that, when taken
together
with all other such ERISA Events for which liability is reasonably expected
to
occur, could reasonably be expected to result in a Material Adverse Effect.
The
present value of all accumulated benefit obligations under each Plan (based
on
the assumptions used for purposes of Statement of Financial Accounting
Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $20,000,000 the fair market
value
of the assets of such Plan.
Β
(b)Β Β Except
as
could not reasonably be expected to have a Material Adverse Effect, the
accrued
benefit obligations of each Foreign Plan (based on those assumptions used
to
fund such Foreign Plan) with respect to all current and former participants
do
not exceed the assets of such Foreign Plan.
Β
51
Β
SECTION
4.11Β Β Disclosure.
The
Borrower has disclosed to the Lenders all agreements, instruments and corporate
or other restrictions to which it or any other Group Member 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. None of
the
reports, financial statements, certificates or other information furnished
by or
on behalf of the Borrower or any other Group Member to the Administrative
Agent
or any Lender in connection with the negotiation of this Agreement and
the other
Loan Documents or delivered hereunder or thereunder (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, the Borrower represents
only
that such information was prepared in good faith based upon assumptions
that
were believed by the Borrower to be reasonable at the time made, it being
understood that the actual results may vary from the results projected
therein.
Β
SECTION
4.12Β Β Use
of
Credit.
No
Group Member is engaged principally, or as one of its important activities,
in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds
of
any extension of credit hereunder will be used to buy or carry any Margin
Stock.
Β
SECTION
4.13Β Β Burdensome
Agreements.
Except
as set forth on Schedule 4.13, to the Borrowerβs knowledge, no Group Member is a
party to or bound by, nor are any of the properties or assets owned by
any Group
Member used in the conduct of their respective businesses affected by,
any
agreement, ordinance, resolution, decree, bond, note, indenture, order
or
judgment, including, without limitation, any of the foregoing relating
to any
Environmental Liability, that could reasonably be expected to result in
a
Material Adverse Effect.
Β
SECTION
4.14Β Β Labor
Matters.
Except
as set forth on Schedule 4.14, (a) no collective bargaining agreement or
other
labor contract to which any Group Member is a signatory will expire during
the
term of this Agreement, (b) to the Borrowerβs knowledge, no union or other labor
organization is seeking to organize, or to be recognized as bargaining
representative for, a bargaining unit of employees of any Group Member,
(c)
there is no pending or, to the Borrowerβs knowledge, threatened strike, work
stoppage, material unfair labor practice claim or charge, arbitration or
other
material dispute with any union or other labor organization affecting any
Group
Member or its union-represented employees, in each case the consequences
of
which could reasonably be expected to affect aggregate business (regardless
of
division or entity) of the Group Members which business generated gross
revenues
in excess of $50,000,000 individually or in the aggregate in the prior
fiscal
year, (d) there are no actions, suits, charges, demands, claims, counterclaims
or proceedings pending or, to the best of the Borrowerβs knowledge, threatened
against any Group Member, by or on behalf of, or with, its employees, other
than
any such actions, suits charges, demands, claims, counterclaims or proceedings
arising in the ordinary course of business that could not reasonably be
expected
to result in a Material Adverse Effect.
Β
SECTION
4.15Β Β Security
Documents.
The
Guarantee and Collateral Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal,
valid and
enforceable security interest in the Collateral as further described therein
and
proceeds thereof. In the case of: (i) the Pledged Stock as defined and
described
in the Guarantee and Collateral Agreement, when stock certificates representing
such Pledged Stock are delivered to the Administrative Agent, (ii) other
Collateral as further described in Guarantee and Collateral Agreement,
when
financing statements and other filings specified on Schedule 4.15 in appropriate
form are filed in the offices specified on Schedule 4.15, and, (iii) property
acquired after the date hereof any other action required pursuant to Section
6.11, the security interest created pursuant to the Guarantee and Collateral
Agreement shall constitute valid perfected security interests in such Collateral
and the proceeds thereof (to the extent a security interest in such Collateral
can be perfected through the filing of such financing statements and the
delivery of such Pledged Stock or the taking of such actions required pursuant
to Section 6.11), as security for the Obligations (as defined in the Guarantee
and Collateral Agreement), in each case prior and superior in right to
any other
Person (except, in the case of Collateral other than Pledged Stock, Liens
permitted by Section 7.02).
Β
52
Β
SECTION
4.16Β Β Holdings.
Holdings is a newly formed special purpose wholly-owned Subsidiary of the
Parent
whose business and assets consist exclusively of ownership of Capital Stock
of
the Borrower.
Β
SECTION
4.17Β Β Parent
Real Estate Assets.
Schedule 4.17 sets forth a complete list of all real property assets owned
by
the Parent Real Estate Subsidiaries as of the Effective Date as well as
all
liabilities of the Parent Real Estate Subsidiaries as of the Effective
Date.
Β
ARTICLE
V
CONDITIONS
Β
SECTION
5.01Β Β Effective
Date.
The
obligations of the Lenders to make Loans and of the Issuing Lender to issue
Letters of Credit hereunder shall not become effective until the date on
which
the Administrative Agent shall have received each of the following documents,
each of which shall be satisfactory to the Administrative Agent in form
and
substance (or such condition shall have been waived in accordance with
SectionΒ 10.02):
Β
(a)Β Β Executed
Counterparts.
From
each party hereto either (i)Β a counterpart of this Agreement executed on
behalf of the Borrower, Holdings, the Administrative Agent and each of
the
Lenders or (ii)Β written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of an executed signature page
to this
Agreement) that such party has executed a counterpart of this
Agreement.
Β
(b)Β Β Guarantee
and Collateral Agreement.
(i) A
copy of the Guarantee and Collateral Agreement, executed and delivered
by
Holdings, the Borrower and each Subsidiary Guarantor, and (ii) an
Acknowledgement and Consent in the form attached to the Guarantee and Collateral
Agreement, executed and delivered by each Issuer (as defined therein),
if any,
that is not a Loan Party.
Β
(c)Β Β Opinions
of Counsel to the Group Members.
Written
opinions (addressed to the Administrative Agent and the Lenders and dated
as of
the Effective Date) of (i) Moomjian, Waite, Wactlar & Xxxxxxx, corporate
counsel for the Group Members, substantially in the form of ExhibitΒ C, and
(ii) Dechert LLP, special counsel to the Group Members, substantially in
the
form of Exhibit D, and covering such other matters relating to the Group
Members, this Agreement or the Transactions as the Administrative Agent
shall
reasonably request (and the Borrower hereby instructs such counsel to deliver
such opinions to the Lenders and the Administrative Agent).
Β
53
Β
(d)Β Β Corporate
Documents.
Such
documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing
of
the Borrower and each other Loan Party, the authorization of the Transactions
and any other legal matters relating to the Borrower and each other Loan
Party,
this Agreement or the Transactions, all in form and substance satisfactory
to
the Administrative Agent and its counsel.
Β
(e)Β Β Officerβs
Certificate.
A
certificate, dated the Effective Date and signed by a senior executive
officer
of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of the first sentence of SectionΒ 5.02.
Β
(f)Β Β Repayment
of Amounts under the Existing Credit Agreement.
Evidence that the principal of and interest on outstanding loans, and all
accrued fees and all other amounts owing, under the Existing Credit Agreement
shall have been (or shall be simultaneously) paid in full, the commitments
thereunder shall have been (or shall be simultaneously) terminated, all
letters
of credit issued thereunder shall cease to be outstanding thereunder and
all
liens created in connection therewith shall have been (or shall be
simultaneously) released.
Β
(g)Β Β Lien
Searches.
The
results of a recent lien search in each of the jurisdictions of organization
of
each of the Loan Parties, and such search shall reveal no liens on any
of the
assets of any Loan Party except for liens permitted by Section 7.02 or
discharged on or prior to the Effective Date pursuant to documentation
reasonably satisfactory to the Administrative Agent.
Β
(h)Β Β Pledged
Stock; Stock Powers; Pledged Notes.
(i) The
certificates representing the shares of Capital Stock pledged pursuant
to the
Guarantee and Collateral Agreement, together with an undated stock power
for
each such certificate executed in blank by a duly authorized officer of
the
pledgor thereof and (ii) each promissory note (if any) pledged to the
Administrative Agent pursuant to the Guarantee and Collateral Agreement
endorsed
(without recourse) in blank (or accompanied by an executed transfer form
in
blank) by the pledgor thereof.
Β
(i)Β Β Filings,
Registrations and Recordings.
Evidence that each document (including any Uniform Commercial Code financing
statement) required by the Security Documents or under law or reasonably
requested by the Administrative Agent to be filed, registered or recorded
in
order to create in favor of the Administrative Agent, for the benefit of
the
Secured Parties, a perfected Lien on the Collateral described therein,
prior and
superior in right to any other Person (other than with respect to Liens
expressly permitted by Section 7.02), shall be in proper form for filing,
registration or recordation.
Β
(j)Β Β Other
Documents.
A copy
of the Management Agreement and such other documents as the Administrative
Agent
or any Lender may reasonably request.
Β
The
obligation of each Lender to make its initial extension of credit hereunder
is
also subject to the payment by the Borrower of such fees and expenses as
the
Borrower shall have agreed to pay to any Lender, the Administrative Agent
or the
Arranger in connection herewith, including the reasonable fees and expenses
of
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, legal counsel to JPMCB, in connection with
the negotiation, preparation, execution and delivery of this Agreement
and the
other Loan Documents (to the extent that written statements for such fees
and
expenses have been delivered to the Borrower).
Β
54
Β
The
Administrative Agent shall notify the Borrower and the Lenders of the Effective
Date, and such notice shall be conclusive and binding. Notwithstanding
the
foregoing, the obligations of the Lenders to make Loans and of the Issuing
Lender to issue Letters of Credit hereunder shall not become effective
unless
each of the foregoing conditions is satisfied (or waived pursuant to
SectionΒ 10.02) at or prior to 3:00Β p.m., New York City time, on April
30, 2008.
Β
SECTION
5.02Β Β Each
Credit Event.
The
obligation of each Lender to make any Loan, and of the Issuing Lender to
issue,
amend, renew or extend any Letter of Credit, is additionally subject to
the
satisfaction of the following conditions:
Β
(a)Β Β the
representations and warranties of Holdings and the Borrower set forth in
this
Agreement, and of each Loan Party in each of the Loan Documents to which
it is a
party, shall be true and correct in all material respects on and as of
the date
of such Loan or the date of issuance, amendment, renewal or extension of
such
Letter of Credit, as applicable; and
Β
(b)Β Β at
the
time of and immediately after giving effect to such Loan or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable,
no
Default shall have occurred and be continuing.
