Exhibit 10(d)
EXECUTION COPY
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REVOLVING CREDIT AGREEMENT
Dated as of October 15, 2003
among
XXXXXX CORPORATION,
as the Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
and
SUNTRUST BANK,
as Administrative Agent, L/C Issuer and Swingline Lender,
and
CITIBANK, N.A. AND BANK OF AMERICA, N.A.,
as Co-Syndication Agents,
and
FLEET NATIONAL BANK AND WACHOVIA, N.A.,
as Co-Documentation Agents
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TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS...................................................... 1
1.01 Defined Terms.................................................................................. 1
1.02 Other Interpretive Provisions.................................................................. 18
1.03 Accounting Terms............................................................................... 18
1.04 Rounding....................................................................................... 18
1.05 References to Agreements and Laws.............................................................. 19
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS................................................. 19
2.01 Committed Loans................................................................................ 19
2.02 Borrowings, Conversions and Continuations of Committed Loans................................... 19
2.03 Competitive Bid Loans.......................................................................... 21
2.04 Negotiated Bid Loans........................................................................... 24
2.05 Letters of Credit.............................................................................. 24
2.06 Prepayments.................................................................................... 31
2.07 Optional Reduction or Termination of Commitments............................................... 32
2.08 Repayment of Loans............................................................................. 33
2.09 Interest....................................................................................... 33
2.10 Fees........................................................................................... 34
2.11 Computation of Interest and Fees............................................................... 34
2.12 Evidence of Debt............................................................................... 35
2.13 Payments Generally............................................................................. 35
2.14 Sharing of Payments............................................................................ 37
2.15 Swingline Commitment........................................................................... 38
2.16 Procedure for Swingline Borrowing; Etc......................................................... 38
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY................................................ 39
3.01 Taxes.......................................................................................... 39
3.02 Illegality..................................................................................... 41
3.03 Inability to Determine Rates................................................................... 41
3.04 Increased Cost and Reduced Return; Capital Adequacy Reserves on Eurodollar Rate Loans.......... 41
3.05 Funding Losses................................................................................. 42
3.06 Matters Applicable to all Requests for Compensation............................................ 43
3.07 Applicability to Negotiated Bid Loans.......................................................... 43
3.08 Survival....................................................................................... 43
3.09 Change in Lending Office; Limitation on Increased Costs........................................ 44
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS............................................. 44
4.01 Conditions of Initial Credit Extension......................................................... 44
4.02 Conditions to all Credit Extensions............................................................ 46
ARTICLE V. REPRESENTATIONS AND WARRANTIES........................................................ 46
5.01 Existence, Qualification....................................................................... 46
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5.02 Authorization; No Contravention................................................................ 46
5.03 Governmental Authorization..................................................................... 47
5.04 Binding Effect................................................................................. 47
5.05 Financial Statements; No Material Adverse Change............................................... 47
5.06 Litigation..................................................................................... 47
5.07 ERISA Compliance............................................................................... 47
5.08 Real Property.................................................................................. 47
5.09 Margin Regulations; Investment Company Act; Public Utility Holding Company Act................. 48
5.10 Outstanding Loans.............................................................................. 48
5.11 Taxes.......................................................................................... 49
5.12 Intellectual Property; License, Etc............................................................ 49
5.13 Disclosure..................................................................................... 49
5.14 Solvency....................................................................................... 49
ARTICLE VI. AFFIRMATIVE COVENANTS................................................................. 49
6.01 Reporting Requirements......................................................................... 50
6.02 Corporate Existence............................................................................ 51
6.03 Compliance with Laws, Etc...................................................................... 51
6.04 Certificates................................................................................... 52
6.05 Covenant to Secure Notes Equally............................................................... 52
6.06 Maintenance of Properties...................................................................... 52
6.07 Maintenance of Insurance....................................................................... 52
6.08 Taxes and Other Claims......................................................................... 52
6.09 Environmental Laws............................................................................. 53
6.10 Books and Records.............................................................................. 53
6.11 Compliance with ERISA.......................................................................... 53
6.12 Visitation, Inspection, Etc.................................................................... 54
ARTICLE VII. NEGATIVE COVENANTS.................................................................... 54
7.01 Liens.......................................................................................... 54
7.02 Merger, Consolidation and Sale of Assets....................................................... 57
7.03 Sale and Leaseback............................................................................. 57
7.04 Certain Investments............................................................................ 58
7.05 Use of Proceeds................................................................................ 58
7.06 Financial Covenants............................................................................ 58
7.07 Restrictive Agreements......................................................................... 58
7.08 Hedging Transactions........................................................................... 58
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES........................................................ 59
8.01 Events of Default.............................................................................. 59
ARTICLE IX. ADMINISTRATIVE AGENT.................................................................. 62
9.01 Appointment and Authorization of Administrative Agent.......................................... 62
9.02 Delegation of Duties........................................................................... 62
9.03 Liability of Administrative Agent.............................................................. 63
9.04 Reliance by Administrative Agent............................................................... 63
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9.05 Notice of Default.............................................................................. 64
9.06 Credit Decision; Disclosure of Information by Administrative Agent............................. 64
9.07 Indemnification of Administrative Agent........................................................ 64
9.08 Administrative Agent in its Individual Capacity................................................ 65
9.09 Successor Administrative Agent................................................................. 65
9.10 Other Agents; Lead Managers.................................................................... 66
ARTICLE X. MISCELLANEOUS......................................................................... 66
10.01 Amendments, Etc................................................................................ 66
10.02 Notices and Other Communications; Facsimile Copies General..................................... 67
10.03 No Waiver; Cumulative Remedies................................................................. 68
10.04 Attorney Costs, Expenses and Taxes............................................................. 68
10.05 Indemnification by the Borrower................................................................ 69
10.06 Payments Set Aside............................................................................. 70
10.07 Successors and Assigns......................................................................... 70
10.08 Confidentiality................................................................................ 73
10.09 Set-off........................................................................................ 74
10.10 Interest Rate Limitation....................................................................... 74
10.11 Counterparts................................................................................... 74
10.12 Integration.................................................................................... 74
10.13 Survival of Representations and Warranties..................................................... 75
10.14 Severability................................................................................... 75
10.15 Foreign Lenders................................................................................ 75
10.16 Removal and Replacement of Lenders............................................................. 76
10.17 Governing Law.................................................................................. 76
10.18 Waiver of Right to Trial by Jury............................................................... 77
10.19 Waiver of Right to Consequential Damages....................................................... 77
10.20 ENTIRE AGREEMENT............................................................................... 77
SCHEDULES
2.01 Commitments and Pro Rata Shares
2.05 Existing Letters of Credit
5.06 Litigation
5.12 Intellectual Property
7.01 Existing Liens
10.02 Eurodollar and Domestic Lending Offices, Addresses for Notices
EXHIBITS
FORM OF
A Committed Loan Notice
B-1 Competitive Bid Request
B-2 Competitive Bid
C-1 Committed Loan Note
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C-2 Competitive Bid Loan Note
C-3 Negotiated Bid Loan Note
C-4 Swingline Note
D Compliance Certificate
E Assignment and Acceptance
F Closing Date Opinion of Counsel (content summary)
G Swingline Notice
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT (this "Agreement") is made and entered
into as of October 15, 2003, by and among XXXXXX CORPORATION, a Delaware
corporation (the "Borrower"), each lender from time to time party hereto
(collectively, the "Lenders" and individually, a "Lender"), and SUNTRUST BANK,
in its capacity as administrative agent for the Lenders (the "Administrative
Agent"), as issuing bank for letters of credit (the "L/C Issuer") and as
swingline lender (the "Swingline Lender").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders provide a
$300,000,000 revolving credit facility in favor of the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders, the L/C Issuer and the Swingline Lender to the extent of their
respective Commitments as defined herein, are willing severally to establish the
requested revolving credit facility, letter of credit subfacility and the
swingline subfacility in favor of the Borrower.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Absolute Rate" means a fixed rate of interest expressed in multiples
of 1/100th of one basis point.
"Absolute Rate Loan" means a Competitive Bid Loan that bears interest
at a rate determined with reference to an Absolute Rate.
"Acquisition" means the acquisition of (a) a controlling equity
interest in another Person (including the purchase of an option, warrant or
convertible or similar type security to acquire such a controlling interest at
the time it becomes exercisable by the holder thereof), whether by purchase of
such equity interest or upon exercise of an option or warrant for, or conversion
of securities into, such equity interest, or (b) assets of another Person which
constitute all or substantially all of the assets of such Person or a line or
lines of business conducted by such Person.
"Administrative Agent" means SunTrust Bank in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 10% or more of the securities having ordinary voting power for the
election of directors or managing general partners; or (b) to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise.
"Agent-Related Persons" means the Administrative Agent (including any
successor administrative agent), together with its Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Aggregate Commitments" has the meaning set forth in the definition of
"Commitment."
"Agreement" has the meaning set forth in the first paragraph hereof.
"Applicable Rate" means, from time to time, the following percentages
per annum, based upon the Debt Rating existing at such time:
APPLICABLE RATE
Pricing Eurodollar Rate &
Level Debt Rating Facility Fee Letters of Credit
----- -------------------- ------------ -----------------
1 A-/A3 or better .1500% .6000%
2 BBB+/Baa1 .1750% .7000%
3 BBB/Baa2 .2000% .8000%
4 BBB-/Baa3 .2500% .8750%
5 Lower than BBB-/Baa3 .3500% 1.1500%
"Debt Rating" means the senior debt rating assigned to the senior,
unsecured long-term debt securities of the Borrower by either S&P or Xxxxx'x
without third-party credit enhancement, whether or not any such debt securities
are actually outstanding, and any rating assigned to any other debt security of
the Borrower shall be disregarded. The rating in effect on any date is that in
effect at the close of business on such date. If the Borrower is split-rated and
(1) the ratings differential is one category, the higher of the two ratings will
apply, (2) the ratings differential is two categories, the rating which falls
between them shall apply or (3) the ratings differential is three categories or
more, the rating immediately above the lower of the two ratings shall apply. If
the Borrower is not rated by either Xxxxx'x or S&P, then the Applicable Rate
shall be established by reference to Pricing Level 5.
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Initially, the Applicable Rate shall be set at Pricing Level 3.
Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in the Debt Rating shall be effective, in the case of an
upgrade, during the period commencing on the date of delivery by the Borrower to
the Administrative Agent of notice thereof and ending on the date immediately
preceding the effective date of the next such change and, in the case of a
downgrade, during the period commencing on the date of the public announcement
thereof and ending on the date immediately preceding the effective date of the
next such change.
"Assignment and Acceptance" means an Assignment and Acceptance
substantially in the form of Exhibit E.
"Attorney Costs" means and includes all fees and disbursements of any
law firm or other external counsel and all disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, in respect of any
Synthetic Lease Obligation, the capitalized amount of any remaining lease
payments under the relevant lease that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended June 27,
2003, and the related consolidated statements of income and cash flows for such
fiscal year of the Borrower.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by SunTrust Bank
as its prime lending rate. Such rate is a rate set by SunTrust Bank based upon
various factors, including SunTrust Bank's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate.
The SunTrust Bank prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
SunTrust Bank may make commercial loans or other loans at rates of interest at,
above, or below the SunTrust Bank prime lending rate. Any change in such rate
announced by SunTrust Bank shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Base Rate Loan" means a Committed Loan that bears interest based on
the Base Rate.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" has the meaning set forth in the introductory paragraph
hereto.
"Borrowing" means a Committed Borrowing, a Swingline Borrowing, a
Competitive Bid Borrowing or a Negotiated Bid Borrowing, as the context may
require.
"Business Day" means any day other than a Saturday, Sunday, or other
day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar
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Rate Loan, means any such day on which dealings in Dollar deposits are conducted
by and between banks in the applicable offshore Dollar interbank market.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Administrative Agent and
the L/C Issuer (which documents are hereby consented to by the Lenders).
Derivatives of such term shall have corresponding meaning. The Borrower hereby
grants the Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, a Lien on all such cash and deposit account balances. Cash collateral
shall be maintained in blocked, non-interest bearing deposit accounts at
SunTrust Bank, or other institutions satisfactory to the Required Lenders.
"Change of Control" means, with respect to any Person, an event or
series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, or any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan), becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that
such a person or group shall be deemed to have "beneficial ownership" of all
securities that such person or group has the right to acquire (such right,
"option right"), whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of 25% or more of the equity
securities of such Person entitled to vote for members of the board of directors
or equivalent governing body on a partially-diluted basis (i.e., taking into
account all such securities that such person or group has the right to acquire
pursuant to any option right); or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of such
Person cease to be composed of individuals (i) who were members of that board or
equivalent governing body on the first day of such period, (ii) whose election
or nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or a duly authorized committee of such board or governing body or (iii)
whose election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body. For purposes of determining a majority
of the members of the board of directors or other equivalent governing body,
vacant seats shall not be included.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
"Code" means the Internal Revenue Code of 1986.
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"Commitment" means, as to each Lender, its obligation (a) to make
Committed Loans to the Borrower pursuant to Section 2.01 and (b) to purchase
participations in L/C Obligations and Swingline Loans, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite
such Lender's name on Schedule 2.01, as such amount may be reduced or adjusted
from time to time in accordance with this Agreement (collectively, the
"Aggregate Commitments").
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and having the same Interest Period made by
each of the Lenders pursuant to Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Note" means a promissory note made by the Borrower in
favor of a Lender evidencing Committed Loans made by such Lender, substantially
in the form of Exhibit C-1.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
(b) a conversion of Committed Loans from one Type to the other, or (c) a
continuation of Committed Loans as the same Type, pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit A.
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"Competitive Bid" means a written offer by a Lender to make one or more
Competitive Bid Loans, substantially in the form of Exhibit B-2, duly completed
and signed by a Lender.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Loans of the same Type from each of the Lenders
whose offer to make one or more Competitive Bid Loans as part of such borrowing
has been accepted under the auction bidding procedures described in Section
2.03.
"Competitive Bid Loan" has the meaning specified in Section 2.03(a).
"Competitive Bid Loan Note" means a promissory note made by the
Borrower in favor of a Lender evidencing Competitive Bid Loans made by such
Lender, substantially in the form of Exhibit C-2.
"Competitive Bid Loan Sublimit" means an amount equal to the Aggregate
Commitments. The Competitive Bid Loan Sublimit is part of, and not in addition
to, the Aggregate Commitments.
"Competitive Bid Request" means a written request for one or more
Competitive Bid Loans substantially in the form of Exhibit B-1.
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"Compliance Certificate" means a certificate substantially in the form
of Exhibit D.
"Consolidated EBITDA" means, for the Borrower and its Subsidiaries on a
consolidated basis for any period, an amount equal to the sum of (a)
Consolidated Net Income for such period plus (b) to the extent deducted in
determining Consolidated Net Income for such period, (i) Consolidated Interest
Charges, (ii) income tax expense, (iii) depreciation and amortization,
determined on a consolidated basis in accordance with GAAP in each case for such
period, (iv) other non-cash losses or deductions (including purchased in-process
research and development, impairment charges, write-offs or restructuring
charges against goodwill or other assets), and (v) fees, costs, write-offs and
other expenses associated with any Acquisition.
"Consolidated Interest Charges" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, total interest expense with
respect to Debt including, without limitation, the interest component of any
payments in respect of capital leases capitalized or expensed during such period
(whether or not actually paid during such period) determined in accordance with
GAAP.
"Consolidated Net Income" means, for any period, the net income (or
loss) of the Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any non-cash extraordinary gains or
losses, (ii) any gains attributable to write-ups of assets and (iii) any equity
interest of the Borrower or any Subsidiary of the Borrower in the unremitted
earnings of any Person that is not a Subsidiary.
"Consolidated Tangible Net Worth" means, at any date, Consolidated
Total Assets less the sum of (a) the net book value of the Intangible Assets of
the Borrower and its Subsidiaries at such date and (b) Consolidated Total
Liabilities at such date.
"Consolidated Total Assets" means, at any time, the total consolidated
assets of the Borrower and its Subsidiaries as reflected on the Borrower's
consolidated balance sheet as of the last day of the fiscal quarter ending on or
before the date of determination, as determined in accordance with GAAP, after
eliminating all amounts properly attributable to minority interests, if any, in
the stock and surplus of Subsidiaries.
"Consolidated Total Indebtedness" means, at any time, without
duplication, the sum of (a) all amounts which would, in accordance with GAAP, be
included as indebtedness on a consolidated balance sheet of the Borrower and its
Subsidiaries as reflected on the Borrower's consolidated balance sheet as of the
last day of the fiscal quarter ending on or before the date of determination
plus (b) the amount of Attributable Indebtedness of the Borrower and its
Subsidiaries at such time.
"Consolidated Total Liabilities" means, at any time, without
duplication, the sum of (a) total consolidated liabilities of the Borrower and
its Subsidiaries as reflected on the Borrower's consolidated balance sheet as of
the last day of the fiscal quarter ending on or before the date of
determination, as determined in accordance with GAAP and (b) the amount of
Attributable Indebtedness of the Borrower and its Subsidiaries at such time.
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"Credit Extension" means (a) a Committed Borrowing, a Competitive Bid
Borrowing, a Negotiated Bid Borrowing or a Swingline Borrowing and (b) an L/C
Credit Extension.
"Debt" means, as to any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services in respect of which such Person is liable,
contingently or otherwise, as obligor, guarantor or otherwise, or in respect of
which such Person otherwise assures a creditor against loss, (other than current
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices) or which is evidenced by a note, bond,
debenture or similar instrument, (b) all obligations of such Person under any
lease of property, real or personal, the obligations of the lessee in respect of
which are required in accordance with GAAP to be capitalized on a balance sheet
of the lessee and (c) all Synthetic Lease Obligations.
"Debt Rating" has the meaning set forth in the definition of
"Applicable Rate."
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to (a) with respect to Base
Rate Loans, the Base Rate plus 2% per annum; (b) with respect to Eurodollar Rate
Loans, the Eurodollar Rate plus the Applicable Rate applicable to Eurodollar
Rate Loans plus 2% per annum; provided, however, that for any Eurodollar Rate
Loans, at the end of the applicable Interest Period, interest shall accrue at
the Base Rate plus 2% per annum, and (c) with respect to Swingline Loans, the
Base Rate (or if greater such other rate as agreed to by the Borrower and the
Swingline Lender with respect to such Swingline Loans) plus 2% per annum, in
each case to the fullest extent permitted by applicable Laws.
"Divestiture" has the meaning set forth in Section 7.02(b).
"Dollar" and "$" means lawful money of the United States of America.
"Eligible Assignee" has the meaning specified in Section 10.07(h).
"Environmental Laws" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees
or requirements of any Governmental Authority regulating, relating to or
imposing liability or standards of conduct concerning environmental protection
matters (including, without limitation, any hazardous materials, hazardous
wastes, hazardous constituents, hazardous or toxic substances or petroleum
products (including crude oil or any fraction thereof)) as now or at any time
hereafter in effect.
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"Equity" means, as to any Person at any date, the consolidated total
assets of such Person less the consolidated total liabilities of such Person at
such date, as determined in accordance with GAAP.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
any regulations promulgated thereunder.
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any Commonly Controlled Entity from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any
Commonly Controlled Entity from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) with respect to a Pension Plan or
Multiemployer Plan that does not hold assets that equal or exceed its
liabilities, the filing of a notice of intent to terminate, the treatment of a
Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate such Pension Plan or
Multiemployer Plan; (e) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any Commonly Controlled Entity.
"Eurodollar Bid Margin" means the margin above or below the Eurodollar
Rate to be added to or subtracted from the Eurodollar Rate, which margin shall
be expressed in multiples of 1/100th of one basis point.
"Eurodollar Margin Competitive Bid Loan" means a Competitive Bid Loan
that bears interest at a rate based upon the Eurodollar Rate.
"Eurodollar Rate" means, with respect to each Interest Period for a
Eurodollar Rate Loan, LIBOR for such Interest Period.
"Eurodollar Rate Committed Loan" means a Committed Loan that bears
interest at a rate based on the Eurodollar Rate.
"Eurodollar Rate Loan" means a Eurodollar Rate Committed Loan or a
Eurodollar Margin Competitive Bid Loan.
"Event of Default" has the meaning specified in Article VIII.
"Existing Credit Facility" means that certain Credit Agreement
(3-Year), dated as of May 10, 2001, among the Borrower, the lenders party
thereto, and SunTrust Bank as administrative agent and the other parties
thereto.
"Existing Letters of Credit" means the letters of credit issued and
outstanding under the Existing Credit Facility as set forth on Schedule 2.05.
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"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards to the next 1/100 of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank on the Business Day next succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to SunTrust Bank on such day on such
transactions as determined by the Administrative Agent.
"Fee Letter" means that certain fee letter, dated as of August 29,
2003, executed by SunTrust Capital Markets, Inc. and SunTrust Bank, and accepted
by the Borrower.
"Foreign Lender" has the meaning specified in Section 10.15.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession, that are
applicable to the circumstances as of the date of determination, consistently
applied.
"Government Contract" means any contract with or made at the request of
any Governmental Authority.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Hazardous Materials" means any hazardous materials, hazardous wastes,
hazardous constituents, hazardous or toxic substances or petroleum products
(including crude oil or any fraction thereof), defined or regulated as such in
or under any Environmental Law.
"Hedging Arrangements" means (a) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index swaps or options
or forward bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap transactions,
floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any
other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement, and (b) any and
all transactions of any kind, and the related confirmations, which are subject
to the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other master agreement
(any such master agreement, together with any related schedules,
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a "Master Agreement"), including any such obligations or liabilities under any
Master Agreement.
"Hostile Acquisition" means (a) any transaction which is subject to
Section 13 (other than an Investment Transaction) or Section 14 of the
Securities Exchange Act of 1934, unless, prior to the time such transaction
becomes subject to such Section 13 or 14, the board of directors or other
governing body of the acquiree has adopted a resolution approving such
transaction and approving any "change of control" with respect to such Person
whereby the Borrower may acquire control of such Person, and (b) any purchase or
attempt to purchase, any Person by means of a public debt or equity tender offer
or other unsolicited takeover (or the equivalent thereof in any jurisdiction),
or any attempt to engage in a proxy contest (or the equivalent thereof in any
jurisdiction) for control of the board of directors (or the functional
equivalent thereof) of any Person, in either case which has not been approved
and recommended by the board of directors (or the functional equivalent thereof)
of the Person being acquired or proposed to be acquired or which is the subject
of such proxy contest. For purposes of this definition, (x) a "change of
control" means, for any Person, an Acquisition with respect to such Person and
(y) an "Investment Transaction" means a transaction subject to Section 13(d),
but not Section 16, of the Securities Exchange Act of 1934, provided that in
connection with such a transaction Borrower or any applicable Subsidiary (as the
case may be) has reported and at all times continues to report to the Securities
and Exchange Commission that such transaction is undertaken for investment
purposes only and not for any of the purposes specified in clauses 4(a) through
(j), inclusive, of the special instructions for complying with Schedule 13D
under the Securities Exchange Act of 1934.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Insolvency" means, with respect to any Multiemployer Plan, the
condition that such plan is insolvent within the meaning of Section 4245 of
ERISA.
