CREDIT AGREEMENT Dated as of March 29, 2006 among MacDERMID, INCORPORATED, as a Borrower and a Guarantor, CERTAIN SUBSIDIARIES OF THE COMPANY, as Designated Borrowers, CERTAIN SUBSIDIARIES OF THE BORROWER, as Subsidiary Guarantors, BANK OF AMERICA,...
Exhibit
4
Dated
as
of March 29, 2006
among
MacDERMID,
INCORPORATED,
as
a
Borrower and a Guarantor,
CERTAIN
SUBSIDIARIES OF THE COMPANY,
as
Designated Borrowers,
CERTAIN
SUBSIDIARIES OF THE BORROWER,
as
Subsidiary Guarantors,
BANK
OF
AMERICA, N.A.,
as
Administrative Agent, Swing Line Lender
and
L/C
Issuer,
CHARTER
ONE BANK, N.A.,
as
Syndication Agent,
XXXXX
FARGO BANK N.A. and
LASALLE
BANK, NATIONAL ASSOCIATION,
as
Co-Documentation Agents,
and
The
Other
Lenders Party Hereto
BANC
OF
AMERICA SECURITIES LLC,
as
Sole
Lead Arranger and Sole Book Manager
CHAR1\875908v7
*
*
*
TABLE
OF
CONTENTS
DEFINITIONS
AND ACCOUNTING TERMS
1.01 Defined
Terms
1.03 Accounting
Terms.
1.04 Rounding
1.06 Times
of Day
1.07 Letter
of Credit Amounts
1.08 Currency
Equivalents Generally
ARTICLE
II
THE
COMMITMENTS AND CREDIT EXTENSIONS
2.01 The
Loans
2.02 Borrowings,
Conversions and Continuations of Loans
2.03 Letters
of Credit.
2.04 Swing
Line Loans
2.05 Prepayments
2.06 Termination
or Reduction of Commitments
2.07 Repayment
of Loans
2.08 Interest
2.09 Fees
2.11 Evidence
of Indebtedness
2.12 Payments
Generally
2.13 Sharing
of Payments
2.14 Designated
Borrowers
2.15 Increase
in Commitments.
ARTICLE
III
TAXES,
YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
3.02 Illegality
3.05 Funding
Losses
3.06 Matters
Applicable to all Requests for Compensation
3.07 Survival
ARTICLE
IV
GUARANTY
4.01 The
Guaranty.
4.02 Obligations
Unconditional.
4.03 Reinstatement
4.04 Certain
Additional Waivers
4.05 Remedies
4.06 Rights
of Contribution
4.07 Guarantee
of Payment; Continuing Guarantee
ARTICLE
V
CONDITIONS
PRECEDENT TO CREDIT
EXTENSIONS
5.02 Conditions
to all Credit Extensions
5.03 Conditions
to Initial Credit Extension to any Designated Borrower
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES
6.01 Existence,
Qualification and Power; Compliance with Laws
6.02 Authorization;
No Contravention
6.03 Governmental
Authorization; Other Consents
6.04 Binding
Effect
6.05 Financial
Statements; No Material Adverse Effect
6.06 Litigation
6.07 No
Default
6.08 Ownership
of Property
6.10 Insurance
6.11 Taxes
6.12 ERISA
Compliance
6.14 Margin
Regulations; Investment Company Act; Public Utility Holding Company
Act
6.15 Disclosure
6.16 Compliance
with Laws
6.18 Solvency
6.19 Casualty,
Etc.
6.20 Perfection,
Etc.
6.21 Swap
Obligations
ARTICLE
VII
AFFIRMATIVE
COVENANTS
7.01 Financial
Statements
7.02 Certificates;
Other Information
7.03 Notices
7.04 Payment
of Obligations
7.06 Maintenance
of Properties
7.07 Maintenance
of Insurance
7.08 Compliance
with Laws
7.09 Books
and Records
7.10 Inspection
Rights
7.11 Use
of
Proceeds
7.12 Covenant
to Guarantee Obligations and Give Security
7.13 Compliance
with Environmental Laws
7.14 Further
Assurances
ARTICLE
VIII
NEGATIVE
COVENANTS
8.01 Liens
8.02 Investments
8.04 Fundamental
Changes
8.05 Dispositions
8.06 Restricted
Payments
8.07 Change
in Nature of Business
8.08 Transactions
with Affiliates
8.09 Burdensome
Agreements
8.10 Use
of
Proceeds
8.11 Financial
Covenants
8.12 Amendments
of Organization Documents
8.13 Accounting
Changes
8.14 Prepayments,
Etc. of Indebtedness
ARTICLE
IX
EVENTS
OF
DEFAULT AND REMEDIES
9.01 Events
of Default
9.02 Remedies
Upon Event of Default
9.03 Application
of Funds
ARTICLE
X
ADMINISTRATIVE
AGENT
10.01 Appointment
and Authority
10.02 Delegation
of Duties
10.03 Rights
as a Lender
10.04 Exculpatory
Provisions
10.05 Reliance
by Administrative Agent
10.06 Non-Reliance
on Administrative Agent and Other Lenders
10.07 Resignation
of Administrative Agent
10.08 Administrative
Agent May File Proofs of Claim
10.09 Collateral
and Guaranty Matters
10.10 Assignment
under Dutch Law
10.11 No
Other Duties, Etc
ARTICLE
XI
11.01 Amendments,
Etc
11.02 Notices
and Other Communications; Facsimile Copies
11.03 No
Waiver; Cumulative Remedies
11.04 Expenses;
Indemnity; Damage Waiver
11.05 Payments
Set Aside
11.06 Successors
and Assigns
11.07 Confidentiality
11.08 Setoff
11.09 Interest
Rate Limitation
11.10 Counterparts
11.11 Integration
11.12 Survival
of Representations and Warranties
11.13 Severability
11.14 Tax
Forms
11.15 Replacement
of Lenders
11.16 Governing
Law
11.17 Judgment
11.18 Substitution
of Currency
11.19 Binding
Effect
11.20 Waiver
of Right to Trial by Jury
11.21 No
Advisory or Fiduciary Responsibility
11.22 USA
PATRIOT Act Notice
CHAR1\875908v7
114
SCHEDULES
I Subsidiary
Guarantors
II Existing
Designated Borrowers
III Existing
Letters of Credit
2.01 Commitments
and Pro Rata Shares
6.06 Litigation
6.09 Environmental
Matters
6.13 Subsidiaries
6.17 Intellectual
Property Matters
8.01(c) Existing
Liens
8.02(a) Existing
Investments
8.03(b) Existing
Indebtedness
11.02 Administrative
Agentβs Office, Certain Addresses for Notices
11.06 Processing
and Recordation Fees
EXHIBITS
Form
of
A Committed
Loan Notice
B Swing
Line Loan Notice
C Revolving
Note
D Swing
Line Note
E Assignment
and Assumption
F Pledge
Agreement
G Designated
Borrower Request and Assumption Agreement
H Designated
Borrower Notice
I Joinder
Agreement
J Compliance
Certificate
CHAR1\875908v7
114
This
Credit Agreement is entered into as of March 29, 2006 among MacDERMID,
INCORPORATED, a Connecticut corporation (the βCompanyβ),
certain Subsidiaries of the Company party hereto pursuant to Section
2.14
(each a
βDesignated
Borrower
and,
together with the Company, the βBorrowersβ
and
each a βBorrowerβ),
certain Subsidiaries of the Company from time to time party hereto (each a
βSubsidiary
Guarantorβ
and
together with the Company, the βGuarantorsβ),
each
lender from time to time party hereto (collectively, the βLendersβ
and
individually, a βLenderβ),
and
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.
The
Company has requested that the Lenders provide a revolving credit facility,
and
the Lenders are willing to do so on the terms and conditions set forth
herein.
In
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
1.01 Defined
Terms.
As used
in this Agreement, the following terms shall have the meanings set forth
below:
βAdministrative
Agentβ
means
Bank of America in its capacity as administrative agent under any of the Loan
Documents, or any successor administrative agent.
βAdministrative
Agentβs Officeβ
means
the Administrative Agentβs address and, as appropriate, account as set forth on
Schedule
11.02,
or such
other address or account as the Administrative Agent may from time to time
notify the Company and the Lenders.
βAdministrative
Questionnaireβ
means
an Administrative Questionnaire in a form supplied by the Administrative
Agent.
βAffiliateβ
means,
with respect to any Person, another Person (other than, in the case of the
Loan
Parties, a Subsidiary of such Person) that directly, or indirectly through
one
or more intermediaries, Governs or is Governed by or is under common Governance
with the Person specified. βGovernβ
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. βGoverningβ
and
βGovernedβ
have
meanings correlative thereto. Without limiting the generality of the foregoing,
a Person shall be deemed to be Governed by another Person if such other Person
possesses, directly or indirectly, power to vote 10% or more of the securities
having ordinary voting power for the election of directors, managing general
partners or the equivalent.
βAgent
Partiesβ
has
the
meaning specified in Section
11.02(c).
βAggregate
Commitmentsβ
means
the Revolving Credit Commitments of all the Lenders. The initial amount of
the
Aggregate Commitments in effect on the Closing Date is SEVENTY-FIVE MILLION
DOLLARS ($75,000,000).
βAggregate
Credit Exposuresβ
means,
at any time, the sum of (i) the unused portion of the Revolving Credit
Commitment then in effect and (ii) the Total Outstandings at such
time.
βAgreementβ
means
this Credit Agreement.
βApplicable
Rateβ
means
the following percentages per annum, based upon the Consolidated Leverage Ratio
as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 7.02(a):
|
Applicable
Rate
|
|||||
|
Pricing
Level
|
Consolidated
Leverage Ratio
|
Facility
Fee
|
Euro-currency
Rate
|
Letters
of Credit
|
Base
Rate
|
|
1
|
β€
2.25:1
|
0.175%
|
0.700%
|
0.700%
|
0.000%
|
|
2
|
>2.25:1
but
β€
2.50:1
|
0.200%
|
0.800%
|
0.800%
|
0.000%
|
|
3
|
>2.50:1
but
β€
2.75:1
|
0.250%
|
1.000%
|
1.000%
|
0.000%
|
|
4
|
>2.75:1
but
β€
3.00:1
|
0.350%
|
1.150%
|
1.150%
|
0.150%
|
|
5
|
>3.00:1
|
0.500%
|
1.500%
|
1.500%
|
0.500%
|
Any
increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business
Day
immediately following the date a Compliance Certificate is delivered pursuant
to
Section
7.02(a);
provided,
however,
that if
a Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level 5 shall apply as of the first Business Day after
the
date on which such Compliance Certificate was required to have been delivered.