Β
Each
Borrowing and each issuance, amendment, renewal or extension of a Letter
of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs
(a) and
(b) of the immediately preceding sentence.
Β
ARTICLE
VI
AFFIRMATIVE
COVENANTS
Β
Until
the
Commitments have expired or been terminated and the principal of and interest
on
each Loan and all fees payable hereunder shall have been paid in full and
all
Letters of Credit shall have expired or terminated and all LCΒ Disbursements
shall have been reimbursed, each of Holdings and the Borrower covenants
and
agrees with the Lenders that:
Β
SECTION
6.01Β Β Financial
Statements and Other Information.
The
Borrower will furnish to the Administrative Agent and each Lender:
Β
(a)Β Β on
the
date that is the earliest of (i) the date on which the same shall have
been
filed with the SEC, (ii) the date the same are required to be filed with
the SEC
(without regard to any extension of the SECβs filing requirements) and (iii) the
day which is 120 days after the end of each fiscal year of the Borrower,
the
audited consolidated balance sheet and related statements of income,
stockholdersβ equity and cash flows of the Borrower and its Subsidiaries as of
the end of and for such year, setting forth in each case in comparative
form the
figures for the previous fiscal year, all reported on by Xxxxx Xxxxxxxx
LLP or
other independent public accountants of recognized national standing (without
a
βgoing concernβ or like qualification or exception and without any qualification
or exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its Subsidiaries
on a
consolidated basis in accordance with GAAP;
Β
55
Β
(b)Β Β on
the
date that is the earliest of (i) the date on which the same shall have
been
filed with the SEC, (ii) the date the same are required to be filed with
the SEC
(without regard to any extension of the SECβs filing requirements) and (iii) the
day which is 60 days after the end of each of the first three quarterly
periods
of each fiscal year of the Borrower, the consolidated balance sheets and
related
consolidated statements of income and cash flows of the Borrower and its
Subsidiaries as of the end of and for such fiscal quarter and the then
elapsed
portion of the fiscal year, setting forth in each case in comparative form
the
figures for (or, in the case of the balance sheet, as of the end of) the
corresponding period or periods of the previous fiscal year, all certified
by a
Financial Officer of the Borrower as presenting fairly in all material
respects
the financial condition and results of operations of the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP, subject to
normal
year-end audit adjustments and the absence of footnotes;
Β
(c)Β Β concurrently
with any delivery of financial statements under paragraph (a) orΒ (b) of
this Section, a certificate of a Financial Officer of the Borrower
(i)Β certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed
to be
taken with respect thereto, (ii)Β setting forth reasonably detailed
calculations demonstrating compliance with Sections 7.01, 7.06 and 7.11
and
(iii)Β stating whether any change in GAAP or in the application thereof has
occurred since the date of the audited financial statements referred to
in
SectionΒ 4.04 and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such
certificate;
Β
(d)Β Β concurrently
with any delivery of financial statements under paragraphΒ (a) of this
Section, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of
their
examination of such financial statements of any Event of Default arising
as a
result of non-compliance with Article VII, including Section 7.11 (which
certificate may be limited to the extent required by accounting rules or
guidelines);
Β
(e)Β Β promptly
upon receipt thereof, copies of all other reports submitted to the Borrower
by
its independent certified public accountants in connection with any annual
or
interim audit or review of the books of the Borrower made by such
accountants;
Β
(f)Β Β annually,
as soon as available, but in any event within 120 days after the last day
of
each fiscal year of the Borrower, consolidated and consolidating projections
of
the Borrower and its Subsidiaries for the following five fiscal years of
the
Borrower;
Β
(g)Β Β promptly
following receipt thereof, copies of any documents described in Sections
101(k)
or 101(l) of ERISA that any Group Member or any ERISA Affiliate may request
with
respect to any Multiemployer Plan; provided, that if the Loan Parties or
any of
their ERISA Affiliates have not requested such documents or notices from
the
administrator or sponsor of the applicable Multiemployer Plan, then, upon
reasonable request of the Administrative Agent, the Group Members and/or
their
ERISA Affiliates shall promptly make a request for such documents or notices
from such administrator or sponsor and the Borrower shall provide copies
of such
documents and notices promptly after receipt thereof; and
Β
56
Β
(h)Β Β if
applicable, promptly after the same become publicly available, copies of
all
periodic and other reports, proxy statements and other materials filed
by any
Group Member with the SEC, or any Governmental Authority succeeding to
any or
all of the functions of said Commission, or with any national securities
exchange, or distributed by the Borrower to its shareholders generally,
as the
case may be;
Β
(i)Β Β promptly
following any request therefor, such other information regarding the operations,
business affairs and financial condition of any Group Member, or compliance
with
the terms of this Agreement and the other Loan Documents, as the Administrative
Agent or any Lender may reasonably request.
Β
Documents
required to be delivered pursuant to Sections 6.01(a), (b) or, if applicable
(h)
(to the extent any such documents are included in materials otherwise filed
with
the SEC) shall be deemed to have been delivered on the date (i) on which
the
Borrower posts such documents or provides a link thereto on the Borrowerβs
website or (ii) on which such documents are posted on the Borrowerβs behalf on
Intralinks/IntraAgency or another relevant 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
Borrower shall notify the Administrative Agent (by telecopier or electronic
mail) of the posting of any such documents and provide the Administrative
Agent
with electronic mail versions of such documents.
Β
SECTION
6.02Β Β Notices
of Material Events.
The
Borrower will furnish to the Administrative Agent and each Lender prompt
written
notice of the following:
Β
(a)Β Β the
occurrence of any Default;
Β
(b)Β Β the
filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower
or any of
its Affiliates, other than disputes in the ordinary course of business
or,
whether or not in the ordinary of business, disputes involving amounts
exceeding
$7,500,000 (excluding, however, any actions relating to workersβ compensation
claims or negligence claims relating to use of motor vehicles, if fully
covered
by insurance, subject to deductibles);
Β
(c)Β Β the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability
of the Borrower and any of its ERISA Affiliates in an aggregate amount
exceeding
$20,000,000;
Β
(d)Β Β the
assertion of any environmental claim by any Person against, or with respect
to
the activities of, the Borrower or any other Group Member and any alleged
violation of or non-compliance with any Environmental Laws or any permits,
licenses or authorizations, other than any environmental claim or alleged
violation that, alone or together with any other such matters that have
occurred, could reasonably be expected to result in liability of the Group
Members in an aggregate amount exceeding $5,000,000; and
Β
57
Β
(e)Β Β any
other
development that results in, or could reasonably be expected to result
in, a
Material Adverse Effect.
Β
Each
notice delivered under this Section shall be accompanied by a statement
of a
Financial Officer or other executive officer of the Borrower setting forth
the
details of the event or development requiring such notice and any action
taken
or proposed to be taken with respect thereto.
Β
SECTION
6.03Β Β Existence;
Conduct of Business.
Each of
Holdings and the Borrower will, and will cause each of its Subsidiaries
to, do
or cause to be done all things necessary to preserve, renew and keep in
full
force and effect its legal existence and the rights, licenses, permits,
privileges and franchises material to the conduct of its business; provided
that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under SectionΒ 7.03.
Β
SECTION
6.04Β Β Payment
of Obligations.
Each of
Holdings and the Borrower will, and will cause each of its Subsidiaries
to, pay
its obligations, including tax liabilities, that, if not paid, could result
in a
Material Adverse Effect before the same shall become delinquent or in default,
except where (a)Β the validity or amount thereof is being contested in good
faith by appropriate proceedings, (b)Β Holdings, the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect thereto
in
accordance with GAAP and (c)Β the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse
Effect.
Β
SECTION
6.05Β Β Maintenance
of Properties.
The
Borrower will, and will cause each of its Subsidiaries to, keep and maintain
all
property material to the conduct of its business in good working order
and
condition, ordinary wear and tear excepted.
Β
SECTION
6.06Β Β Maintenance
of Insurance.
Each of
Holdings and the Borrower will, and will cause each of its Subsidiaries
to,
maintain, with financially sound and reputable insurance companies, insurance
in
such amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations; provided
that the
Borrower may maintain self-insurance consistent with its past practices
and
policies.
Β
SECTION
6.07Β Β Books
and Records.
Each of
Holdings and the Borrower will, and will cause each of its Subsidiaries
to, keep
proper books of record and account in which full, true and correct entries
in
all material respects are made of all dealings and transactions in relation
to
its business and activities.
Β
SECTION
6.08Β Β Inspection
Rights.
Each of
Holdings and the Borrower will, and will cause each of its Subsidiaries
to,
permit any representatives designated by the Administrative Agent or any
Lender,
upon reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all
at
such reasonable times and as often as reasonably requested; provided
that
such visit or discussions shall be at the expense of the Administrative
Agent or
any Lender, as applicable, unless a Default has occurred and is continuing
in
which case the expenses of the Administrative Agent or any Lender, as
applicable, in connection therewith shall be paid or reimbursed by the
Borrower.
Β
58
Β
SECTION
6.09Β Β Compliance
with Laws and Contractual Obligations.
Each of
Holdings and the Borrower will, and will cause each of its Subsidiaries
to,
comply with all Requirements of Law (including any Environmental Laws)
applicable to it or its property, and all Contractual Obligations binding
upon
it or its property, except where the failure to do so, individually or
in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Β
SECTION
6.10Β Β Use
of
Proceeds and Letters of Credit.
The
proceeds of the Loans, and the Letters of Credit issued hereunder, will
only be
used by the Borrower (i) to make loans to the Parent expressly permitted
under
Section 7.06(h) and Restricted Payments to Holdings expressly permitted
under
Section 7.07 and (ii) to finance the working capital needs and general
corporate
purposes of the Borrower and its Subsidiaries. No part of the proceeds
of any
Loan will be used, whether directly or indirectly, for any purpose that
entails
a violation of any of the Regulations of the Board, including RegulationsΒ U
andΒ X.
Β
SECTION
6.11Β Β Collateral;
Further Assurances.
Β
(a)Β Β New
Property.