"Intangible Assets" means, as to any Person at any time, the assets
that are required to be disclosed as intangible assets in accordance with GAAP
on the balance sheet of such Person (measured on a consolidated basis) including
customer lists, goodwill, computer software, copyrights, trade names,
trademarks, patents, unamortized deferred charges, unamortized debt discount and
capitalized research and development costs.
"Interest Payment Date" means, (a) as to any Loan other than a Base
Rate Loan or a Negotiated Bid Loan, the last day of each Interest Period
applicable to such Loan; provided, however, that if any Interest Period for a
Eurodollar Rate Loan exceeds three months, the respective dates that fall every
three months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each
March, June, September and December and the Maturity Date.
"Interest Period" means (a) as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or (in the case of
any Eurodollar Rate Committed Loan) converted to or continued as a Eurodollar
Rate Loan and ending on the date
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one, two, three or six months thereafter, as selected by the Borrower in its
Committed Loan Notice or Competitive Bid Request, as the case may be, or, in the
case of Eurodollar Rate Committed Loans, such other period that is twelve months
or less requested by the Borrower and consented to by all the Lenders; and (b)
as to each Absolute Rate Loan, a period of not less than 14 days and not more
than 180 days as selected by the Borrower in its Competitive Bid Request;
provided that:
(i) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Rate Loan, such
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate
Loan that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(iii) no Interest Period shall extend beyond the scheduled
Maturity Date.
"IP Rights" has the meaning set forth in Section 5.12.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's
participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means SunTrust Bank in its capacity as issuer of Letters
of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn face amount of all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all L/C Borrowings.
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"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the L/C Issuer and the Swingline Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify the Borrower and the Administrative Agent.
"Letter of Credit" means any letter of credit issued hereunder and any
of the Existing Letters of Credit. A Letter of Credit may be a commercial letter
of credit or a standby letter of credit.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a letter of credit hereunder in the form from time
to time in use by the L/C Issuer.
"Letter of Credit Subfacility Expiration Date" means the day that is
seven days prior to the Maturity Date (or, if such day is not a Business Day,
the next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to $50,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"LIBOR" means, for any applicable Interest Period with respect to any
Eurodollar Rate Loan, the British Bankers' Association Interest Settlement Rate
per annum for deposits in Dollars for a period equal to such Interest Period
appearing on the display designated as Page 3750 on the Dow Xxxxx Markets
Service (or such other page on that service or such other service designated by
the British Bankers' Association for the display of such Association's Interest
Settlement Rates for Dollar deposits) as of 11:00 a.m. (London, England time) on
the day that is two Business Days prior to the first day of the Interest Period
or if such Page 3750 is unavailable for any reason at such time, the rate which
appears on the Reuters Screen ISDA Page as of such date and such time; provided,
that if the Administrative Agent determines that the relevant foregoing sources
are unavailable for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum at
which deposits in Dollars are offered to the Administrative Agent (or the
applicable Competitive Bid Loan Lender, as the case may be) two (2) Business
Days preceding the first day of such Interest Period by leading banks in the
London interbank market as of 10:00 a.m. (London, England time) for delivery on
the first day of such Interest Period, for the number of days comprised therein
and in an amount comparable to the amount of the Eurodollar Rate Loan of the
Administrative Agent.
"Lien" means any mortgage, pledge, security interest, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), preference,
priority or charge of any kind or nature whatsoever (including, without
limitation, any agreement to give any of the foregoing, any conditional sale or
other title retention agreement, the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction or any
other similar recording or notice statute, and any lease having substantially
the same effect as any of the foregoing).
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"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Committed Loan, a Swingline Loan, a Competitive Bid
Loan or a Negotiated Bid Loan.
"Loan Documents" means this Agreement, each Note, the Fee Letter, each
Request for Credit Extension and each Compliance Certificate, and any and all
other instruments and agreements executed by the Borrower in connection with any
of the foregoing.
"Margin Stock" has the meaning set forth in Regulation U issued by the
Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, property , condition (financial or otherwise), or
results of operations of the Borrower and its Subsidiaries taken as a whole, (b)
the ability of the Borrower to perform its obligations under any Loan Document
or (c) the validity or enforceability of any Loan Document or the rights or
remedies of the Lenders hereunder or thereunder.
"Material Subsidiary" means, at any time, any Subsidiary of the
Borrower, the assets of which represent 10% or more of Consolidated Total Assets
(or the equivalent thereof in another currency), based upon the most recent
financial statements delivered to the Administrative Agent pursuant to Sections
6.01(a) and (b).
"Maturity Date" means (a) October 15, 2007 or (b) such earlier date
upon which the Commitments are terminated in accordance with the terms hereof.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower or any Commonly
Controlled Entity makes or is obligated to make contributions, or during the
preceding three calendar years, has made or been obligated to make
contributions.
"Negotiated Bid Borrowing" means a borrowing consisting of a Negotiated
Bid Loan from a Lender whose offer to make such a Negotiated Bid Loan has been
accepted in accordance with the procedures described in Section 2.04.
"Negotiated Bid Loan" has the meaning set forth in Section 2.04(a).
"Negotiated Bid Loan Note" means a promissory note made by the Borrower
in favor of a Lender evidencing Negotiated Bid Loans made by such Lender,
substantially in the form of Exhibit C-3.
"Negotiated Bid Loan Sublimit" means an amount equal to the Aggregate
Commitments. The Negotiated Bid Loan Sublimit is part of, and not in addition
to, the Aggregate Commitments.
"Notes" means, collectively, the Committed Loan Notes, the Competitive
Bid Loan Notes, the Negotiated Bid Loan Notes and the Swingline Note.
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"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, the Borrower arising under any Loan
Document, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest that accrues after the commencement by or against the
Borrower or any of its Subsidiaries of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws; (b) with respect to
any limited liability company, the articles of formation and operating
agreement; and (c) with respect to any partnership, joint venture, trust or
other form of business entity, the partnership, joint venture or other
applicable agreement of formation and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation with the
secretary of state or other department in the state of its formation, in each
case as amended from time to time.
"Outstanding Amount" means (i) with respect to Committed Loans,
Competitive Bid Loans, Negotiated Bid Loans and Swingline Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Committed Loans, Competitive Bid
Loans, Negotiated Bid Loans and Swingline Loans, as the case may be, occurring
on such date; and (ii) with respect to any L/C Obligations on any date, the
amount of such L/C Obligations on such date after giving effect to any L/C
Credit Extension occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing under Letters of Credit
taking effect on such date.
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any Commonly Controlled Entity or to which the Borrower or any Commonly
Controlled Entity contributes or has an obligation to contribute, or in the case
of a multiple employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding five plan years.
"Permitted Liens" means only those Liens permitted by subsections (a)
through (q) of Section 7.01.
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture or Governmental Authority.
"Plan" means, at a particular time, an employee benefit plan as defined
in Section 3(3) of ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such
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plan were terminated at such time, would under Section 4069 of ERISA be deemed
to be) an "employer" as defined in Section 3(5) of ERISA.
"Properties" has the meaning set forth in Section 5.08.
"Pro Rata Share" means, with respect to each Lender, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments set forth
opposite the name of such Lender on Schedule 2.01, as such share may be adjusted
as contemplated herein.
"Register" has the meaning set forth in Section 10.07(c).
"Reorganization" means, with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. Section
4043.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to a Swingline Loan, a Swingline Notice, (c) with respect to a
Competitive Bid Loan, a Competitive Bid Request, and (d) with respect to an L/C
Credit Extension, a Letter of Credit Application.
"Required Lenders" means, as of any date of determination, at least two
Lenders whose Voting Percentages aggregate more than 50%.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, treasurer or assistant treasurer of the Borrower. Any
document delivered hereunder that is signed by a Responsible Officer of the
Borrower shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of the Borrower and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
the Borrower.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and any successor thereto.
"Securitization" means any agreement or arrangement providing for
sales, transfers or conveyances to a special purpose Subsidiary or special
purpose entity of accounts receivable, notes, chattel paper, other rights to
payment and related property, whether or not for recourse and whether or not
treated as a sale for purposes of FAS 140, but not including the sale or
transfer of a single note or receivable undertaken on an isolated,
non-programmatic basis. For purposes hereof, the "applicable amount" of any
Securitization at any time shall be equal to the greater of (a) the outstanding
principal amount of any Debt at such time incurred by the Borrower or any
Subsidiary pursuant to any such Securitization, or (b) the face amount or book
value (whichever is greater) of any and all receivables, notes, chattel paper,
other rights to payment and related property sold or transferred pursuant to
such Securitization and outstanding at such time.
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"Shareholders' Equity" means, as of any date of determination for the
Borrower and its Subsidiaries on a consolidated basis, shareholders' equity as
of that date determined in accordance with GAAP.
"Single Employer Plan" means any plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent" and "Solvency" means, with respect to any Person on a
particular date, that on such date (a) the fair saleable value of the assets of
such Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) such Person is able to
meet its obligations as those obligations mature, and (c) such Person is not
engaged in business or a transaction for which such Person's assets would
constitute an unreasonably small capital. The amount of contingent liabilities
at any time shall be computed as the amount that, in the light of all the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"SunTrust Bank" means SunTrust Bank.
"Swingline Borrowing" means a borrowing consisting of a Swingline Loan
from the Swingline Lender made pursuant to Section 2.15.
"Swingline Commitment" means the commitment of the Swingline Lender to
make Swingline Loans in an aggregate principal amount at any time outstanding
not to exceed $10,000,000. The Swingline Commitment is part of, and not in
addition to, the Aggregate Commitments.
"Swingline Exposure" means, with respect to each Lender, the principal
amount of the Swingline Loans in which such Lender is legally obligated either
to make a Base Rate Loan or to purchase a participation in accordance with
Section 2.16, which shall equal such Lender's Pro Rata Share of all outstanding
Swingline Loans.
"Swingline Lender" means SunTrust Bank, or any other Lender that may
agree to make Swingline Loans hereunder.
"Swingline Loan" means a loan made to the Borrower by the Swingline
Lender under the Swingline Commitment.
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"Swingline Note" means the promissory note of the Borrower payable to
the order of the Swingline Lender in the principal amount of the Swingline
Commitment, substantially the form of Exhibit C-4.
"Swingline Notice" means a notice of Swingline Loan, delivered pursuant
to Section 2.16, which, if in writing, shall be substantially in the form of
Exhibit G.
"Swingline Termination Date" means the day that is seven days prior to
the Maturity Date (or, if such day is not a Business Day, the next preceding
Business Day).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under a so-called synthetic, off-balance sheet or tax retention lease that does
not appear on the balance sheet of such Person but which, upon the insolvency or
bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Threshold Amount" means $50,000,000.
"Total Capitalization" means, as to the Borrower and its Subsidiaries
at any date, the sum of (a) the aggregate amount of all Debt of such Persons at
such date determined on a consolidated basis, plus (b) Equity of such Persons at
such date.
"Type" means (a) with respect to a Committed Loan, its character as a
Base Rate Loan or a Eurodollar Rate Committed Loan, and (b) with respect to a
Competitive Bid Loan, its character as an Absolute Rate Loan or a Eurodollar
Margin Competitive Bid Loan.
"Unreimbursed Amount" has the meaning set forth in Section 2.05(c)(i).
"Vendor Finance Investment" means any loan, advance, lease (whether
structured as a capital lease or an operating lease) or guaranty entered into by
the Borrower pursuant to, in connection with or for the purpose of facilitating
the sale or provision of goods and services of the Borrower to its customers, in
each case arising outside of the Borrower's ordinary course of business as
existing on the date hereof.
"Voting Percentage" means, as to any Lender, (a) at any time prior to
the Maturity Date, such Lender's Pro Rata Share and (b) at any time after the
Maturity Date, the percentage (carried out to the ninth decimal place) which (i)
the sum of (A) the Outstanding Amount of such Lender's Committed Loans,
Competitive Bid Loans and Negotiated Bid Loans, plus (B) such Lender's Pro Rata
Share of the Outstanding Amount of L/C Obligations and Swingline Exposure, then
comprises of (ii) the Outstanding Amount of all Loans and L/C Obligations;
provided, however, that if any Lender has failed to fund any portion of the
Committed Loans, participations in L/C Obligations or Swingline Exposure
required to be funded by it hereunder, such Lender's Voting Percentage shall be
deemed to be -0-, and the respective Pro Rata Shares and Voting Percentages of
the other Lenders shall be recomputed for purposes of this definition and the
definition of "Required Lenders" without regard to such Lender's Commitment or
the outstanding amount of its Committed Loans, Swingline Loans and L/C Advances,
as the case may be.
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1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement and any other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein" and "hereunder" and words of similar
import when used in any Loan Document shall refer to such Loan Document as a
whole and not to any particular provision thereof.
(i) Article, Section, Exhibit and Schedule references are
to the Loan Document in which such references appear.
(ii) The term "including" is by way of example and not
limitation.
(iii) The term "documents" includes any and all
instruments, documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced, whether in
electronic or physical form.
(c) In the computation of periods of time from a specified date to
a later specified date, the word "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through" means "to
and including."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS.
(a) All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data required to
be submitted pursuant to this Agreement shall be prepared in conformity with,
GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either
the Borrower or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrower shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); provided that, until
so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.04 ROUNDING. Any financial ratios required to be maintained by
the Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the
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other component, carrying the result to one place more than the number of places
by which such ratio is expressed herein and rounding the result up or down to
the nearest number (with a rounding-up if there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan Document; and
(b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 COMMITTED LOANS. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "Committed
Loan") to the Borrower from time to time on any Business Day during the period
from the Closing Date to the Maturity Date, in an aggregate amount not to exceed
at any time outstanding the amount of such Lender's Commitment; provided,
however, that after giving effect to any Committed Borrowing, (i) the aggregate
Outstanding Amount of all Loans and L/C Obligations shall not exceed the
Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations and Swingline Exposure shall not
exceed such Lender's Commitment. Within the limits of each Lender's Commitment,
and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.01, prepay under Section 2.06, and reborrow under this
Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans,
as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each Committed Borrowing, each conversion of Committed Loans
from one Type to the other, and each continuation of Committed Loans as the same
Type shall be made upon the Borrower's irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than (x) 11:00 a.m., New York time, three
Business Days prior to the requested date of any Committed Borrowing of,
conversion to or continuation of Eurodollar Rate Committed Loans or of any
conversion of Eurodollar Rate Committed Loans to Base Rate Loans, and (y) 9:00
a.m., New York time, on the requested date of any Committed Borrowing of Base
Rate Loans. Each such telephonic notice must be confirmed promptly by delivery
to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Committed
Borrowing of, conversion to or continuation of Eurodollar Rate Committed Loans
shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000
in excess thereof (or, if less, an aggregate principal amount equal to the
remaining balance of the available Commitments). Each Committed Borrowing of or
conversion to Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof (or, if less, an aggregate amount
equal to the remaining balance of the available Commitments). Each Committed
Loan Notice (whether telephonic or written) shall specify
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(i) whether the Borrower is requesting a Committed Borrowing, a conversion of
Committed Loans from one Type to the other, or a continuation of Committed Loans
as the same Type, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued, (iv)
the Type of Committed Loans to be borrowed or to which existing Committed Loans
are to be converted, (v) if applicable, the duration of the Interest Period with
respect thereto. If the Borrower fails to specify a Type of Committed Loan in a
Committed Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation and (vi) if applicable, the Committed
Loan from which the requested Committed Loan will be converted or continued,
then the applicable Committed Loans shall be made or continued as, or converted
to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurodollar Rate Committed Loans. If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Committed Loans
in any such Committed Loan Notice, but fails to specify an Interest Period, it
will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the
Administrative Agent shall promptly notify each Lender of its Pro Rata Share of
the applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans
described in the preceding subsection. In the case of a Committed Borrowing,
each Lender shall make the amount of its Committed Loan available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m., New York time, on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is the
initial Credit Extension, Section 4.01), the Administrative Agent shall, by no
later than 3:00 p.m., New York time, make all funds so received available to the
Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of SunTrust Bank with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to the Administrative Agent by the
Borrower; provided, however, that if, on the date of the Committed Borrowing
there are L/C Borrowings outstanding, then the proceeds of such Borrowing shall
be applied, first, to the payment in full of any such L/C Borrowings and second,
to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate
Committed Loan may be continued or converted only on the last day of the
Interest Period for such Eurodollar Rate Committed Loan. During the existence of
a Default or Event of Default, no Committed Loans may be requested as, converted
to or continued as Eurodollar Rate Committed Loans without the consent of the
Required Lenders, and the Required Lenders may demand that any or all of the
then outstanding Eurodollar Rate Committed Loans be converted to Base Rate Loans
at the end of the respective Interest Periods related to such Loans.
(d) The Administrative Agent shall promptly notify the Borrower
and the Lenders of the interest rate applicable to any Eurodollar Rate Committed
Loan upon determination of such interest rate. The determination of the
Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. The Administrative Agent shall notify the Borrower
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and the Lenders of any change in SunTrust Bank's prime rate used in determining
the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all
conversions of Committed Loans from one Type to the other, and all continuations
of Committed Loans as the same Type, there shall not be more than ten Interest
Periods in effect with respect to Committed Loans.
2.03 COMPETITIVE BID LOANS.
(a) General. Subject to the terms and conditions set forth herein,
each Lender agrees that the Borrower may from time to time request the Lenders
to submit offers to make loans (each such loan, a "Competitive Bid Loan") to the
Borrower prior to the Maturity Date pursuant to this Section 2.03; provided,
however, that after giving effect to any Competitive Bid Borrowing, (i) the
aggregate Outstanding Amount of all Loans and L/C Obligations shall not exceed
the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of all
Competitive Bid Loans shall not exceed the Competitive Bid Loan Sublimit. There
shall not be more than ten different Interest Periods in effect with respect to
Competitive Bid Loans at any time. The Borrower shall have no obligation to
accept any Competitive Bid.
(b) Requesting Competitive Bids. The Borrower may request the
submission of Competitive Bids by delivering a Competitive Bid Request to the
Administrative Agent not later than 12:00 noon, New York time, (i) one Business
Day prior to the requested date of any Competitive Bid Borrowing that is to
consist of Absolute Rate Loans, or (ii) four Business Days prior to the
requested date of any Competitive Bid Borrowing that is to consist of Eurodollar
Margin Competitive Bid Loans. Each Competitive Bid Request shall specify (i) the
requested date of the Competitive Bid Borrowing (which shall be a Business Day),
(ii) the aggregate principal amount of Competitive Bid Loans requested (which
must be $10,000,000 or a whole multiple of $1,000,000 in excess thereof), (iii)
the Type of Competitive Bid Loans requested, and (iv) the duration of the
Interest Period with respect thereto, and shall be signed by a Responsible
Officer of the Borrower. No Competitive Bid Request shall contain a request for
(A) more than one Type of Competitive Bid Loan or (B) Competitive Bid Loans
having more than four different Interest Periods. Unless the Administrative
Agent otherwise agrees in its sole and absolute discretion, the Borrower may not
submit a Competitive Bid Request if it has submitted another Competitive Bid
Request within the prior five Business Days.
(c) Submitting Competitive Bids.
(i) The Administrative Agent shall promptly notify each
Lender of each Competitive Bid Request received by it from the Borrower
and the contents of such Competitive Bid Request.
(ii) Each Lender may (but shall have no obligation to)
submit a Competitive Bid containing an offer to make one or more
Competitive Bid Loans in response to such Competitive Bid Request. Such
Competitive Bid must be delivered to the Administrative Agent not later
than 10:30 a.m., New York time, (A) on the requested date of any
Competitive Bid Borrowing that is to consist of Absolute Rate Loans,
and (B) three Business Days prior to the requested date of any
Competitive Bid Borrowing that is to
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consist of Eurodollar Margin Competitive Bid Loans; provided, however,
that any Competitive Bid submitted by SunTrust Bank in its capacity as
a Lender in response to any Competitive Bid Request must be submitted
to the Administrative Agent not later than 10:15 a.m., New York time,
on the date on which Competitive Bids are required to be delivered by
the other Lenders in response to such Competitive Bid Request. Each
Competitive Bid shall specify (A) the proposed date of the Competitive
Bid Borrowing; (B) the principal amount of each Competitive Bid Loan
for which such Competitive Bid is being made, which principal amount
(x) may be equal to, greater than or less than the Commitment of the
bidding Lender, (y) must be $5,000,000 or in a whole multiple of
$1,000,000 in excess thereof, and (z) may not exceed the principal
amount of Competitive Bid Loans for which Competitive Bids were
requested; (C) if the proposed Competitive Bid Borrowing is to consist
of Absolute Rate Loans, the Absolute Rate offered for each such
Competitive Bid Loan and the Interest Period applicable thereto; (D) if
the proposed Competitive Bid Borrowing is to consist of Eurodollar
Margin Competitive Bid Loans, the Eurodollar Bid Margin with respect to
each such Eurodollar Margin Competitive Bid Loan and the Interest
Period applicable thereto; and (E) the identity of the bidding Lender.
(iii) Any Competitive Bid shall be disregarded if it (A) is
received after the applicable time specified in clause (ii) above, (B)
is not substantially in the form of a Competitive Bid as specified
herein, (C) contains qualifying, conditional or similar language, (D)
proposes terms other than or in addition to those set forth in the
applicable Competitive Bid Request, or (E) is otherwise not responsive
to such Competitive Bid Request. Any Lender may correct a Competitive
Bid containing a manifest error by submitting a corrected Competitive
Bid (identified as such) not later than the applicable time required
for submission of Competitive Bids. Any such submission of a corrected
Competitive Bid shall constitute a revocation of the Competitive Bid
that contained the manifest error. The Administrative Agent may, but
shall not be required to, notify any Lender of any manifest error it
detects in a Lender's Competitive Bid.
(iv) Subject only to the provisions of Sections 3.02, 3.03
(in the case of a Eurodollar Rate Competitive Bid Loan) and 4.02 and
clause (iii) above, each Competitive Bid shall be irrevocable.
(d) Notice to Borrower of Competitive Bids. Not later than 11:00
a.m., New York time, (i) on the requested date of any Competitive Bid Borrowing
that is to consist of Absolute Rate Loans, or (ii) three Business Days prior to
the requested date of any Competitive Bid Borrowing that is to consist of
Eurodollar Margin Competitive Bid Loans, the Administrative Agent shall notify
the Borrower of the identity of each Lender that has submitted a Competitive Bid
that complies with Section 2.03(c) and of the terms of the offers contained in
each such Competitive Bid.
(e) Acceptance of Competitive Bids. Not later than 11:30 a.m., New
York time, (i) on the requested date of any Competitive Bid Borrowing that is to
consist of Absolute Rate Loans, and (ii) three Business Days prior to the
requested date of any Competitive Bid Borrowing that is to consist of Eurodollar
Margin Competitive Bid Loans, the Borrower shall notify the Administrative Agent
of its acceptance or rejection of the offers notified to it pursuant
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to Section 2.03(d). The Borrower shall be under no obligation to accept any
Competitive Bid and may choose to reject all Competitive Bids. In the case of
acceptance, such notice shall specify the aggregate principal amount of
Competitive Bids for each Interest Period that is accepted. The Borrower may
accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Competitive
Bid Borrowing may not exceed the applicable amount set forth in the
related Competitive Bid Request;
(ii) the principal amount of each Competitive Bid Loan
must be $5,000,000 or in a whole multiple of $1,000,000 in excess
thereof;
(iii) the acceptance of offers may be made only on the
basis of ascending Absolute Rates or Eurodollar Bid Margins within each
Interest Period; and
(iv) the Borrower may not accept any offer that is
described in Section 2.03(c)(iii) or that otherwise fails to comply
with the requirements hereof.