The Applicable Rate in effect from the Closing Date through the first Business
Day immediately following the date a Compliance Certificate is delivered
pursuant to Section
7.02(a)
for the
fiscal quarter ending March 31, 2006 shall be determined based upon Pricing
Level 2.
βApplicant
Borrowerβ
has
the
meaning specified in Section
2.14(b).
βApproved
Fundβ
has
the
meaning specified in Section
11.06(g).
βAssignment
and Assumptionβ
means
an Assignment and Assumption substantially in the form of Exhibit
E.
βAssuming
Lenderβ
has
the
meaning specified in Section
2.15(d).
βAssumption
Agreementβ
has
the
meaning specified in Section
2.15(d)(ii).
βAttorney
Costsβ
means
and includes all reasonable fees, expenses and disbursements of any law firm
or
other external counsel.
βAttributable
Indebtednessβ
means,
on any date, (a) in respect of any capital lease of any Person, the capitalized
amount thereof that would appear on a balance sheet of such Person prepared
as
of such date in accordance with GAAP and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the 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.
βAudited
Financial Statementsβ
means
the audited consolidated balance sheet of the Company and its Subsidiaries
for
the fiscal year ended December 31, 2005, and the related consolidated statements
of income or operations, shareholdersβ equity and cash flows for such fiscal
year of the Company and its Subsidiaries, including the notes
thereto.
βAuto-Renewal
Letter of Creditβ
has
the
meaning specified in Section
2.03(b)(iii).
βAvailability
Periodβ
means
the period from and including the Closing Date to the earliest of (a) the
Maturity Date, (b) the date of termination of the Revolving Credit Commitments
pursuant to Section
2.06,
and (c)
the date of termination of the commitment of each Revolving Credit Lender to
make Revolving Credit Loans and of the obligation of the L/C Issuer to make
L/C
Credit Extensions pursuant to Section
9.02.
βBank
of Americaβ
means
Bank of America, N.A. and its successors.
βBASβ
means
Banc of America Securities LLC and its successors.
βBase
Rateβ
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 Bank of America as its βprime rate.β The
βprime rateβ is a rate set by Bank of America based upon various factors
including Bank of Americaβs costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing
some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the opening
of
business on the day specified in the public announcement of such
change.
βBase
Rate Loanβ
means
a
Loan denominated in Dollars that bears interest based on the Base
Rate.
βBlankets
Businessβ
means
the business and assets of the Company and its Subsidiaries used in
manufacturing, developing and selling printing blankets.
βBorrowerβ
and
βBorrowersβ
each
has the meaning specified in the introductory paragraph hereto.
βBorrower Materialsβ
has
the
meaning specified in Section
7.02.
βBorrowingβ
means
a
Revolving Credit Borrowing or a Swing Line Borrowing, as the context may
require.
βBusiness
Dayβ
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 Agentβs Office is located and, if such day relates to any
Eurocurrency Rate Loan, on which dealings in deposits are conducted by and
between banks in the London interbank eurocurrency market and banks are open
for
business in the country of issue of the currency of such Eurocurrency Rate
Advance (or, in the case of an Advance denominated in Euro, on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open).
βCash
Collateralizeβ
has
the
meaning specified in Section
2.03(g).
βCash
Distributionsβ
means,
with respect to any Person for any period, all dividends and other distributions
on any of the outstanding Equity Interests in such Person, all purchases,
redemptions, retirements, defeasances or other acquisitions of any of the
outstanding Equity Interests in such Person and all returns of capital to the
stockholders, partners or members (or the equivalent persons) of such Person,
in
each case to the extent paid in cash by or on behalf of such Person during
such
period.
βCash
Equivalentsβ
means
any of the following types of Investments, to the extent owned by the Company
or
any of its Subsidiaries free and clear of all Liens:
(a) readily
marketable obligations issued or directly and fully guaranteed or insured by
the
United States of America or any agency or instrumentality thereof having
maturities of not more than 360 days from the date of acquisition thereof;
provided that the full faith and credit of the United States of America is
pledged in support thereof;
(b) time
deposits with, or insured certificates of deposit or bankersβ acceptances of,
any commercial bank that (i) (A) is a Lender or (B) is organized under the
laws
of the United States of America, any state thereof or the District of Columbia
or is the principal banking subsidiary of a bank holding company organized
under
the laws of the United States of America, any state thereof or the District
of
Columbia, and is a member of the Federal Reserve System, (ii) issues (or the
parent of which issues) commercial paper rated as described in clause (c) of
this definition and (iii) has combined capital and surplus of at least
$1,000,000,000, in each case with maturities of not more than one year from
the
date of acquisition thereof;
(c) commercial
paper issued by any Person organized under the laws of any state of the United
States of America and rated at least βPrime-1β (or the then equivalent
grade) by Xxxxxβx or at least βA-1β (or the then equivalent grade) by
S&P, in each case with maturities of not more than 180 days from the date of
acquisition thereof; and
(d) Investments,
classified in accordance with GAAP as Current Assets of the Company or any
of
its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, which are administered by financial institutions
that have the highest rating obtainable from either Xxxxxβx or S&P, and the
portfolios of which are limited solely to Investments of the character, quality
and maturity described in clauses (a), (b) and (c) of this
definition.
βCERCLAβ
means
the Comprehensive Environmental Response, Compensation and Liability Act of
1980.
βCERCLISβ
means
the Comprehensive Environmental Response, Compensation and Liability Information
System maintained by the U.S. Environmental Protection Agency.
βChange
of Controlβ
means,
an event or series of events by which:
(a) any
βpersonβ or βgroupβ (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of
such
person or its subsidiaries, and any person or entity acting in its capacity
as
trustee, agent or other fiduciary or administrator of any such plan) becomes
the
βbeneficial ownerβ (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that a person or group shall be deemed to have
βbeneficial ownershipβ of all securities that such person or group has the right
to acquire, whether such right is exercisable immediately or only after the
passage of time (such right, an βoption
rightβ)),
directly or indirectly, of a majority of the equity securities of the Company
entitled to vote for members of the board of directors or equivalent governing
body of such Person on a fully-diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to any
option right); or
(b) during
any period of 12 consecutive months, a majority of the members of the board
of
directors or other equivalent governing body of the Company 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 (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 (excluding, in the case of both clause (ii) and clause (iii),
any
individual whose initial nomination for, or assumption of office as, a member
of
that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal
of
one or more directors by any person or group other than a solicitation for
the
election of one or more directors by or on behalf of the board of directors),
or
(c) any
Person or two or more Persons acting in concert shall have acquired by contract
or otherwise, directly or indirectly, a controlling influence over the
management or policies of the Company, or control over the equity securities
of
the Company entitled to vote for members of the board of directors or equivalent
governing body of the Company on a fully-diluted basis (and taking into account
all such securities that such Person or group has the right to acquire pursuant
to any option right) representing 30% or more of the combined voting power
of
such securities.
βClosing
Dateβ
means
the date hereof.
βCodeβ
means
the Internal Revenue Code of 1986.
βCollateralβ
means
all of the βCollateralβ
or
βPledged
Collateralβ
referred to in the Collateral Documents and all of the other property and assets
that are or are intended under the terms of the Collateral Documents to be
subject to Liens in favor of the Administrative Agent for the benefit of the
Secured Parties.
βCollateral
Documentsβ
means,
collectively, the Pledge Agreement, or other similar agreements delivered to
the
Administrative Agent and the Lenders pursuant to Section
7.12,
and
each of the other agreements, instruments or documents that creates or purports
to create a Lien in favor of the Administrative Agent for the benefit of the
Secured Parties.
βColorspanβ
means
the Companyβs digital printing business.
βCommitment
Dateβ
has
the
meaning specified in Section
2.15(b).
βCommitment
Increaseβ
has
the
meaning specified in Section
2.15(a).
βCommitted
Currenciesβ
means
Sterling, Yen and and Euros.
βCommitted
Loan Noticeβ
means
a
notice of (a) a Revolving Credit Borrowing, (b) a conversion of Loans from
one
Type to the other, or (c) a continuation of Eurocurrency Rate Loans, pursuant
to
Section
2.02(a),
which,
if in writing, shall be substantially in the form of Exhibit
A.
βCompanyβ
has
the
meaning specified in the recital of parties to this Agreement.
βCompliance
Certificateβ
means
a
certificate substantially in the form of Exhibit J.
βConsolidated
EBITβ
means,
for any period, for the Company and its Subsidiaries on a consolidated basis,
an
amount equal to Consolidated Net Income for such period plus
(a) the
following to the extent deducted in calculating such Consolidated Net Income:
(i) Consolidated Interest Charges for such period, (ii) the provision for
federal, state, local and foreign income taxes payable by the Company and its
Subsidiaries for such period and (iii) other expenses of the Company and its
Subsidiaries reducing such Consolidated Net Income which do not represent a
cash
item in such period or any future period minus
(b) all
non-cash items increasing Consolidated Net Income for such period; provided,
however,
that
for all purposes for any businesses acquired or divested during the period
of
determination, Consolidated EBIT for such period shall be determined on a pro
forma basis; provided,
further,
that in
the case of an acquisition for which audited financial statements of the
acquiree have not been provided, without the consent of the Administrative
Agent
and the Required Lenders, the Consolidated EBIT of the acquiree on a stand
alone
basis being added from such acquisition shall not exceed 15% of the otherwise
applicable amount of Consolidated EBIT of the Company and its Subsidiaries
(other than the acquiree) taken as a whole.
βConsolidated
EBITDAβ
means,
for any period, for the Company and its Subsidiaries on a consolidated basis,
an
amount equal to Consolidated Net Income for such period plus
(a) the
following to the extent deducted in calculating such Consolidated Net Income:
(i) Consolidated Interest Charges for such period, (ii) the provision for
federal, state, local and foreign income taxes payable by the Company and its
Subsidiaries for such period, (iii) the amount of depreciation and amortization
expense deducted in determining such Consolidated Net Income and (iv) other
expenses of the Company and its Subsidiaries reducing such Consolidated Net
Income which do not represent a cash item in such period or any future period
and minus
(b) all
non-cash items increasing Consolidated Net Income for such period
provided,
however,
that
for all purposes for any businesses acquired or divested during the period
of
determination, Consolidated EBITDA for such period shall be determined on a
pro
forma basis; provided,
further,
that in
the case of an acquisition for which audited financial statements of the
acquiree have not been provided, without the consent of the Administrative
Agent
and the Required Lenders, the Consolidated EBITDA of the acquiree on a stand
alone basis being added from such acquisition shall not exceed 15% of the
otherwise applicable amount of Consolidated EBITDA of the Company and its
Subsidiaries (other than the acquiree) taken as a whole.