With
respect to any property acquired after the Effective Date by any Group
Member
(other than (i) any property described in paragraph (c) or (d) of this
Section,
(ii) any property subject to a Lien expressly permitted by Section 7.02(d),
(e)
or (f), (iii) property acquired by any Excluded Foreign Subsidiary or Immaterial
Subsidiary and (iv) real property (including leased real property)) as
to which
the Administrative Agent, for the benefit of the Secured Parties, does
not have
a perfected Lien, the Borrower will, and will cause each of its Subsidiaries
to,
promptly, (A) execute and deliver to the Administrative Agent such amendments
to
the Guarantee and Collateral Agreement or such other documents as the
Administrative Agent reasonably deems necessary to grant to the Administrative
Agent, for the benefit of the Secured Parties, a security interest in such
property and (B) take all actions reasonably necessary to grant to the
Administrative Agent, for the benefit of the Secured Parties, a perfected
first
priority security interest in such property (subject to Permitted Liens),
including the filing of Uniform Commercial Code financing statements in
such
jurisdictions as may be reasonably required by the Guarantee and Collateral
Agreement or by law or as reasonably may be requested by the Administrative
Agent.
Β
(b)Β Β Parent
Real Estate Assets.
If the
Parent Real Estate Assets are not subject to a Lien equal to at least 50%
of
fair market value of the Parent Real Estate Assets within six months after
acquisition thereof by the Borrower, then the Borrower will as soon as
reasonably practicable (i) execute and deliver a first priority mortgage,
in
customary and reasonable form, in favor of the Administrative Agent, for
the
benefit of the Secured Parties, covering such real property, (ii) if requested
by the Administrative Agent, provide the Secured Parties with (x) title
and
extended coverage insurance covering such real property in an amount at
least
equal to the purchase price of such real property (or such other amount
as shall
be reasonably specified by the Administrative Agent, but such amount shall
not
be more than 110% of the allocated purchase price to such Parent Real Estate
Asset) as well as a current ALTA survey thereof, together with a surveyorβs
certificate and (y) any consents or estoppels reasonably deemed necessary
by the
Administrative Agent in connection with such mortgage, each of the foregoing
in
form and substance reasonably satisfactory to the Administrative Agent
and (iii)
if requested by the Administrative Agent, deliver to the Administrative
Agent
legal opinions relating to the matters described above, which opinions
shall be
in customary form and substance, and from counsel, reasonably satisfactory
to
the Administrative Agent.
Β
59
Β
(c)Β Β New
Subsidiary.
With
respect to any new Subsidiary (other than an Excluded Foreign Subsidiary
or an
Immaterial Subsidiary) created or acquired after the Effective Date by
the
Borrower or any of its Subsidiaries (which, for the purposes of this paragraph,
shall include any existing Subsidiary that ceases to be an Excluded Foreign
Subsidiary or an Immaterial Subsidiary), the Borrower will, and will cause
each
of its Subsidiaries to, promptly (i) execute and deliver to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement as the
Administrative Agent reasonably deems necessary to grant to the Administrative
Agent, for the benefit of the Secured Parties, a perfected first priority
security interest in the Capital Stock of such new Subsidiary that is owned
by
the Borrower or any of its Subsidiaries, as applicable, (ii) deliver to
the
Administrative Agent the certificates representing such Capital Stock,
together
with undated stock powers, in blank, executed and delivered by a duly authorized
officer of the Borrower or any of its Subsidiaries, as applicable, (iii)
cause
such new Subsidiary (A) to become a party to the Guarantee and Collateral
Agreement, (B) to take such actions reasonably necessary to grant to the
Administrative Agent, for the benefit of the Secured Parties, a perfected
first
priority security interest in the Collateral described in the Guarantee
and
Collateral Agreement with respect to such new Subsidiary, including the
filing
of Uniform Commercial Code financing statements in such jurisdictions as
reasonably may be required by the Guarantee and Collateral Agreement or
by law
or as reasonably may be requested by the Administrative Agent and (C) to
deliver
to the Administrative Agent a closing certificate of such new Subsidiary,
which
certificate shall be in the form and substance reasonably satisfactory
to the
Administrative Agent, and (iv) if requested by the Administrative Agent,
deliver
to the Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in customary form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
Β
(d)Β Β Excluded
Foreign Subsidiaries.
With
respect to any new Excluded Foreign Subsidiary created or acquired after
the
Effective Date by the Borrower or any of its Subsidiaries (other than by
any
Excluded Foreign Subsidiary or any Immaterial Subsidiary), the Borrower
will,
and will cause each of its Subsidiaries to, promptly (i) execute and deliver
to
the Administrative Agent such amendments to the Guarantee and Collateral
Agreement as the Administrative Agent reasonably deems necessary to grant
to the
Administrative Agent, for the benefit of the Secured Parties, a perfected
first
priority security interest in the Capital Stock of such new Subsidiary
that is
owned by the Borrower or any of its Subsidiary (provided
that in
no event shall more than 66% of the total outstanding voting Capital Stock
of
any such new Excluded Foreign Subsidiary be required to be so pledged),
(ii)
deliver to the Administrative Agent the certificates representing such
pledged
Capital Stock, together with undated stock powers, in blank, executed and
delivered by a duly authorized officer of the Borrower or its Subsidiary,
as
applicable, and take such other action as reasonably may be necessary to
perfect
the Administrative Agentβs security interest therein, and (iii) if requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in customary
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
Β
60
Β
(e)Β Β Further
Assurances.
The
Borrower will, and will cause each of its Subsidiaries to, take such action
from
time to time as shall reasonably be requested by the Administrative Agent
to
effectuate the purposes and objectives of this Agreement including this
Section,
and the other Loan Documents.
Β
ARTICLE
VII
NEGATIVE
COVENANTS
Β
Until
the
Commitments have expired or terminated and the principal of and interest
on each
Loan and all fees payable hereunder have been paid in full and all Letters
of
Credit have expired or terminated and all LCΒ Disbursements shall have been
reimbursed, each of Holdings and the Borrower covenants and agrees with
the
Lenders that:
Β
SECTION
7.01Β Β Indebtedness;
Guarantees.
Β
(a)Β Β The
Borrower will not, and will not permit any of its Subsidiaries to, create,
incur, assume or permit to exist any Indebtedness, except:
Β
(i)Β Β Indebtedness
of any Loan Party pursuant to any Loan Document (including, without limitation,
any additional Indebtedness incurred pursuant to any Commitment
Increase);
Β
(ii)Β Β Indebtedness
of the Borrower to any other Group Member and of any Subsidiary to any
other
Group Member; provided
Indebtedness of Group Members which are not Loan Parties to Group Members
which
are Loan Parties must also be expressly permitted by Section 7.06(d) or
(s);
Β
(iii)Β Β Indebtedness
outstanding on the date hereof and listed on Schedule 7.01(a) and any
refinancings, refundings, renewals, replacement, waivers, amendments, amendments
and restatements or extensions thereof (without increasing, or shortening
the
maturity of, the principal amount thereof);
Β
(iv)Β Β Indebtedness
(including, without limitation, Capital Lease Obligations) secured by Liens
expressly permitted by Section 7.02(e) in an aggregate principal amount
not to
exceed $20,000,000 at any one time outstanding;
Β
(v)Β Β Guarantees
expressly permitted by Section 7.01(b);
Β
(vi)Β Β Indebtedness
secured by Liens expressly permitted under Section 7.02(g) not exceeding
$20,000,000 in the aggregate at any one time outstanding;
Β
(vii)Β Β Indebtedness
arising from the endorsement of instruments, the honoring by a bank or
other
financial institution of a check, draft or similar instrument inadvertently
drawn in the ordinary course of business against insufficient funds, or
in
respect of netting services, overdraft protections or otherwise in connection
with the operation of customary deposit accounts in the ordinary course
of
business;
Β
61
Β
(viii)Β Β Indebtedness
with respect to (A) property casualty or liability insurance, (B) financing
of
insurance premiums with the providers of such insurance or their Affiliates,
(C)
take-or-pay obligations in supply arrangements consistent with past practice,
(D) self-insurance obligations, (E) performance, bid, surety, custom, utility
and advance payment bonds, or (F) performance and completion guaranties,
in each
case, in the ordinary course of business;
Β
(ix)Β Β Indebtedness
arising from agreements providing for indemnification or similar obligations
in
each case incurred in connection with an acquisition or other Investment
expressly permitted by Section 7.06 or any disposition expressly permitted
by
Section 7.04;
Β
(x)Β Β Indebtedness
in the form of customary obligations under indemnification, incentive,
non-compete, consulting, deferred compensation, earn-out (based on the
income of
the assets acquired after the acquisition thereof) or other customary similar
arrangements otherwise permitted hereunder;
Β
(xi)Β Β Indebtedness
resulting from judgments not resulting in an Event of Default under paragraph
(k) of Article VIII;
Β
(xii)Β Β Indebtedness
resulting from unfunded pension fund and other employee benefit plan obligations
and liabilities to the extent that they are permitted to remain unfunded
under
applicable law;
Β
(xiii)Β Β Indebtedness
resulting from Swap Agreements permitted hereunder;
Β
(xiv)Β Β Indebtedness
consisting of guaranties of loans made to officers, directors or employees
of
any Group Member in an aggregate amount which shall not exceed $2,000,000
at any
one time outstanding;
Β
(xv)Β Β Indebtedness
that is unsecured so long as, after giving effect to the incurrence of
such
Indebtedness on a pro forma basis, (A) the Borrower is in compliance with
Section 7.11 as of the end of the most recent fiscal quarter for which
financial
statements have been delivered and (B) no Default shall have occurred and
be
continuing, and, without limiting any of the forgoing, any refinancings,
refundings, renewals, replacement, waivers, amendments, amendments and
restatements or extensions thereof (without increasing, or shortening the
maturity of, the principal amount thereof); and
Β
(xvi)Β Β in
addition to Indebtedness otherwise expressly permitted by this Section,
Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
principal amount not to exceed $10,000,000 at any one time outstanding.
Β
(b)Β Β The
Borrower will not, and will not permit any of its Subsidiaries to, assume,
endorse, be or become liable for, or Guarantee, the obligations of any
other
Person (except by the endorsement of negotiable instruments for deposit
or
collection in the ordinary course of business), except for:
Β
62
Β
(i)Β Β Guarantees
existing on the date hereof and set forth on Schedule 7.01(b);
Β
(ii)Β Β Guarantees
by the Borrower or any Subsidiary of obligations of the Borrower or any
Subsidiary Guarantor (including, without limitation, all Indebtedness expressly
permitted under Section 7.01(a));
Β
(iii)Β Β Guarantees
by a Subsidiary of obligations of Holdings or the Borrower under leases
for real
or personal property, provided
that
such Subsidiary will utilize all or a portion of such property;
Β
(iv)Β Β Guarantees
by any Group Member of Indebtedness expressly permitted under Section
7.01(vi);
Β
(v)Β Β Guarantees
by the Borrower or any Subsidiary of obligations of the Parent arising
as a
result of the Parent Letters of Credit; and
Β
(vi)Β Β in
addition to Guarantees otherwise expressly permitted by this Section, Guarantees
of the Borrower and its Subsidiaries not to exceed $10,000,000 at any one
time
outstanding.