(f) Procedure for Identical Bids. If two or more Lenders have
submitted Competitive Bids at the same Absolute Rate or Eurodollar Bid Margin,
as the case may be, for the same Interest Period, and the result of accepting
all of such Competitive Bids in whole (together with any other Competitive Bids
at lower Absolute Rates or Eurodollar Bid Margins, as the case may be, accepted
for such Interest Period in conformity with the requirements of Section
2.03(e)(iii)) would be to cause the aggregate outstanding principal amount of
the applicable Competitive Bid Borrowing to exceed the amount specified therefor
in the related Competitive Bid Request, then, unless otherwise agreed by the
Borrower, the Administrative Agent and such Lenders, such Competitive Bids shall
be accepted as nearly as possible in proportion to the amount offered by each
such Lender in respect of such Interest Period, at such Absolute Rate or
Eurodollar Bid Margin, without regard to the requirements of Section
2.03(e)(ii).
(g) Notice to Lenders of Acceptance or Rejection of Bids. The
Administrative Agent shall promptly notify each Lender having submitted a
Competitive Bid whether or not its offer has been accepted and, if its offer has
been accepted, of the amount of the Competitive Bid Loan or Competitive Bid
Loans to be made by it on the date of the applicable Competitive Bid Borrowing.
Any Competitive Bid or portion thereof that is not accepted by the Borrower by
the applicable time specified in Section 2.03(e) shall be deemed rejected.
(h) Notice of Eurodollar Rate. If any Competitive Bid Borrowing is
to consist of Eurodollar Margin Loans, the Administrative Agent shall determine
the Eurodollar Rate for the relevant Interest Period, and promptly after making
such determination, shall notify the Borrower and the Lenders that will be
participating in such Competitive Bid Borrowing of such Eurodollar Rate.
(i) Funding of Competitive Bid Loans. Each Lender that has
received notice pursuant to Section 2.03(g) that all or a portion of its
Competitive Bid has been accepted by the Borrower shall make the amount of its
Competitive Bid Loan(s) available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00 p.m.,
New York time, on the date of the requested Competitive Bid Borrowing. Upon
satisfaction of the applicable conditions set forth in Section 4.02, the
Administrative Agent shall,
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by no later than 3:00 p.m., New York time, make all funds so received available
to the Borrower in like funds as received by the Administrative Agent.
(j) Notice of Range of Bids. After each Competitive Bid auction
pursuant to this Section 2.03, the Administrative Agent shall notify each Lender
that submitted a Competitive Bid in such auction of the ranges of bids submitted
(without the bidder's name) and accepted for each Competitive Bid Loan and the
aggregate amount of each Competitive Bid Borrowing.
2.04 NEGOTIATED BID LOANS.
(a) General. Subject to the terms and conditions set forth herein,
each Lender agrees to entertain requests made by the Borrower from time to time
to make Loans (each such loan, a "Negotiated Bid Loan") to the Borrower prior to
the Maturity Date pursuant to this Section 2.04; provided, however, that (i) the
Lenders shall have no obligation to make any Negotiated Bid Loans, (ii) the
Borrower shall have no obligation to accept any offer to make any Negotiated Bid
Loan, and (iii) after giving effect to any Negotiated Bid Loan Borrowing, (A)
the aggregate Outstanding Amount of all Loans and L/C Obligations shall not
exceed the Aggregate Commitments, and (B) the aggregate Outstanding Amount of
all Negotiated Bid Loans shall not exceed the Negotiated Bid Loan Sublimit.
(b) Terms. Each Negotiated Bid Loan shall be made on terms agreed
to by the Borrower and the applicable Lender with respect thereto; provided that
(i) no Negotiated Bid Loan shall have a maturity date occurring subsequent to
the Maturity Date, (ii) no Negotiated Bid Loan shall be denominated in any
currency other than Dollars, and (iii) no obligations of the Borrower arising in
connection with any Negotiated Bid Loan shall at any time be secured by any Lien
upon any property, assets or revenues of the Borrower, any of its Subsidiaries
or any other Person, other than any right of set-off an applicable Lender may
have with respect to deposit accounts maintained by the Borrower with such
Lender.
(c) Notice to the Administrative Agent. Not later than 3:00 p.m.,
New York time, on the date of any requested Negotiated Bid Loan Borrowing, the
Borrower shall deliver to the Administrative Agent (i) a notice specifying (A)
the identity of the respective Lender that has agreed to fund such Negotiated
Bid Loan Borrowing, (B) the anticipated date of such Negotiated Bid Loan
Borrowing, (C) the anticipated aggregate principal amount of such Negotiated Bid
Loan Borrowing, and (D) the anticipated maturity date of such Negotiated Bid
Loan; and (ii) such documents, instruments and other information with respect to
such Negotiated Bid Loan as the Administrative Agent may from time to time
reasonably request.
(d) Funding of Negotiated Bid Loans. Each Lender that has agreed
to fund such Negotiated Bid Loan Borrowing shall make the amount of its
Negotiated Bid Loan available to the Borrower by no later than 3:00 p.m., New
York time, on the date of such Borrowing.
2.05 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein,
(A) the L/C Issuer agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.05,
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(1) from time to time on any Business Day during the period from the
Closing Date until the Letter of Credit Subfacility Expiration Date, to
issue Letters of Credit for the account of the Borrower or certain
Subsidiaries, and to amend or renew Letters of Credit previously issued
by it, in accordance with subsection (b) below, and (2) to honor drafts
under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of the
Borrower; provided that the L/C Issuer shall not be obligated to make
any L/C Credit Extension with respect to any Letter of Credit, and no
Lender shall be obligated to participate in, any Letter of Credit if as
of the date of such L/C Credit Extension, (x) the Outstanding Amount of
all L/C Obligations and all Loans would exceed the Aggregate
Commitments, (y) the aggregate Outstanding Amount of the Committed
Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations would exceed such Lender's
Commitment, or (z) the Outstanding Amount of the L/C Obligations would
exceed the Letter of Credit Sublimit. Within the foregoing limits, and
subject to the terms and conditions hereof, the Borrower's ability to
obtain Letters of Credit shall be fully revolving, and accordingly the
Borrower may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn
upon and reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue
any Letter of Credit if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or
any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the
L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect
on the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on
the Closing Date and which the L/C Issuer in good xxxxx xxxxx
material to it;
(B) subject to Section 2.05(b)(iii), the expiry
date of such requested Letter of Credit would occur more than
twelve months after the date of issuance or last renewal,
unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Subfacility
Expiration Date, unless all the Lenders have approved such
expiry date;
(D) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer; or
(E) such Letter of Credit is in a face amount
less than $100,000, in the case of a commercial Letter of
Credit, or $500,000, in the case of any other type of Letter
of Credit, or is to be denominated in a currency other than
Dollars.
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(iii) The L/C Issuer shall be under no obligation to amend
any Letter of Credit if (A) the L/C Issuer would have no obligation at
such time to issue such Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Evergreen Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as
the case may be, upon the request of the Borrower delivered to the L/C
Issuer (with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of the Borrower. Such Letter of Credit Application
must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m., New York time, at least two Business Days (or
such later date and time as the L/C Issuer may agree in a particular
instance in its sole discretion) prior to the proposed issuance date or
date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary
thereof; (E) the documents to be presented by such beneficiary in case
of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and
(G) such other matters as the L/C Issuer may require. In the case of a
request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to be amended;
(B) the proposed date of amendment thereof (which shall be a Business
Day); (C) the nature of the proposed amendment; and (D) such other
matters as the L/C Issuer may require.
(ii) Promptly after its receipt of any Letter of Credit
Application, but in any event no later than two Business Days prior to
the proposed issuance date, the L/C Issuer will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit
Application from the Borrower and, if not, the L/C Issuer will provide
the Administrative Agent with a copy thereof. Upon receipt by the L/C
Issuer of confirmation from the Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof,
then, subject to the terms and conditions hereof, the L/C Issuer shall,
on the requested date, issue a Letter of Credit for the account of the
Borrower or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer's usual and customary
business practices. Immediately upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a participation
in such Letter of Credit in an amount equal to the product of such
Lender's Pro Rata Share times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter
of Credit Application, the L/C Issuer may, in it sole and absolute
discretion, agree to issue a Letter of Credit that
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has automatic renewal provisions (each, an "Evergreen Letter of
Credit"); provided that any such Evergreen Letter of Credit must permit
the L/C Issuer to prevent any such renewal at least once in each
twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not
later than a day (the "Nonrenewal Notice Date") in each such
twelve-month period to be agreed upon at the time such Letter of Credit
is issued. Unless otherwise directed by the L/C Issuer, the Borrower
shall not be required to make a specific request to the L/C Issuer for
any such renewal. Once an Evergreen Letter of Credit has been issued,
the Lenders shall be deemed to have authorized (but may not require)
the L/C Issuer to permit the renewal of such Letter of Credit at any
time to a date not later than the Letter of Credit Subfacility
Expiration Date; provided, however, that the L/C Issuer shall not
permit any such renewal if (A) the L/C Issuer would have no obligation
at such time to issue such Letter of Credit in its renewed form under
the terms hereof, or (B) it has received notice (which may be by
telephone or in writing) on or before the Business Day immediately
preceding the Nonrenewal Notice Date (1) from the Administrative Agent
that the Required Lenders have elected not to permit such renewal or
(2) from the Administrative Agent, any Lender or the Borrower that one
or more of the applicable conditions specified in Section 4.02 is not
then satisfied. Notwithstanding anything to the contrary contained
herein, the L/C Issuer shall have no obligation to permit the renewal
of any Evergreen Letter of Credit at any time.
(iv) Promptly after its delivery of any Letter of Credit
or any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also deliver
to the Borrower and the Administrative Agent a true and complete copy
of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon any drawing under any Letter of Credit, the L/C
Issuer shall notify the Borrower and the Administrative Agent thereof.
Not later than 1:00 p.m., New York time, on the date of any payment by
the L/C Issuer under a Letter of Credit (each such date, an "Honor
Date"), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing.
If the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor
Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and such Lender's Pro Rata Share thereof. In such event, the
Borrower shall be deemed to have requested a Committed Borrowing of
Base Rate Loans to be disbursed on the Honor Date in an amount equal to
the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.02 for the principal amount of Base Rate Loans,
but subject to the amount of the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02 (other than
the delivery of a Committed Loan Notice). Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.05(c)(i)
may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
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(ii) Each Lender (including the Lender acting as L/C
Issuer) shall upon any notice pursuant to Section 2.05(c)(i) make funds
available to the Administrative Agent for the account of the L/C Issuer
at the Administrative Agent's Office in an amount equal to its Pro Rata
Share of the Unreimbursed Amount not later than 3:00 p.m., New York
time, on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section
2.05(c)(iii), each Lender that so makes funds available shall be deemed
to have made a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C
Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Committed Borrowing of Base Rate Loans because
the conditions set forth in Section 4.02 cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount
that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the
Default Rate. In such event, each Lender's payment to the
Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.05(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under
this Section 2.05.
(iv) Until each Lender funds its Committed Loan or L/C
Advance pursuant to this Section 2.05(c) to reimburse the L/C Issuer
for any amount drawn under any Letter of Credit, interest in respect of
such Lender's Pro Rata Share of such amount shall be solely for the
account of the L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or
L/C Advances to reimburse the L/C Issuer for amounts drawn under
Letters of Credit, as contemplated by this Section 2.05(c), shall be
absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the L/C
Issuer, the Borrower or any other Person for any reason whatsoever, (B)
the occurrence or continuance of a Default or Event of Default, or (C)
any other occurrence, event or condition including, without limitation,
the existence (or alleged existence) of any Material Adverse Effect,
whether or not similar to any of the foregoing. Any such reimbursement
shall not relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.05(c) by the time specified in Section 2.05(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the L/C Issuer
at a rate per annum equal to the Federal Funds Rate from time to time
in effect. A certificate of the L/C Issuer submitted to any Lender
(through the
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Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment
under any Letter of Credit and has received from any Lender such
Lender's L/C Advance in respect of such payment in accordance with
Section 2.05(c), if the Administrative Agent receives for the account
of the L/C Issuer any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), or any payment
of interest thereon, the Administrative Agent will distribute to such
Lender its Pro Rata Share thereof in the same funds as those received
by the Administrative Agent.
(ii) If any payment received by the Administrative Agent
for the account of the L/C Issuer pursuant to Section 2.05(c)(i) is
required to be returned, each Lender shall pay to the Administrative
Agent for the account of the L/C Issuer its Pro Rata Share thereof on
demand of the Administrative Agent, plus interest thereon from the date
of such demand to the date such amount is returned by such Lender, at a
rate per annum equal to the Federal Funds Rate from time to time in
effect.
(e) Obligations Absolute. The obligation of the Borrower to
reimburse the L/C Issuer for each drawing under each Letter of Credit, and to
repay each L/C Borrowing and each drawing under a Letter of Credit that is
refinanced by a Borrowing of Committed Loans, shall be absolute, unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter
of Credit, this Agreement, or any other agreement or instrument
relating thereto;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the Borrower may have at any time against
any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter
of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any
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beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;
or
(v) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will promptly notify the L/C Issuer. The Borrower shall be conclusively
deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that,
in paying any drawing under a Letter of Credit, the L/C Issuer shall not have
any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. No
Agent-Related Person nor any of the respective correspondents, participants or
assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application. The
Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. No Agent-Related Person, nor any
of the respective correspondents, participants or assignees of the L/C Issuer,
shall be liable or responsible for any of the matters described in clauses (i)
through (v) of Section 2.05(e); provided, however, that anything in such clauses
to the contrary notwithstanding, the Borrower may have a claim against the L/C
Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower which the Borrower proves were caused by the
L/C Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing that has not
been converted into a Borrowing under the terms hereof, or (ii) if, as of the
Letter of Credit Subfacility Expiration Date, any Letter of
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Credit may for any reason remain outstanding and partially or wholly undrawn,
the Borrower shall immediately Cash Collateralize the then Outstanding Amount of
all L/C Obligations (in an amount equal to such Outstanding Amount).
(h) Applicability of ISP98 and UCP. Unless otherwise expressly
agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued, (i)
the rules of the "International Standby Practices 1998" published by the
Institute of International Banking Law & Practice (or such later version thereof
as may be in effect at the time of issuance) shall apply to each standby Letter
of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of
Commerce (the "ICC") at the time of issuance (including the ICC decision
published by the Commission on Banking Technique and Practice on April 6, 1998
regarding the European single currency (euro)) shall apply to each commercial
Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its Pro
Rata Share (i) a Letter of Credit fee for each commercial Letter of Credit equal
to the margin listed under the heading "Letters of Credit" in the definition of
Applicable Rate times the actual daily maximum amount available to be drawn
under each such Letter of Credit, and (ii) a Letter of Credit fee for each
standby Letter of Credit equal to the margin listed under the heading "Letters
of Credit" in the definition of Applicable Rate times the actual daily maximum
amount available to be drawn under each such Letter of Credit. Such fee for each
Letter of Credit shall be due and payable on the last Business Day of each
March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, and on the Letter of Credit
Subfacility Expiration Date. If there is any change in the Applicable Rate
during any quarter, the actual daily amount of each standby Letter of Credit
shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to
L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own
account a fronting fee in an amount (i) with respect to each commercial Letter
of Credit, a per annum rate equal to 0.125% of the amount of such Letter of
Credit, due and payable upon the issuance thereof, and (ii) with respect to each
standby Letter of Credit, a per annum rate equal to 0.125% on the daily maximum
amount available to be drawn thereunder, due and payable quarterly in arrears on
the last Business Day of each March, June, September and December, commencing
with the first such date to occur after the issuance of such Letter of Credit,
and on the Letter of Credit Subfacility Expiration Date. In addition, the
Borrower shall pay directly to the L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the L/C Issuer relating to letters of credit as from time
to time in effect. Such fees and charges are due and payable on demand and are
nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of
any conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.06 PREPAYMENTS.
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(a) The Borrower may, upon notice to the Administrative Agent, at
any time or from time to time voluntarily prepay Committed Loans and Swingline
Loans in whole or in part without premium or penalty; provided that (i) such
notice must be received by the Administrative Agent (A) not later than 11:00
a.m., New York time, three Business Days prior to any date of prepayment of
Eurodollar Rate Committed Loans, and (B) not later than 9:00 a.m., New York
time, on the date of prepayment of Base Rate Loans and Swingline Loans; (ii) any
prepayment of Eurodollar Rate Committed Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any
prepayment of Base Rate Loans shall be in a principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof; (iv) any prepayment of Swingline
Loans shall be in an amount that would be permitted in the case of an advance of
a Swingline Loan pursuant to Section 2.16, or, in the case of (ii), (iii) and
(iv) if a lesser amount, the remaining principal amount of the applicable Loans
in any outstanding Borrowing. Each such notice shall specify the date and amount
of such prepayment and the Type(s) of Committed Loans or Swingline Loans to be
prepaid. The Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of such Lender's Pro Rata Share of such
prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Committed Loans or Swingline Loans, as the case may be, of the
Lenders in accordance with their respective Pro Rata Shares.
(b) No Competitive Bid Loan may be prepaid without the prior
consent of the applicable Lender of such Competitive Bid Loan.
(c) The Borrower may prepay Negotiated Bid Loans only in
accordance with the respective terms and conditions agreed to by the Borrower
and the applicable Lender in respect of any such Negotiated Bid Loan.
(d) If for any reason the Outstanding Amount of all Loans and L/C
Obligations at any time exceeds the Aggregate Commitments then in effect, the
Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess.
2.07 OPTIONAL REDUCTION OR TERMINATION OF COMMITMENTS. The Borrower
may, upon notice to the Administrative Agent, terminate the Aggregate
Commitments, or permanently reduce the Aggregate Commitments to an amount not
less than the then Outstanding Amount of all Loans and L/C Obligations; provided
that (a) the Borrower shall not be obligated to pay any amount as a penalty in
connection with any such reduction or termination of the Aggregate Commitments,
except as required by Section 3.05 due to any repayment of Loans arising from
such reduction or termination, (b) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m., New York time, five Business
Days prior to the date of termination or reduction, and (c) any such partial
reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of
$1,000,000 in excess thereof. The Administrative Agent shall promptly notify the
Lenders of any such notice of reduction or termination of the Aggregate
Commitments. Once reduced in accordance with this Section, the Commitments may
not be increased. Any reduction of the Aggregate Commitments shall be applied to
the Commitment of
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each Lender according to its Pro Rata Share. All facility fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination. Unless otherwise agreed to by the
Swingline Lender or the L/C Issuer, as the case may be, any reduction in the
Aggregate Commitments shall result in a proportionate reduction in the Swingline
Commitment and the Letter of Credit Sublimit.
2.08 REPAYMENT OF LOANS.
(a) The Borrower shall repay to the Lenders on the Maturity Date
the aggregate principal amount of Committed Loans outstanding on such date.
(b) The Borrower shall repay each Swingline Borrowing on the
earlier of (i) the last day of the Interest Period applicable to such Borrowing
and (ii) the Swingline Termination Date.
(c) The Borrower shall repay each Competitive Bid Loan on the last
day of the Interest Period in respect thereof.
(d) The Borrower shall repay each Negotiated Bid Loan on the date
agreed to by the Borrower and the relevant Lender with respect to such
Negotiated Bid Loan.
2.09 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Committed Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus the margin listed under the
heading "Eurodollar Rate" in the definition of Applicable Rate; (ii) each Base
Rate Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Base Rate; (iii)
each Competitive Bid Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus (or minus) the Eurodollar Bid
Margin, or at the Absolute Rate for such Interest Period, as the case may be;
(iv) each Swingline Loan shall bear interest on the outstanding principal amount
thereof at the Base Rate, or such other rate as the Swingline Lender and the
Borrower shall agree to, with respect thereto; and (iv) each Negotiated Bid Loan
shall bear interest on the outstanding principal amount thereof at a rate per
annum agreed to by the Lender making such Loan and the Borrower with respect
thereto.
(b) If any Event of Default exists under Section 8.01(a) or after
acceleration, the Borrower shall, and for all other Events of Default shall at
the option of the Required Lenders, pay interest on the principal amount of all
outstanding Obligations at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Law.
Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest on each Swingline Loan shall be payable on the
maturity date of such Loan, which shall be the last day of the Interest Period
applicable thereto, and on the Swingline Termination Date.
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(d) Interest on each Loan (other than a Negotiated Bid Loan or
Swingline Loan) shall be due and payable in arrears on each Interest Payment
Date applicable thereto and at such other times as may be specified herein.
Interest on each Negotiated Bid Loan shall be due and payable in accordance with
the terms agreed to by the Lender making such Loan and the Borrower with respect
thereto. Interest hereunder shall be due and payable in accordance with the
terms hereof before and after judgment, and before and after the commencement of
any proceeding under any Debtor Relief Law.
2.10 FEES.
In addition to certain fees described in subsections (i) and (j) of
Section 2.05:
(a) Facility Fee. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share, a
facility fee equal to the amount set forth under the heading "Facility Fee" in
the definition of Applicable Rate times the actual daily amount of the Aggregate
Commitments, regardless of usage. The facility fee shall accrue at all times
from the Closing Date until the Maturity Date and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date. The facility fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter,
the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect. The facility fee shall accrue at all times, including at any time during
which one or more of the conditions in Article IV is not met.
(b) Fee Letter. The Borrower shall pay to SunTrust Bank and
SunTrust Capital Markets, Inc. the fees set forth in the Fee Letter, for their
own account in the amounts and at the times specified in the Fee Letter. Such
fees shall be fully earned when paid and shall be nonrefundable for any reason
whatsoever.
(c) Lenders' Upfront Fee. On the Closing Date, the Borrower shall
pay to the Administrative Agent, for the account of the Lenders, the upfront fee
previously agreed upon by the Borrower, the Lenders and the Administrative
Agent. The upfront fee paid to each Lender is solely for its own account and is
nonrefundable for any reason whatsoever.
2.11 COMPUTATION OF INTEREST AND FEES. Interest on Base Rate Loans
and Swingline Loans shall be calculated on the basis of a year of 365 or 366
days, as the case may be, and the actual number of days elapsed. Computation of
all other types of interest and all fees (other than interest in respect of any
Negotiated Bid Loans) shall be calculated on the basis of a year of 360 days and
the actual number of days elapsed, which results in a higher yield to the payee
thereof than a method based on a year of 365 or 366 days. Interest shall accrue
on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on which it is made
shall bear interest for one day. All calculations of interest in respect of any
Negotiated Bid Loan shall be on such basis as the Lender making such Loan and
the Borrower shall agree in connection with the arrangement thereof; provided
that, in the event of any dispute,
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such interest shall be calculated on the basis of a 360-day year for the actual
number of days (including the first day but excluding the last day) elapsed.