βConsolidated
Funded Indebtednessβ
means,
as of any date of determination, for the Company and its Subsidiaries on a
consolidated basis, without duplication, the sum of (a) the outstanding
principal amount of all obligations, whether current or long-term, for borrowed
money (including Obligations hereunder) and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar instruments, (b) all
purchase money Indebtedness, (c) all direct obligations arising under letters
of
credit (including standby and commercial), bankersβ acceptances, bank
guaranties, surety bonds and similar instruments, (d) all obligations in respect
of the deferred purchase price of property or services (other than trade
accounts payable in the ordinary course of business), (e) Attributable
Indebtedness in respect of capital leases and Synthetic Lease Obligations,
(f)
all Off-Balance Sheet Liabilities, (g) without duplication, all Guarantees
with
respect to outstanding Indebtedness of the types specified in clauses (a)
through (f) above of Persons other than the Company or any Subsidiary, and
(h)
all Indebtedness of the types referred to in clauses (a) through (g) above
of
any partnership or joint venture (other than a joint venture that is itself
a
corporation or limited liability company) in which the Company or a Subsidiary
is a general partner or joint venturer, unless such Indebtedness is made
non-recourse to the Company or such Subsidiary.
βConsolidated
Interest Chargesβ
means,
for any period, for the Company and its Subsidiaries on a consolidated basis,
without limitation, the sum of (a) all interest, premium payments, debt
discount, fees, charges and related expenses of the Company and its Subsidiaries
in connection with borrowed money (including capitalized interest) or in
connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP and (b) the portion of rent
expense of the Company and its Subsidiaries with respect to such period under
capital leases that is treated as interest in accordance with GAAP.
βConsolidated
Interest Coverage Ratioβ
means,
as of any date of determination, the ratio of (a) Consolidated EBIT for the
period of the four prior fiscal quarters ending on such date to (b) Consolidated
Interest Charges for such period.
βConsolidated
Leverage Ratioβ
means,
as of any date of determination, the ratio of (a) Consolidated Funded
Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ending on such date.
βConsolidated
Net Incomeβ
means,
for any period, for the Company and its Subsidiaries on a consolidated basis,
the net income (including, without duplication, interest income but excluding
extraordinary gains and extraordinary losses) of the Company and its
Subsidiaries for that period.
βConsolidated
Senior Funded Indebtednessβ
means,
as of any date of determination, for the Company and its Subsidiaries on a
consolidated basis, the sum of (a) the outstanding principal amount of all
senior obligations, whether current or long-term, for borrowed money (including
Obligations hereunder) and all senior obligations evidenced by bonds,
debentures, notes, loan agreements or other similar instruments and (b) without
duplication, all Guarantees with respect to outstanding Indebtedness of the
type
specified in clause (a) above.
βConsolidated
Senior Leverage Ratioβ
means,
as of any date of determination, the ratio of (a) Consolidated Senior Funded
Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ending on such date.
βContractual
Obligationβ
means,
as to any Person, any provision of any security issued by such Person or of
any
agreement, instrument or other undertaking to which such Person is a party
or by
which it or any of its property is bound.
βCredit
Extensionβ
means
each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.
βDebtor
Relief Lawsβ
means
the Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors
generally.
βDefaultβ
means
any event or condition that constitutes an Event of Default or that, with the
giving of any notice, the passage of time, or both, would be an Event of
Default.
βDefault
Rateβ
means
an interest rate equal to (a) the Base Rate plus
(b) the
Applicable Rate, if any, applicable to Base Rate Loans plus
(c) 2.0%
per annum; provided,
however,
that
with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest
rate equal to the interest rate (including any Applicable Rate) otherwise
applicable to such Loan plus 2.0% per annum, in each case to the fullest extent
permitted by applicable Laws.
βDefaulting
Lenderβ
means
any Lender that (a) has failed to fund any portion of the Revolving Credit
Loans, participations in L/C Obligations or participations in Swing Line Loans
required to be funded by it hereunder within one Business Day of the date
required to be funded by it hereunder unless such failure has been cured, (b)
has otherwise failed to pay over to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within one Business Day
of
the date when due, unless the subject of a good faith dispute or unless such
failure has been cured, or (c) has been deemed insolvent or become the subject
of a bankruptcy or insolvency proceeding.
βDesignated
Borrowerβ
has
the
meaning set forth in introductory paragraph hereto.
βDesignated
Borrower Noticeβ
has
the
meaning set forth in Section
2.14(b).
βDesignated
Borrower Obligationsβ
means
all advances to, and debts, liabilities, obligations, covenants and duties
of,
the Designated Borrowers arising under any Loan Document or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due,
now
existing or hereafter arising and including interest and fees that accrue after
the commencement by or against any Designated Borrower or any Affiliate thereof
of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding.
βDesignated
Borrower Request and Assumption Agreementβ
has
the
meaning set forth in Section
2.14(b).
βDisclosed
Litigationβ
has
the
meaning set forth in Section
6.06.
βDispositionβ
or
βDisposeβ
means
the sale, transfer, license, lease or other disposition (including any sale
and
leaseback transaction) of any property by any Person, including any sale,
assignment, transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated
therewith.
βDollarβ
and
β$β
mean
lawful money of the United States.
βDomestic
Subsidiaryβ
means
any Subsidiary that is organized under the laws of any political subdivision
of
the United States.
βEligible
Assigneeβ
has
the
meaning set forth in Section 11.06(g).
βEligible
Subsidiaryβ
means
any (a) of the Subsidiaries listed on Schedule II hereto, (b) Wholly-Owned
Consolidated Subsidiary that is a Domestic Subsidiary, the capital stock of
which has been delivered to the Administrative Agent pursuant to the Pledge
Agreement, and (c) Wholly-Owned Consolidated Subsidiary that is a Foreign
Subsidiary whose ultimate non-U.S. parentβs capital stock has been delivered to
the Administrative Agent pursuant to the Pledge Agreement.
βEnvironmental
Lawsβ
means
any and all Federal, state, local, and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to
pollution and the protection of the environment or the release of any materials
into the environment, including those related to hazardous substances or wastes,
air emissions and discharges to waste or public systems.
βEnvironmental
Liabilityβ
means
any liability (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company, any other Loan
Party or any of their respective Subsidiaries directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
βEnvironmental
Permitβ
means
any permit, approval, identification number, license or other authorization
required under any Environmental Law.
βEquity
Interestsβ
means,
with respect to any Person, all of the shares of capital stock of (or other
ownership or profit interests in) such Person, all of the warrants, options
or
other rights for the purchase or acquisition from such Person of shares of
capital stock of (or other ownership or profit interests in) such Person, all
of
the securities convertible into or exchangeable for shares of capital stock
of
(or other ownership or profit interests in) such Person or warrants, rights
or
options for the purchase or acquisition from such Person of such shares (or
such
other interests), and all of the other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of
determination.
βEquivalentβ
in
Dollars of any Committed Currency on any date means the equivalent in Dollars
of
such Committed Currency determined by using the quoted spot rate at which the
Administrative Agentβs principal office in London offers to exchange Dollars for
such Committed Currency in London prior to 4:00 P.M. (London time) (unless
otherwise indicated by the terms of this Agreement) on such date as is required
pursuant to the terms of this Agreement, and the βEquivalentβ in any Committed
Currency of Dollars means the equivalent in such Committed Currency of Dollars
determined by using the quoted spot rate at which the Administrative Agentβs
principal office in London offers to exchange such Committed Currency for
Dollars in London prior to 4:00 P.M. (London time) (unless otherwise indicated
by the terms of this Agreement) on such date as is required pursuant to the
terms of this Agreement.
βERISAβ
means
the Employee Retirement Income Security Act of 1974.
βERISA
Affiliateβ
means
any trade or business (whether or not incorporated) under common control with
the Company within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).
βERISA
Eventβ
means
(a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
the
Company or any ERISA Affiliate from a Pension Plan subject to Section 4063
of
ERISA during a plan year in which it was a substantial employer (as defined
in
Section 4001(a)(2) of ERISA) or a cessation of operations that is treated
as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan
or
notification that a Multiemployer Plan is in reorganization; (d) the filing
of a
notice of intent to terminate, the treatment of a Plan amendment as a
termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan;
(e)
an event or condition which constitutes grounds under Section 4042 of ERISA
for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Company or any ERISA Affiliate.
βEuroβ
and
the
symbol ββ¬β
means
the lawful currency of the European Union as constituted by the Treaty of Rome
which established the European Community, as such treaty may be amended from
time to time and as referred to in the EMU legislation.
βEurocurrency
Rateβ
means,
for any Interest Period with respect to any Eurocurrency Rate Loan, the rate
per
annum equal to the British Bankers Association LIBOR Rate (βBBA
LIBORβ),
as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time
to
time) at approximately 11:00 a.m., London time, two Business Days prior to
the
commencement of such Interest Period, for deposits in the relevant currency
(for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason,
then the βEurocurrency Rateβ for such Interest Period shall be the rate per
annum determined by the Administrative Agent to be the rate at which deposits
in
the relevant currency for delivery on the first day of such Interest Period
in
same day funds in the approximate amount of the Eurocurrency Rate Loan being
made, continued or converted by Bank of America and with a term equivalent
to
such Interest Period would be offered by Bank of Americaβs London Branch to
major banks in the London or other offshore interbank market for such currency
at their request at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
βEurocurrency
Rate Loanβ
means
a
Loan denominated in Dollars or a Committed Currency that bears interest at
a
rate based on the Eurocurrency Rate.
βEvent
of Defaultβ
has
the
meaning specified in Section
9.01.
βExcess
Cashβ
means,
at any time of determination, cash on the consolidated balance sheet of the
Company in excess of $20,000,000.
βExisting
Credit Agreementβ
means
that certain Credit Agreement dated as of April 28, 2003, as amended, among
the
Company, Bank of America, as agent, and a syndicate of lenders.
βExisting
Letters of Creditβ
means
the letters of credit set forth on Schedule III hereto.
βFederal
Funds Rateβ
means,
for any day, the rate per annum equal to the weighted average of the rates
on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank on the Business Day next succeeding such day; provided
that (a)
if such day is not a Business Day, the Federal Funds Rate for such day shall
be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for
such
day shall be the average rate (rounded upward, if necessary, to a whole multiple
of 1/100 of 1%) charged to Bank of America on such day on such transactions
as
determined by the Administrative Agent.
βFee
Letterβ
means
the letter agreement, dated February 15, 2006 among the Company, Bank of America
and BAS.
βFirst-Tier
Foreign Subsidiaryβ
means
any Foreign Subsidiary that is owned directly by a Loan Party.
βForeign
Government Scheme or Arrangementβ
has
the
meaning specified in Section
6.12(d).
βForeign
Lenderβ
has
the
meaning specified in Section
11.14(a).
βForeign
Planβ
has
the
meaning specified in Section
6.12(d).