Β
SECTION
7.02Β Β Liens.
The
Borrower will not, and will not permit any of its Subsidiaries to, create,
incur, assume or permit to exist any Lien on any property or asset now
owned or
hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:
Β
(a)Β Β Liens
created pursuant to the Loan Documents;
Β
(b)Β Β Permitted
Liens;
Β
(c)Β Β any
Lien
on any property or asset of the Borrower or any of its Subsidiaries existing
on
the date hereof and set forth on ScheduleΒ 7.02 (excluding, however,
following the making of the initial Loans hereunder as of the Effective
Date,
Liens securing Indebtedness to be repaid with the proceeds of such Loans,
as
indicated on ScheduleΒ 7.02); provided
that
(i)Β no such Lien shall extend to any other property or asset of the
Borrower or any of its Subsidiaries and (ii)Β any such Lien shall secure
only those obligations which it secures on the date hereof and extensions,
renewals, replacements and combinations thereof that do not increase the
outstanding principal amount thereof or commitment therefor, in each case,
as in
effect on the date hereof;
Β
(d)Β Β any
Lien
existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any
Person
that becomes a Subsidiary after the date hereof prior to the time such
Person
becomes a Subsidiary (including in connection with a Permitted Acquisition);
provided
that
(i)Β such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be,
(ii)Β such Lien shall not apply to any other property or assets of the
Borrower or any Subsidiary and (iii)Β such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such
Person becomes a Subsidiary, as the case may be and extensions, renewals
and
replacements thereof that do not increase the original outstanding principal
amount thereof;
Β
63
Β
(e)Β Β Liens
on
fixed or capital assets acquired, constructed or improved by the Borrower
or any
Subsidiary; provided
that
(i)Β such security interests secure Indebtedness expressly permitted by
SectionΒ 7.01, (ii)Β such security interests and the Indebtedness
secured thereby are incurred prior to or within six months after such
acquisition or the completion of such construction or improvement,
(iii)Β the Indebtedness secured thereby does not exceed 100% of the cost of
acquiring, constructing or improving such fixed or capital assets and
(iv)Β such security interests shall not apply to any other property or
assets of the Borrower or any Subsidiary;
Β
(f)Β Β Liens
on
specifically identified inventory and accounts receivable covered by bankersβ
acceptances resulting from import letters of credit which do not cover
any
assets other than those financed with such bankersβ acceptances;
Β
(g)Β Β Liens
on
the Parent Real Estate Asset securing Indebtedness not exceeding $20,000,000
in
the aggregate at any time outstanding; and
Β
(h)Β Β additional
Liens not otherwise expressly permitted by this Section on any property
or asset
of the Borrower or any Subsidiary in an aggregate amount not exceeding
$7,500,000.
Β
SECTION
7.03Β Β Mergers,
Consolidations, Etc.
The
Borrower will not, and will not permit any of its Subsidiaries to, enter
into
any transaction of merger or consolidation or amalgamation, or liquidate,
wind
up or dissolve itself (or suffer any liquidation or dissolution), except
that
(i) any Subsidiary of the Borrower may be merged or consolidated with or
into
the Borrower (provided
that the
Borrower shall be the continuing or surviving corporation) or with or into
any
Subsidiary Guarantor (provided
that the
Subsidiary Guarantor shall be the continuing or surviving corporation),
(ii) any
other Subsidiary which is not a Loan Party may be merged or consolidated
with or
into any other Subsidiary and (ii) the Borrower or any of its Subsidiaries
may
make Permitted Acquisitions.
Β
SECTION
7.04Β Β Dispositions.
The
Borrower will not, and will not permit any of its Subsidiaries to, convey,
sell,
lease, transfer or otherwise dispose of, in one transaction or a series
of
transactions, any part of its business or property, whether now owned or
hereafter acquired (including receivables and leasehold interests),
except:
Β
(a)Β Β obsolete
or worn-out property, tools or equipment no longer used or useful in its
business;
Β
(b)Β Β any
inventory or other property sold or disposed of in the ordinary course
of
business and for fair consideration;
Β
(c)Β Β any
Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose
of any
or all of its property (upon voluntary liquidation or otherwise) to the
Borrower
or any Subsidiary (provided
that, in
the case of any such transfer by a Subsidiary Guarantor, the transferee
must
also be a Subsidiary Guarantor or the Borrower);
Β
64
Β
(d)Β Β the
Capital Stock of any Subsidiary of the Borrower may be sold, transferred
or
otherwise disposed of to the Borrower or any other Subsidiary (provided
that, in
the case of any such transfer by a Subsidiary Guarantor, the transferee
must
also be a Subsidiary Guarantor or the Borrower);
Β
(e)Β Β the
Borrower or any Subsidiary may sell, lease, transfer or otherwise dispose
of (i)
its property and assets the fair market value of which does not exceed
in the
aggregate in any fiscal year 5% of the consolidated assets of the Borrower
and
its Subsidiaries as of the end of the immediately preceding fiscal year
(for
which financial statements have been delivered) of the Borrower for fair
consideration and (ii) the Capital Stock of any Subsidiary (x) the net
revenues
of which do not exceed in the aggregate in any fiscal year 5% of the
consolidated net revenues of the Borrower and its Subsidiaries or (y) the
assets
of which do not exceed in the aggregate in any fiscal year 10% of the
consolidated assets of the Borrower and its Subsidiaries, in each case,
as of
the end of the immediately preceding fiscal year (for which financial statements
have been delivered) of the Borrower for fair consideration;
Β
(f)Β Β the
cross-licensing or licensing of intellectual property, in the ordinary
course of
business;
Β
(g)Β Β the
dispositions expressly permitted by Section 7.03;
Β
(h)Β Β
the
leasing, occupancy or sub-leasing of real property in the ordinary course
of
business that would not materially interfere with the required use of such
real
property by the Borrower or its Subsidiaries;
Β
(i)Β Β the
sale
or discount, in the ordinary course of business, of overdue accounts receivable
arising in the ordinary course of business, in connection with the compromise
or
collection thereof;
Β
(j)Β Β transfers
of condemned property as a result of the exercise of βeminent domainβ or other
similar policies to the respective Governmental Authority or agency that
has
condemned the same (whether by deed in lieu of condemnation or otherwise),
and
transfers of properties that have been subject to a casualty to the respective
insurer of such property as part of an insurance settlement;
Β
(k)Β Β Liens
expressly permitted by Section 7.02;
Β
(l)Β Β Restricted
Payments expressly permitted by Section 7.07; and
Β
(m)Β Β the
disposition of intercompany obligations expressly permitted by Section
7.06(e).
Β
SECTION
7.05Β Β Lines
of Business.
The
Borrower will not, and will not permit any of its Subsidiaries to, engage
to any
material extent in any business other than businesses of the type conducted
by
the Borrower and its Subsidiaries on the date hereof and businesses reasonably
related thereto.
Β
65
Β
SECTION
7.06Β Β Investments
and Acquisitions.
The
Borrower will not, and will not permit any of its Subsidiaries to, make
or
suffer to exist any Investment in any Person or purchase or otherwise acquire
(in one transaction or a series of transactions) any assets of any other
Person
constituting a business unit, except:
Β
(a)Β Β Permitted
Investments;
Β
(b)Β Β Guarantees
expressly permitted by SectionΒ 7.01(b) and any payments made in respect of
such Guarantees;
Β
(c)Β Β Investments
(other than Investments expressly permitted under paragraph (a) and (b)
of this
Section) existing on the date hereof and set forth on Schedule
7.06;
Β
(d)Β Β Investments
by (i) the Borrower in any Subsidiary Guarantor or by any Subsidiary in
any
Subsidiary Guarantor or in the Borrower; (ii) any Subsidiary (that is not
a Loan
Party) in any Subsidiary (that is not a Loan Party) and (iii) any Loan
Party in
a Subsidiary (that is not a Loan Party) not exceeding in the aggregate
$1,000,000;
Β
(e)Β Β the
acquisition of the Capital Stock of the Parent Real Estate Subsidiaries
or the
Parent Real Property Assets from the Parent for consideration not exceeding
the
fair market value thereof as determined pursuant to the appraisals by Xxxxxx
& Xxxxxx Appraisers, Inc., dated October 17, 2007, which consideration may
consist of cash or setoff of intercompany obligations;
Β
(f)Β Β the
Borrower and its Subsidiaries may make Permitted Acquisitions;
Β
(g)Β Β purchases
of inventory and other property to be sold or used in the ordinary course
of
business;
Β
(h)Β Β one
or
more loans to the Parent not exceeding in the aggregate $15,000,000 at
any one
time outstanding; provided
that the
foregoing limit shall be reduced to $5,000,000 on the day which is 10 Business
Days after Clopay Corporation and/or its Subsidiaries or Affiliates (other
than
the Borrower and its Subsidiaries) enter into new senior secured credit
facilities after the Effective Date;
Β
(i)Β Β any
Restricted Payments expressly permitted by Section 7.07;
Β
(j)Β Β extensions
of trade credit in the ordinary course of business;
Β
(k)Β Β Investments
arising in connection with the incurrence of Indebtedness expressly permitted
by
Section 7.01(a);
Β
(l)Β Β Investments
(including debt obligations) received in the ordinary course of business
by the
Borrower or any Subsidiary in connection with the bankruptcy or reorganization
of suppliers and customers and in settlement of delinquent obligations
of, and
other disputes with, customers and suppliers arising out of the ordinary
course
of business;
Β
66
Β
(m)Β Β
Investments of the Borrower or any Subsidiary under Swap Agreements permitted
hereunder;
Β
(n)Β Β Investments
of any Person in existence at the time such Person becomes a Subsidiary
pursuant
to a transaction expressly permitted by any other paragraph of this Section;
provided
that
such Investment was not made in connection with or anticipation of such
Person
becoming a Subsidiary;
Β
(o)Β Β Investments
resulting from pledges and deposits referred to in paragraphs (b) and (c)
of the
definition of βPermitted Liensβ;
Β
(p)Β Β the
forgiveness or conversion to equity of any Indebtedness expressly permitted
by
Section 7.01(a)(ii);
Β
(q)Β Β negotiable
instruments and deposits held in the ordinary course of business;
Β
(r)Β Β acquisitions
in an aggregate amount not to exceed $10,000,000 in any fiscal year;
provided
that
with respect to acquisitions of Foreign Subsidiaries and/or assets located
outside the United States of America, the aggregate consideration paid
in
connection therewith shall not exceed $5,000,000 in any fiscal year;
and
Β
(s)Β Β in
addition to Investments otherwise expressly permitted by this Section,
Investments not exceeding in the aggregate $7,500,000.