2.12 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced
by one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Credit Extensions made by the Lenders
to the Borrower and the interest and payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the
Loans or L/C Obligations. In the event of any conflict between the accounts and
records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of
such Lender shall control. Upon the request of any Lender made through the
Administrative Agent, such Lender's Loans may be evidenced by a Committed Loan
Note, a Swingline Note, a Competitive Bid Loan Note or a Negotiated Bid Loan
Note, as applicable, in addition to such accounts or records. Each Lender may
attach schedules to its Note(s) and endorse thereon the date, Type (if
applicable), amount and maturity of the applicable Loans and payments with
respect thereto.
(b) In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Lender of participations in Letters of Credit and Swingline
Loans. In the event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any Lender in
respect of such matters, the accounts and records of the Administrative Agent
shall control.
2.13 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or set-off.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m.,
New York time, on the date specified herein. The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable share
as provided herein) of such payment in like funds as received by wire transfer
to such Lender's Lending Office. All payments received by the Administrative
Agent after 2:00 p.m., New York time, shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue. Without limiting the generality of the foregoing, the Borrower shall
make each payment in respect of a Negotiated Bid Loan not later than 3:00 p.m.
(local time at the place of payment) on the day when due to or for the account
of the Lender making such Loan at such location as may be agreed by the Borrower
and such Lender in connection with the making of such Negotiated Bid Loan, upon
such terms as such Lender and the Borrower shall agree in connection with the
making thereof.
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(b) Subject to the definition of "Interest Period," if any payment
to be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, L/C
Borrowings, interest and fees then due hereunder, such funds shall be applied
(i) first, toward costs and expenses (including Attorney Costs and amounts
payable under Article III) incurred by the Administrative Agent and each Lender,
(ii) second, toward repayment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (iii) third, toward repayment of
principal and L/C Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and L/C Borrowings
then due to such parties.
(d) Unless the Borrower or any Lender has notified the
Administrative Agent prior to the date any payment is required to be made by it
to the Administrative Agent hereunder, that the Borrower or such Lender, as the
case may be, will not make such payment, the Administrative Agent may assume
that the Borrower or such Lender, as the case may be, has timely made such
payment and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(i) if the Borrower failed to make such payment, each
Lender shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender
in immediately available funds, together with interest thereon in
respect of each day from and including the date such amount was made
available by the Administrative Agent to such Lender to the date such
amount is repaid to the Administrative Agent in immediately available
funds, at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such
Lender shall forthwith on demand pay to the Administrative Agent the
amount thereof in immediately available funds, together with interest
thereon for the period from the date such amount was made available by
the Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Committed Loan or
Competitive Bid Loan, as the case may be, included in the applicable
Borrowing. If such Lender does not pay such amount within two Business
Days after the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon the Borrower, and
the Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a rate
per annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its Commitment or to prejudice any rights
which the Administrative Agent or the Borrower may have against any
Lender as a result of any default by such Lender hereunder.
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A notice of the Administrative Agent to any Lender with
respect to any amount owing under this subsection (d) shall be
conclusive, absent manifest error.
(e) If any Lender makes available to the Administrative Agent
funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and the conditions to the applicable Credit
Extension set forth in Article IV are not satisfied or waived in accordance with
the terms hereof, the Administrative Agent shall return such funds (in like
funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed
Loans and to fund participations in Letters of Credit and Swingline Loans are
several and not joint. The failure of any Lender to make any Committed Loan or
to fund any such participation on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its
Committed Loan or purchase its participation.
(g) Subject to Section 3.09, nothing herein shall be deemed to
obligate any Lender to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Lender that it has obtained or
will obtain the funds for any Loan in any particular place or manner.
2.14 SHARING OF PAYMENTS. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of any Committed Loans made
by it, or the participations in L/C Obligations or Swingline Exposure held by
it, any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Committed Loans or Swingline Loans made by them and/or
such subparticipations in the participations in L/C Obligations held by them as
shall be necessary to cause such purchasing Lender to share the excess payment
in respect of such Loans or such participations, as the case may be, pro rata
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender, such purchase shall
to that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender's ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Administrative Agent will keep
records (which shall be conclusive and binding in the absence of manifest error)
of participations purchased under this Section 2.14 and will in each case notify
the Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this Section shall from and after such
purchase have the right to give all notices, requests, demands, directions and
other communications under this Agreement with respect to the portion of the
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Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
2.15 SWINGLINE COMMITMENT.
Subject to the terms and conditions set forth herein, the Swingline
Lender agrees to make Swingline Loans to the Borrower, from time to time from
the Closing Date to the Swingline Termination Date, in an aggregate principal
amount outstanding at any time not to exceed the lesser of (i) the Swingline
Commitment then in effect and (ii) the difference between the Aggregate
Commitments and the sum of (x) the Outstanding Amount of all Loans and L/C
Obligations; provided, that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. The Borrower shall be
entitled to borrow, repay and reborrow Swingline Loans in accordance with the
terms and conditions of this Agreement.
2.16 PROCEDURE FOR SWINGLINE BORROWING; ETC.
(a) The Borrower shall give the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of each Swingline
Borrowing substantially in the form of Exhibit G attached hereto ("Notice of
Swingline Borrowing") prior to 10:00 a.m., New York time, on the requested date
of each Swingline Borrowing. Each Notice of Swingline Borrowing shall be
irrevocable and shall specify: (i) the principal amount of such Swingline Loan,
(ii) the date of such Swingline Loan (which shall be a Business Day) and (iii)
the account of the Borrower to which the proceeds of such Swingline Loan should
be credited. The Administrative Agent will promptly advise the Swingline Lender
of each Notice of Swingline Borrowing. Each Swingline Loan shall accrue interest
at the Base Rate or any other interest rate as agreed between the Borrower and
the Swingline Lender and shall have an Interest Period (subject to (a)(i) and
(iii) to the definition thereof) as agreed between the Borrower and the
Swingline Lender. The aggregate principal amount of each Swingline Loan shall be
not less than $100,000 or a larger multiple of $50,000, or such other minimum
amounts agreed to by the Swingline Lender and the Borrower. The Swingline Lender
will make the proceeds of each Swingline Loan available to the Borrower in
Dollars in immediately available funds at the account specified by the Borrower
in the applicable Notice of Swingline Borrowing not later than 1:00 p.m., New
York time, on the requested date of such Swingline Loan.
(b) The Swingline Lender, at any time and from time to time in its
sole discretion, may, on behalf of the Borrower (which hereby irrevocably
authorizes and directs the Swingline Lender to act on its behalf), give a
Committed Loan Notice to the Administrative Agent requesting the Lenders
(including the Swingline Lender) to make Base Rate Loans in an amount equal to
the unpaid principal amount of any Swingline Loan. Each Lender will make the
proceeds of its Base Rate Loan included in such Borrowing available to the
Administrative Agent for the account of the Swingline Lender in accordance with
Section 2.02, which will be used solely for the repayment of such Swingline
Loan.
(c) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender (other than the
Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on
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the date that such Base Rate Borrowing should have occurred. On the date of such
required purchase, each Lender shall promptly transfer, in immediately available
funds, the amount of its participating interest to the Administrative Agent for
the account of the Swingline Lender. If such Swingline Loan bears interest at a
rate other than the Base Rate, such Swingline Loan shall automatically become a
Base Rate Loan on the effective date of any such participation and interest
shall become payable on demand.
(d) Each Lender's obligation to make a Base Rate Loan pursuant to
Section 2.16(b) or to purchase the participating interests pursuant to Section
2.16(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any set-off, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Commitment, (iii) any breach of this Agreement or
any other Loan Document by the Borrower, the Administrative Agent or any Lender
or (iv) any other circumstance, happening or event whatsoever including, without
limitation, the existence (or alleged existence) of any Material Adverse Effect,
whether or not similar to any of the foregoing. If such amount is not in fact
made available to the Swingline Lender by any Lender, the Swingline Lender shall
be entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof (i) at the
Federal Funds Rate until the second Business Day after such demand and (ii) at
the Base Rate at all times thereafter. Until such time as such Lender makes its
required payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its Loans and
any other amounts due to it hereunder, to the Swingline Lender to fund the
amount of such Lender's participation interest in such Swingline Loans that such
Lender failed to fund pursuant to this Section, until such amount has been
purchased in full.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments made by the Borrower to or for the
account of the Administrative Agent or any Lender under any Loan Document shall
be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and all liabilities with respect thereto
incurred in connection with, or as a direct or indirect result of, any Borrowing
or payment on a Borrowing, or other payments made pursuant to this Agreement,
excluding, in the case of the Administrative Agent and each Lender, (i) taxes
imposed on or measured by its net income, and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the Laws of which the Administrative Agent or such Lender, as the
case may be, is organized or maintains a lending office, and (ii) taxes imposed
as a result of a present or former connection between the jurisdiction of the
government or taxing authority imposing such tax (or any political subdivision
or taxing authority thereof or therein) and the Administrative Agent or any
Lender (excluding a connection arising principally as a result of the
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Administrative Agent or any Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, any Loan Document) (all
such non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by any Laws to deduct any Taxes
from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (i) 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 and such Lender receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Laws, and (iv) within
30 days after the date of such payment, the Borrower shall furnish to the
Administrative Agent (which shall forward the same to such Lender) the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment reasonably satisfactory to the Administrative Agent.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes
or Other Taxes from or in respect of any sum payable under any Loan Document to
the Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent (for the account of such Lender) or to such Lender, at the
time interest is paid, such additional amount that such Lender specifies as
necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income, and all available tax
credits) such Lender would have received if such Taxes or Other Taxes had not
been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section) paid by the Administrative Agent and such Lender, (ii)
amounts payable under Section 3.01(c) and (iii) any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto, in
each case whether or not such Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. In the event that
such Taxes or Other Taxes referred to in clause (iii) shall exceed $100,000, the
Lender subject to such Tax or Other Tax shall (x) notify the Borrower of such
imposition or assertion and (y) the Borrower, solely at its own expense, may
cause such Lender to contest the imposition or assertion of such Tax or Other
Tax as to which there exists no reasonable basis. The Borrower shall fully
indemnify such Lender for all costs (including any liabilities, penalties,
interest and expenses) incurred by such Lender in connection with any such
contest to the extent necessary to preserve such Lender's after-tax yield.
Nothing contained in this Section (A) obligates the Administrative Agent or any
Lender (or any of their respective Affiliates) to disclose to the Borrower any
of its tax records or materials relating thereto, (B) shall interfere with the
right of the Administrative Agent or any Lender (or any of their respective
Affiliates) to arrange its taxation and financial affairs in
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whatever manner it deems appropriate, or (C) obligates the Administrative Agent
or any Lender (or any of their respective Affiliates) to claim relief from
taxation on its corporate profits or, subject to clause (y) above, to claim any
credits, deductions or other relief otherwise available to it with respect to
its tax affairs. Payment under this subsection (d) shall be made within 30 days
after the date the Lender or the Administrative Agent makes a demand therefor.
3.02 ILLEGALITY. If the introduction, interpretation or
administration of any Law shall, after the date hereof, make it unlawful, or if
any Governmental Authority asserts that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or if
any such circumstance materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the applicable offshore
Dollar market, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Committed
Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on
the last day of the Interest Period thereof, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.
Upon any such prepayment or conversion, the Borrower shall also pay interest on
the amount so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Administrative Agent
determines in connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the applicable offshore Dollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for such
Eurodollar Rate Loan, or (c) the Eurodollar Rate for such Eurodollar Rate Loan
does not adequately and fairly reflect the cost to the Lenders of funding such
Eurodollar Rate Loan, the Administrative Agent will promptly, but in any event
not later than the first day of the Interest Period related to such Loan (or the
conversion or continuation thereof, as the case may be), notify the Borrower and
all Lenders. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans shall be suspended until the Administrative Agent revokes
such notice. Upon receipt of such notice, the Borrower may revoke any pending
request for a Committed Borrowing, conversion or continuation of Eurodollar Rate
Loans or, failing that, will be deemed to have converted such request into a
request for a Committed Borrowing of Base Rate Loans in the amount specified
therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY RESERVES
ON EURODOLLAR RATE LOANS.
(a) If any Lender determines that as a result of the introduction
of or any change in or in the interpretation of any Law (by a Governmental
Authority), or such Lender's compliance
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therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Loans or (as the case may
be) issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this subsection (a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section
3.01 shall govern), (ii) changes in the basis of taxation of overall net income
or overall gross income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or has its Lending Office, and (iii) reserve requirements contemplated
by Section 3.04(c)), then from time to time upon demand of such Lender (with a
copy of such demand to the Administrative Agent), the Borrower shall pay to such
Lender such additional amounts as will compensate such Lender for such increased
cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
(c) The Borrower shall pay to each Lender, as long as such Lender
shall be required pursuant to regulations issued by the Board (or any
Governmental Authority succeeding to any of its principal functions) to maintain
reserves (including, without limitation, any emergency, supplemental, special or
other marginal reserves) with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities" under Regulation D of the Board), additional costs on the unpaid
principal amount of each Eurodollar Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in
good faith, which determination shall be conclusive), which shall be due and
payable on each date on which interest is payable on such Loan, provided that
the Borrower shall have received at least 15 days' prior notice (with a copy to
the Administrative Agent) of such additional interest from such Lender. If a
Lender fails to give notice 15 days prior to the relevant Interest Payment Date,
such additional interest shall be due and payable 15 days from receipt of such
notice.
3.05 FUNDING LOSSES. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any actual cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or convert
any Loan other than a Base Rate Loan on the date or in the amount notified by
the Borrower; or
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(c) any assignment of a Eurodollar Rate Loan on a day other than
the last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 10.16;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
Notwithstanding the foregoing, the Borrower shall have no obligation to pay any
Lender any amount arising under subsection (a) to the extent that such amount
exceeds the amount, if any, by which (i) the present value of the additional
interest which would have been payable to such Lender if the applicable Loan had
not been prematurely continued, converted, paid or prepaid exceeds (ii) the
present value of the interest which would have been receivable by such Lender as
a result of placing the amount so received by such Lender as a consequence of
the continuation, conversion, payment or prepayment of such Loan on deposit in
the applicable offshore Dollar interbank market for a term equal to the number
of days remaining in the Interest Period related to such Loan. For purposes of
calculating the present value of any interest payments referred in the
immediately preceding sentence, such interest payments shall be discounted at a
rate equal to the sum of (x) the Eurodollar Rate in effect on the date two
Business Days prior to the date the Borrower continues, converts, pays or
prepays any Loan in the manner described in subsection (a), and (y) the margin
listed under the heading "Eurodollar Rate" in the definition of "Applicable
Rate." The Borrower shall also pay any customary administrative fees charged by
such Lender in connection with the foregoing. The foregoing indemnity shall not
apply to any special, incidental or consequential damages.
For purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Committed Loan made by it at the Eurodollar Rate for such Loan
by a matching deposit or other borrowing in the applicable offshore Dollar
interbank market for a comparable amount and for a comparable period, whether or
not such Eurodollar Rate Committed Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent or any Lender
claiming compensation under this Article III and setting forth in reasonable
detail the basis for computing the additional amount or amounts to be paid to it
hereunder shall be provided to the Borrower and shall be conclusive in the
absence of manifest error. In determining such amount, the Administrative Agent
or such Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under
Section 3.01 or 3.04, the Borrower may remove or replace such Lender in
accordance with Section 10.16.
3.07 APPLICABILITY TO NEGOTIATED BID LOANS. The terms of Article
III shall apply to all Negotiated Bid Loans made by any Lender to the Borrower
hereunder, except to the extent otherwise agreed by the Borrower and any such
Lender with respect to any such Loan.
3.08 SURVIVAL. All of the Borrower's obligations (and each Lenders'
and the Administrative Agent's obligation of notice) under this Article III
shall survive termination of the Commitments and payment in full of all the
other Obligations.
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3.09 CHANGE IN LENDING OFFICE; LIMITATION ON INCREASED COSTS.
(a) Each Lender agrees that it will use reasonable efforts to
designate an alternate lending office with respect to any of its Loans affected
by the matters or circumstances described in Sections 3.01, 3.02, or 3.04 to
reduce the liability of the Borrower or avoid the results provided thereunder,
so long as such designation is not disadvantageous to such Lender as determined
by such Lender in its sole discretion; provided that nothing in this Section
3.09 shall affect or postpone any of the obligations of the Borrower or the
right of any Lender provided in such Sections.
(b) Notwithstanding Section 3.04, the Borrower shall only be
obligated to compensate the Lenders for amounts arising under Section 3.04 to
the extent such amounts arose during (i) any time or period commencing not more
than 6 months prior to the date on which such Lender notifies the Administrative
Agent and the Borrower that such Lender proposes to demand compensation under
Section 3.04 and (ii) any time or period during which, because of the
unannounced retroactive application of any statute, regulation or other basis,
such Lender could not have known that such amount might arise or accrue.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
Lender to make its initial Credit Extension hereunder, and the right of the
Borrower to request the making of the initial Competitive Bid Loan, Swingline
Loan and Negotiated Bid Loan, are subject to satisfaction of the following
conditions precedent(a) Unless waived by all the Lenders (or by the
Administrative Agent with respect to immaterial matters or items specified in
clause (vii) below with respect to which the Borrower has given assurances
satisfactory to the Administrative Agent that such items shall be delivered
promptly following the Closing Date), the Administrative Agent's receipt of the
following, each of which shall be originals or facsimiles (followed promptly by
originals) unless otherwise specified, each properly executed by a Responsible
Officer of the Borrower, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date)
and each in form and substance satisfactory to the Administrative Agent and its
legal counsel:
(i) executed counterparts of this Agreement, sufficient
in number for distribution to the Administrative Agent, each Lender and
the Borrower;
(ii) Committed Loan Notes executed by the Borrower in
favor of each Lender requesting such a Note, each in a principal amount
equal to such Lender's Commitment;
(iii) Competitive Bid Loan Notes executed by the Borrower
in favor of each Lender requesting such a Note;
(iv) Negotiated Bid Loan Notes executed by the Borrower in
favor of each Lender requesting such a Note;
(v) A Swingline Note executed by the Borrower in favor of
the Swingline Lender, in the principal amount of the Swingline
Commitment;
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(vi) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of the Secretary or
Assistant Secretary of the Borrower as the Administrative Agent may
require to establish the identities of and verify the authority and
capacity of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other
Loan Documents to which the Borrower is a party;
(vii) such evidence as the Administrative Agent may
reasonably require to verify that the Borrower is duly organized or
formed, validly existing, in good standing and qualified to engage in
business in each jurisdiction (A) in which it is incorporated or has
any headquarter function, or (B) in which it has a substantial
operating facility; including certified copies of the Borrower's
Organization Documents and certificates of good standing and
qualification to engage in business;
(viii) a certificate signed by a Responsible Officer of the
Borrower certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied, (B) that there has been no event
or circumstance since the date of the Audited Financial Statements
which has or could be reasonably expected to have a Material Adverse
Effect; and (C) the current Debt Ratings;
(ix) an affirmative opinion of counsel to the Borrower
addressing such matters as are set forth in Exhibit F hereto;
(x) evidence (A) that all amounts outstanding under the
Existing Credit Facility have been repaid, and (B) that the
"commitments" of the lenders under the Existing Credit Facility have
been or concurrently with the Closing Date are being terminated;
(xi) a duly executed Committed Loan Notice for any
Advances made on the Closing Date;
(xii) a duly executed funds disbursement agreement, if
applicable;
(xiii) certified copies of all consents, approvals,
authorizations, registrations or filings required to be made or
obtained by the Borrower in connection with the execution, delivery,
performance, validity and enforceability of the Loan Documents, or any
of the transactions contemplated thereby, and such consents, approvals,
authorizations, registrations, filings and orders shall be in full
force and effect and all applicable waiting periods shall have expired
and no investigation or inquiry by any Governmental Authority regarding
the Loan Documents or the transactions contemplated thereby shall be
ongoing;
(xiv) certificates of insurance issued on behalf of
insurers of the Borrower, describing in reasonable detail the types and
amounts of insurance (property and liability) maintained by the
Borrower; and
(xv) such other assurances, certificates, documents or
consents as the Administrative Agent, the L/C Issuer or the Required
Lenders reasonably may require.
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(b) Any fees required to be paid on or before the Closing Date in
connection herewith shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall
have paid all Attorney Costs of the Administrative Agent to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of Attorney Costs
as shall constitute the Administrative Agent's reasonable estimates of Attorney
Costs incurred or to be incurred by each of them through the closing proceedings
(provided that such estimate shall not thereafter preclude a final settling of
accounts between the Borrower and the Administrative Agent).
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to honor any Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Committed Loans to the other Type, or a
continuation of Committed Loans as the same Type) is subject to the following
conditions precedent:
(a) The representations and warranties of the Borrower contained
in Article V, or which are contained in any document furnished at any time under
or in connection herewith, shall be true and correct in all material respects on
and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date.
(b) No Default or Event of Default shall exist, or would result
from such proposed Credit Extension.
(c) The Administrative Agent and, if applicable, the L/C Issuer,
shall have received a Request for Credit Extension in accordance with the
requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Committed Loans as the same Type) submitted by the Borrower
shall be deemed to be a representation and warranty that the conditions
specified in Sections 4.02(a) and (b) have been satisfied on and as of the date
of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
5.01 EXISTENCE, QUALIFICATION. The Borrower is a corporation duly
incorporated, validly existing and in good standing under the Laws of its
jurisdiction of incorporation and is in good standing under the Laws of the
State of Florida.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by the Borrower of each Loan Document are within its corporate
powers, have been duly authorized by all necessary corporate action, and do not
contravene (a) the Borrower's Organization Documents, (b) any applicable Laws or
(c) any material contractual restriction binding on or affecting the Borrower.
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5.03 GOVERNMENTAL AUTHORIZATION. No authorization or approval or
other action by, and no notice to or filing with, any Governmental Authority or
any other Person is required for the due execution, delivery and performance by
the Borrower of any Loan Document.
5.04 BINDING EFFECT. This Agreement is, and each other Loan
Document when delivered hereunder will be, the legal, valid and binding
obligation of the Borrower enforceable against it in accordance with its
respective terms except that such enforcement may be limited by applicable
bankruptcy, insolvency and other similar laws affecting creditors' rights
generally.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE CHANGE.
(a) The Audited Financial Statements, copies of which have been
furnished to the Lenders, fairly present the consolidated financial condition of
the Borrower and its Subsidiaries as of June 27, 2003 and the results of the
operations of the Borrower and its Subsidiaries for the fiscal year ended on
such date, all in accordance with GAAP consistently applied.
(b) Since the date of the Audited Financial Statements, there has
been no change in such conditions or operations that could reasonably be
expected to have a Material Adverse Effect.
5.06 LITIGATION. Except as set forth on Schedule 5.06, there is no
pending or, to the Borrower's knowledge, threatened action, investigation or
proceeding affecting the Borrower or any of its Subsidiaries before any court,
Governmental Authority or arbitrator which could reasonably be expected to have
a Material Adverse Effect.
5.07 ERISA COMPLIANCE. No Reportable Event has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan, and each Single Employer
Plan has, during this five-year period, complied in all material respects with
the applicable provisions of ERISA and the Code. There is no outstanding Lien
under ERISA or the Code with respect to any Single Employer Plan. The present
value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund the Plans as determined by the Plan's actuary) did not,
as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits. Neither the Borrower nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan with respect to which there is an outstanding liability, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in Reorganization or Insolvency.