βForeign
Subsidiaryβ
means
any Subsidiary that is not a Domestic Subsidiary.
βFRBβ
means
the Board of Governors of the Federal Reserve System of the United
States.
βFully
Satisfiedβ
means,
with respect to the Obligations as of any date, that, as of such date,
(a) all principal of and interest accrued to such date which constitute
Obligations shall have been irrevocably paid in full in cash, (b) all fees,
expenses and other amounts then due and payable which constitute Obligations
shall have been irrevocably paid in cash, (c) all outstanding Letters of
Credit shall have been (i) terminated, (ii) fully irrevocably Cash
Collateralized or (iii) secured by one or more letters of credit on terms
and conditions, and with one or more financial institutions, reasonably
satisfactory to the L/C Issuer and (d) the Commitments shall have expired
or been terminated in full.
βFundβ
has
the
meaning specified in Section
11.06(g).
βGAAPβ
means
generally accepted accounting principles in the United States set forth in
the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements
of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession in the United
States, that are applicable to the circumstances as of the date of
determination, consistently applied.
βGovernβ
has
the
meaning specified in the definition of βAffiliate.β
βGovernmental
Authorityβ
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 including, without limitation, any agency of the
European Union or similar monetary or multinational authority.
βGuaranteeβ
means,
as to any Person, (a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness
or
other obligation payable or performable by another Person (the βprimary
obligorβ)
in any
manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation, (ii)
to
purchase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Indebtedness or other obligation of the payment
or performance of such Indebtedness or other obligation, (iii) to maintain
working capital, equity capital or any other financial statement condition
or
liquidity or level of income or cash flow of the primary obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation, or (iv)
entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance
thereof or to protect such obligee against loss in respect thereof (in whole
or
in part), or (b) any Lien on any assets of such Person securing any Indebtedness
or other obligation of any other Person, whether or not such Indebtedness or
other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The
amount of any Guarantee shall be deemed to be an amount equal to the stated
or
determinable amount of the related primary obligation, or portion thereof,
in
respect of which such Guarantee is made or, if not stated or determinable,
the
maximum reasonably anticipated liability in respect thereof as determined by
the
guaranteeing Person in good faith. The term βGuaranteeβ
as
a
verb has a corresponding meaning.
βGuarantorsβ
means
a
collective reference to (a) the Company, in it is capacity as a guarantor of
the
Designated Borrower Obligations and (b) the Subsidiary Guarantors.
βGuarantyβ
means,
collectively, the Guaranty made by the Guarantors in favor of the Administrative
Agent and the Lenders pursuant to Article
IV.
βHazardous
Materialsβ
means
all explosive or radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances
or
wastes of any nature regulated pursuant to any Environmental Law.
βHedge
Bankβ
means
any Person that is a Lender or an Affiliate of a Lender, in its capacity as
a
party to a Secured Hedge Agreement.
βHonor
Dateβ
has
the
meaning specified in Section
2.03(c)(i).
βIncrease
Dateβ
has
the
meaning specified in Section
2.15(a).
βIncreasing
Lenderβ
has
the
meaning specified in Section
2.15(d).
βIndebtednessβ
means,
as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:
(a) all
obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements, convertible securities
(to the extent that they have put provisions that are exercisable during the
term of this Agreement) or other similar instruments;
(b) all
direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankersβ acceptances, bank guaranties,
surety bonds and similar instruments;
(c) all
obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of
business);
(d) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;
(e) capital
leases and Synthetic Lease Obligations;
(f) all
Off-Balance Sheet Liabilities (other than non-recourse factoring of
receivables); and
(g) all
Guarantees of such Person in respect of any of the foregoing.
For
all
purposes hereof, the Indebtedness of any Person shall include the Indebtedness
of any partnership or joint venture (other than a joint venture that is itself
a
corporation or limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
βIndemniteesβ
has
the
meaning specified in Section
11.04(b).
βIndentureβ
means
that certain Indenture dated as of June 20, 2001 by and among the Company,
the
subsidiary guarantors identified therein and the Bank of New York, a New York
banking corporation, as trustee.
βInformationβ
has
the
meaning specified in Section
11.07.
βInterest
Payment Dateβ
means,
(a) as to any Loan other than a Base Rate Loan, the last day of each Interest
Period applicable to such Loan and the Maturity Date; provided,
however,
that if
any Interest Period for a Eurocurrency 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 (including a Swing Line Loan), the last Business Day of each March,
June, September and December and the Maturity Date.
βInterest
Periodβ
means,
as to each Eurocurrency Rate Loan, the period commencing on the date such
Eurocurrency Rate Loan is disbursed or converted to or continued as a
Eurocurrency Rate Loan and ending on the date one, two, three or six months
thereafter, as selected by the Company in its Committed Loan Notice;
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 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 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 Maturity Date.
βInvestmentβ
means,
as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of capital
stock or other securities of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other Person
and any arrangement pursuant to which the investor incurs debt of the type
referred to in clause (h) of the definition of βIndebtednessβ set forth in this
Section
1.01
in
respect of such Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute a business unit. For purposes of covenant compliance, the amount
of
any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
βIP
Rightsβ
has
the
meaning set forth in Section
6.17.
βIRSβ
means
the United States Internal Revenue Service.
βISDA Master Agreementβ
means
the Master Agreement (Multicurrency-Cross Border) published by the International
Swap and Derivatives Association, Inc., as in effect from time to
time.
βIssuer
Documentsβ
means
with respect to any Letter of Credit, the Letter of Credit Application, and
any
other document, agreement and instrument entered into by the L/C Issuer and
the
Borrowers (or any Subsidiary) or in favor the L/C Issuer and relating to such
Letter of Credit.
βJoinder
Agreementβ
means
a
joinder agreement substantially in the form of Exhibit
I
executed
and delivered by a Subsidiary of the Company in accordance with the provisions
of Section
7.12.
βLawsβ
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.
βL/C
Advanceβ
means,
with respect to each Revolving Credit Lender, such Lenderβs funding of its
participation in any L/C Borrowing in accordance with its Pro Rata
Share.
βL/C
Borrowingβ
means
an extension of credit resulting from a drawing under any Letter of Credit
which
has not been reimbursed on the date when made or refinanced as a Revolving
Credit Borrowing.
βL/C
Credit Extensionβ
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.
βL/C
Issuerβ
means
Bank of America in its capacity as issuer of Letters of Credit hereunder, or
any
successor issuer of Letters of Credit hereunder.
βL/C
Obligationsβ
means,
as at any date of determination, the aggregate undrawn amount of all outstanding
Letters of Credit plus
the
aggregate of all Unreimbursed Amounts, including all L/C
Borrowings.
βLenderβ
has
the
meaning specified in the introductory paragraph hereto and, as the context
requires, includes the L/C Issuer and the Swing Line Lender.
βLending
Officeβ
means,
as to any Lender, the office or offices of such Lender described as such in
such
Lenderβs Administrative Questionnaire, or such other office or offices as a
Lender may from time to time notify the Company and the Administrative
Agent.
βLetter
of Creditβ
means
any letter of credit denominated in Dollars issued hereunder and shall include
the Existing Letters of Credit. A Letter of Credit shall be a standby letter
of
credit.
βLetter
of Credit Applicationβ
means
an application and agreement for the issuance or amendment of a Letter of Credit
in the form from time to time in use by the L/C Issuer.
βLetter
of Credit Expiration Dateβ
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).
βLetter
of Credit Feeβ
has
the
meaning specified in Section
2.03(i).
βLetter
of Credit Sublimitβ
means
an amount equal to $15,000,000. The Letter of Credit Sublimit is part of, and
not in addition to, the Revolving Credit Facility.
βLienβ
means
any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or
other
security interest or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any
easement, right of way or other encumbrance on title to real property, and
any
financing lease having substantially the same economic effect as any of the
foregoing).
βLoanβ
means
an extension of credit by a Lender to the Company under Article
II
in the
form of a Revolving Credit Loan or a Swing Line Loan.
βLoan
Documentsβ
means,
collectively, this Agreement, each Note, each Issuer Document, each Joinder
Agreement, Fee Letter, and the Collateral Documents.
βLoan
Partiesβ
means,
collectively, the Company and each Qualified Subsidiary.
βMaterial
Adverse Effectβ
means
(a) a material adverse change in, or a material adverse effect upon, the
operations, business, properties, liabilities (actual or contingent), condition
(financial or otherwise) or prospects of the Company or the Company and its
Subsidiaries taken as a whole; (b) a material impairment of the rights and
remedies of the Administrative Agent or any Lender under any Loan Document,
or
of the ability of the Loan Parties, taken as a whole, to perform their
obligations under the Loan Documents; or (c) a material adverse effect upon
the
legality, validity, binding effect or enforceability against any Loan Party
of
any Loan Document to which it is a party.
βMaturity
Dateβ
means
the earlier of (i) the fifth anniversary of the Closing Date and (ii) the date
of termination in whole of the Revolving Credit Commitments, the Letter of
Credit Commitments, and the Swing Line Commitments pursuant to Section 2.06
or 9.02;
provided
however
that, in each case, if such date is not a Business Day, the Maturity Date shall
be the next preceding Business Day.
βMaximum
Rateβ
has
the
meaning specified in Section
11.09.
βMoodyβsβ
means
Xxxxxβx Investors Service, Inc. and any successor thereto.
βMultiemployer
Planβ
means
any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Company or any ERISA Affiliate makes or is obligated to
make
contributions, or during the preceding five plan years, has made or been
obligated to make contributions.
βNet
Cash Proceedsβ
means,
with respect to the sale of any asset by the Company or any of its Subsidiaries,
the excess, if any, of (a) the sum of cash and Cash Equivalents received in
connection with such sale (including any cash or Cash Equivalents received
by
way of deferred payment pursuant to, or by monetization of, a note receivable
or
otherwise, but only as and when so received) over (b) the sum of (i) the
principal amount of any Indebtedness that is secured by such asset and that
is
required to be repaid in connection with the sale thereof (other than
Indebtedness under the Loan Documents), (ii) the out-of-pocket expenses incurred
by the Company or such Subsidiary in connection with such sale and (iii) income
taxes reasonably estimated to be actually payable within two years of the date
of the relevant asset sale as a result of any gain recognized in connection
therewith.
βNon-Qualified
Subsidiaryβ
means
any Subsidiary that is not a Qualified Subsidiary.
βNonrenewal
Notice Dateβ
has
the
meaning specified in Section
2.03(b)(iii).
βNoteβ
or
βNotesβ
means
the Revolving Notes and/or the Swing Line Note, individually or collectively,
as
appropriate.
βNPLβ
means
the National Priorities List under CERCLA.