Β
SECTION
7.07Β Β Restricted
Payments.
The
Borrower will not, and will not permit any of its Subsidiaries to, declare
or
make, or agree to pay or make, directly or indirectly, any Restricted Payment,
except:
Β
(a)Β Β the
Borrower may declare and pay dividends with respect to its Capital Stock
payable
solely in additional shares of its Capital Stock;
Β
(b)Β Β the
Borrower may declare and pay to Holdings (for distribution to the Parent,
if
applicable) dividends, or make other payments, to pay the Borrowerβs allocated
share of overhead and expenses incurred by the Parent or Holdings (other
than
interest expense); provided
that
such amounts are used for such purposes within 60 days after such amounts
are
paid;
Β
(c)Β Β the
Borrower may declare and pay to Holdings dividends, the proceeds of which
will
be used to pay, or to make payments to allow Parent, to pay Taxes (including
in
respect of any consolidated, combined, unitary or affiliated group or Tax
Returns of Holdings, the Borrower or any of its Subsidiaries) attributable
to
Borrower and its Subsidiaries, determined as if Borrower and its Subsidiaries
filed separately; provided
that, in
each case, the amount of such payments in any year does not exceed the
amount
that Borrower and its Subsidiaries would be required to pay in respect
of
federal, state and/or local income Taxes, as applicable, for such year
were the
Borrower and its Subsidiaries required to pay such taxes separately from
the
Parent, less the amount of any such taxes paid directly by the Borrower
or its
Subsidiaries; provided
that
such amounts are used for such purposes within 60 days after such amounts
are
paid.
Β
67
Β
(d)Β Β the
Borrower may declare and pay dividends, or make other payments, to Holdings
(for
distribution to the Parent, if applicable) to provide for cash collateral
for
the Parent Letters of Credit equal to 105% of the face amount of such Parent
Letters of Credit; and
Β
(e)Β Β the
Borrower may pay a cash dividend to Holdings on the Closing Date, and Holdings
may pay a cash dividend to the Parent on the Closing Date, in an amount
not to
exceed $50,000,000; and
Β
(f)Β Β the
Borrower may declare and pay to Holdings dividends, or make other payments,
not
otherwise permitted hereunder in an aggregate amount not to exceed $10,000,000
in any fiscal year so long as, after giving effect thereto, (i) the Consolidated
Leverage Ratio for the period of the four consecutive fiscal quarters of
the
Borrower most recently ended prior to such Restricted Payment for which
financial statements have been delivered does not exceed 1.50 to 1.0 and
(ii) no
Default shall have occurred and be continuing.
Β
provided
that
nothing herein shall be deemed to prohibit the payment of dividends by
any
Subsidiary of the Borrower to the Borrower, any other Subsidiary of the
Borrower
or, if applicable, any minority shareholder of such Subsidiary (in accordance
with the percentage of the Capital Stock of such Subsidiary owned by such
minority shareholder).
Β
SECTION
7.08Β Β Transactions
with Affiliates.
The
Borrower will not, and will not permit any of its Subsidiaries to, sell,
lease
or otherwise transfer any property or assets to, or purchase, lease or
otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except:
Β
(a)Β Β transactions
in the ordinary course of business at prices and on terms and conditions
not
less favorable to the Borrower or such Subsidiary than could be obtained
on an
armβs-length basis from a Person that is not an Affiliate;
Β
(b)Β Β payments
of management fees to the Parent pursuant to the Management Agreement in
an
aggregate amount not to exceed, in any fiscal year, the greater of (i)
$250,000
or (ii) 7.5% of the Consolidated Pre-tax Income;
Β
(c)Β Β transactions
between or among the Borrower and its wholly-owned Subsidiaries not involving
any other Affiliate;
Β
(d)Β Β any
Investments permitted by Section 7.06;
Β
(e)Β Β any
Restricted Payment permitted by SectionΒ 7.07; and
Β
(f)Β Β any
Affiliate who is a natural person may serve as an employee or director
of the
Borrower and receive reasonable compensation for his services in such
capacity.
Β
SECTION
7.09Β Β Restrictive
Agreements.
The
Borrower will not, and will not permit any of its Subsidiaries to, directly
or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a)Β the
ability of the Borrower or any Subsidiary to create, incur or permit to
exist
any Lien upon any of its property or assets, or (b)Β the ability of any
Subsidiary to pay dividends or other distributions with respect to any
shares of
its Capital Stock or to make or repay loans or advances to the Borrower
or any
other Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary; except:
Β
68
Β
(a)Β Β restrictions
and conditions imposed by law or by this Agreement;
Β
(b)Β Β restrictions
and conditions existing on the date hereof identified on ScheduleΒ 7.09 (but
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition);
Β
(c)Β Β customary
restrictions and conditions contained in agreements relating to the sale
of a
Subsidiary pending such sale, provided
that
such restrictions and conditions apply only to the Subsidiary that is to
be sold
and such sale is permitted hereunder; and
Β
(d)Β Β (with
respect to paragraphΒ (a) above) (i)Β restrictions or conditions imposed
by any agreement relating to secured Indebtedness permitted by this Agreement
if
such restrictions or conditions apply only to the property or assets securing
such Indebtedness and (ii)Β customary provisions in leases and other
contracts restricting the assignment thereof.
Β
SECTION
7.10Β Β Swap
Agreements.
The
Borrower will not, and will not permit any of its Subsidiaries to, enter
into
any Swap Agreement, other than Swap Agreements entered into in the ordinary
course of business to hedge or mitigate risks to which the Borrower or
any
Subsidiary is exposed in the conduct of its business or the management
of its
liabilities.
Β
SECTION
7.11Β Β Financial
Covenants.
Β
(a)Β Β Consolidated
Leverage Ratio.
The
Borrower will not permit the Consolidated Leverage Ratio as at the last
day of
any period of four consecutive fiscal quarters of the Borrower to exceed,
with
respect to any period on or before March 31, 2010, 3.00 to 1.0, with respect
to
any period after March 31, 2010, but on or before March 31, 2012, 2.75
to 1.0,
and with respect to any period after March 31, 2012, but on or before the
Commitment Termination Date, 2.50 to 1.0.
Β
(b)Β Β Consolidated
Fixed Charges Ratio.
The
Borrower will not permit the Consolidated Fixed Charge Coverage Ratio for
any
period of four consecutive fiscal quarters of the Borrower to be less than
4.00
to 1.0.
Β
(c)Β Β Consolidated
Net Worth.
The
Borrower will not permit the Consolidated Net Worth at any time to be less
than
the sum of (i) $150,000,000 (less the amount of any dividend paid on the
Closing
Date pursuant to Section 7.07(e)) and (ii) 50% of Consolidated Net Income
of the
Borrower and its Subsidiaries for each fiscal quarter of the Borrower (beginning
with the fiscal quarter ending March 31, 2008) for which such Consolidated
Net
Income is positive.
Β
SECTION
7.12Β Β Stock
Issuance.
The
Borrower will not, and will not permit any of its Subsidiaries to, issue
any
additional shares, or any right or option to acquire any shares or any
security
convertible into any shares, of the Capital Stock of any Subsidiary, except
(a)
in connection with dividends in Capital Stock permitted by Section 7.07
and (b)
to the Borrower or a Subsidiary.
Β
69
Β
SECTION
7.13Β Β Modifications
of Certain Documents.
The
Borrower will not, and will not permit any of its Subsidiaries to, consent
to
any modification, amendment, supplement or waiver of any of the provisions
of
the charter, by-laws or other organizational documents of the Borrower
or any of
its Subsidiaries, the Management Agreement or any other agreement or instrument
to which the Borrower or any of its Subsidiaries is a party or is bound
that
could reasonably be expected to have a Material Adverse Effect, in each
case,
without the prior consent of the Administrative Agent (with the approval
of the
Required Lenders).
Β
SECTION
7.14Β Β Passive
Holding Company Status.
Holdings will not (i) conduct, transact or otherwise engage in, or commit
to
conduct, transact or otherwise engage in, any business or operations other
than
those incidental to its ownership of the Capital Stock of the Borrower
and
Holdingsβ other Subsidiaries, (ii) incur, create, assume or suffer to exist any
Indebtedness or other liabilities or financial obligations, except (x)
nonconsensual obligations imposed by operation of law, (y) obligations
pursuant
to the Loan Documents to which it is a party and (z) obligations with respect
to
its Capital Stock, or (iii) own, lease, manage or otherwise operate any
properties or assets (other than cash, cash equivalents or other than the
ownership of shares of Capital Stock of the Borrower or Holdingsβ other
Subsidiaries).