Notwithstanding the foregoing, none of the events, acts or failures to act
described in this Section 5.07 shall be deemed to be a breach of a
representation or warranty unless it could reasonably be expected to have a
Material Adverse Effect.
5.08 REAL PROPERTY. To the Borrower's knowledge, each of the
representations and warranties set forth in paragraphs (a) through (e) of this
Section 5.08 is true and correct with respect to each parcel or real property
owned or operated by the Borrower and its Subsidiaries
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(the "Properties"), except to the extent that the facts and circumstances giving
rise to any such failure to be so true and correct would not reasonably be
expected to have a Material Adverse Effect:(a) The Properties do not contain,
and have not previously contained, in, on, or under such Properties, including
without limitation, the soil and groundwater thereunder, any Hazardous Materials
in concentrations which violate Environmental Laws.
(b) The Properties and all operations and facilities at the
Properties are in compliance with all Environmental Laws, and there is no
Hazardous Materials contamination or violation of any Environmental Law which
could interfere with the continued operation of any of the Properties or impair
the fair saleable value of any thereof.
(c) Neither the Borrower nor any of its Subsidiaries has received
any complaint, notice of violation, alleged violation, investigation or advisory
action or of potential liability or of potential responsibility regarding
environmental protection matters or permit compliance with regard to the
Properties, nor is the Borrower aware that any Governmental Authority is
contemplating delivery to the Borrower or any of its Subsidiaries of any such
notice.
(d) Hazardous Materials have not been generated, treated, stored,
disposed of, at, on or under any of the Properties, nor have any Hazardous
Materials been transferred from the Properties to any other location, in either
case, in a manner that violates any Environmental Law.
(e) There are no governmental, administrative actions or judicial
proceedings pending or contemplated under any Environmental Laws to which the
Borrower or any of its Subsidiaries is or will be named as a party with respect
to the Properties, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements, outstanding under any Environmental Law with respect to
any of the Properties.
5.09 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY
HOLDING COMPANY ACT.
(a) The Borrower is not generally engaged in the business of
extending credit or in the business of purchasing or carrying Margin Stock
(within the meaning of Regulation U issued by the Board), and the Borrowings
hereunder will not be used for the purpose of carrying Margin Stock in a manner
which (i) would violate or result in a violation of Regulations T, U or X issued
by the Board, or (ii) would constitute a Hostile Acquisition involving Margin
Stock.
(b) None of the Borrower, any Person controlling the Borrower, or
any Subsidiary (i) is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, or (ii) is or is required to be registered as an
"investment company" under the Investment Company Act of 1940.
5.10 OUTSTANDING LOANS. The aggregate principal amount of Loans
outstanding to the Lenders under the Commitments (including all Competitive Bid
Loans, Swingline Loans and Negotiated Bid Loans outstanding thereunder) does not
exceed the aggregate amount of the Commitments.
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5.11 TAXES. The Borrower and its Subsidiaries have filed all
Federal, state and other material tax returns and reports required to be filed,
and have paid all Federal, state and other material taxes, assessments, fees and
other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except (a) those which are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP, and (b) those required,
levied or imposed by foreign governments if, in the opinion of the board of
directors of the Borrower, the filing or payment thereof shall no longer be
advantageous to the Borrower or such Subsidiary in the conduct of its business
and the failure to so file or pay would not in the aggregate have a Material
Adverse Effect. There is no proposed tax assessment against the Borrower or any
Subsidiary that would, if made, have a Material Adverse Effect.
5.12 INTELLECTUAL PROPERTY; LICENSE, ETC.. In all material
respects, the Borrower and its Subsidiaries own, or possess the right to use,
all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights (together,
"IP Rights") that are reasonably necessary for the operation of their respective
businesses, without, to the Borrower's knowledge, conflict with the rights of
any other Person. Except as specifically disclosed in Schedule 5.12, to the best
knowledge of the Borrower as of the Closing Date, (a) no claim or litigation
regarding any of the foregoing is pending or threatened and no patent,
invention, device, application, principle or any statute, law, rule, regulation,
standard or code is pending or proposed, and (b) no slogan or other advertising
device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Borrower or any Subsidiary,
infringes upon any rights held by any other Person; which, in either case, could
reasonably be expected to result in a Material Adverse Effect.
5.13 DISCLOSURE. No statement, information, report, representation,
or warranty made by the Borrower in any Loan Document or furnished to the
Administrative Agent or any Lender by or on behalf of the Borrower in connection
with any Loan Document contains any untrue statement of material fact or omits
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
5.14 SOLVENCY Immediately following the making of each Borrowing
and after giving effect to the application of the proceeds of such Borrowing,
the Borrower and its Subsidiaries on a consolidated basis will be Solvent.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower shall, unless the Required Lenders shall
otherwise consent in writing:
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6.01 REPORTING REQUIREMENTS.
Deliver to the Administrative Agent (with sufficient copies for
distribution to each Lender):
(a) as soon as available, but in any event within 120 days after
the end of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail, audited and accompanied by a report and opinion of
Ernst & Young LLP or another independent certified public accountant of
nationally recognized standing reasonably acceptable to the Required Lenders,
which report and opinion shall be prepared in accordance with GAAP and shall not
be subject to any qualifications or exceptions as to the scope of the audit nor
to any going concern qualification;
(b) as soon as available, but in any event within 60 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Borrower (commencing with the fiscal quarter ended nearest September 26, 2003),
a consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal quarter, and the related consolidated statements of income for
such fiscal quarter and cash flows for the portion of the Borrower's fiscal year
then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter or portion of the Borrower's fiscal year then ended
of the previous fiscal year and the corresponding portion of the previous fiscal
year, all in reasonable detail and certified by a Responsible Officer of the
Borrower as fairly presenting the financial condition, results of operations and
cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject
only to normal year-end audit adjustments and the absence of footnotes;
(c) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to any of its security holders, and copies of
all reports and registration statements which the Borrower or any Subsidiary
files with the Securities and Exchange Commission or any national securities
exchange; provided that the Borrower shall not be required to furnish copies of
registration statements filed on Form S-8, Form 144 or Forms 3, 4 or 5, or
exhibits to the reports and registration statements referred to in this
subsection (c);
(d) promptly after the filing or receiving thereof, copies of all
reports and notices which the Borrower, any of its Subsidiaries or any Commonly
Controlled Entity files under ERISA with the PBGC or the United States
Department of Labor or which the Borrower, any of its Subsidiaries or any
Commonly Controlled Entity receives from the PBGC, in each case solely with
respect to any Single Employer Plan; provided that the Borrower shall not be
required to furnish copies of the reports and notices referred to in this
subsection (d) until such time as the aggregate unfunded vested liabilities
under all Single Employer Plans (based on those assumptions used to fund such
Plans, as determined by the Plans actuary) maintained for employees of the
Borrower and any Commonly Controlled Entity and covered by Title IV of ERISA
exceed 4.00% of Shareholders' Equity as reflected in the financial statements
most recently furnished by the Borrower to the Lenders pursuant to this Section
6.01;
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(e) promptly subsequent to the rendering thereof and, upon a
Responsible Officer becoming aware thereof, notice of the rendering against the
Borrower or any of its Subsidiaries of any final judgment or order for the
payment of money in excess of the Threshold Amount (or its equivalent in another
applicable currency), together with a description in reasonable detail of the
relevant circumstances and the action which the Borrower proposes to take in
response thereto;
(f) promptly, notice of any Event of Default or any Default
hereunder, together with a description in reasonable detail of the relevant
circumstances and the action which the Borrower proposes to take in response
thereto;
(g) promptly, (i) of the occurrence of any ERISA Event arising
under subsections (c), (d), (e) or (f) of the definition of "ERISA Event" and
(ii) of the occurrence of any other ERISA Event that has resulted or could
reasonably be expected to result in a Material Adverse Effect; in each case,
together with a description in reasonable detail of the relevant circumstances
and the action which the Borrower proposes to take in response thereto;
(h) promptly, of any announcement by Xxxxx'x or S&P of any
downgrade or possible downgrade in a Debt Rating; and
(i) such other information respecting the conditions or
operations, financial or otherwise, of the Borrower or any of its Subsidiaries
as any Lender, through the Administrative Agent, may from time to time
reasonably request.
Reports required to be delivered pursuant to Sections 6.01(a), (b) or
(c) shall be deemed to have been delivered on the date on which the Borrower
posts such reports on the Borrower's website on the Internet at the website
address listed on Schedule 10.02 hereof or when such report is posted on the
Securities and Exchange Commission's website at xxx.xxx.xxx; provided that (x)
the Borrower shall deliver paper copies of such reports to the Administrative
Agent upon request or to any Lender who requests the Borrower to deliver such
paper copies until written request to cease delivering paper copies is given by
the Administrative Agent or such Lender, and (y) the Borrower shall, on or
before the required delivery date, notify by facsimile or electronic mail
(unless requested by such Person to provide paper copies of any such notice) the
Administrative Agent and each Lender of the posting of any such reports. The
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the reports referred to above, and in any event shall have no
responsibility to monitor compliance by the Borrower with any such request for
delivery, and each Lender shall be solely responsible for requesting delivery to
it or maintaining its copies of such reports.
6.02 CORPORATE EXISTENCE. Maintain its corporate existence and good
standing in its jurisdiction of incorporation and maintain its qualification as
a foreign corporation and good standing in all jurisdictions where the failure
to so qualify would have a Material Adverse Effect.
6.03 COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations and orders
where the failure to so comply would have a Material Adverse Effect, such
compliance to include, without limitation, paying
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before the same become delinquent all taxes, assessments and governmental
charges imposed upon it or upon its property, except to the extent otherwise
permitted by Section 6.08.
6.04 CERTIFICATES. Furnish to the Administrative Agent (in
sufficient copies for distribution to each Lender), concurrently with the
delivery of the financial statements referred to in Sections 6.01(a) and (b), a
Compliance Certificate signed by a Responsible Officer (a) stating that, to such
Responsible Officer's knowledge, the Borrower during such period has in all
material respects observed or performed all of its covenants and other
agreements and satisfied every condition contained in this Agreement and in each
other Loan Document to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Event of Default except as
specified in such certificate, and (b) showing in reasonable detail the
calculation supporting such statement in respect of Sections 7.01(q), 7.03 and
7.06.
6.05 COVENANT TO SECURE NOTES EQUALLY. Without affecting the
obligations of the Borrower under Section 7.01, if the Borrower or any of its
Subsidiaries shall create, assume, incur or suffer to exist any Lien upon any of
their respective property or assets, whether now owned or hereafter acquired,
other than Permitted Liens (unless prior written consent to the creation or
assumption thereof shall have been obtained from the Required Lenders pursuant
to Section 10.01), then the Borrower shall make or cause to be made effective
provisions whereby the Obligations shall be secured by such Lien equally and
ratably with any and all other Debt or other obligations thereby secured, and
such security shall be created and conveyed by documentation satisfactory in
scope, form and substance to the Administrative Agent and shall continue in full
force and effect until the same is released by the Lenders, for as long as the
Debt or other obligations are secured thereby and in any case the Obligations
shall have the benefit, to the full extent that the holders may be entitled
thereto under applicable law, of an equitable lien on such property or assets
equally and ratably securing the Obligations.
6.06 MAINTENANCE OF PROPERTIES. Maintain all of its property in
good repair, working order and condition, reasonable wear and tear excepted, and
from time to time to make all proper repairs, renewals or replacements,
betterments and improvements thereto so that the business carried on in
connection therewith may be properly conducted at all times, and cause its
Subsidiaries to do so, except where the failure to maintain, make such repairs,
renewals, replacements, betterments or improvements would not, in the aggregate,
have a Material Adverse Effect.
6.07 MAINTENANCE OF INSURANCE. Keep, and cause each of its
Subsidiaries to keep, all of its insurable properties insured against loss or
damage by theft, fire, smoke, sprinklers, riot and explosion, such insurance to
be in such form, in such amount and against such other risks and hazards as are
customarily maintained by other Persons operating similar businesses and having
similar properties in the same general areas in which the Borrower and its
Subsidiaries own property.
6.08 TAXES AND OTHER CLAIMS. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become delinquent,
(a) all tax liabilities, assessments and governmental charges or levies imposed
upon it or its properties or assets, and (b) all known lawful claims which, if
unpaid, might by law become a Lien upon its property; provided that neither the
Borrower nor any of its Subsidiaries shall be required to pay or discharge (x)
any
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such tax, assessment, charge or claim which is being contested in good faith and
by proper proceedings and for which adequate reserves have been provided in
accordance with GAAP or (y) any such taxes or assessments levied by foreign
governments if, in the opinion of the board of directors of the Borrower,
payment thereof shall no longer be advantageous to the Borrower or such
Subsidiary in the conduct of its business and the failure to so pay would not in
the aggregate have a Material Adverse Effect.
6.09 ENVIRONMENTAL LAWS.
(a) Comply with, and use commercially reasonable efforts to ensure
compliance by all tenants and subtenants, if any, with all Environmental Laws
and obtain and comply with and maintain, and ensure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses, approvals,
registration or permits required by Environmental Laws, and cause each of its
Subsidiaries to do so, except to the extent that failure to do so would not be
reasonably expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of
all Governmental Authorities respecting Environmental Laws, and cause each of
its Subsidiaries to do so except to the extent that the same are being contested
in good faith by appropriate proceedings and the pendency of such proceedings
would not be reasonably expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Administrative Agent
and each Lender, and their respective employees, agents, officers and directors,
from and against any actual and direct claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of or noncompliance with any Environmental Laws
applicable to the real property owned or operated by the Borrower or any of its
Subsidiaries, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, attorney's and consultant's
fees, investigation and laboratory fees, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of the gross negligence
or willful misconduct of the party seeking indemnification therefor; provided
that the indemnification provided for by this paragraph shall survive the
repayment of the Notes and the termination of the Commitments for a period of
five years.
6.10 BOOKS AND RECORDS. Keep, and cause each of its Material
Subsidiaries to keep, proper books of record and account, containing complete
and accurate entries of all their respective financial and business
transactions.
6.11 COMPLIANCE WITH ERISA. Do, and cause each of its Commonly
Controlled Entities to do, each of the following: (a) maintain each Plan (other
than a Multiemployer Plan) in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state law; (b)
cause each Plan (other than a Multiemployer Plan) which is qualified under
Section 401(a) of the Code to maintain such qualification; and (c) make all
required contributions to any Plan subject to Section 412 of the Code; except,
in each case, where the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
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6.12 VISITATION, INSPECTION, ETC. The Borrower will, and will cause
each of its Material Subsidiaries to, permit any representative of the
Administrative Agent or the Required Lenders to visit and inspect its
properties, to examine its financial books and records and to make copies and
take extracts therefrom, and to discuss its affairs, finances and accounts with
any of its officers and with its independent certified public accountants, all
at such reasonable times and as often as the Administrative Agent or the
Required Lenders may reasonably request after reasonable prior notice to the
Borrower; provided, however, if an Event of Default has occurred and is
continuing, no prior notice shall be required. Notwithstanding anything to the
contrary contained in this Section, the right of visitation and inspection shall
be subject to reasonable limitations for security related precautions and
subject to the confidentiality provisions contained in Section 10.08.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower shall not, without the written consent of
the Required Lenders:
7.01 LIENS. Create, assume, incur or suffer to exist, or allow any
Subsidiary to create, assume, incur or suffer to exist, except by a Subsidiary
in favor of the Borrower or another wholly-owned Subsidiary, any Lien on any of
its property or assets or any shares of capital stock or indebtedness of any
Subsidiary, whether now owned or hereafter acquired, or assigned, except:
(a) Liens incurred in connection with the Cash Collateralization
of any L/C Obligations;
(b) Liens for taxes not yet due, or Liens for taxes being
contested in good faith and by appropriate proceedings for which adequate
reserves have been established in accordance with GAAP;
(c) Liens in respect of property or assets of the Borrower or any
Subsidiary imposed by law, which were incurred in the ordinary course of
business, such as carriers', warehousemen's and mechanics' liens and other
similar Liens arising in the ordinary course of business and (i) which do not in
the aggregate materially detract from the value of such property or assets or
materially impair the use thereof in the operations of the business of the
Borrower or any Subsidiary or (ii) which are being contested in good faith by
appropriate proceedings for which adequate reserves have been established in
accordance with GAAP and which proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to any such Lien;
(d) Liens in existence on the Closing Date and disclosed on
Schedule 7.01 hereto;
(e) Liens existing prior to the time of acquisition (other than
Liens created, assumed or incurred in anticipation of acquisition) upon any
property acquired by the Borrower or any Subsidiary through purchase, merger or
consolidation or otherwise, if the payment of the indebtedness secured thereby
or interest thereon will not become, by assumption or otherwise, a
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personal obligation of the Borrower or a Subsidiary (other than a Person that
becomes a Subsidiary as a result of such acquisition);
(f) any Lien placed upon property hereafter acquired by the
Borrower or any Subsidiary or placed upon any equipment, land, buildings, or
other properties purchased or constructed which secures Debt incurred for its
purchase or construction; provided that (i) such Lien shall cover only hereafter
acquired property or property on which construction occurs, and (ii) any such
Lien shall be created within six months of the acquisition of such property; and
provided, further, that the amount of Debt secured by any such Lien shall not
exceed 100% of the lesser of the fair market value at the time of acquisition or
the cost of the encumbered property, equipment, land or building, or
construction costs, as the case may be;
(g) Liens (other than any Lien imposed pursuant to Sections 302 or
4068 of ERISA or Section 412 of the Code) arising by reason of deposits with, or
the giving of any form of security to, any governmental agency or any body
created or approved by law or governmental regulation, which is required by law
or governmental regulation as a condition to the transaction of any business, or
the exercise of any privilege or license, or to enable the Borrower or a
Subsidiary to maintain self-insurance or to participate in any arrangements
established by law to cover any insurance risks or in connection with workmen's
compensation, unemployment insurance, old age pensions, social security or
similar matters;
(h) judgment liens securing judgments, none of which individually
exceed the Threshold Amount, so long as the finality of any such judgment is
being contested in good faith and execution thereon is stayed and adequate
reserves have been established in accordance with GAAP;
(i) easements or similar encumbrances, the existence of which does
not impair the use or value of the property subject thereto for the purposes for
which it is held or was acquired;
(j) lessors' and landlords' Liens on fixtures and movable property
(other than computer equipment) located on premises leased in the ordinary
course of business, so long as the rent secured by said fixtures and movable
property is not in default;
(k) Liens consisting of leases (whether "true" leases or
capitalized leases) of computer or other office equipment entered into in the
ordinary course of business after the date hereof;
(l) Liens, pledges or deposits made in connection with Government
Contracts insofar as such Liens, pledges or deposits relate to property
manufactured, installed, constructed, acquired or to be supplied by, or property
furnished to, the Borrower or a Subsidiary pursuant to, or to enable the
performance of, such Government Contracts, or property the manufacture,
installation, construction or acquisition of which any government or any
department or agency thereof finances or guarantees the financing of, pursuant
to, or to enable the performance of, such Government Contracts; or deposits or
Liens, made pursuant to such Government Contracts, of or upon moneys advanced or
paid pursuant to, or in accordance with the provisions of, such Government
Contracts, or of or upon any materials or supplies acquired for the purposes of
the performance of such Government Contracts; or the assignment or pledge to any
Person, to the
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extent permitted by law, of the right, title and interest of the Borrower or a
Subsidiary in and to any Government Contract, or in and to any payments due or
to become due thereunder, to secure indebtedness incurred and owing to such
Person for funds or other property supplied, constructed or installed for or in
connection with the performance by the Borrower or such Subsidiary of its
obligations under such Government Contract;
(m) any mortgage or other Lien in favor of the United States of
America or any State thereof, or political subdivision of the United States of
America or any State thereof, or any department, agency or instrumentality of
the United States of America or any State thereof, or any such political
subdivision, to secure Debt incurred for the purpose of financing the
acquisition, construction or improvement of all or any part of the property
subject to such mortgage or other Lien; provided, that (i) any such Lien shall
cover only such acquired property or property on which construction of
improvements occurs, and (ii) any such Lien shall be created within six months
of the acquisition of or construction or improvement on such property; and
provided, further, that (x) the amount of Debt secured by any such Lien shall
not exceed 100% of the lesser of the fair market value at the time of
acquisition or construction or the cost of the encumbered property, equipment,
land or building, as the case may be and (y) the aggregate amount of all Debt
and other indebtedness secured by all such Liens shall not exceed $50,000,000 at
any time during the term of this Agreement;
(n) any Lien securing Debt of a Subsidiary outstanding at the time
it became a Subsidiary (provided that such Lien was not created in connection
with or in contemplation of the acquisition of such Subsidiary), and any other
Lien created in connection with the refinancing, renewal or extension of such
Debt which is limited to the same property, provided that the amount of the Debt
secured by such refinancing, renewal or extension Lien does not exceed the
amount of Debt secured by the Lien to be refinanced, renewed or extended and
outstanding at the time of such refunding, renewal or extension;
(o) any Lien created in connection with the refinancing, renewal
or extension of any obligations, Debt or claims secured by a Lien of the type
described in subsections (d), (e), (f), (g) and (m) above which is limited to
the same property; provided that the aggregate amount of the Debt or claims
secured by such refinancing, renewal or extension Lien does not exceed the
aggregate amount thereof secured by the Lien so refinanced, renewed or extended
and outstanding at the time of such refinancing, renewal or extension;
(p) Liens on accounts receivable, notes, chattel paper and related
property subject to a Securitization, provided that the applicable amount of any
and all such Securitizations at any time outstanding, shall not at any time
exceed the amount of $150,000,000 less any Vendor Finance Investments (other
than any Vendor Finance Investments to the extent covered by independent
third-party credit insurance as to which the insurer does not dispute coverage)
then maintained by the Borrower or its Subsidiaries; and
(q) any Liens other than Permitted Liens or Liens incurred in
connection with a Securitization, provided that the sum of (i) the aggregate
amount of Debt and other indebtedness secured by all such Liens permitted under
this subsection (q), (ii) the aggregate monetary obligations in respect of
transactions permitted pursuant to the proviso of Section 7.03 and (iii)
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the applicable amount of all Securitizations of the Borrower and its
Subsidiaries, shall not at any time exceed 25% of Total Capitalization.
7.02 MERGER, CONSOLIDATION AND SALE OF ASSETS.
(a) Merge or consolidate with or sell, assign, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to any
Person, or permit any of its Material Subsidiaries (or any group of its
Subsidiaries which taken as a whole would constitute a Material Subsidiary) to
do so, except that any such Subsidiary may merge into or consolidate with or
transfer assets to the Borrower or any other such Subsidiary and the Borrower
may merge with any other Person provided in each case that, immediately
thereafter and giving effect thereto, no event shall have occurred and be
continuing which constitutes a Default or an Event of Default and, in the case
of any such merger or consolidation to which the Borrower is a party, the
Borrower is the surviving corporation.