βObligationsβ
means
all advances to, and debts, liabilities, obligations, covenants and duties
of,
any Loan Party arising under any Loan Document or otherwise with respect to
any
Loan or Letter of Credit, whether direct or indirect (including those acquired
by assumption), absolute or contingent, due or to become due, now existing
or
hereafter arising and including interest and fees that accrue after the
commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in
such
proceeding, regardless of whether such interest and fees are allowed claims
in
such proceeding. Without limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Loan Documents include (a) the
obligation to pay principal, interest, Letter of Credit commissions, charges,
expenses, fees, attorneysβ fees and disbursements, indemnities and other amounts
payable by any Loan Party under any Loan Document, (b) all obligations under
any
Secured Hedge Agreement, (c) all obligations under any Treasury Management
Agreement between any Loan Party and any Lender or Affiliate of a Lender and
(d) the obligation of any Loan Party to reimburse any amount in respect of
any of the foregoing that any Lender, in its reasonable sole discretion, may
elect to pay or advance on behalf of such Loan Party.
βOff-Balance
Sheet Liabilitiesβ
means
all liabilities of the Company and its Subsidiaries to the extent that such
liabilities do not appear on the consolidated balance sheet of the Company,
including, without limitation, liabilities, if any, in respect of the factoring
and securitization of receivables.
βOffering
Memorandumβ
means
the offering memorandum dated February 2006 used by BAS in connection with
the
syndication of the Commitments.
βOrganization
Documentsβ
means,
(a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited
liability company, the certificate or articles of formation or organization
and
operating agreement; and (c) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation
or
organization with the applicable Governmental Authority in the jurisdiction
of
its formation or organization and, if applicable, any certificate or articles
of
formation or organization of such entity.
βOther
Taxesβ
has
the
meaning specified in
Section 3.01(b).
βOutstanding
Amountβ
means
(i) with respect to Revolving Credit Loans and Swing Line Loans on any date,
the
aggregate outstanding principal amount thereof (based on the Equivalent in
Dollars at such time) after giving effect to any borrowings and prepayments
or
repayments of Revolving Credit Loans and Swing Line 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.
βParticipantβ
has
the
meaning specified in Section
11.06(d).
βPBGCβ
means
the Pension Benefit Guaranty Corporation.
βPension
Planβ
means
any βemployee pension benefit planβ (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 Company or any ERISA Affiliate or to
which
the Company or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.
βPermitted
Liensβ
means:
(a) in
the
case of real property, easements, restrictions, exceptions, reservations or
defects which, in the aggregate, do not materially interfere with the continued
use of such property for which they are used and do not materially affect the
value thereof;
(b) Liens
(other than in respect of the Collateral), if contested in good faith by
appropriate proceedings and appropriate reserves are maintained, in accordance
with generally accepted accounting principles, with respect
thereto;
(c) pledges
or deposits to secure obligations under workmenβs compensation laws or similar
legislation or to secure performance in connection with bids, tenders and
contracts (other than contracts for the payment of borrowed money) to which
the
Company or any of its Subsidiaries is a party;
(d) deposits
to secure public or statutory obligations of the Company or any of its
Subsidiaries;
(e) materialmenβs,
mechanicsβ, carriersβ, workmenβs or similar Liens arising in the ordinary course
of business, or deposits of cash or United States obligations to obtain the
release of such Liens;
(f) deposits
to secure surety or appeal bonds in proceedings to which the Company or any
of
its Subsidiaries is a party; and
(g) Liens
for
Taxes not yet due and payable.
βPermitted
Swap Obligationsβ
means
all obligations (contingent or otherwise) of the Company or any Subsidiary
existing or arising under Swap Contracts, provided that (a) such obligations
are
(or were) entered into by such Person in the ordinary course of business for
the
purpose of directly mitigating risks associated with liabilities, commitments
or
assets held or reasonably anticipated by such Person, or changes in the value
of
securities issued by such Person in conjunction with a securities repurchase
program not otherwise prohibited hereunder, and not for purposes of speculation
or taking a βmarket viewβ and (b) such Swap Contracts do not contain any
provision (βwalk-awayβ provision) exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting
party.
βPersonβ
means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
βPlanβ
means
any βemployee benefit planβ (as such term is defined in Section 3(3) of ERISA)
established by the Company or, with respect to any such plan that is subject
to
Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
βPlatformβ
has
the
meaning specified in Section
7.02.
βPledge
Agreementβ
means
the Pledge Agreement dated as of the Closing Date executed by each of the Loan
Parties and the Administrative Agent for the benefit of the holders of the
Secured Obligations, in substantially the form of Exhibit
F,
as
amended or modified from time to time in accordance with the terms hereof.
βPro
Rata Shareβ
means,
with respect to each Lender at any time, a fraction (expressed as a percentage,
carried out to the ninth decimal place), the numerator of which is the amount
of
the Revolving Credit Commitment of such Lender at such time and the denominator
of which is the amount of the Aggregate Commitments at such time; provided
that if
the commitment of each Lender to make Loans and the obligation of the L/C Issuer
to make L/C Credit Extensions have been terminated pursuant to Section
9.02,
then
the Pro Rata Share of each Lender shall be determined based on the Pro Rata
Share of such Lender immediately prior to such termination and after giving
effect to any subsequent assignments made pursuant to the terms hereof. The
initial Pro Rata Share of each Lender is set forth opposite the name of such
Lender on Schedule
2.01
or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.
βPublic
Lenderβ
has
the
meaning specified in Section
7.02.
βQualified
Subsidiaryβ
means
any Subsidiary Guarantor and any Designated Borrower.
βRegisterβ
has
the
meaning set forth in Section
11.06(c).
βRelated
Partiesβ
means,
with respect to any Person, such Personβs Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such
Personβs Affiliates.
βReportable
Eventβ
means
any of the events set forth in Section
4043(c)
of
ERISA, other than events for which the 30 day notice period has been
waived.
βRequest
for Credit Extensionβ
means
(a) with respect to a Borrowing, conversion or continuation of Revolving Credit
Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension,
a
Letter of Credit Application, and (c) with respect to a Swing Line Loan, a
Swing
Line Loan Notice.
βRequired
Lendersβ
means,
as of any date of determination, Lenders having more than 50% of the sum of
the
(a) Total Outstandings (with the aggregate amount of each Lenderβs risk
participation and funded participation in L/C Obligations and Swing Line Loans
being deemed βheldβ by such Lender for purposes of this definition) and (b)
aggregate unused Revolving Credit Commitments; provided
that the
unused Revolving Credit Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes
of
making a determination of Required Lenders.
βResponsible
Officerβ
means
the chief executive officer, president, chief financial officer, treasurer
or
assistant treasurer, corporate secretary of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf
of
such Loan Party.
βRestricted
Paymentβ
means
any dividend or other distribution (except dividends payable solely in shares
of
such Personβs capital stock) with respect to any capital stock or other Equity
Interest of the Company or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on
account of the purchase, redemption, retirement, defeasance, acquisition,
cancellation or termination of any such capital stock or other Equity Interest,
or on account of any return of capital to the Companyβs stockholders, partners
or members (or the equivalent Persons thereof).
βRevolving
Credit Borrowingβ
means
a
borrowing consisting of simultaneous Revolving Credit Loans of the same Type
and, in the case of Eurocurrency Rate Loans, having the same Interest Period
made by each of the Revolving Credit Lenders pursuant to Section
2.01.
βRevolving
Credit Borrowing Minimumβ
means,
in respect of Revolving Credit Loans denominated in Dollars, $5,000,000, in
respect of Revolving Credit Loans denominated in Sterling, Β£5,000,000, in
respect of Revolving Credit Loans denominated in Yen, Β₯600,000,000 and, in
respect of Revolving Credit Loans denominated in Euros, β¬5,000,000.
βRevolving
Credit Borrowing Multipleβ
means,
in respect of Revolving Credit Loans denominated in Dollars, $1,000,000 in
respect of Revolving Credit Loans denominated in Sterling, Β£1,000,000, in
respect of Revolving Credit Loans denominated in Yen, Β₯120,000,000 and, in
respect of Revolving Credit Loans denominated in Euros, β¬1,000,000.
βRevolving
Credit Commitmentβ
means,
as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit
Loans to the Borrowers pursuant to Section
2.01,
(b)
purchase participations in L/C Obligations, and (c) purchase participations
in
Swing Line Loans, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lenderβs name on Schedule
2.01
under
the caption βRevolving Credit Commitmentβ or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable, as such
amount may be adjusted from time to time in accordance with this Agreement.
βRevolving
Credit Facilityβ
means,
at any time, the aggregate amount of the Revolving Credit Lendersβ Revolving
Credit Commitments at such time.
βRevolving
Credit Lenderβ
means,
at any time, any Lender that has a Revolving Credit Commitment at such
time.
βRevolving
Credit Loanβ
has
the
meaning specified in Section
2.01.
βRevolving
Noteβ
has
the
meaning specified in Section
2.11(a).
βS&Pβ
means
Standard & Poorβs Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. and any successor thereto.
βSECβ
means
the Securities and Exchange Commission, or any Governmental Authority succeeding
to any of its principal functions.
βSecured
Hedge Agreementβ
means
any interest rate Swap Contract permitted under Article
VII
or
VIII
that is
entered into by and between the Company and any Hedge Bank.
βSecured
Obligationsβ
has
the
meaning specified in Section
1(c)
of the
Pledge Agreement.
βSecured
Partiesβ
means,
collectively, the Administrative Agent, the Lenders, the Hedge Banks, any Lender
or Affiliate of a Lender party to a Treasury Management Agreement with a Loan
Party, each co-agent or sub-agent appointed by the Administrative Agent from
time to time pursuant to Section 10.01(b)
and the
other Persons the Obligations owing to which are or are purported to be secured
by the Collateral under the terms of the Collateral Documents.
βShareholdersβ
Equityβ
means,
as of any date of determination, consolidated shareholdersβ equity of the
Company and its Subsidiaries as of that date determined in accordance with
GAAP.
βSignificant
Subsidiaryβ
means,
at any date of determination, any Subsidiary of the Company that, either
individually or together with its Subsidiaries, taken as a whole, has revenues,
assets or earnings in an amount equal to at least 5% of (a) the consolidated
revenues of the Company and its Subsidiaries for the most recently completed
fiscal quarter for which the Lenders have received financial statements of
the
Company and its Subsidiaries pursuant to Section 7.01(a)
or
7.01(b),
(b) the
consolidated assets of the Company and its Subsidiaries as of the last day
of
the most recently completed fiscal quarter for which the Lenders have received
financial statements of the Company and its Subsidiaries pursuant to
Section 7.01(a)
or
7.01(b),
or (c)
the consolidated net earnings of the Company and its Subsidiaries for the most
recently completed fiscal quarter for which the Lenders have received financial
statements of the Company and its Subsidiaries pursuant to Section 7.01(a)
or
7.01(b),
respectively, in each case determined in accordance with GAAP for such
period.