Β
ARTICLE
VIII
EVENTS
OF DEFAULTΒ
Β
If
any of
the following events (βEvents
of Defaultβ)
shall
occur:
Β
(a)Β Β the
Borrower shall fail to pay any principal of any Loan when and as the same
shall
become due and payable in accordance with the terms hereof, whether at
the due
date thereof or at a date fixed for prepayment thereof or
otherwise;
Β
(b)Β Β the
Borrower shall fail to pay any reimbursement obligation in respect of any
LCΒ Disbursement or any interest on any Loan or any fee or any other amount
(other than an amount referred to in paragraphΒ (a) of this Article) payable
under this Agreement or under any other Loan Document, when and as the
same
shall become due and payable in accordance with the terms hereof, and such
failure shall continue unremedied for a period of five or more Business
Days;
Β
(c)Β Β any
representation or warranty made or deemed made by or on behalf of the Borrower
or any of its Subsidiaries in or in connection with this Agreement or any
other
Loan Document or any amendment or modification hereof or thereof, or in
any
report, certificate, financial statement or other document furnished pursuant
to
or in connection with this Agreement or any other Loan Document or any
amendment
or modification hereof or thereof, shall prove to have been false or misleading
when made or deemed made in any material respect;
Β
(d)Β Β the
Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 6.02 or 6.03 (with respect to the Borrowerβs existence) or
in ArticleΒ VII or the Borrower shall default in the performance of any of
its obligations contained in SectionsΒ 5.4 and 5.6(b) of the Guarantee and
Collateral Agreement;
Β
70
Β
(e)Β Β The
Borrower or any other Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in paragraphΒ (a), (b) orΒ (d) of this Article) or any other Loan
Document and such failure shall continue unremedied for a period of 30
or more
days after notice thereof from the Administrative Agent (given at the request
of
any Lender) to the Borrower;
Β
(f)Β Β the
Parent, the Borrower or any other Group Member shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect
of any
Material Indebtedness, when and as the same shall become due and payable,
and
such failure shall continue unremedied for a period (except in the case
of
principal, beyond any applicable grace period) of five or more Business
Days;
Β
(g)Β Β any
event
or condition occurs that results in any Material Indebtedness becoming
due prior
to its scheduled maturity or that enables or permits (with or without the
giving
of notice, the lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided
that
this paragraphΒ (g) shall not apply to secured Indebtedness that becomes due
as a result of the voluntary sale or transfer of the property or assets
securing
such Indebtedness;
Β
(h)Β Β an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed seeking (i)Β liquidation, reorganization or other relief in respect of
the Parent, the Borrower or any other Group Member having assets in excess
of
$7,500,000 or its debts, or of a substantial part of its assets, under
any
Federal, state or foreign bankruptcy, insolvency, receivership or similar
law
now or hereafter in effect or (ii)Β the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Parent,
the
Borrower or any such Subsidiary or for a substantial part of its assets,
and, in
any such case, such proceeding or petition shall continue undismissed or
undischarged for a period of 60 or more days or an order or decree approving
or
ordering any of the foregoing shall be entered;
Β
(i)Β Β the
Parent, the Borrower or any other Group Member having assets in excess
of
$7,500,000 shall (i)Β voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any
Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now
or
hereafter in effect, (ii)Β consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or petition described
in
paragraphΒ (h) of this Article, (iii)Β apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or
similar official for it or for a substantial part of its assets, (iv)Β file
an answer admitting the material allegations of a petition filed against
it in
any such proceeding, (v)Β make a general assignment for the benefit of
creditors or (vi)Β take any action for the purpose of effecting any of the
foregoing;
Β
(j)Β Β the
Parent, the Borrower or any other Group Member shall become unable, admit
in
writing its inability or fail generally to pay its debts as they become
due;
Β
71
Β
(k)Β Β one
or
more judgments for the payment of money in an aggregate amount in excess
of
$7,500,000 shall be rendered against the Parent, the Borrower or any other
Group
Member any combination thereof and the same shall remain undischarged for
a
period of 30 consecutive days during which execution shall not be effectively
stayed or vacated or, in respect with such judgment, any action shall be
legally
taken by a judgment creditor to attach or levy upon any assets of the Parent,
the Borrower or any other Group Member to enforce any such
judgment;
Β
(l)Β Β an
ERISA
Event shall have occurred that, in the opinion of the Required Lenders,
when
taken together with all other ERISA Events that have occurred, could reasonably
be expected to result in a Material Adverse Effect;
Β
(m)Β Β a
Change
of Control shall occur;
Β
(n)Β Β any
guarantee contained in Article III or the Guarantee and Collateral Agreement
shall for whatever reason cease to be in full force and effect or any Loan
Party
or any Affiliate of any Loan Party shall so assert; or
Β
(o)Β Β the
Liens
created by the Security Documents shall at any time not constitute a valid
and
perfected Lien (other than by reason of the express release thereof pursuant
to
Section 10.15) on the Collateral intended to be covered thereby (to the
extent
perfection by filing, registration, recordation or possession is required
herein
or therein), free and clear of all other Liens (other than Liens expressly
permitted under SectionΒ 7.02 or under the Security Documents), or, except
for expiration in accordance with its terms, any of the Security Documents
shall
for whatever reason be terminated or cease to be in full force and effect,
or
any Loan Party or any Affiliate of any Loan Party shall so assert, or the
enforceability thereof shall be contested by any Loan Party or any Affiliate
of
any Loan Party;
Β
then,
and
in every such event (other than any event described in paragraphsΒ (h)
orΒ (i) of this Article), and at any time thereafter during the continuance
of such event, the Administrative Agent may, and at the request of the
Required
Lenders shall, by notice to the Borrower, take either or both of the following
actions, at the same or different times: (i)Β terminate the Commitments, and
thereupon the Commitments shall terminate immediately, and (ii)Β declare the
Loans then outstanding to be due and payable in whole (or in part, in which
case
any principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans so declared
to
be due and payable, together with accrued interest thereon and all fees
and
other obligations of the Borrower accrued hereunder, shall become due and
payable immediately, without presentment, demand, protest or other notice
of any
kind, all of which are hereby waived by the Borrower; and in case of any
event
described in paragraphΒ (h) orΒ (i) of this Article, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations
of the
Borrower accrued hereunder, shall automatically become due and payable,
without
presentment, demand, protest or other notice of any kind, all of which
are
hereby waived by the Borrower.
72
Β
ARTICLE
IX
THE
ADMINISTRATIVE AGENT
Β
Each
of
the Lenders and the Issuing Lender hereby irrevocably appoints the
Administrative Agent as its 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.
Β
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 such Person and
its
Affiliates may accept deposits from, lend money to and generally engage
in any
kind of business with the Borrower or any Subsidiary or other Affiliate
thereof
as if it were not the Administrative Agent hereunder.
Β
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, (a)Β the Administrative Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether
a
Default has occurred and is continuing, (b)Β the Administrative Agent 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 in writing as directed by the Required Lenders (or such other
number or
percentage of the Lenders as shall be necessary under the circumstances
provided
in Section 10.02), and (c)Β except as expressly set forth herein and in the
other Loan Documents, the Administrative Agent shall not have any duty
to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated
to or
obtained by the Person serving as Administrative Agent or any of its Affiliates
in any capacity. The Administrative Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary
under the circumstances provided in Section 10.02) or 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 written notice thereof
is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i)Β any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii)Β the
contents of any certificate, report or other document delivered hereunder
or
thereunder or in connection herewith or therewith, (iii)Β the performance or
observance of any of the covenants, agreements or other terms or conditions
set
forth herein or therein, (iv)Β the validity, enforceability, effectiveness
or genuineness of this Agreement, any other Loan Document or any other
agreement, instrument or document, or (v)Β the satisfaction of any condition
set forth in ArticleΒ V or elsewhere herein or therein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
Β
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 believed by it to be genuine
and to have been signed or sent 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 be made by the proper Person, and shall not incur any liability
for
relying thereon. The Administrative Agent may consult with legal counsel
(who
may be counsel for the Borrower), 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.
Β
73
Β
The
Administrative Agent may perform any and all its duties and exercise its
rights
and powers 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 its duties and exercise its rights and powers through
their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs 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.
Β
Subject
to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any
time by
notifying the Lenders, the Issuing Lender and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation
with the
Borrower, to appoint a successor. If no 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
Issuing
Lender, appoint a successor Administrative Agent which shall be a Lender
with an
office in New York, New York or an Affiliate of a Lender. Upon the acceptance
of
its appointment as Administrative Agent hereunder by a successor, such
successor
shall succeed to and become vested with all the rights, powers, privileges
and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. 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 Administrative Agentβs resignation hereunder, the
provisions of this Article and SectionΒ 10.03 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 it was acting as Administrative Agent.
Β
Each
Lender acknowledges that 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 Agreement. Each Lender also acknowledges that
it
will, independently and without reliance upon the Administrative Agent
or any
other Lender 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.
Β
Notwithstanding
anything herein to the contrary the Arranger and the Co-Documentation Agent
named on the cover page of this Agreement shall not have any duties or
liabilities under this Agreement, except in their capacity, if any, as
Lenders.
Β
74
Β
ARTICLE
X
MISCELLANEOUS
Β
SECTION
10.01Β Β Notices.
Β
(a)Β Β Notices
Generally.
Except
in the case of notices and other communications expressly permitted to
be given
by telephone (and subject to paragraph (b) of this Section), 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 telecopy (i) if to the Borrower, the Administrative
Agent or any Issuing Lender, as set forth in Schedule 10.01 and (ii) if
to any
other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
Β
(b)Β Β Electronic
Communications.
Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the
Administrative Agent; provided
that the
foregoing shall not apply to notices pursuant to ArticleΒ II unless
otherwise agreed by the Administrative Agent and the applicable Lender.
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.
Β
(c)Β Β Change
of Address, Etc.
Any
party hereto may change its address or telecopy number for notices and
other
communications hereunder by notice to the other parties hereto. All notices
and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of
receipt.
Β
SECTION
10.02Β Β Waivers;
Amendments.
Β
(a)Β Β No
Deemed Waivers; Remedies Cumulative.
No
failure or delay by the Administrative Agent, the Issuing Lender or any
Lender
in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or
any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the
Issuing
Lender and the Lenders hereunder are cumulative and are not exclusive of
any
rights or remedies that they would otherwise have. No waiver of any provision
of
this Agreement or consent to any departure by the Borrower therefrom shall
in
any event be effective unless the same shall be permitted by paragraphΒ (b)
of this Section, and then such waiver or consent shall be effective only
in the
specific instance and for the purpose for which given. Without limiting
the
generality of the foregoing, the making of a Loan or issuance of a Letter
of
Credit shall not be construed as a waiver of any Default, regardless of
whether
the Administrative Agent, any Lender or the Issuing Lender may have had
notice
or knowledge of such Default at the time.
Β
(b)Β Β Amendments.
Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by
the
Borrower and the Required Lenders or by the Borrower and the Administrative
Agent with the consent of the Required Lenders; provided
that no
such agreement shall:
Β
75
Β
(i)Β Β increase
the Commitment of any Lender without the written consent of such
Lender;
Β
(ii)Β Β reduce
the principal amount of any Loan or LCΒ Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender adversely affected thereby;
Β
(iii)Β Β postpone
the scheduled date of payment of the principal amount of any Loan or
LCΒ Disbursement, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent
of
each Lender adversely affected thereby;
Β
(iv)Β Β change
SectionΒ 2.18(b), (c) or (d) in a manner that would alter the proΒ rata
sharing
of payments required thereby, without the written consent of each
Lender;
Β
(v)Β Β change
any of the provisions of this Section or the definition of the term βRequired
Lendersβ or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make
any
determination or grant any consent hereunder, without the written consent
of
each Lender;
Β
(vi)Β Β release
all or substantially all of the Guarantors from their guarantee obligations
under ArticleΒ III or all or substantially all of the Collateral, in each
case without the written consent of each Lender;
Β
(vii)Β Β amend,
modify or waive any provision of Section 2.07 or 2.08 without the written
consent of the Swingline Lender; or
Β
(viii)Β Β add
any
Foreign Currency (other than English Pounds Sterling or euro) to the Currencies
available under the Aggregate Foreign Currency Sublimit Dollar Amount without
the written consent of each Lender;
Β
and
providedΒ further
that no
such agreement shall amend, modify or otherwise affect the rights or duties
of
the Administrative Agent or the Issuing Lender hereunder without the prior
written consent of the Administrative Agent or the Issuing Lender, as the
case
may be.