(b) Sell, assign, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of the
assets of any line of business or other division of the Borrower or its
Subsidiaries, including through a spin-off, reverse spin-off, split-off or
similar transaction (each, a "Divestiture"), except that the Borrower or any
Subsidiary may undertake any such Divestiture (i) to the Borrower or to any
wholly-owned Subsidiary of the Borrower, as applicable, provided that, after the
consummation of any such Divestiture, the Borrower shall not distribute any
dividend to the shareholders of the Borrower payable in capital stock of such
Subsidiary or any successor or assignee Subsidiary to which such assets have
subsequently been transferred except in compliance with Section 7.02(b)(ii), and
(ii) to the extent that, after giving effect to any such Divestiture, (A) the
aggregate book value of all assets that have been transferred in connection with
any and all other Divestitures pursuant to this subsection (b) after the Closing
Date does not exceed as of the date of any such Divestiture 20% of Consolidated
Total Assets, based on the then-current financial statements delivered by the
Borrower pursuant to Section 6.01(a) or (b), and (B) the aggregate book value of
all assets that have been transferred in connection with such Divestiture does
not exceed, as of the date of such Divestiture, 10% of Consolidated Total
Assets, based on the then-current financial statements delivered by the Borrower
pursuant to Section 6.01(a) or (b).
7.03 SALE AND LEASEBACK. Enter into any arrangement for a term
exceeding three years with any investor or to which such investor is a party
providing for the leasing by the Borrower or any Material Subsidiary of real or
personal property which has been or is to be sold or transferred by the Borrower
or any Material Subsidiary of the Borrower to such investor or to any Person to
whom funds have been or are to be advanced by such investor on the security of
such property or rental obligations of the Borrower or any Material Subsidiary;
provided that the Borrower or any Material Subsidiary may enter into any such
arrangement if the sum of (a) the aggregate monetary obligations in respect of
all such transactions, including the proposed sale-leaseback transaction, plus
(b) the aggregate amount of Debt secured by any Liens permitted by Section
7.01(q), plus (c) the applicable amount of all Securitizations of the Borrower
and all of its Subsidiaries, shall not exceed 25% of Total Capitalization.
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7.04 CERTAIN INVESTMENTS. Make or maintain any Vendor Finance
Investments (other than Vendor Finance Investments to the extent covered by
independent third-party credit insurance as to which the insurer does not
dispute coverage) that exceed in the aggregate, together with all other Vendor
Finance Investments then outstanding $150,000,000 less the aggregate applicable
amount of all Securitizations of the Borrower and its Subsidiaries at any time
outstanding.
7.05 USE OF PROCEEDS. Use, or allow any Subsidiary to use, directly
or indirectly, the proceeds of any Loan or any L/C Borrowing for purposes of
undertaking or accomplishing a Hostile Acquisition or for any purpose in
contravention of applicable Laws.
7.06 FINANCIAL COVENANTS.
(a) Consolidated Tangible Net Worth. Permit Consolidated Tangible
Net Worth as of the last day of any fiscal quarter of the Borrower to be less
than the sum of (i) 85% of the Consolidated Tangible Net Worth as at June 27,
2003, plus (ii) 50% of cumulative positive Consolidated Net Income accrued since
the end of such fiscal quarter, commencing with the fiscal quarter ending
September 26, 2003 plus (iii) 100% of the net proceeds from any issuance and
sale of capital stock (excluding upon conversion of convertible debt securities
or exercise of employee stock options).
(b) Interest Coverage Ratio. Permit the ratio of Consolidated
EBITDA to Consolidated Interest Charges to be less than 3.00:1.00. The
Borrower's compliance with this requirement shall be calculated on a rolling
four-quarter basis, measured on the last day of each fiscal quarter commencing
with the fiscal quarter ending January 2, 2004.
(c) Consolidated Total Indebtedness to Consolidated EBITDA. Permit
the ratio of Consolidated Total Indebtedness to Consolidated EBITDA to be
greater than 3.00:1.00. The Borrower's compliance with this requirement shall be
calculated on a rolling four-quarter basis; measured on the last day of each
fiscal quarter commencing with the fiscal quarter ending January 2, 2004.
7.07 RESTRICTIVE AGREEMENTS. The Borrower will not, and will not
permit any Material Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement that prohibits, restricts or imposes any condition
upon the ability of any Material Subsidiary to pay dividends or other
distributions with respect to its common stock, to make or repay loans or
advances to the Borrower or any other Subsidiary or to transfer any of its
property or assets to the Borrower or any Subsidiary of the Borrower; provided,
that (i) the foregoing shall not apply to restrictions or conditions imposed by
law or by this Agreement or any other Loan Document and (ii) the foregoing shall
not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Material Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is sold and such
sale is not prohibited hereunder.
7.08 HEDGING TRANSACTIONS. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Hedging Arrangement, other
than Hedging Arrangements entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any
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Subsidiary is exposed in the conduct of its business or the management of its
liabilities. Solely for the avoidance of doubt, the Borrower acknowledges that a
Hedging Arrangement entered into for speculative purposes or of a speculative
nature (which shall be deemed to include any Hedging Arrangement under which the
Borrower or any of the Subsidiaries is or may become obliged to make any payment
(i) in connection with the purchase by any third party of any common stock or
any Debt or (ii) as a result of changes in the market value of any common stock
or any Debt; but excluding any Hedging Arrangement tied to the market value of
any common stock, equity security or any Debt if the Borrower holds an
investment in such common stock, equity security or Debt at the time the Hedging
Arrangement is executed) is not a Hedging Arrangement entered into in the
ordinary course of business to hedge or mitigate risks.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) Non-Payment. The Borrower shall fail to pay (i) any amount of
principal of any Loan when due; (ii) any interest on any Loan when due and such
failure shall remain unremedied for five days; or (iii) within ten days after
the same becomes due and the Borrower shall have received written notice thereof
from the Administrative Agent or any Lender, any other amount payable hereunder
or under any other Loan Document; or
(b) Specific Covenants.
(i) The Borrower shall have failed to perform or observe
any term, covenant or agreement contained in any of Sections 6.01(f),
6.02, 6.05, 7.02, 7.05 or 7.06; or
(ii) The Borrower shall have failed to perform or observe
any term, covenant or agreement contained in any of Sections 6.01(a) or
(b), 6.04, 7.01, 7.03 or 7.04 and such failure continues for 30 days
after a Responsible Officer of the Borrower becomes aware or, through
the exercise of reasonable diligence, should become aware of such
failure; or
(c) Other Defaults. The Borrower shall have failed to perform or
observe any other covenant or agreement (not specified in subsection (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days after written notice thereof shall have been given
to the Borrower by the Administrative Agent or any Lender; or
(d) Representations and Warranties. Any representation or warranty
made or deemed made by the Borrower herein or by the Borrower (or any of its
officers) in connection with this Agreement or any other Loan Document shall
prove to have been incorrect in any material respect when made or deemed made;
or
(e) Payment of Debt. The Borrower or any of its Subsidiaries shall
(i) fail to make any principal payment on account of any Debt (excluding Debt
evidenced by the Notes) or Hedging Arrangement of the Borrower or such
Subsidiary (as the case may be) having an outstanding principal amount (or
notional amount in the case of a Hedging Arrangement)
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individually or in the aggregate that exceeds $50,000,000 (including any
interest or premium thereon), when due (whether at scheduled maturity, upon
required prepayment, acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt or Hedging Arrangement, or (ii) fail to
perform or observe any term, covenant or condition on its part to be performed
or observed under any agreement or instrument relating to any such Debt (but not
including Hedging Arrangements) when required to be performed or observed, and
such failure shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such failure to perform or
observe is to accelerate, or to permit the acceleration of, the maturity of such
Debt; or any such Debt that aggregates to more than $50,000,000 shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment and other than as a consequence of the
sale, pledge or other disposition by the Borrower of Margin Stock), prior to the
stated maturity thereof; or
(f) Insolvency Proceedings, Etc. (i) The Borrower or any of its
Subsidiaries shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or the Borrower or any
of its Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period in excess of 60 days; or (iii) there shall be commenced
against the Borrower or any of its Subsidiaries any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which results
in the entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) the Borrower or any of its Subsidiaries shall take any action
in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clauses (i), (ii), or (iii) above; or (v) the
Borrower or any of its Subsidiaries shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its debts as they become due; or
(g) Judgments. A final judgment or order known to the Borrower for
the payment of money in excess of $50,000,000, or its equivalent in another
applicable currency, (exclusive of the amount thereof covered by insurance,
provided that the insurance carrier has acknowledged coverage) shall be rendered
against the Borrower or any of its Subsidiaries and not paid and either (i)
enforcement proceedings shall have been commenced upon such judgment or order
and such proceedings are not being contested in good faith or (ii) a stay of
enforcement of such judgment or order or similar relief, by reason of a pending
appeal or otherwise, shall not be in effect with respect to such judgment or
order for any period of 30 consecutive days; provided that the circumstances
described in clause (i) or (ii) above, as to such a judgment or order which is
rendered by any foreign Governmental Authority in an amount not exceeding the
Dollar equivalent of $100,000,000 and which has not been confirmed in any way by
any Governmental Authority in the United States shall not give rise to any Event
of Default under this
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subsection (g) if the Lenders shall have been furnished (promptly after the
Borrower shall have knowledge of the commencement of any such proceedings or any
such 30 day period and promptly upon obtaining knowledge of any material change
in such circumstances) with a copy (certified by a Responsible Officer of the
Borrower) of a resolution adopted by the board of directors or the executive
committee of the board of directors of the Borrower to the effect that, having
considered the advice of counsel, it has been determined to be in the best
interests of the Borrower to permit such circumstances to exist and directing
the appropriate officers of the Borrower to notify the Lenders of all material
developments relating to such judgment or order (including any significant
modification of such determination); or
(h) ERISA. (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Single Employer Plan, (ii) any "accumulated funding deficiency"
(as defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Single Employer Plan, (iii) a Reportable Event shall occur with
respect to any Single Employer Plan, or proceedings shall commence to have any
Single Employer Plan terminated or to have a trustee appointed, or a trustee
shall be appointed, to administer any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Administrative Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate in a "distress termination" (as defined in Section
4041(e) of ERISA), (v) the Borrower or any Commonly Controlled Entity shall, or
in the reasonable opinion of the Administrative Agent is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or condition
shall occur or exist, with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such events
or conditions, if any, could subject the Borrower or any of its Subsidiaries to
any tax, penalty or other liabilities in the aggregate in excess of $50,000,000;
or
(i) Invalidity of Loan Documents. Any Loan Document, at any time
after its execution and delivery and for any reason other than the agreement of
all the Lenders or satisfaction in full of all the Obligations, ceases to be in
full force and effect, or is declared by a court of competent jurisdiction to be
null and void, invalid or unenforceable in any respect; or the Borrower denies
that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or
(j) Change of Control. There occurs any Change of Control;
then, and in every such event (other than an event with respect to the Borrower
described in subsection (f) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, 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) declare the commitment of
each Lender to make Loans and any obligation of the L/C Issuer to make L/C
Credit Extensions to be terminated, whereupon such commitments and obligation
shall be terminated; (ii) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Borrower; (iii) require that
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the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the
then Outstanding Amount thereof); and (iv) exercise on behalf of itself and the
Lenders all rights and remedies available to it and the Lenders under the Loan
Documents or applicable law; provided, however, that upon the occurrence of any
event specified in subsection (f) above with respect to the Borrower or any
Material Subsidiary, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable, and
the obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably (subject to Section 9.09)
appoints, designates and authorizes the Administrative Agent to take such action
on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere herein or in any other Loan
Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith
until such time (and except for so long) as the Administrative Agent may agree
at the request of the Required Lenders to act for the L/C Issuer with respect
thereto; provided, however, that the L/C Issuer shall have all of the benefits
and immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Administrative Agent" as used in this Article IX
included the L/C Issuer with respect to such acts or omissions, and (ii) as
additionally provided herein with respect to the L/C Issuer.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any
of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts
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concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by the Borrower or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of the Borrower or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Borrower or any of its Affiliates.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Borrower), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders or all the Lenders, if required hereunder, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and participants. Where this Agreement expressly permits or prohibits an
action unless the Required Lenders otherwise determine, the Administrative Agent
shall, and in all other instances, the Administrative Agent may, but shall not
be required to, initiate any solicitation for the consent or a vote of the
Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
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9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice from
a Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be directed by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of the Borrower or any of its Affiliates, shall be deemed
to constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Borrower or any of its respective
Affiliates which may come into the possession of any Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of the Borrower and without limiting the obligation of the Borrower to do
so), pro rata, and hold harmless each Agent-Related Person from and against any
and all Indemnified Liabilities incurred by it; provided, however, that no
Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities resulting from such Person's gross
negligence or willful misconduct; provided, further, however, that no action
taken in accordance with the directions of
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the Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that the Administrative Agent is not reimbursed for such expenses by or on
behalf of the Borrower. The undertaking in this Section shall survive
termination of the Commitments, the payment of all Obligations hereunder and the
resignation or replacement of the Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. SunTrust Bank
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other business
with the Borrower and its respective Affiliates as though SunTrust Bank were not
the Administrative Agent or the L/C Issuer hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, SunTrust Bank or its Affiliates may receive information regarding
the Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or any such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, SunTrust Bank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise such rights and powers as though it were not the Administrative Agent
or the L/C Issuer, and the terms "Lender" and "Lenders" include SunTrust Bank in
its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may,
and at the request of the Required Lenders shall, resign as Administrative Agent
upon 30 days' notice to the Lenders. If the Administrative Agent resigns under
this Agreement, the Required Lenders shall appoint from among the Lenders a
successor administrative agent for the Lenders, the appointment of which
successor administrative agent shall be subject to the consent of the Borrower
at all times other than during the existence of an Event of Default (which
consent of the Borrower shall not be unreasonably withheld or delayed). If no
successor administrative agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Lenders and the Borrower, a successor administrative
agent from among the Lenders. Upon the acceptance of its appointment as
successor administrative agent hereunder, such successor administrative agent
shall succeed to all the rights, powers and duties of the retiring
Administrative Agent and the term "Administrative Agent" shall mean such
successor administrative agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article IX and Sections 10.03 and
10.13 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder
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until such time, if any, as the Required Lenders appoint a successor agent as
provided for above. Notwithstanding the foregoing, however, if, at any time, the
Administrative Agent and the L/C Issuer shall be the same Person or Affiliates,
such Administrative Agent may not be removed as Administrative Agent at the
request of the Required Lenders unless such Administrative Agent shall also
simultaneously be replaced and fully released as "L/C Issuer" hereunder pursuant
to documentation in form and substance reasonably satisfactory to such
Administrative Agent.
9.10 OTHER AGENTS; LEAD MANAGERS. None of the Lenders identified on
the facing page or signature pages of this Agreement as a "co-syndication agent"
or "co-documentation agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
the Borrower therefrom, shall be effective unless in writing signed by the
Required Lenders and the Borrower, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such amendment, waiver or consent shall,
unless in writing and signed by each of the Lenders directly affected thereby
and by the Borrower, do any of the following:
(a) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 8.01);
(b) postpone any date fixed by this Agreement or any other Loan
Document for any payment or mandatory prepayment of principal, interest, fees or
other amounts due to the Lenders (or any of them) hereunder or under any other
Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (iii) of the proviso
below) any fees or other amounts payable hereunder or under any other Loan
Document; provided, however, that only the consent of the Required Lenders and
the Borrower shall be necessary to amend the definition of "Default Rate" or to
waive any obligation of the Borrower to pay interest at the Default Rate;
(d) change the percentage of the Aggregate Commitments or of the
aggregate unpaid principal amount of the Loans and L/C Obligations which is
required for the Lenders or any of them to take any action hereunder;
(e) change the Pro Rata Share or Voting Percentage of any Lender
(except for any such change resulting from Section 3.06(b)); or
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(f) amend this Section, or Section 2.14, or any provision herein
providing for consent or other action by all the Lenders;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Required Lenders or all
the Lenders, as the case may be, affect the rights or duties of the L/C Issuer
under this Agreement or any Letter of Credit Application relating to any Letter
of Credit issued or to be issued by it; (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in addition to
the Required Lenders or all the Lenders, as the case may be, affect the rights
or duties of the Administrative Agent under this Agreement or any other Loan
Document; (iii) no amendment, waiver or consent shall, unless in writing and
signed by the Swingline Lender in addition to the Required Lenders or all the
Lenders, as the case may be, affect the rights or duties of the Swingline Lender
under this Agreement or any Swingline Loan made or to be made by it; and (iv)
the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the respective parties thereto. Notwithstanding
anything to the contrary herein, any Lender that has failed to fund any portion
of the Committed Loans or participations in L/C Obligations required to be
funded by it hereunder shall not have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Pro Rata Share of such
Lender may not be increased (except for any such increase resulting from Section
3.06(b)) without the consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES GENERAL.
Unless otherwise expressly provided herein, all notices, requests, demands,
consents and other communications provided for hereunder shall be in writing
(including by facsimile transmission) and mailed, faxed or delivered, to the
address, facsimile number or (subject to subsection (c) below) electronic mail
address specified for notices on Schedule 10.02; or, in the case of the
Borrower, the Administrative Agent or the L/C Issuer, to such other address as
shall be designated by such party in a notice to the other parties, and in the
case of any other party, to such other address as shall be designated by such
party in a notice to the Borrower, the Administrative Agent and the L/C Issuer.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the intended recipient and
(ii) (A) if delivered by hand or by courier, when signed for by the intended
recipient; (B) if delivered by mail, four Business Days after deposit in the
mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has
been confirmed by telephone; and (D) if delivered by electronic mail (which form
of delivery is subject to the provisions of subsection (c) below), when
delivered; provided, however, that notices and other communications to the
Administrative Agent and the L/C Issuer pursuant to Article II shall not be
effective until actually received by such Person. Any notice or other
communication permitted to be given, made or confirmed by telephone hereunder
shall be given, made or confirmed by means of a telephone call to the intended
recipient at the number specified on Schedule 10.02, it being understood and
agreed that a voicemail message shall in no event be effective as a notice,
communication or confirmation hereunder.
(a) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on the
Borrower, the Administrative Agent and the Lenders. The
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Administrative Agent may also require that any such documents and signatures be
confirmed by a manually-signed original thereof; provided, however, that the
failure to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.
(b) Limited Use of Electronic Mail. Electronic mail and internet
and intranet websites may be used only to distribute routine communications,
such as financial statements and other information, and to distribute Loan
Documents for execution by the parties thereto, and may not be used for any
other purpose.
(c) Reliance by Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Committed Loan Notices) purportedly given by or on
behalf of the Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Borrower shall indemnify
each Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices to and
other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein or therein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation,
negotiation and execution of this Agreement and the other Loan Documents and any
amendment, waiver, consent or other modification of the provisions hereof and
thereof (whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs, and (b) to pay or
reimburse the Administrative Agent and each Lender for all out-of-pocket costs
and expenses incurred in connection with the enforcement, attempted enforcement,
or preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such non-duplicative costs and expenses incurred during
any "workout" or restructuring in respect of the Obligations and during any
legal proceeding, including any proceeding under any Debtor Relief Law),
including all Attorney Costs. The foregoing costs and expenses shall include all
search, filing, recording, title insurance and appraisal charges and fees and
taxes related thereto, and other out-of-pocket expenses incurred by the
Administrative Agent and the cost of independent public accountants and other
outside experts retained by the Administrative Agent or any Lender. The Borrower
shall not be required to pay the fees and expenses of more than one counsel for
the Administrative Agent or any Lender under clause (b) of this section unless
the employment of separate counsel has been authorized by the Borrower (such
authorization not to be unreasonably withheld or delayed).
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The agreements in this Section 10.04 shall survive the termination of the
Commitments and repayment of all other Obligations.
10.05 INDEMNIFICATION BY THE BORROWER.
(a) Whether or not the transactions contemplated hereby are
consummated, the Borrower agrees to indemnify, save and hold harmless each
Agent-Related Person, each Lender and their respective Affiliates, directors,
officers, employees, counsel, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against: (a) any and all claims, demands, actions or
causes of action that are asserted against any Indemnitee by any Person (other
than the Administrative Agent or any Lender) relating directly or indirectly to
a claim, demand, action or cause of action that such Person asserts or may
assert against the Borrower, any of its Affiliates or any of their respective
officers or directors; (b) any and all claims, demands, actions or causes of
action that may at any time (including at any time following repayment of the
Obligations and the resignation or removal of the Administrative Agent or the
replacement of any Lender) be asserted or imposed against any Indemnitee,
arising out of or relating to, the Loan Documents, the Commitments or the use or
contemplated use of the proceeds of any Credit Extension; (c) any administrative
or investigative proceeding by any Governmental Authority arising out of or
related to a claim, demand, action or cause of action described in subsection
(a) or (b) above; and (d) any and all liabilities (including liabilities under
indemnities), losses, costs or expenses (including Attorney Costs) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action, cause of action or proceeding, or as a result of the
preparation of any defense in connection with any foregoing claim, demand,
action, cause of action or proceeding, in all cases, whether or not arising out
of the negligence of an Indemnitee, and whether or not an Indemnitee is a party
to such claim, demand, action, cause of action or proceeding (all the foregoing,
collectively, the "Indemnified Liabilities"); provided that no Indemnitee shall
be entitled to indemnification for any claim caused by its own gross negligence
or willful misconduct or for any loss or Indemnified Liabilities asserted
against it by another Indemnitee. The agreements in this Section 10.05 shall
survive the termination of the Commitments and repayment of all other
Obligations. In no case shall the Borrower be required to indemnify an
Indemnitee in respect of any indirect or special or consequential damages,
except to the extent any such damages are paid or payable by an Indemnitee to a
third party.
(b) The Administrative Agent and each Lender agree that if any
investigation, litigation, suit, action, or proceeding is asserted or threatened
in writing or instituted against it or any other Indemnitee, or any remedial,
removal or response action is requested of it or any other Indemnitee for which
the Administrative Agent or any Lender may desire indemnity or defense
hereunder, the Administrative Agent or such Lender shall, to the extent
permitted or practicable, promptly notify the Borrower thereof in writing;
provided that any failure on the part of the Administrative Agent or any Lender
to provide such notice shall not be deemed a waiver of the rights of the
Administrative Agent or any such Lender to seek indemnity from the Borrower in
respect of any such investigation, litigation, suit, proceeding or action. The
Borrower shall not be required to pay the fees and expenses of more than one
counsel for the Indemnitees in respect of any single action, suit or proceeding
unless the employment of separate counsel has been authorized by the Borrower
(such authorization not to be unreasonably withheld or delayed, provided that
such authorization shall be deemed to have been given during the existence of a
Default or Event of Default), or unless any Indemnitee is advised by its counsel
that there may be
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defenses available to it which are not available to the other Indemnitees or
that there is a reasonable likelihood of a conflict between its interests and
those of the other Indemnitees.
10.06 PAYMENTS SET ASIDE. To the extent that the Borrower makes a
payment to the Administrative Agent or any Lender, or the Administrative Agent
or any Lender exercises its right of set-off, and such payment or the proceeds
of such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect.