βSolventβ
and
βSolvencyβ
mean,
with respect to any Person on any date of determination, that on such date
(a) the fair value of the property of such Person is greater than the total
amount of liabilities, including, without limitation, contingent liabilities,
of
such Person, (b) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured,
(c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Personβs ability to pay such debts and
liabilities as they mature and (d) such Person is not engaged in business
or a transaction, and is not about to engage in business or a transaction,
for
which such Personβs property 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.
βSterlingβ
and
the
symbol βΒ£β
each
mean the lawful currency of the United Kingdom.
βSubsidiaryβ
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 βSubsidiaryβ
or
to
βSubsidiariesβ
shall
refer to a Subsidiary or Subsidiaries of the Company.
βSubsidiary
Guarantorβ
means,
collectively, the Subsidiaries of the Company listed on Schedule I and each
other Subsidiary of the Company that shall be required to execute and deliver
a
Joinder Agreement pursuant to Section
7.12.
βSwap
Contractβ
means
(a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond
or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any
of
the foregoing), whether or not any such transaction is governed by or subject
to
any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a βMaster
Agreementβ),
including any such obligations or liabilities under any Master
Agreement.
βSwap
Termination Valueβ
means,
in respect of any one or more Swap Contracts, after taking into account the
effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been
closed out and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the xxxx-to-market value(s) for such
Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a Lender).
βSwing
Lineβ
means
the revolving credit facility made available by the Swing Line Lender pursuant
to Section
2.04.
βSwing
Line Borrowingβ
means
a
borrowing of a Swing Line Loan pursuant to Section
2.04.
βSwing
Line Lenderβ
means
Bank of America in its capacity as provider of Swing Line Loans, or any
successor swing line lender hereunder.
βSwing
Line Loanβ
has
the
meaning specified in Section
2.04(a).
βSwing
Line Noteβ
has
the
meaning specified in Section
2.11(a).
βSwing
Line Loan Noticeβ
means
a
notice of a Swing Line Borrowing pursuant to Section
2.04(b),
which,
if in writing, shall be substantially in the form of Exhibit
B.
βSwing
Line Sublimitβ
means
an amount equal to the lesser of (a) $10,000,000 and (b) the Revolving Credit
Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Revolving Credit Facility.
βSynthetic
Lease Obligationβ
means
the monetary obligation of a Person under (a) a so-called synthetic, off-balance
sheet or tax retention lease, or (b) an agreement for the use or possession
of
property creating obligations that do 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).
βTangible
Assetsβ
means
the total consolidated assets of the Company and its Subsidiaries less
goodwill
(as determined under GAAP) as disclosed in the financial statements of the
Company for the most recently ended quarter delivered pursuant to Section
7.01.
βTaxesβ
has
the
meaning specified in Section
3.01(a).
βThreshold
Amountβ
means
$10,000,000.
βTotal
Outstandingsβ
means
the aggregate Outstanding Amount of all Loans (based on the Equivalent in
Dollars at such time) and all L/C Obligations.
βTransactionβ
means,
collectively, (a) the entering into by the Loan Parties and their applicable
Subsidiaries of the Loan Documents to which they are or are intended to be
a
party, (b) the refinancing of certain outstanding Indebtedness of the Company
and its Subsidiaries and the termination of all commitments under the Existing
Credit Agreement and (c) the payment of the fees and expenses incurred in
connection with the consummation of the foregoing.
βTreasury
Management Agreementβ
means
any agreement governing the provision of treasury or cash management services,
including deposit accounts, funds transfer, automated clearinghouse, zero
balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services.
βTypeβ
means,
with respect to a Loan, its character as a Base Rate Loan or a Eurocurrency
Rate
Loan.
βUnfunded
Pension Liabilityβ
means
the excess of a Pension Planβs benefit liabilities under Section 4001(a)(16) of
ERISA, over the current value of that Pension Planβs assets, determined in
accordance with the assumptions used for funding the Pension Plan pursuant
to
Section 412 of the Code for the applicable plan year.
βUnited
Statesβ
and
βU.S.β
mean
the United States of America.
βUnreimbursed
Amountβ
has
the
meaning set forth in Section
2.03(c)(i).
βWholly-Owned
Consolidated Subsidiaryβ
means
any Consolidated Subsidiary all of the Equity Interests in which (except
directorsβ qualifying shares) are, at the time, directly or indirectly owned by
the Company.
βYenβ
and
the
symbol βΒ₯β
each
mean the lawful currency of Japan.
1.02 Other
Interpretive Provisions.
With
reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:
(a) The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) (i)
The
words βherein,β
βhereto,β
βhereofβ
and
βhereunderβ
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.
(ii) Article,
Section, Exhibit and Schedule references are to the Loan Document in which
such
reference appears.
(iii) The
term
βincludingβ is by way of example and not limitation.
(iv) The
term
βdocumentsβ includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.
(c) In
the
computation of periods of time from a specified date to a later specified date,
the word βfromβ
means
βfrom
and including;β
the
words βtoβ
and
βuntilβ
each
mean βto
but
excluding;β
and
the word βthroughβ
means
βto
and
including.β
(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 (including financial ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with
that
used in preparing the Audited Financial Statements, except
as
otherwise specifically prescribed herein.
(b) 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 Company or the
Required Lenders shall so request, the Administrative Agent, the Lenders and
the
Company 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 Company
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 Company pursuant to this
Agreement shall be calculated by dividing the appropriate component by the
other
component, carrying the result to one place more than the number of places
by
which such ratio is expressed herein and rounding the result up or down to
the
nearest number (with a rounding-up if there is no nearest number).
1.05 References
to Agreements and Laws.
Unless
otherwise expressly provided herein, (a) references to Organization Documents,
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.
1.06 Times
of Day.
Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).
1.07 Letter
of Credit Amounts.
Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the stated amount of such Letter of Credit in effect at such
time; provided, however, that with respect to any Letter of Credit that, by
its
terms or the terms of any Issuer Document related thereto, provides for one
or
more automatic increases in the stated amount thereof, the amount of such Letter
of Credit shall be deemed to be the maximum stated amount of such Letter of
Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time.
1.08 Currency
Equivalents Generally.
Any
amount specified in this Agreement (other than in Articles II, X and XI) or
any
of the other Loan Documents to be in Dollars shall also include the equivalent
of such amount in any currency other than Dollars, such equivalent amount to
be
determined at the rate of exchange quoted by Bank of America in New York at
the
close of business on the Business Day immediately preceding any date of
determination thereof, to prime banks in New York, New York for the spot
purchase in the New York foreign exchange market of such amount in Dollars
with
such other currency.
ARTICLE
II
THE
COMMITMENTS AND CREDIT EXTENSIONS
2.01 The
Loans. The
Revolving Credit Borrowings.
Subject
to the terms and conditions set forth herein, each Revolving Credit Lender
severally agrees to make loans (each such loan, a βRevolving Credit Loanβ) to
each Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount (based in respect of any Revolving Credit Loans
to be denominated in a Committed Currency by reference to the Equivalent thereof
in Dollars determined on the date of delivery of the applicable Committed Loan
Notice) of up to, at any time outstanding, the amount of such Lenderβs Revolving
Credit Commitment; provided, however, that after giving effect to any Revolving
Credit Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Credit
Loans of any Lender, plus such Lenderβs Pro Rata Share of the Outstanding Amount
of all L/C Obligations, plus such Lenderβs Pro Rata Share of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lenderβs Revolving Credit
Commitment. Within the limits of each Lenderβs Revolving Credit Commitment, and
subject to the other terms and conditions hereof, each Borrower may borrow
under
this Section 2.01, prepay under Section 2.05, and reborrow under this Section
2.01. Revolving Credit Loans may be Base Rate Loans or Eurocurrency Rate Loans,
as further provided herein.
2.02 Borrowings,
Conversions and Continuations of Loans.
(a) Each
Revolving Credit Borrowing, each conversion of Revolving Credit Loans from
one
Type to the other, and each continuation of Eurocurrency Rate Loans shall be
made upon the applicable Borrowerβs 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 (w) 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed Revolving
Credit Loans in the case of a Revolving Credit Loans denominated in Dollars,
(x)
4:00 P.M. (London time) on the third Business Day prior to the date of the
proposed Revolving Credit Loan in the case of Revolving Credit Loans denominated
in Sterling or Euros, (y) 11:00 A.M. (New York time) on the fifth Business
Day
prior to the date of the proposed Revolving Credit Loan in the case of Revolving
Credit Loans denominated in Yen or (z) 11:00 A.M. (New York City time) on the
date of the proposed Revolving Credit Loans in the case of Base Rate Loans.
Each
telephonic notice by a Borrower pursuant to this Section
2.02(b)
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 such Borrower. Each Borrowing of, conversion to or continuation
of
Eurocurrency Rate Loans shall be in the Revolving Credit Borrowing Minimum
or a
Revolving Credit Borrowing Multiple in excess thereof. Except as provided in
Sections
2.03(c)
and
2.04(c),
each
Borrowing of or conversion to Base Rate Loans shall be in a principal amount
of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Committed
Loan
Notice (whether telephonic or written) shall specify (i) whether such Borrower
is requesting a Revolving Credit Borrowing, a conversion of Revolving Credit
Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans,
(ii) the requested date of the Borrowing, conversion or continuation, as the
case may be (which shall be a Business Day), (iii) the principal amount of
Loans
to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed
or
to which existing Revolving Credit Loans are to be converted, and (v) if
applicable, the Committed Currency and duration of the Interest Period with
respect thereto. If a Borrower fails to specify a Type of Loan in a Committed
Loan Notice or if a Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Revolving Credit Loans shall
be
made as, or converted to, Dollar denominated 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 Eurocurrency
Rate
Loans. If a Borrower requests a Borrowing of, conversion to, or continuation
of
Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify
a Committed Currency, it will be deemed to have specified Dollars or, in the
case of a conversion, an exchange of such Loans into an Equivalent amount of
Dollars, and if a Borrower 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 the amount of its Pro Rata Share of the applicable
Revolving Credit Loans, and if no timely notice of a conversion or continuation
is provided by a Borrower, the Administrative Agent shall notify each Lender
of
the details of any automatic conversion to Base Rate Loans described in
Section
2.02(a).