Β
Except
as
otherwise provided in this Section with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Required Lenders
(but
not otherwise), consent to any modification, supplement or waiver under
any of
the Security Documents, provided
that,
without the prior consent of each Lender, the Administrative Agent shall
not
(except as provided herein or in the Security Documents) release all or
substantially all of the Collateral or otherwise terminate all or substantially
all of the Liens under any Security Document providing for collateral security,
except that no such consent shall be required, and the Administrative Agent
is
authorized in accordance with Section 10.15, to release any Lien covering
property, (i) under the circumstances described in Section 10.15 (b), (ii)
in
the event of a Holdings Change of Control Transaction or (iii) that is
the
subject of either a disposition of property permitted hereunder or a disposition
to which the Required Lenders have consented.
Β
76
Β
SECTION
10.03Β Β Expenses;
Indemnity; Damage Waiver.
Β
(a)Β Β Costs
and Expenses.
The
Borrower shall pay (i)Β 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 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)Β all reasonable out-of-pocket expenses incurred by the
Issuing Lender in connection with the issuance, amendment, renewal or extension
of any Letter of Credit or any demand for payment thereunder, (iii)Β all
out-of-pocket expenses incurred by the Administrative Agent, the Issuing
Lender
or any Lender, including the fees, charges and disbursements of any counsel
for
the Administrative Agent, the Issuing Lender or any Lender, in connection
with
the enforcement or protection of its rights in connection with this Agreement
and the other Loan Documents, including its rights under this Section,
or in
connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring
or
negotiations in respect thereof and (iv)Β and all reasonable costs,
expenses, taxes, assessments and other charges incurred in connection with
any
filing, registration, recording or perfection of any security interest
contemplated by any Security Document or any other document referred to
therein.
Β
(b)Β Β Indemnification
by the Borrower.
The
Borrower shall indemnify the Administrative Agent, the Issuing Lender and
each
Lender, and each Related Party of any of the foregoing Persons (each such
Person
being called an βIndemniteeβ)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee, incurred by
or
asserted against any Indemnitee arising out of, in connection with, or
as a
result of (i)Β the execution or delivery of this Agreement or any agreement
or instrument contemplated hereby, the performance by the parties hereto
of
their respective obligations hereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii)Β any Loan or Letter of
Credit or the use of the proceeds therefrom (including any refusal by the
Issuing Lender 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)Β any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated
by
the Borrower or any of its Subsidiaries, or any Environmental Liability
related
in any way to the Borrower or any of its Subsidiaries, or (iv)Β any actual
or prospective claim, litigation, investigation or proceeding relating
to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided
that
such indemnity shall not, as to any Indemnitee, be available to the extent
that
such losses, claims, damages, liabilities or related expenses are determined
by
a court of competent jurisdiction by final and non-appealable judgment
to have
resulted from the gross negligence or willful misconduct of such
Indemnitee.
Β
77
Β
(c)Β Β Reimbursement
by Lenders.
The
Lenders agree to indemnify the Administrative Agent or the Issuing Lender
in
their capacity as such (to the extent not reimbursed by the Borrower and
without
limiting the obligation of the Borrower or any of the other Loan Parties
to do
so), ratably according to their respective Applicable Percentages in effect
on
the date on which indemnification is sought under this paragraph, from
and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any
time
following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent or the Issuing Lender in any way relating
to or
arising out of this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent or the Issuing Lender under or in connection with
any of
the foregoing; provided
that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent resulting from the Administrative
Agentβs or the Issuing Lenderβs (as the case may be) gross negligence or willful
misconduct.
Β
(d)Β Β Waiver
of Consequential Damages, Etc.
To the
extent permitted by applicable law, the Borrower shall not assert, and
the
Borrower 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 or any agreement or instrument contemplated hereby,
the
Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
Β
(e)Β Β Payments.
All
amounts due under this Section shall be payable promptly after written
demand
therefor.
Β
SECTION
10.04Β Β Successors
and Assigns.
Β
(a)Β Β Assignments
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
(including any Affiliate of the Issuing Lender that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer
any
of its rights or obligations hereunder without the prior written consent
of each
Lender (and any attempted assignment or transfer by the Borrower without
such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with
this
Section. 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 (including any Affiliate of the
Issuing
Lender that issues any Letter of Credit), Participants (to the extent provided
in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing
Lender and the Lenders) any legal or equitable right, remedy or claim under
or
by reason of this Agreement.
Β
(b)Β Β Assignments
by Lenders.
Β
78
Β
(i)Β Β Assignments
Generally.
Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may
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 and the Loans at
the
time owing to it) with the prior written consent (such consent not to be
unreasonably withheld or delayed) of:
Β
(A)Β Β |
the
Borrower, provided
that no consent of the Borrower shall be required for an assignment
to a
Lender, an Affiliate of a Lender, an Approved Fund or, if an Event
of
Default has occurred and is continuing, any other
assignee;
|
Β
(B)Β Β |
the
Administrative Agent; and
|
Β
(C)Β Β |
the
Issuing Lender.
|
Β
(ii)Β Β Certain
Conditions to Assignments.
Assignments shall be subject to the following additional
conditions:
Β
(A)Β Β |
except
in the case of an assignment to a Lender or an Affiliate of a Lender
or an
assignment of the entire remaining amount of the assigning Lenderβs
Commitment or Loans, the amount of the Commitment or 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) shall not be less than $5,000,000
unless the Borrower and the Administrative Agent otherwise consent,
provided
that no such consent of the Borrower shall be required if an Event
of
Default has occurred and is continuing,
|
Β
(B)Β Β |
the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing
and
recordation fee of $3,500, and
|
Β
(C)Β Β |
the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.
|
Β
(iii)Β Β Effectiveness
of Assignments.
Subject
to acceptance and recording thereof pursuant to paragraphΒ (b)(iv) of this
Section, from and after the effective date specified in each Assignment
and
Assumption, the assignee thereunder shall be a party hereto and, to the
extent
of the interest assigned by such Assignment and Assumption, have the rights
and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and
Assumption, be released from its obligations under this Agreement (and,
in the
case of an Assignment and Assumption covering all of the assigning Lenderβs
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
SectionsΒ 2.15, 2.16, 2.17 andΒ 10.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply
with
this Section 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
paragraphΒ (c) of this Section.
Β
79
Β
(iv)Β Β Maintenance
of Register by the Administrative Agent.
The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall
maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of
the Lenders, and the Commitment of, and principal amount of the Loans and
LCΒ Disbursements owing to, each Lender pursuant to the terms hereof from
time to time (the βRegisterβ).
The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Lender and the Lenders may treat each
Person
whose name is recorded in the Register pursuant to the terms hereof as
a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to
the
contrary. The Register shall be available for inspection by the Borrower,
the
Issuing Lender and any Lender, at any reasonable time and from time to
time upon
reasonable prior notice.
Β
(v)Β Β Acceptance
of Assignments by Administrative Agent.
Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assigneeβs completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder),
the
processing and recordation fee referred to in paragraphΒ (b) of this Section
and any written consent to such assignment required by paragraphΒ (b) of
this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register.
No
assignment shall be effective for purposes of this Agreement unless it
has been
recorded in the Register as provided in this paragraph.
Β
(c)Β Β Participations.
Β
(i)Β Β Participations
Generally.
Any
Lender may, without the consent of the Borrower, the Administrative Agent
or the
Issuing Lender, sell participations to one or more banks or other entities
(a
βParticipantβ)
in all
or a portion of such Lenderβs rights and obligations under this Agreement and
the other Loan Documents (including all or a portion of its Commitment
and the
Loans owing to it); provided
that
(A)Β such Lenderβs obligations under this Agreement and the other Loan
Documents shall remain unchanged, (B)Β such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C)Β the Borrower, the Administrative Agent, the Issuing Lender and the
other Lenders shall continue to deal solely and directly with such Lender
in
connection with such Lenderβs rights and obligations under this Agreement and
the other Loan Documents. 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 the other Loan Documents and to approve
any
amendment, modification or waiver of any provision of this Agreement or
any
other Loan Document; provided
that
such agreement or instrument may provide that such Lender will not, without
the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to SectionΒ 10.02(b) that affects such
Participant. Subject to paragraphΒ (c)(ii) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of
SectionsΒ 2.15, 2.16 andΒ 2.17 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraphΒ (b) of
this Section. To the extent permitted by law, each Participant also shall
be
entitled to the benefits of SectionΒ 10.08 as though it were a Lender,
provided
that
such Participant agrees to be subject to SectionΒ 2.18(c) as though it were
a Lender.
Β
80
Β
(ii)Β Β Limitations
on Rights of Participants.
A
Participant shall not be entitled to receive any greater payment under
SectionΒ 2.15 orΒ 2.17 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
Borrowerβs prior written consent. A Participant that would be a Non-U.S. Lender
if it were a Lender shall not be entitled to the benefits of SectionΒ 2.17
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
SectionΒ 2.17(e) as though it were a Lender.
Β
(d)Β Β 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 to secure obligations of such
Lender,
including without limitation any pledge or assignment to secure obligations
to a
Federal Reserve Bank, and this Section shall not apply to any such pledge
or
assignment of a security interest; provided
that no
such pledge or assignment of a security interest shall release a Lender
from any
of its obligations hereunder or substitute any such pledgee or assignee
for such
Lender as a party hereto.
Β
SECTION
10.05Β Β Survival.
All
covenants, agreements, representations and warranties made by the Borrower
herein and in the certificates or other instruments delivered in connection
with
or pursuant to this Agreement shall be considered to have been relied upon
by
the other parties hereto and shall survive the execution and delivery of
this
Agreement and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its
behalf
and notwithstanding that the Administrative Agent, the Issuing Lender or
any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder,
and
shall continue in full force and effect as long as the principal of or
any
accrued interest on any Loan or any fee or any other amount payable under
this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding
and
so long as the Commitments have not expired or terminated. The provisions
of
SectionsΒ 2.15, 2.16, 2.17, 3.03 and 10.03 and ArticleΒ IX shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration
or
termination of the Letters of Credit and the Commitments or the termination
of
this Agreement or any provision hereof.
Β
SECTION
10.06Β Β Counterparts;
Integration; Effectiveness.
This
Agreement may be executed in counterparts (and by different parties hereto
on
different counterparts), each of which shall constitute an original, but
all of
which when taken together shall constitute a single contract. This Agreement
and
any separate letter agreements with respect to fees payable to the
Administrative Agent 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 SectionΒ 5.01, 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 which, when taken together,
bear
the signatures of each of the other parties hereto, and thereafter shall
be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature
page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
Β
81
Β
SECTION
10.07Β Β Severability.