10.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that 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). 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
and, to the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations or Swingline Loans at the time
owing to it); provided that (i) except in the case of an assignment of the
entire remaining amount of the assigning Lender's Commitment and the Loans at
the time owing to it or in the case of an assignment to a Lender or an Affiliate
of a Lender or an Approved Fund with respect to a Lender, the aggregate amount
of the Commitment (which for this purpose includes Loans outstanding thereunder)
of the assigning Lender subject to each such assignment, determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent, shall not be less than $5,000,000 in the case of
any assignment of a Commitment unless each of the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed), (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loans or the Commitment assigned, except that
this clause (ii) shall not apply to rights in respect of outstanding Competitive
Bid Loans or Negotiated Bid Loans and (iii) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and
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recordation fee of $3,500. Subject to acceptance and recording thereof by the
Administrative Agent pursuant to subsection (c) of this Section, from and after
the effective date specified in each Assignment and Acceptance, the Eligible
Assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, 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 Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 10.04 and 10.05). Upon request,
the Borrower (at its expense) shall execute and deliver new or replacement Notes
to the assigning Lender and the assignee Lender. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this subsection (b) of 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 subsection (d) of this Section. Upon its receipt
of a duly executed Assignment and Acceptance, the Administrative Agent shall
notify the Borrower and the Lenders of the effective date thereof.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to one or more banks
or other entities that are in the business of making and/or investing in
commercial loans (a "Participant") in all or a portion of such Lender's rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans (including such Lender's participations in L/C
Obligations owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification that would (i) postpone any date upon which any
payment of money is scheduled to be paid to such Participant or (ii) reduce the
principal, interest, fees or other amounts payable to such Participant. Subject
to subsection (e) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the
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extent permitted by law, each Participant also shall be entitled to the benefits
of Section 10.09 as though it were a Lender, provided such Participant agrees to
be subject to Section 2.14 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater
payment under this Agreement than the Lenders would have been entitled to
receive under similar circumstances, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Sections 3.09 and 10.15 as though it
were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Notes, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) If the consent of the Borrower to an assignment or to an
Eligible Assignee is required hereunder (including a consent to an assignment
which does not meet the minimum assignment threshold specified in clause (i) of
the proviso to the first sentence of Section 10.07(b)), the Borrower shall be
deemed to have given its consent ten Business Days after the date notice thereof
has been delivered by the assigning Lender (through the Administrative Agent)
unless such consent is expressly refused by the Borrower prior to such tenth
Business Day.
(h) As used herein, the following terms have the following
meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural Person) approved by the Administrative Agent, in the case of
any assignment of a Committed Loan, the L/C Issuer, and, unless (x)
such Person is taking delivery of an assignment in connection with
physical settlement of a credit derivatives transaction or (y) an Event
of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed).
"Fund" means any Person (other than a natural Person) that is
(or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the
ordinary course of its business.
"Approved Fund" means any Fund that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
(i) Notwithstanding anything to the contrary contained herein, if
at any time SunTrust Bank assigns all of its Commitment and Loans pursuant to
subsection (b) above, SunTrust Bank may, upon 30 days' notice to the Borrower
and the Lenders, resign as L/C Issuer
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and Swingline Lender. In the event of any such resignation as L/C Issuer or
Swingline Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor L/C Issuer and Swingline Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall
affect the resignation of SunTrust Bank as L/C Issuer and Swingline Lender.
SunTrust Bank shall retain all the rights and obligations of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Committed
Loans or fund participations in Unreimbursed Amounts pursuant to Section
2.05(c)).
10.08 CONFIDENTIALITY. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
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) to the extent requested
by any regulatory authority; (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process; (d) to any other party
to this Agreement; (e) as is required in the good faith view of the
Administrative Agent or the Lenders, in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder; (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty's or prospective counterparty's professional
advisor) to any credit derivative transaction relating to obligations of the
Borrower; (g) with the consent of the Borrower; (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates.
For the purposes of this Section, "Information" 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 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 in writing 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. Notwithstanding anything herein to the
contrary, any party to this Agreement (and any employee, representative, or
other agent of any party to this Agreement) may disclose to any and all Persons,
without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided to it relating to
such tax treatment and tax structure; provided, however, that no party hereto
(nor any employee, representative or other agent of any party) may disclose any
other information that is not relevant
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to understanding the tax treatment and tax structure of the transactions
contemplated by this Agreement or any other information to the extent that such
disclosure would result in a violation of any federal or state securities laws;
and provided, further, that, any such information relating to the tax treatment
or tax structure is required to be kept confidential to the extent necessary to
comply with any applicable federal or state securities laws.
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrower, any such notice being waived by the Borrower 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, but excluding payroll
deposits and deposits held in a bona fide custodial or fiduciary capacity for
Persons not Affiliates of the Borrower) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the Borrower against any and all Obligations owing to such Lender,
now or hereafter existing, irrespective of whether or not the Administrative
Agent or such Lender shall have made demand under this Agreement or any other
Loan Document and although such Obligations may be contingent or unmatured. Each
Lender agrees promptly to notify the Borrower and the Administrative Agent after
any such set-off and application made by such Lender; provided, however, that
the failure to give such notice shall not affect the validity of such set-off
and application.
10.10 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the Borrower. In determining
whether the interest contracted for, charged, or received by the Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations.
10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.12 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
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10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
10.14 SEVERABILITY. Any provision of this Agreement and the other
Loan Documents to which the Borrower is a party that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions thereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
10.15 FOREIGN LENDERS. Each Lender that is a "foreign corporation,
partnership or trust" within the meaning of the Code (a "Foreign Lender") shall
deliver to the Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or after accepting an assignment of an interest
herein), two duly signed completed copies of either IRS Form W-8BEN or any
successor thereto (relating to such Person and entitling it to an exemption from
withholding tax on all payments to be made to such Person by the Borrower
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Person by the Borrower pursuant to
this Agreement) or such other evidence satisfactory to the Borrower and the
Administrative Agent that such Person is entitled to an exemption from U.S.
withholding tax. Thereafter and from time to time, each such Person shall (a)
promptly submit to the Administrative Agent and, at its request, the Borrower,
such additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
Borrower and the Administrative Agent of any available exemption from United
States withholding taxes in respect of all payments to be made to such Person by
the Borrower pursuant to this Agreement, (b) promptly notify the Administrative
Agent and the Borrower of any change in circumstances which would modify or
render invalid any claimed exemption, and (c) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws that the Borrower make any
deduction or withholding for taxes from amounts payable to such Person. If such
Person fails to deliver the above forms or other documentation, then the
Administrative Agent may withhold from any interest payment to such Person an
amount equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction. If any Governmental Authority asserts that
the Administrative Agent did not properly withhold any tax or other amount from
payments made in respect of such Person, such Person shall indemnify the
Administrative Agent therefor, including all penalties and interest, any taxes
imposed by any jurisdiction on the amounts payable to the Agent under this
Section, and costs and expenses (including Attorney
-75-
Costs) of the Administrative Agent. The obligation of the Lenders under this
Section shall survive the payment of all Obligations and the resignation or
replacement of the Administrative Agent.
10.16 REMOVAL AND REPLACEMENT OF LENDERS.
(a) Under any circumstances set forth herein providing that the
Borrower shall have the right to remove or replace a Lender as a party to this
Agreement, the Borrower may, upon notice to such Lender and the Administrative
Agent, (i) remove such Lender by terminating such Lender's Commitment or (ii)
replace such Lender by causing such Lender to assign its Commitment (without
payment of any assignment fee) pursuant to Section 10.07(b) to one or more other
Lenders or Eligible Assignees procured by the Borrower; provided, however, that
if the Borrower elects to exercise such right with respect to any Lender
pursuant to Section 3.06(b), it shall be obligated to remove or replace, as the
case may be, all Lenders that have made similar requests for compensation
pursuant to Section 3.01 or 3.04. The Borrower shall (x) pay in full all
principal, interest, fees and other amounts owing to such Lender through the
date of termination or assignment (including any amounts payable pursuant to
Section 3.05), (y) provide appropriate assurances and indemnities (which may
include letters of credit) to the L/C Issuer as it may reasonably require with
respect to any continuing obligation to purchase participation interests in any
L/C Obligations then outstanding, and (z) release such Lender from its
obligations under the Loan Documents. Any Lender being replaced shall execute
and deliver an Assignment and Acceptance with respect to such Lender's
Commitment and outstanding Credit Extensions. The Administrative Agent shall
distribute an amended Schedule 2.01, which shall be deemed incorporated into
this Agreement, to reflect changes in the identities of the Lenders and
adjustments of their respective Commitments and Pro Rata Shares resulting from
any such removal or replacement.
(b) In order to make all the Lenders' interests in any outstanding
Credit Extensions ratable in accordance with any revised Pro Rata Shares after
giving effect to the removal or replacement of a Lender, the Borrower shall pay
or prepay, if necessary, on the effective date thereof, all outstanding
Committed Loans of all Lenders, together with any amounts due under Section
3.05. The Borrower may then request Committed Loans from the Lenders in
accordance with their revised Pro Rata Shares. The Borrower may net any payments
required hereunder against any funds being provided by any Lender or Eligible
Assignee replacing a terminating Lender. The effect for purposes of this
Agreement shall be the same as if separate transfers of funds had been made with
respect thereto.
(c) This Section shall supersede any provision in Section 10.01 to
the contrary.
10.17 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE
AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
-76-
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK, OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE
(WHICH IF NOT MADE BY PERSONAL SERVICE SHALL ALSO BE COPIED TO THE BORROWER AT
ITS ADDRESS SET FORTH IN SCHEDULE 10.02.
10.18 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.19 WAIVER OF RIGHT TO CONSEQUENTIAL DAMAGES. Except as
specifically permitted pursuant to Section 10.05, to the extent permitted by
applicable law, each party to this Agreement shall not assert, and hereby
waives, any claim against any other party hereto, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to actual
or direct damages) arising out of, in connection with or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the transactions
contemplated therein, any Loan or any Letter of Credit or the use of proceeds
thereof.
10.20 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
-77-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
XXXXXX CORPORATION, as Borrower*
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman, President and
Chief Executive Officer
By: /s/ X. X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President - Treasurer
* The signatures of two authorized officers are required
[SIGNATURE PAGE TO CREDIT AGREEMENT]
SUNTRUST BANK, as Administrative
Agent, L/C Issuer and a Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
[SIGNATURE PAGE TO CREDIT AGREEMENT]
CITIBANK, N.A., as a Lender
By: /s/ Xxxxx Xxxx Xxxxxxxx
--------------------------------
Name: XXXXX XXXX XXXXXXXX
Title: Director Global Media & Communications
000 Xxxxxxxxx Xxxxxx, 00xx Floor
(000) 000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxx XxXxxxx
-------------------------------
Name: Xxxxx XxXxxxx
Title: Managing Director
[SIGNATURE PAGE TO CREDIT AGREEMENT]
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
[SIGNATURE PAGE TO CREDIT AGREEMENT]
WACHOVIA BANK, N.A., as a Lender
By: /s/: Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Director
[SIGNATURE PAGE TO CREDIT AGREEMENT]
HSBC BANK USA, as a Lender
By: /s/: Guy. X. Xxxx
------------------------------
Name: Guy. X. Xxxx
Title: Vice President
[SIGNATURE PAGE TO CREDIT AGREEMENT]
SOCIETE GENERALE,
as a Lender
By: /s/: XXXX X.X.Xxxxxxx, XX.
------------------------------
Name: XXXX X.X.XXXXXXX XX.
Title: MANAGING DIRECTOR
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: XXXXX X. XXXXXX
Title: Vice President
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Director
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE NORTHERN TRUST COMPANY, as a
Lender
By: /s/: Xxxx X.Xxxxx
------------------------------
Name: Xxxx X.Xxxxx
Title: Vice President
[SIGNATURE PAGE TO CREDIT AGREEMENT]
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
DATE: ___________, _____
To: SunTrust Bank, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Revolving Credit Agreement, dated as
of October __, 2003 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Xxxxxx Corporation, a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto and SunTrust Bank, as Administrative Agent, L/C Issuer and Swingline
Lender.
The undersigned hereby requests (select one):
[ ] A Borrowing of Committed Loans [ ] A conversion or continuation
of Loans
1. On _____________________ (a Business Day).
2. In the principal amount of $___________________.
Comprised of ____________________________.
[TYPE OF COMMITTED LOAN REQUESTED]
4. For Eurodollar Rate Loans: with an Interest
Period of _______ months.
5. If applicable, the Committed Loan from which the requested
Committed Loan will be converted or continued: _____________
6. The Borrower requests that the proceeds of the Committed
Borrowing requested hereby be wire transferred to the accounts
of the following Persons at the financial institutions
indicated below:
AMOUNT NAME ACCOUNT ADDRESS
-------------------------------------------------------------------------------------------------------------------
[----------] [----------] [----------] [----------]
-------------------------------------------------------------------------------------------------------------------
The Committed Borrowing requested herein complies with the proviso to
the first sentence of Section 2.01 of the Agreement. Other than in connection
with a conversion or continuation of Loans, the undersigned hereby certifies
that the following statements are and will be true and correct on the date of
the Credit Extension requested above, both before and after giving effect to the
Credit Extension requested above:
A-1
(a) The representations and warranties made by the Borrower in the
Agreement, or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection therewith, are and
will be true and correct in all material respects on and as of the date of the
Credit Extension requested above, except to the extent that such representations
and warranties specifically refer to any earlier date; and
(b) no Default or Event of Default has occurred and is continuing on
the date hereof or after giving effect to the Credit Extension requested above.
XXXXXX CORPORATION, as Borrower
By:____________________________________
Name:__________________________________
Title:_________________________________
X-0
XXXXXXX X-0
FORM OF COMPETITIVE BID REQUEST
To: SunTrust Bank, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Revolving Credit Agreement, dated as
of October __, 2003 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Xxxxxx Corporation, a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto and SunTrust Bank, as Administrative Agent, L/C Issuer and Swingline
Lender.
The Lenders are invited to make Competitive Bid Loans:
1. On ________________ (a Business Day).
2. In an aggregate amount not exceeding $ ____ (with any
sublimits set forth below).
3. Comprised of (select one):
[ ] Competitive Bid Loans based on [ ] Competitive Bid Loans
an Absolute Rate: based on Eurodollar Rate:
COMPETITIVE BID LOAN INTEREST PERIOD MAXIMUM PRINCIPAL
NO. REQUESTED AMOUNT REQUESTED
1 _______days/mos $_____________________
2 _______days/mos $_____________________
3 _______days/mos $_____________________
4 _______days/mos $_____________________
The Competitive Bid Borrowing requested herein complies with the
requirements of the proviso to the first sentence of Section 2.03(a) of the
Agreement. The undersigned hereby certifies that the following statements are
and will be true and correct on the date of the Credit Extension requested
above, both before and after giving effect to the Credit Extension requested
above:
(a) The representations and warranties made by the Borrower in the
Agreement, or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection therewith, are and
will be true and correct in all material respects on and as of the date of the
Credit Extension requested above, except to the extent that such representations
and warranties specifically refer to any earlier date; and
B-1-1
(b) no Default or Event of Default has occurred and is continuing on
the date hereof or after giving effect to the Credit Extension requested above.
The Borrower authorizes the Administrative Agent to deliver this
Competitive Bid Request to the Lenders. Responses by the Lenders must be in
substantially the form of Exhibit B-2 to the Agreement and must be received by
the Administrative Agent by the time specified in Section 2.03 of the Agreement
for submitting Competitive Bids.
XXXXXX CORPORATION, as Borrower
By:_____________________________________
Name:___________________________________
Title:__________________________________
X-0-0
XXXXXXX X-0
FORM OF COMPETITIVE BID
---------------, ----
To: SunTrust Bank, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Revolving Credit Agreement, dated as
of October __, 2003 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Xxxxxx Corporation, a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto and SunTrust Bank, as Administrative Agent, L/C Issuer and Swingline
Lender.
In response to the Competitive Bid Request dated _____________________,
the undersigned offers to make the following Competitive Bid Loan(s):
1. Borrowing date: ___________________________ (a Business Day).
2. In an aggregate amount not exceeding $______________
(with any sublimits set forth below).
3. Comprised of:
ABSOLUTE RATE BID OR
COMPETITIVE BID LOAN NO. INTEREST PERIOD OFFERED BID MAXIMUM EURODOLLAR MARGIN BID*
1 _______days/mos $_________________ (- +) _________%
2 _______days/mos $_________________ (- +) _________%
3 _______days/mos $_________________ (- +) _________%
4 _______days/mos $_________________ (- +) _________%
Contact Person:_________________________ Telephone:_________________________
--------------
* Expressed in multiples of 1/100th of a basis point.
B-2-1
[LENDER]
By:_______________________________________
Name:_____________________________________
Title:____________________________________
******************************************************************************
THIS SECTION IS TO BE COMPLETED BY THE BORROWER IF IT WISHES TO ACCEPT
ANY OFFERS CONTAINED IN THIS COMPETITIVE BID:
The offers made above are hereby accepted in the amounts set forth
below:
COMPETITIVE BID LOAN NO. PRINCIPAL AMOUNT ACCEPTED
--- $---------------------------
--- $---------------------------
--- $---------------------------
All Competitive Bids not referenced above are hereby rejected.
XXXXXX CORPORATION, as Borrower
By: ________________________________________________
Name: ______________________________________________
Title: _____________________________________________
Date: ______________________________________________
B-2-2
EXHIBIT C-1
FORM OF COMMITTED LOAN NOTE
$_________________ October __, 2003
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
to pay to the order of _____________________________ (the "Lender"), on the
Maturity Date (as defined in the Revolving Credit Agreement referred to below)
the principal amount of __________________Dollars ($____________), or such
lesser principal amount of Committed Loans (as defined in such Revolving Credit
Agreement) due and payable by the Borrower to the Lender on the Maturity Date
under that certain Revolving Credit Agreement dated as of October __, 2003 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the "Agreement;" the terms defined therein being used herein as
therein defined), among the Borrower, the Lenders from time to time party
thereto and SunTrust Bank, as Administrative Agent, L/C Issuer and Swingline
Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Committed Loan from the date of such Committed Loan until such principal
amount is paid in full, at such interest rates, and at such times as are
specified in the Agreement. All payments of principal and interest shall be made
to the Administrative Agent for the account of the Lender in Dollars in
immediately available funds at the Administrative Agent's Office. If any amount
is not paid in full when due hereunder, such unpaid amount shall bear interest,
to be paid upon demand, from the due date thereof until the date of actual
payment (and before as well as after judgment) computed at the per annum rate
set forth in the Agreement.
This Note is one of the Committed Loan Notes referred to in the Agreement, is
entitled to the benefits thereof and is subject to optional and mandatory
prepayment in whole or in part as provided therein. Upon the occurrence of one
or more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Committed Loans
made by the Lender shall be evidenced by one or more loan accounts or records
maintained by the Lender in the ordinary course of business. The Lender may also
attach schedules to this Note and endorse thereon the date, amount and maturity
of its Committed Loans and payments with respect thereto; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Note and the
Agreement.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
C-1-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
XXXXXX CORPORATION, as Borrower
By:____________________________________
Name:__________________________________
Title:_________________________________
C-1-2
COMMITTED LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
END OF PRINCIPAL OR OUTSTANDING
TYPE OF LOAN INTEREST AMOUNT OF INTEREST INTEREST PAID PRINCIPAL NOTATION
DATE MADE RATE LOAN MADE PERIOD THIS DATE BALANCE THIS DATE MADE BY
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C-1-3
EXHIBIT C-2
FORM OF COMPETITIVE BID LOAN NOTE
October __, 2003
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
to pay to the order of _________________ (the "Lender") on the last day of the
Interest Period therefor, the principal amount of each Competitive Bid Loan from
time to time made by the Lender to the Borrower under that certain Revolving
Credit Agreement, dated as of October __, 2003 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined),
among the Borrower, the Lenders from time to time party thereto and SunTrust
Bank, as Administrative Agent, L/C Issuer and Swingline Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Competitive Bid Loan from the date of such Competitive Bid Loan until such
principal amount is paid in full, at such interest rates and at such times as
provided in the Agreement. All payments of principal and interest shall be made
to the Administrative Agent for the account of the Lender in Dollars in
immediately available funds at the Administrative Agent's Office. If any amount
is not paid in full when due hereunder, such unpaid amount shall bear interest,
to be paid upon demand, from the due date thereof until the date of actual
payment (and before as well as after judgment) computed at the per annum rate
set forth in the Agreement.
This Note is one of the Competitive Loan Notes referred to in the Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part subject
to the terms and conditions provided therein. Upon the occurrence of one or more
of the Events of Default specified in the Agreement, all amounts then remaining
unpaid on this Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. Competitive Bid Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Competitive Bid Loans and payments with respect thereto; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Note and the
Agreement.
The Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Note.
C-2-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
XXXXXX CORPORATION, as Borrower
By:____________________________________
Name:__________________________________
Title:_________________________________
C-2-2
COMPETITIVE BID LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
END OF PRINCIPAL OR OUTSTANDING
TYPE OF LOAN INTEREST AMOUNT OF INTEREST INTEREST PAID PRINCIPAL NOTATION
DATE MADE RATE LOAN MADE PERIOD THIS DATE BALANCE THIS DATE MADE BY
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C-2-3
EXHIBIT C-3
FORM OF NEGOTIATED BID LOAN NOTE
October __, 2003
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
to pay to the order of _________________ (the "Lender"), for the account of its
respective Lending Office, the unpaid principal amount of each Negotiated Bid
Loan from time to time made by the Lender to the Borrower pursuant to the
Agreement referred to below on the earlier of the maturity date agreed to for
such Negotiated Bid Loan and set forth on the schedule attached hereto and made
a part hereof and the Maturity Date (as defined in the Agreement).
The Borrower promises to pay interest on the unpaid principal amount of
each Negotiated Bid Loan made to it from the date of such Negotiated Bid Loan
until such principal amount is paid in full, at such interest rates, and payable
at such times, as determined in accordance with the Agreement.
Both principal of and interest on each Negotiated Bid Loan are payable
to the Lender in the lawful money in which such Negotiated Bid Loan was made, as
provided for in the Agreement, in immediately available funds. The Lender is
authorized to record the date, currency and amount of each Negotiated Bid Loan
made by the Lender to the Borrower pursuant to the Agreement and the date and
amount of each payment or prepayment of principal thereof on the schedule
annexed hereto and made a part hereof or, alternatively, to keep records of all
the foregoing on its internal books and at any time to prepare a schedule of
such information substantially in the form of the schedule annexed hereto, and
to attach such prepared schedule hereto as a part hereof, and any such
recordation, in the absence of manifest error, shall constitute prima facie
evidence of the information so recorded, provided that the failure of the Lender
to make such recordation (or any error in such recordation) shall not affect the
obligations of the Borrower hereunder or under the Agreement; and provided,
further, that if the Borrower should reasonably dispute any such recordation
made by the Lender on its internal books, the Borrower shall be afforded access
upon reasonable request to original written versions or printouts of that
portion of the Lender's internal books on which such recordation was made.