In the
case of a Revolving Credit Borrowing, each Lender shall make the amount of
its
Loan available to the Administrative Agent in immediately available funds at
the
Administrative Agentβs Office not later than 1:00 p.m. on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section
5.02
(and, if
such Borrowing is the initial Credit Extension, Section
5.01),
the
Administrative Agent shall make all funds so received available to the
applicable Borrower in like funds as received by the Administrative Agent either
by (i) crediting the account of such Borrower on the books of Bank of America
with the amount of such funds or (ii) wire transfer of such funds, in each
case
in accordance with instructions provided to (and reasonably acceptable to)
the
Administrative Agent by such Borrower; provided,
however,
that
if, on the date the Committed Loan Notice with respect to any such Borrowing
denominated in Dollars is given by such Borrower, there are Swing Line Loans
or
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, second,
to the
payment in full of any such Swing Line Loans, and third,
to the
applicable Borrower as provided above.
(c) Except
as
otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency
Rate
Loan. During the existence of a Default, no Loans may be requested as, converted
to or continued as Eurocurrency Rate Loans without the consent of the Required
Lenders.
(d) The
Administrative Agent shall promptly notify the Borrowers and the Lenders of
the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans
upon
determination of such interest rate. The determination of the Eurocurrency
Rate
by the Administrative Agent shall be conclusive in the absence of manifest
error. At any time that Base Rate Loans are outstanding, the Administrative
Agent shall notify the Borrowers and the Lenders of any change in Bank of
Americaβs prime rate used in determining the Base Rate promptly following the
public announcement of such change.
(e) After
giving effect to all Revolving Credit Borrowings, all conversions of Revolving
Credit Loans from one Type to the other, and all continuations of Revolving
Credit Loans as the same Type, there shall not be more than ten Interest Periods
in effect.
(f) The
failure of any Lender to make the Loan to be made by it as part of any Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to
make
its Loan on the date of such Borrowing, but no Lender shall be responsible
for
the failure of any other Lender to make the Loan to be made by such other Lender
on the date of any Borrowing.
2.03 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
2.03,
(1)
from time to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of Credit for
the
account of any Borrower, and to amend or renew Letters of Credit previously
issued by it, in accordance with Section
2.03(b),
and (2)
to honor drafts under the Letters of Credit; and (B) the Revolving Credit
Lenders severally agree to participate in Letters of Credit issued for the
account of any 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 Total
Outstandings would exceed the Aggregate Commitments, (y) the aggregate
Outstanding Amount of the Loans of any Lender, plus
such
Lenderβs Pro Rata Share of the Outstanding Amount of all L/C Obligations,
plus
such
Lenderβs Pro Rata Share of the Outstanding Amount of all Swing Line Loans would
exceed such Lenderβs Revolving Credit Commitment, or (z) the Outstanding Amount
of the L/C Obligations would exceed the Letter of Credit Sublimit; provided further
that
upon the resignation of Bank of America as L/C Issuer, Bank of America shall
have no obligation hereunder to issue any new Letter of Credit or to extend
or
renew any existing Letter of Credit under this Agreement, and all Letters of
Credit issued by Bank of America for the account of any Borrower hereunder
shall
either be replaced or, if acceptable to Bank of America in its sole discretion,
backstopped with Letters of Credit issued hereunder or fully cash collateralized
no later than thirty (30) days following such resignation. Each request by
any
Borrower for the issuance or amendment of a Letter of Credit shall be deemed
to
be a representation by such Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the first proviso in the preceding
sentence. Within the foregoing limits, and subject to the terms and conditions
hereof, each Borrowerβs ability to obtain Letters of Credit shall be fully
revolving, and accordingly each Borrower may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or
that
have been drawn upon and reimbursed. All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Closing
Date
shall be subject to and governed by the terms and conditions
hereof.
(ii) The
L/C
Issuer shall 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
2.03(b)(iii),
the
expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance or last 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 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;
(E) except
as
otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter
of
Credit is in an initial stated amount less than $500,000;
(F) such
Letter of Credit is to be denominated in a currency other than Dollars or a
Committed Currency; or
(G) any
Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer
has
entered into satisfactory arrangements with such Borrower or such Lender to
eliminate the L/C Issuerβs risk with respect to such Lender.
(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.
(iv) The
L/C
Issuer shall act on behalf of the Revolving Credit Lenders with respect to
any
Letters of Credit issued by it and the documents associated therewith, and
the
L/C Issuer shall have all of the benefits and immunities (A) provided to
the Administrative Agent in Article
X
with
respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer
Documents pertaining to such Letters of Credit as fully as if the term
βAdministrative Agentβ as used in Article
X
included
the L/C Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuer.
(b) Procedures
for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of
Credit.
(i) Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the relevant 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 such Borrower.
Such Letter of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least three 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
reasonably 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
and
requested currency thereof and the absence of specification of currency shall
be
deemed a request for a Letter of Credit denominated in Dollars; (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
reasonably 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 reasonably require. Additionally, the relevant Borrower shall furnish
to the L/C Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or amendment,
including any Issuer Documents, as the L/C Issuer or the Administrative Agent
may reasonably require.
(ii) Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from the applicable 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 applicable Borrower or enter into
the
applicable amendment, as the case may be, in each case in accordance with the
L/C Issuerβs usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the
L/C
Issuer a risk participation in such Letter of Credit in an amount equal to
the
product of such Lenderβs Pro Rata Share times
the
amount of such Letter of Credit.
(iii) If
a
Borrower so requests in any applicable Letter of Credit Application, the L/C
Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic renewal provisions (each, an βAuto-Renewal
Letter of Creditβ);
provided
that any
such Auto-Renewal 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 βNonrenewal
Notice Dateβ)
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 applicable
Borrower shall not be required to make a specific request to the L/C Issuer
for
any such renewal. Once an Auto-Renewal 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 an expiry date
not
later than the Letter of Credit Expiration Date; provided,
however,
that
the L/C Issuer shall not permit any such renewal if (A) the L/C Issuer has
determined that it would have no obligation at such time to issue such Letter
of
Credit in its renewed form under the terms hereof (by reason of the provisions
of Section
2.03(a)(ii)
or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is three Business Days before 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
Revolving Credit Lender or any Borrower that one or more of the applicable
conditions specified in Section
5.02
is not
then satisfied.
(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 Company and the Administrative Agent
a
true and complete copy of such Letter of Credit or amendment.
(c) Drawings
and Reimbursements; Funding of Participations.
(i) Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the L/C Issuer shall notify the Company and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any
payment by the L/C Issuer under a Letter of Credit (each such date, an
βHonor
Dateβ),
the
applicable Borrower shall reimburse the L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing. If the applicable
Borrower fails to so reimburse the L/C Issuer by such time, the Administrative
Agent shall promptly notify each Revolving Credit Lender of the Honor Date,
the
amount of the unreimbursed drawing (the βUnreimbursed
Amountβ),
and
the amount of such Revolving Credit Lenderβs Pro Rata Share thereof. In such
event, the applicable Borrower shall be deemed to have requested a Revolving
Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section
2.02
for the
principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Revolving Credit Commitments and the conditions set forth in
Section
5.02
(other
than the delivery of a Committed Loan Notice). Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i)
may be
given by telephone if immediately confirmed in writing; provided
that the
lack of such an immediate confirmation shall not affect the conclusiveness
or
binding effect of such notice.
(ii) Each
Revolving Credit Lender (including the Lender acting as L/C Issuer) shall upon
any notice pursuant to Section
2.03(c)(i)
make
funds available to the Administrative Agent for the account of the L/C Issuer
at
the Administrative Agentβs Office in an amount equal to its Pro Rata Share of
the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified
in such notice by the Administrative Agent, whereupon, subject to the provisions
of Section
2.03(c)(iii),
each
Revolving Credit Lender that so makes funds available shall be deemed to have
made a Base Rate Loan to the applicable Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C
Issuer.
(iii) With
respect to any Unreimbursed Amount that is not fully refinanced by a Revolving
Credit Borrowing of Base Rate Loans because the conditions set forth in
Section
5.02
cannot
be satisfied or for any other reason, the applicable Borrower shall be deemed
to
have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be
due
and payable on demand (together with interest) and shall bear interest at the
Default Rate. In such event, each Revolving Credit Lenderβs payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section
2.03(c)(ii)
shall be
deemed payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section
2.03.
(iv) Until
each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance
pursuant to this Section
2.03(c)
to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lenderβs Pro Rata Share of such amount shall be
solely for the account of the L/C Issuer.
(v) Each
Revolving Credit Lenderβs obligation to make Revolving Credit Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit,
as contemplated by this Section
2.03(c),
shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which
such Lender may have against the L/C Issuer, any Borrower or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a Default,
or
(C) any other occurrence, event or condition, whether or not similar to any
of
the foregoing; provided,
however,
that
each Revolving Credit Lenderβs obligation to make Revolving Credit Loans
pursuant to this Section
2.03(c)
is
subject to the conditions set forth in Section
5.02
(other
than delivery by a Borrower of a Committed Loan Notice ). No such making of
an
L/C Advance shall relieve or otherwise impair the obligation of the applicable
Borrower to reimburse the L/C Issuer for the amount of any payment made by
the
L/C Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If
any
Revolving Credit Lender fails to make available to the Administrative Agent
for
the account of the L/C Issuer any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section
2.03(c)
by the
time specified in Section
2.03(c)(ii),
the L/C
Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the L/C Issuer at a rate per annum equal to the
greater of the Federal Funds Rate and a rate determined by the L/C Issuer in
accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by the L/C Issuer
in connection with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lenderβs Loan
included in the relevant Borrowing or L/C Advance in respect of the relevant
L/C
Borrowing, as the case may be. A certificate of the L/C Issuer submitted to
any
Revolving Credit Lender (through the Administrative Agent) with respect to
any
amounts owing under this Section
2.03(c)(vi)
shall be
conclusive absent manifest error.
(d) Repayment
of Participations.
(i) At
any
time after the L/C Issuer has made a payment under any Letter of Credit and
has
received from any Revolving Credit Lender such Lenderβs L/C Advance in respect
of such payment in accordance with Section
2.03(c),
if the
Administrative Agent receives for the account of the L/C Issuer any payment
in
respect of the related Unreimbursed Amount or interest thereon (whether directly
from the applicable Borrower or otherwise, including proceeds of Cash Collateral
applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Pro Rata Share thereof (appropriately adjusted,
in
the case of interest payments, to reflect the period of time during which such
Lenderβs L/C Advance was outstanding) in the same funds as those received by the
Administrative Agent.
(ii) If
any
payment received by the Administrative Agent for the account of the L/C Issuer
pursuant to Section
2.03(c)(i)
is
required to be returned under any of the circumstances described in Section
11.06
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Revolving Credit Lender shall pay to the Administrative Agent
for the account of the L/C Issuer its 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. The obligations of the Lenders
under this clause shall survive the payment in full of the Obligations and
the
termination of this Agreement.
(e) Obligations
Absolute.