Any
provision of this Agreement held to be invalid, illegal or unenforceable
in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall
not
invalidate such provision in any other jurisdiction.
Β
SECTION
10.08Β Β Right
of Setoff.
If an
Event of Default shall have occurred and be continuing, each Lender and
each of
its Affiliates is hereby authorized at any time and from time to time,
to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time
held and
other obligations at any time owing by such Lender or Affiliate to or for
the
credit or the account of the Borrower against any of and all the obligations
of
the Borrower now or hereafter existing under this Agreement held by such
Lender,
irrespective of whether or not such Lender shall have made any demand under
this
Agreement and although such obligations may be unmatured. The rights of
each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have. Each Lender
agrees to notify the Borrower and the Administrative Agent as promptly
as
practicable after any such setoff and application; provided
that the
failure to give such notice shall not affect the validity of such setoff
and
application.
Β
SECTION
10.09Β Β Governing
Law; Jurisdiction; Consent to Service of Process.
Β
(a)Β Β Governing
Law.
This
Agreement shall be construed in accordance with and governed by the law
of the
State of New York.
Β
(b)Β Β Submission
to Jurisdiction.
The
Borrower hereby irrevocably and unconditionally submits, for itself and
its
property, to the nonexclusive jurisdiction of the Supreme Court of the
State of
New York sitting in New York 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 for
recognition or enforcement of any judgment, and each of the parties hereto
hereby 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 or,
to the extent permitted by 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 shall affect
any
right that the Administrative Agent, the Issuing Lender or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
against the Borrower or its properties in the courts of any
jurisdiction.
Β
(c)Β Β Waiver
of Venue.
The
Borrower hereby irrevocably and unconditionally waives, to the fullest
extent it
may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out
of or
relating to this Agreement in any court referred to in paragraphΒ (b) of
this Section. Each of the parties hereto hereby irrevocably waives, to
the
fullest extent permitted by law, the defense of an inconvenient forum to
the
maintenance of such action or proceeding in any such court.
Β
82
Β
(d)Β Β Service
of Process.
Each
party to this Agreement irrevocably consents to service of process in the
manner
provided for notices in SectionΒ 10.01. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any
other
manner permitted by law.
Β
SECTION
10.10Β Β WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY 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 THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH
PARTY HERETO (A)Β CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B)Β ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
Β
SECTION
10.11Β Β Judgment
Currency.
This is
an international loan transaction in which the specification of Dollars
or any
Foreign Currency, as the case may be (the βSpecified
Currencyβ),
and
payment in New York City or the country of the Specified Currency, as the
case
may be (the βSpecified
Placeβ),
is of
the essence, and the Specified Currency shall be the currency of account
in all
events relating to Loans denominated in the Specified Currency. The payment
obligations of the Borrower under this Agreement shall not be discharged
or
satisfied by an amount paid in another currency or in another place, whether
pursuant to a judgment or otherwise, to the extent that the amount so paid
on
conversion to the Specified Currency and transfer to the Specified Place
under
normal banking procedures does not yield the amount of the Specified Currency
at
the Specified Place due hereunder. If for the purpose of obtaining judgment
in
any court it is necessary to convert a sum due hereunder in the Specified
Currency into another currency (the βSecond
Currencyβ),
the
rate of exchange that shall be applied shall be the rate at which in accordance
with normal banking procedures the Administrative Agent could purchase
the
Specified Currency with the Second Currency on the Business Day next preceding
the day on which such judgment is rendered. The obligation of the Borrower
in
respect of any such sum due from it to the Administrative Agent or any
Lender
hereunder or under any other Loan Document (in this Section called an βEntitled
Personβ) shall, notwithstanding the rate of exchange actually applied in
rendering such judgment, be discharged only to the extent that on the Business
Day following receipt by such Entitled Person of any sum adjudged to be
due
hereunder in the Second Currency such Entitled Person may in accordance
with
normal banking procedures purchase and transfer to the Specified Place
the
Specified Currency with the amount of the Second Currency so adjudged to
be due;
and the Borrower hereby, as a separate obligation and notwithstanding any
such
judgment, agrees to indemnify such Entitled Person against, and to pay
such
Entitled Person on demand, in the Specified Currency, the amount (if any)
by
which the sum originally due to such Entitled Person in the Specified Currency
hereunder exceeds the amount of the Specified Currency so purchased and
transferred.
Β
83
Β
SECTION
10.12Β Β Headings.
Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect
the
construction of, or be taken into consideration in interpreting, this
Agreement.
Β
SECTION
10.13Β Β Confidentiality.
Each of
the Administrative Agent, the Issuing Lender and the Lenders agrees to
maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a)Β to its and its Affiliatesβ directors,
officers, employees and agents, including accountants, legal counsel and
other
advisors (it being understood 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)Β to the extent requested by any
regulatory authority, (c)Β to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d)Β to any other
party to this Agreement, (e)Β in connection with the exercise of any
remedies hereunder or under any other Loan Document or any suit, action
or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f)Β 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 (ii) any actual
or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g)Β with the consent of the
Borrower or (h)Β to the extent such Information (i)Β becomes publicly
available other than as a result of a breach of this Section or
(ii)Β becomes available to the Administrative Agent, the Issuing Lender or
any Lender on a nonconfidential basis from a source other than the Borrower.
For
the purposes of this Section, βInformationβ means all information received from
the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent, the Issuing
Lender or
any Lender on a nonconfidential basis prior to disclosure by the Borrower;
provided
that, in
the case of information received from the Borrower after the date hereof,
such
information is clearly identified at the time of delivery as confidential.
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.
Β
SECTION
10.14Β Β USA
PATRIOT ACT.
Each
Lender hereby notifies the Borrower that pursuant to the requirements of
the
USAΒ PATRIOT Act (TitleΒ III of Pub.Β L. 107-56 (signed into law
October 26,Β 2001)), such Lender may be required to obtain, verify and
record information that identifies the Borrower, which information includes
the
name and address of the Borrower and other information that will allow
such
Lender to identify the Borrower in accordance with said Act.
Β
SECTION
10.15Β Β Releases
of Liens.
Β
(a)Β Β Notwithstanding
anything to the contrary contained herein or in any other Loan Document,
the
Administrative Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly required
by Section 10.01) to take any action requested by the Borrower having the
effect
of releasing, in the case of clauses (i) and (ii), any Collateral or, in
the
case of clause (iii), all Capital Stock of the Borrower (i) to the extent
necessary to permit consummation of any transaction expressly permitted
by any
Loan Document or that has been consented to in accordance with Section
10.02,
(ii) under the circumstances described in paragraph (b) below and (iii)
in the
event of a Holdings Change of Control Transaction.
Β
84
Β
(b)Β Β At
such
time as the Loans and the other Obligations under the Loan Documents shall
have
been paid in full, the Commitments have expired or been terminated and
no
Letters of Credit shall be outstanding, the Collateral shall be released
from
the Liens created by the Security Documents, and the Security Documents
and all
obligations (other than those expressly stated to survive such termination)
of
the Administrative Agent and each Loan Party under the Loan Documents shall
terminate, all without delivery of any instrument or performance of any
act by
any Person.
Β
[Signature
Pages Follow]
Β
85
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year
first
above written.
Β
Β | Β | Β |
Β |
TELEPHONICS
CORPORATION,
as
Borrower
|
|
Β Β |
Β Β |
Β Β |
Β | By:Β Β | /s/Β Xxxxxx X. Xxxxxxxxx |
Β | Β |
Name: Xxxxxx X. Xxxxxxxxx |
Β | Β | Title: President |
Β | U.S. Federal Tax Identification No.: 00-0000000 |
Β
Β | Β | Β |
Β |
GRITEL
HOLDING CO., INC.,
as
Guarantor
|
|
Β Β |
Β Β |
Β Β |
Β | By:Β Β | /s/Β Xxxxxxx X. Xxxxxx |
Β | Β |
Name: Xxxxxxx X. Xxxxxx |
Β | Β | Title: Sec |
Β | U.S. Federal Tax Identification No.: 00-0000000 |
Β
[Signature
Page to Credit Agreement]
Β
Β | Β | Β |
Β |
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent and a Lender
|
|
Β Β |
Β Β |
Β Β |
Β | By:Β Β | /s/Β Xxxx Xxxxx Xxxxx |
Β | Β |
Name: Xxxx Xxxxx Xxxxx |
Β | Β | Title: Vice President |
Β
[Signature
Page to Credit Agreement]
Β
Β
Β | Β | Β |
Β |
Bank
of America N.A.,
as
a Lender
|
|
Β Β |
Β Β |
Β Β |
Β | By:Β Β | /s/Β Xxxxxx X. Xxxxxxxxxx |
Β | Β |
Name: Xxxxxx X. Xxxxxxxxxx |
Β | Β | Title: Senior Vice President |
Β
Β
Β | Β | Β |
Β |
HSBC
Bank USA, National Association,
as
a Lender
|
|
Β Β |
Β Β |
Β Β |
Β | By:Β Β | /s/Β Xxxx Xxxxxxxxx |
Β | Β |
Name: Xxxx Xxxxxxxxx |
Β | Β | Title: Senior Vice President |
Β
Β
Β
Β | Β | Β |
Β |
Manufacturers
and Traders Trust Company,
as
a Lender
|
|
Β Β |
Β Β |
Β Β |
Β | By:Β Β | /s/Β Xxxxxxx Xxxxxxxxx |
Β | Β |
Name: Xxxxxxx Xxxxxxxxx |
Β | Β | Title: Vice President |
Β
Β
Β
Β | Β | Β |
Β |
Capital
One N.A.
as
a Lender
|
|
Β Β |
Β Β |
Β Β |
Β | By:Β Β | /s/Β Xxxxxx Xxxxx |
Β | Β |
Name: Xxxxxx Xxxxx |
Β | Β | Title: Vice President |
Β
Β
Β | Β | Β |
Β |
U.S.
Bank National Association
as
a Lender
|
|
Β Β |
Β Β |
Β Β |
Β | By:Β Β | /s/Β Emmanouil Saridauis |
Β | Β |
Name: Emmanouil Saridauis |
Β | Β | Title: Vice President |
Β
Β
Β
Β | Β | Β |
Β |
Wachovia
Bank N.A.,
as
a Lender
|
|
Β Β |
Β Β |
Β Β |
Β | By:Β Β | /s/Β Xxxxxx X. Xxxxxx, Xx. |
Β | Β |
Name: Xxxxxx X. Xxxxxx, Xx. |
Β | Β |
Title:
Senior Vice President
|
Β