This Note is one of the Negotiated Bid Loan Notes referred to in the
Revolving Credit Agreement, dated as of October __, 2003 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined),
among the Borrower, the Lenders from time to time party thereto and SunTrust
Bank, as Administrative Agent, L/C Issuer and Swingline Lender. The Agreement,
among other things, (i) provides for the making of Negotiated Bid Loans by the
Lender to the Borrower from time to time in an aggregate amount in Dollars not
to exceed at any time outstanding the Negotiated Bid Sublimit, the indebtedness
of the Borrower resulting from each such Negotiated Bid Loan being evidenced by
this Negotiated Bid Loan Note, and (ii) contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
C-3-1
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
XXXXXX CORPORATION, as Borrower
By:____________________________________
Name:__________________________________
Title:_________________________________
C-3-2
NEGOTIATED BID LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
END OF PRINCIPAL OR OUTSTANDING
TYPE OF LOAN INTEREST AMOUNT OF INTEREST INTEREST PAID PRINCIPAL NOTATION
DATE MADE RATE LOAN MADE PERIOD THIS DATE BALANCE THIS DATE MADE BY
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C-3-3
EXHIBIT C-4
FORM OF SWINGLINE NOTE
----------------------
$[AMOUNT] October __, 2003
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
to pay to the order of SUNTRUST BANK (the "Swingline Lender"), on the Maturity
Date (as defined in the Revolving Credit Agreement referred to below) the
principal amount of __________________Dollars ($____________), or such lesser
principal amount of Swingline Loans (as defined in such Revolving Credit
Agreement) due and payable by the Borrower to the Swingline Lender on the
Maturity Date under that certain Revolving Credit Agreement dated as of October
__, 2003 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among the Borrower, the Lenders from time to time
party thereto and SunTrust Bank, as Administrative Agent, L/C Issuer and
Swingline Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Swingline Loan from the date of such Swingline Loan until such principal
amount is paid in full, at such interest rates, and at such times as are
specified in the Agreement. All payments of principal and interest shall be made
to the Administrative Agent for the account of the Swingline Lender in Dollars
in immediately available funds at the Administrative Agent's Office. If any
amount is not paid in full when due hereunder, such unpaid amount shall bear
interest, to be paid upon demand, from the due date thereof until the date of
actual payment (and before as well as after judgment) computed at the per annum
rate set forth in the Agreement.
This Note is the Swingline Loan Note referred to in the Agreement, is
entitled to the benefits thereof and is subject to optional and mandatory
prepayment in whole or in part as provided therein. Upon the occurrence of one
or more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Swingline Loans
made by the Swingline Lender shall be evidenced by one or more loan accounts or
records maintained by the Swingline Lender in the ordinary course of business.
The Swingline Lender may also attach schedules to this Note and endorse thereon
the date, amount and maturity of its Swingline Loans and payments with respect
thereto; provided, that the failure of the holder hereof to make such a notation
or any error in such notation shall not affect the obligations of the Borrower
to make the payments of principal and interest in accordance with the terms of
this Note and the Agreement.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
C-4-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
XXXXXX CORPORATION, as Borrower
By:____________________________________
Name:__________________________________
Title:_________________________________
C-3-2
SWINGLINE LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
END OF PRINCIPAL OR OUTSTANDING
TYPE OF LOAN INTEREST AMOUNT OF INTEREST INTEREST PAID PRINCIPAL NOTATION
DATE MADE RATE LOAN MADE PERIOD THIS DATE BALANCE THIS DATE MADE BY
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C-3-3
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _____________, ____
To: SunTrust Bank, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Revolving Credit Agreement, dated as
of October __, 2003 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Xxxxxx Corporation, a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto and SunTrust Bank, as Administrative Agent, L/C Issuer and Swingline
Lender. This Compliance Certificate is delivered pursuant to Section 6.04 of the
Agreement.
The undersigned Responsible Officer hereby certifies on behalf of the
Borrower as of the date hereof that he/she is the
________________________________________________ of the Borrower, and that, as
such, he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Borrower, and that:
[Use following for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal year of
the Borrower ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of the
Borrower ended as of the above date. Such financial statements fairly present
the financial condition, results of operations and cash flows of the Borrower
and its Subsidiaries in accordance with GAAP as at such date and for such
period, subject only to normal year-end audit adjustments and the absence of
footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrower during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed all its covenants and other agreements under the Loan Documents, and
D-1
[SELECT ONE:]
[TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH FISCAL PERIOD,
THE BORROWER HAS IN ALL MATERIAL RESPECTS PERFORMED AND OBSERVED EACH COVENANT
AND CONDITION OF THE LOAN DOCUMENTS APPLICABLE TO IT.]
--or--
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR
OBSERVED AND THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT OR EVENT OF DEFAULT
AND ITS NATURE AND STATUS:]
4. The financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate in all material respects on and
as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of _________________, _______.
XXXXXX CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
D-2
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
($ amounts set forth in the right-hand column are in 000's)
I. SECTION 7.06(a) - CONSOLIDATED TANGIBLE NET WORTH.
A. Actual Consolidated Tangible Net Worth at Statement Date:
1. Total consolidated assets of the Borrower and its
Subsidiaries as reflected in the Borrower's
consolidated balance sheet as of the last day of the
fiscal quarter ending on or before the Statement
Date, as determined in accordance with GAAP after
eliminating all amounts properly attributable to
minority interests, if any, in the stock and surplus
of Subsidiaries: $__________________________
2. The net book value of the assets that are required to
be disclosed as intangible assets in accordance with
GAAP on the balance sheet of the Borrower and its
Subsidiaries determined on a consolidated basis at
the Statement Date, including customer lists,
goodwill, computer software, copyrights, trade names,
trademarks, patents, unamortized deferred charges,
unamortized debt discount and capitalized research
and development costs: $__________________________
3. Consolidated Total Liabilities:
a. Total consolidated liabilities of the
Borrower and its Subsidiaries as of the last
day of the fiscal quarter ending on or
before the Statement Date, as determined in
accordance with GAAP: $__________________________
b. The capitalized amount of remaining lease
payments under any Synthetic Lease
Obligation of the Borrower and its
Subsidiaries that would appear on a balance
sheet of such Persons prepared as of the
Statement Date in accordance with GAAP if
such lease were accounted for as a capital
lease determined on a consolidated basis: $__________________________
D-3
c. Sum of Lines I.A.3.a and I.A.3.b: $__________________________
4. Actual Consolidated Tangible Net Worth (Line I.A.1 -
(Lines I.A.2 + I.A.3.c)): $__________________________
B. 85% of Consolidated Tangible Net Worth at June 27, 2003: $__________________________
C. Cumulative positive Consolidated Net Income accrued from, and
including, September 26, 2003: $__________________________
D. 50% of Line I.C: $__________________________
E. Amount equal to 100% of the aggregate increases in
Shareholders' Equity after the Closing Date by reason of the
issuance and sale of capital stock of the Borrower (excluding
upon any conversion of debt securities of the Borrower into
such capital stock or exercise of employee stock options): $__________________________
F. Minimum required Consolidated Tangible Net Worth at the
Statement Date (Lines I.B + I.D + I.E): $__________________________
G. Excess (deficiency) for covenant compliance (Line I.A.4 -
I.F): $__________________________
II. SECTION 7.06(c) - CONSOLIDATED TOTAL INDEBTEDNESS TO CONSOLIDATED
EBITDA.
A. Consolidated Total Indebtedness at the Statement Date:
1. All amounts which would, in accordance with GAAP, be
included as indebtedness on a consolidated balance
sheet of the Borrower and its Subsidiaries as of the
Statement Date: $__________________________
2. Line I.A.3.b: $__________________________
3. Sum of Lines II.A.1 and II.A.2: $__________________________
B. Consolidated EBITDA measured on a rolling four quarter basis
for the four fiscal quarters ended on or before the Statement
Date (the "Subject Period"):
1. The net income (or loss) of the Borrower and its
Subsidiaries during the Subject Period determined on
a consolidated basis in accordance
D-4
with GAAP, but excluding therefrom (to the extent
otherwise included therein) (i) any non-cash
extraordinary gains or losses, (ii) any gains
attributable to write-ups of assets and (iii) any
equity interest of the Borrower or any Subsidiary of
the Borrower in the unremitted earnings of any Person
that is not a Subsidiary: $_________________________
2. The total interest of the Borrower and its
Subsidiaries with respect to indebtedness for the
Subject Period (measured on a consolidated basis)
paid including, without limitation, the interest
component of any payments in respect of capital
leases capitalized or expensed during such period),
whether or not actually paid during such periods;
determined in accordance with GAAP: $__________________________
3. The amount of taxes, based on or measured by income,
used or included in the determination of the amount
of Line II.B.1: $__________________________
4. The amount of (i) depreciation and amortization,
determined on a consolidated basis in accordance with
GAAP in each case for such period, (ii) other
non-cash losses or deductions (including purchased
in-process research and development, impairment
charges, write-offs or restructuring charges against
goodwill or other assets), and (iii) fees, costs,
write-offs and other expenses associated with any
Acquisition, to the extent used or included in
determining the amount of Line II.B.1: $__________________________
C. Consolidated EBITDA for the Subject Period (Lines II.B.1 +
II.B.2 + II.B.3 + II.B.4): $__________________________
D. Actual ratio of Consolidated Total Indebtedness to
Consolidated EBITDA for the Subject Period (Line II.A.3 to
Line II.C): ____ to 1
E. Maximum permitted ratio of Consolidated Total Indebtedness to
Consolidated EBITDA: 3.00 to 1
III. SECTION 7.06(b) - INTEREST COVERAGE RATIO
D-5
A. Actual Consolidated EBITDA for the Subject Period (Line II.C): $__________________________
B. Actual Consolidated Interest Charges for the Subject Period
(Line II.B.2) $__________________________
C. Actual ratio of Consolidated EBITDA to to Consolidated
Interest Charges for the Subject Period (Line III.A to Line
III.B): ____ to 1
D. Minimum permitted ratio of Consolidated EBITDA to Consolidated
Interest Charges: 3.00 to 1
IV. SECTION 7.01(q) - LIENS OTHER THAN PERMITTED LIENS
A. The aggregate amount of Debt and other indebtedness secured by
any Liens permitted under Section 7.01(q) of the Agreement:
$__________________________
B. The aggregate monetary obligations in respect of transactions
permitted pursuant to the proviso of Section 7.03 of the
Agreement: $__________________________
C. The applicable amount of all Securitizations of the Borrower
and its Subsidiaries: $__________________________
D. Sum of Lines IV.A, IV.B, and IV.C: $__________________________
E. Total Capitalization:
1. The aggregate amount of all Debt of the Borrower and
its Subsidiaries at the Statement Date determined on
a consolidated basis: $__________________________
2. The consolidated total assets of the Borrower and its
Subsidiaries at the Statement Date determined in
accordance with GAAP: $__________________________
3. The consolidated total liabilities of the Borrower
and its Subsidiaries at the Statement Date determined
in accordance with GAAP: $__________________________
4. Total Capitalization
(Line IV.E.1 + Line IV.E.2 - Line IV.E.3): $__________________________
F. 25% of Total Capitalization (25% of Line IV.E.4): $__________________________
G. Excess (deficiency) (Line IV.D - Line IV.F): $__________________________
D-6
V. SECTION 7.03 - SALE AND LEASEBACK.
A. The aggregate monetary obligations in respect of all
transactions subject to Section 7.03 of the Agreement,
including the proposed sale-leaseback transaction: $__________________________
B. The aggregate amount of Debt secured by any Liens permitted by
Section 7.01(q) of the Agreement: $__________________________
C. The applicable amount of all Securitizations of the Borrower
and all of its Subsidiaries (Line IV.C): $__________________________
D. Sum of Lines V.A, V.B, and V.C: $__________________________
E. 25% of Total Capitalization (Line IV.F): $__________________________
F. Excess (deficiency) (Line V.D - Line V.E): $__________________________
D-7
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to that certain Revolving Credit Agreement, dated as
of October __, 2003 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Xxxxxx Corporation, a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto and SunTrust Bank, as Administrative Agent, L/C Issuer and Swingline
Lender.
The assignor identified on the signature page hereto (the "Assignor")
and the assignee identified on the signature page hereto (the "Assignee") agree
as follows:
1. (a) Subject to paragraph 11, effective as of the date specified on
Schedule 1 hereto (the "Effective Date"), the Assignor hereby irrevocably sells
and assigns to the Assignee without recourse to the Assignor, and the Assignee
hereby irrevocably purchases and assumes from the Assignor without recourse to
the Assignor, the interest described on Schedule 1 hereto (the "Assigned
Interest") in and to the Assignor's rights and obligations under the Agreement.
(b) From and after the Effective Date, (i) the Assignee shall be a
party under the Agreement and will have all the rights and obligations of a
Lender for all purposes under the Loan Documents to the extent of the Assigned
Interest and be bound by the provisions thereof, and (ii) the Assignor shall
relinquish its rights and be released from its obligations under the Agreement
to the extent of the Assigned Interest. The Assignor or the Assignee, as agreed
by the Assignor and the Assignee, shall deliver, in immediately available funds,
any applicable assignment fee required under Section 10.07(b) of the Agreement.
2. On the Effective Date, the Assignee shall pay to the Assignor, in
immediately available funds, an amount equal to the purchase price of the
Assigned Interest as agreed by the Assignor and the Assignee.
3. From and after the Effective Date, the Administrative Agent shall
make all payments under the Agreement and the Notes, if any, in respect of the
Assigned Interest (including all payments of principal, interest and fees with
respect thereto) to the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments under the Agreement and such Notes, if any,
for periods prior to the Effective Date directly between themselves.
4. The Assignor represents and warrants to the Assignee that:
(a) The Assignor is the legal and beneficial owner of the
Assigned Interest, and the Assigned Interest is free and clear of any
adverse claim;
(b) the Assigned Interest listed on Schedule 1 accurately and
completely sets forth the Outstanding Amount of all Loans and L/C
Obligations relating to the Assigned Interest as of the Effective Date;
E-1
(c) it has the power and authority and the legal right to
make, deliver and perform, and has taken all necessary action, to
authorize the execution, delivery and performance of this Assignment
and Acceptance, and any and all other documents delivered by it in
connection herewith and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Assignment and
Acceptance and the Loan Documents, and no consent or authorization of,
filing with, or other act by or in respect of any Governmental
Authority, is required in connection in connection herewith or
therewith; and
(d) this Assignment and Acceptance constitutes the legal,
valid and binding obligation of the Assignor.
The Assignor makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any of
its Affiliates or the performance by the Borrower or any of its Affiliates of
their respective obligations under the Loan Documents, and assumes no
responsibility with respect to any statements, warranties or representations
made under or in connection with any Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan Document
other than as expressly set forth above.
5. The Assignee represents and warrants to the Assignor and the
Administrative Agent that:
(a) it is an Eligible Assignee;
(b) it has the full power and authority and the legal right to
make, deliver and perform, and has taken all necessary action, to
authorize the execution, delivery and performance of this Assignment
and Acceptance, and any and all other documents delivered by it in
connection herewith and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Assignment and
Acceptance and the Loan Documents, and no consent or authorization of,
filing with, or other act by or in respect of any Governmental
Authority, is required in connection in connection herewith or
therewith;
(c) this Assignment and Acceptance constitutes the legal,
valid and binding obligation of the Assignee;
(d) under applicable Laws no tax will be required to be
withheld by the Administrative Agent or the Borrower with respect to
any payments to be made to the Assignee hereunder or under any Loan
Document, and unless otherwise indicated in the space opposite the
Assignee's signature below, no tax forms described in Section 10.15 of
the Agreement are required to be delivered by the Assignee; and
(e) the Assignee has received a copy of the Agreement,
together with copies of the most recent financial statements of the
Borrower delivered pursuant thereto, and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance. The
Assignee has independently and without reliance upon the Assignor or
the Administrative Agent
E-2
and based on such information as the Assignee has deemed appropriate,
made its own credit analysis and decision to enter into this Assignment
and Acceptance. The Assignee will, independently and without reliance
upon the Administrative Agent or any Lender, and based upon such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under the Agreement.
6. The Assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Agreement, the other Loan Documents or any other instrument
or document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto.
7. If either the Assignee or the Assignor desires a Note to evidence
its Loans, it shall request the Administrative Agent to procure a Note from the
Borrower. Upon its receipt of a notification that the Administrative Agent holds
the Note to be replaced, the Borrower shall execute and deliver such replacement
Note to the Administrative Agent.
8. The Assignor and the Assignee agree to execute and deliver such
other instruments, and take such other action, as either party may reasonably
request in connection with the transactions contemplated by this Assignment and
Acceptance.
9. This Assignment and Acceptance shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns;
provided, however, that the Assignee shall not assign its rights or obligations
hereunder without the prior written consent of the Assignor and any purported
assignment, absent such consent, shall be void.
10. This Assignment and Acceptance may be executed by facsimile
signatures with the same force and effect as if manually signed and may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. This
Assignment and Acceptance shall be governed by and construed in accordance with
the laws of the state specified in the Section of the Agreement entitled
"Governing Law."
11. The effectiveness of the assignment described herein is subject to:
(a) if such consent is required by the Agreement, receipt by the
Assignor and the Assignee of the consent of the Administrative Agent, L/C
Issuer, the Swingline Lender and the Borrower to the assignment described
herein. By delivering a duly executed and delivered copy of this Assignment and
Acceptance to the Administrative Agent, the Assignor and the Assignee hereby
request any such required consent and request that the Administrative Agent
register the Assignee as a Lender under the Agreement effective as of the
Effective Date; and
(b) receipt by the Administrative Agent of (or other arrangements
acceptable to the Administrative Agent with respect to) any applicable
assignment fee referred to in Section 10.07(b) of the Agreement and any tax
forms required by Section 10.15 of the Agreement.
E-3
By signing below, the Administrative Agent agrees to register the
Assignee as a Lender under the Agreement, effective as of the Effective Date
with respect to the Assigned Interest, and will adjust the registered Pro Rata
Share of the Assignor under the Agreement to reflect the assignment of the
Assigned Interest.
12. Attached hereto as Schedule 2 is all contact, address, account and
other administrative information relating to the Assignee.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers.
ASSIGNOR:
[NAME OF ASSIGNOR]
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[ ] Tax forms required by ASSIGNOR:
Section 10.15 of the Agreement
included [NAME OF ASSIGNOR]
By:______________________________________
Name:____________________________________
Title:___________________________________
(Signatures continue)
E-4
In accordance with and subject to Section 10.07 of the Agreement, the
undersigned consent to the foregoing assignment as of the Effective Date:
XXXXXX CORPORATION
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
SUNTRUST BANK,
as Administrative Agent, L/C Issuer and Swingline Lender
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
E-5
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
THE ASSIGNED INTEREST
Effective Date: ______________________
TYPE AND AMOUNT OF OUTSTANDING
ASSIGNED COMMITMENT OBLIGATIONS ASSIGNED ASSIGNED PRO RATA SHARE
--------------------------------------------------------------------------------------------------
$_____________ [type] $___________________ ___________________________%
Schedule 1-1
SCHEDULE 2 TO ASSIGNMENT AND ACCEPTANCE
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and facsimile
numbers, electronic mail addresses and account and payment information)
Schedule 2-1
EXHIBIT F
FORM OF CLOSING DATE OPINIONS OF COUNSEL
(CONTENT SUMMARY)
1. The Borrower is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware with the
corporate power and authority and all material federal, New York and
Florida governmental licenses, authorizations, consents and approvals
to own and operate (or lease, as the case may be) its properties and to
carry on its business as it is now conducted. The Borrower is qualified
as a foreign corporation, licensed and in good standing in Florida and
New York.
2. The Borrower has the corporate power and authority to enter into and
perform the Loan Documents, and has taken all necessary corporate
action to authorize the execution, delivery and performance of such
Loan Documents.
3. No authorization, consent, approval, license, exemption of, or filing
or registration with, any Governmental Authority, or approval or
consent of any other Person, is required for the due execution,
delivery or performance by, or enforcement against, the Borrower of the
Loan Documents.
4. The Loan Documents have been duly executed and delivered by the
Borrower and constitute the legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their
respective terms.
5. The execution, delivery and performance by the Borrower of the Loan
Documents will not (i) violate or be in conflict with any provision of
the certificate of incorporation or by-laws of the Borrower, (ii)
violate or be in conflict with any law or regulation having
applicability to the Borrower, (iii) violate or contravene any
judgment, decree, injunction, writ or order of any court, or any
arbitrator or other Governmental Authority, having jurisdiction over
the Borrower of the Borrower's properties or by which the Borrower may
be bound, or (iv) violate or conflict with, or constitute a default
under or result in the termination of, or accelerate the performance
required by, any material indenture, loan or credit agreement
(including the Existing Credit Facility), or other agreement for
borrowed money or any other material agreement, lease or instrument to
which the Borrower is a party or by which it or it's properties may be
bound, or result in the creation of any Lien upon any of the assets or
properties of the Borrower.
6. Except as set forth on Schedule __, there is no pending or, to
counsel's knowledge, threatened action or proceeding affecting the
Borrower or any of its Subsidiaries before any court, governmental
agency or arbitrator, which would reasonably be expected to have a
Material Adverse Effect.
7. The extension of credit under the Credit Agreement does not violate the
provisions of Regulations T, U or X of the Federal Reserve Board.
F-1
8. The Borrower is not an "investment company," or a company "controlled"
by an "investment company," within the meaning of the Investment
Company Act of 1940.
9. The Borrower is not a "holding company" or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company" within the meaning of
Public Utility Holding Company Act of 1935.
10. No regulatory consents, authorizations, approvals or filing are
required to be obtained or made by the Borrower from any New York
Governmental Authority under any law of the State of new York or any
regulation adopted by a Governmental Agency thereof for the borrowing
by the Borrower under the Credit Agreement and the execution and
delivery of the Credit Agreement and the Notes in connection with the
performance by the Borrower of its obligations hereunder.
F-2
EXHIBIT G
SWINGLINE NOTICE
----------------
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Agency Services
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of October
__, 2003 (as amended and in effect on the date hereof, the "Agreement"), among
the undersigned, as Borrower, the lenders named therein, and SunTrust Bank, as
Administrative Agent, L/C Isuuer and Swingline Lender. Terms defined in the
Agreement are used herein with the same meanings. This notice constitutes a
Swingline Notice, and the Borrower hereby requests a Swingline Borrowing under
the Agreement, and in that connection the Borrower specifies the following
information with respect to the Swingline Borrowing requested hereby:
(A) Principal amount of Swingline Loan(1): ______________________
(B) Date of Swingline Loan (which is a Business Day):
(C) Location and number of Borrower's account to which proceeds
of Swingline Loan are to be disbursed:______________________
The Swingline Borrowing requested herein complies with the
requirements of Section 2.16 of the Agreement. The undersigned hereby certifies
that the following statements are and will be true and correct on the date of
the Credit Extension requested above, both before and after giving effect to the
Credit Extension requested above:
(a) The representations and warranties made by the Borrower in the
Agreement, or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection therewith, are and
will be true and correct in all material respects on and as of the date of the
Credit Extension requested
--------------------
1 Not less than $100,000 or a larger multiple of $50,000.
above, except to the extent that such representations and warranties
specifically refer to any earlier date; and
(b) no Default or Event of Default has occurred and is continuing on
the date hereof or after giving effect to the Credit Extension requested above.
XXXXXX CORPORATION, as Borrower
By:________________________________________
Name:______________________________________
Title:_____________________________________
G-2