The
obligation of the applicable Borrower to reimburse the L/C Issuer for each
drawing under each Letter of Credit and to repay each L/C Borrowing shall be
absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including
the following:
(i) any
lack
of validity or enforceability of such Letter of Credit, this Agreement, or
any
other agreement or instrument relating thereto;
(ii) the
existence of any claim, counterclaim, setoff, defense or other right that such
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 beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any proceeding under
any Debtor Relief Law;
(v) any
exchange, release or nonperfection of any Collateral, or any release or
amendment or waiver of or consent to departure from the Guaranty or any other
guarantee, for all or any of the Obligations of such Borrower in respect of
such
Letter of Credit; or
(vi) 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, such Borrower.
Each
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 such Borrowerβs instructions or other irregularity, such
Borrower will immediately notify the L/C Issuer. Each 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 each Borrower agree that, in paying any drawing under a Letter of
Credit, the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required
by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering
any
such document. None of the L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any 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. Each 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 any Borrowerβs
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties, nor any 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
2.03(e);
provided,
however,
that
anything in such clauses to the contrary notwithstanding, the applicable
Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the such Borrower, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by such
Borrower which such Borrower proves were caused by the L/C Issuerβs willful
misconduct or gross negligence or the L/C Issuerβs 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, or (ii) if, as of the Letter of Credit Expiration
Date, any L/C Obligation for any reason remains outstanding, the applicable
Borrower shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations (in an amount equal to such
Outstanding Amount determined as of the date of such L/C Borrowing or the Letter
of Credit Expiration Date, as the case may be). For purposes of this
Section
2.03,
Section
2.05
and
Section
9.02(c),
βCash
Collateralizeβ
means
to pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in
form
and substance satisfactory to the Administrative Agent and the L/C Issuer (which
documents are hereby consented to by the Lenders). Derivatives of such term
have
corresponding meanings. Each Borrower hereby grants to the Administrative Agent,
for the benefit of the L/C Issuer and the Lenders, a security interest in all
such cash, deposit accounts and all balances therein and all proceeds of the
foregoing. Cash collateral shall be maintained in blocked deposit accounts
at
Bank of America. If at any time the Administrative Agent determines that any
funds held as Cash Collateral are subject to any right or claim of any Person
other than the Administrative Agent or that the total amount of such funds
is
less than the aggregate Outstanding Amount of all L/C Obligations, the Borrowers
will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the
deposit accounts at Bank of America as aforesaid, an amount equal to the excess
of (a) such aggregate Outstanding Amount over (b) the total amount of
funds, if any, then held as Cash Collateral that the Administrative Agent
determines to be free and clear of any such right and claim. Upon the drawing
of
any Letter of Credit for which funds are on deposit as Cash Collateral, such
funds shall be applied, to the extent permitted under applicable law, to
reimburse the L/C Issuer.
(h) Applicability
of ISP98.
Unless
otherwise expressly agreed by the L/C Issuer and the applicable Borrower when
a
Letter of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), the rules of the βInternational Standby Practices
1998β 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 Letter of Credit.
(i) Letter
of Credit Fees.
Each
Borrower shall pay to the Administrative Agent for the account of each Revolving
Credit Lender in accordance with its Pro Rata Share a Letter of Credit fee
(the
βLetter
of Credit Feeβ)
for
each Letter of Credit equal to the Applicable Rate times
the
daily maximum amount available to be drawn under such Letter of Credit. For
purposes of computing the daily amount available to be drawn under any Letter
of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section
1.07.
Such
letter of credit fees shall be computed on a quarterly basis in arrears. Letter
of Credit Fees shall be (i) due and payable on the first Business Day after
the
end of each March, June, September and December, commencing with the first
such
date to occur after the issuance of such Letter of Credit, on the Letter of
Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly
basis in arrears. If there is any change in the Applicable Rate during any
quarter, the daily maximum amount of each Letter of Credit shall be computed
and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.
(j) Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer.
Each
Borrower shall pay directly to the L/C Issuer for its own account a fronting
fee
with respect to each Letter of Credit at the rate per annum specified in the
Fee
Letter, computed on the daily amount available to be drawn under each Letter
of
Credit on a quarterly basis in arrears. Such fronting fees shall due and payable
on the tenth Business Day after the end of each March, June, September and
December in respect of the most recently-ended quarterly period (or portion
thereof, in the case of the first payment), commencing with the first such
date
to occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section
1.07.
In
addition, each Borrower shall pay directly to the L/C Issuer for its own account
the customary issuance, presentation, amendment and other processing fees,
and
other standard costs and charges, of the L/C Issuer relating to letters of
credit as from time to time in effect. Such customary fees and standard costs
and charges are due and payable on demand and are nonrefundable.
(k) Conflict
with Issuer Documents.
In the
event of any conflict between the terms hereof and the terms of any Issuer
Document, the terms hereof shall control.
2.04 Swing
Line
Loans.
(a) The
Swing Line.
Subject
to the terms and conditions set forth herein, the Swing Line Lender agrees,
in
reliance upon the agreements of the other Lenders set forth in this Section
2.04,
to make
loans denominated in Dollars (each such loan, a βSwing
Line Loanβ)
to the
Company from time to time on any Business Day during the Availability Period
in
an aggregate amount not to exceed at any time outstanding the amount of the
Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when
aggregated with the Pro Rata Share of the Outstanding Amount of Loans and L/C
Obligations of the Lender acting as Swing Line Lender, may exceed the amount
of
such Lenderβs Commitment; provided,
however,
that
after giving effect to any Swing Line Loan, (i) the Total Outstandings shall
not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount
of
the Revolving Credit Loans of any Lender, plus
such
Lenderβs Pro Rata Share of the Outstanding Amount of all L/C Obligations,
plus
such
Lenderβs Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall
not exceed such Lenderβs Revolving Credit Commitment, and provided further
that the
Company shall not use the proceeds of any Swing Line Loan to refinance any
outstanding Swing Line Loan. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Company may borrow under this
Section
2.04,
prepay
under Section
2.05,
and
reborrow under this Section
2.04.
Each
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a
Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender
a
risk participation in such Swing Line Loan in an amount equal to the product
of
such Lenderβs Pro Rata Share times
the
amount of such Swing Line Loan.
(b) Borrowing
Procedures.
Each
Swing Line Borrowing shall be made upon the Companyβs irrevocable notice to the
Swing Line Lender and the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested borrowing date,
and shall specify (i) the amount to be borrowed, which shall be a minimum of
$500,000, and (ii) the requested borrowing date, which shall be a Business
Day.
Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the Company.
Promptly after receipt by the Swing Line Lender of any telephonic Swing Line
Loan Notice, the Swing Line Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify
the
Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Revolving Credit
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing
(A)
directing the Swing Line Lender not to make such Swing Line Loan as a result
of
the limitations set forth in the proviso to the first sentence of Section
2.04(a),
or (B)
that one or more of the applicable conditions specified in Article
V
is not
then satisfied, then, subject to the terms and conditions hereof, the Swing
Line
Lender will, not later than 3:00 p.m. on the borrowing date specified in such
Swing Line Loan Notice, make the amount of its Swing Line Loan available to
the
Company at its office by crediting the account of the Company on the books
of
the Swing Line Lender in immediately available funds.
(c) Refinancing
of Swing Line Loans.
(i) The
Swing
Line Lender at any time in its sole and absolute discretion may request, on
behalf of the Company (which hereby irrevocably authorizes the Swing Line Lender
to so request on its behalf), that each Revolving Credit Lender make a Base
Rate
Loan in an amount equal to such Lenderβs Pro Rata Share of the amount of Swing
Line Loans then outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Committed Loan Notice for purposes
hereof) and in accordance with the requirements of Section
2.02,
without
regard to the minimum and multiples specified therein for the principal amount
of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Revolving Credit Commitments and the conditions set forth in Section
5.02.
The
Swing Line Lender shall furnish the Company with a copy of the applicable
Committed Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Revolving Credit Lender shall make an amount equal
to
its Pro Rata Share of the amount specified in such Committed Loan Notice
available to the Administrative Agent in immediately available funds for the
account of the Swing Line Lender at the Administrative Agentβs Office not later
than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon,
subject to Section
2.04(c)(ii),
each
Revolving Credit Lender that so makes funds available shall be deemed to have
made a Base Rate Loan to the Company in such amount. The Administrative Agent
shall remit the funds so received to the Swing Line Lender.
(ii) If
for
any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit
Borrowing in accordance with Section
2.04(c)(i),
the
request for Base Rate Loans submitted by the Swing Line Lender as set forth
herein shall be deemed to be a request by the Swing Line Lender that each of
the
Revolving Credit Lenders fund its risk participation in the relevant Swing
Line
Loan and each Revolving Credit Lenderβs payment to the Administrative Agent for
the account of the Swing Line Lender pursuant to Section
2.04(c)(i)
shall be
deemed payment in respect of such participation.
(iii) If
any
Revolving Credit Lender fails to make available to the Administrative Agent
for
the account of the Swing Line Lender any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section
2.04(c)
by the
time specified in Section
2.04(c)(i),
the
Swing Line Lender shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for
the
period from the date such payment is required to the date on which such payment
is immediately available to the Swing Line Lender at a rate per annum equal
to
the greater of the Federal Funds Rate and a rate determined by the Swing Line
Lender in accordance with banking industry rules on interbank compensation,
plus
any administrative, processing or similar fees customarily charged by the Swing
Line Lender in connection with the foregoing. If such Lender pays such amount
(with interest and fees as aforesaid), the amount so paid shall constitute
such
Lenderβs Loan included in the relevant Borrowing or funded participation in the
relevant Swing Line Loan, as the case may be. A certificate of the Swing Line
Lender submitted to any Lender (through the Administrative Agent) with respect
to any amounts owing under this clause (iii) shall be conclusive absent manifest
error.
(iv) Each
Revolving Credit Lenderβs obligation to make Revolving Credit Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to this
Section
2.04(c)
shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which
such Lender may have against the Swing Line Lender, the Company or any other
Person for any reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided,
however,
that
each Revolving Credit Lenderβs obligation to make Revolving Credit Loans
pursuant to this Section
2.04(c)
is
subject to the conditions set forth in Section
5.02.
No such
funding of risk participations shall relieve or otherwise impair the obligation
of the Company to repay Swing Line Loans, together with interest as provided
herein.
(d) Repayment
of Participations.
(i) At
any
time after any Revolving Credit Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Pro Rata Share of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Lenderβs risk participation was funded) in the same funds as those
received by the Swing Line Lender.
(ii) If
any
payment received by the Swing Line Lender in respect of principal or interest
on
any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section
11.05
(including pursuant to any settlement entered into by the Swing Line Lender
in
its discretion), each Revolving Credit Lender shall pay to the Swing Line Lender
its 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, at
a
rate per annum equal to the Federal Funds Rate. The Administrative Agent will
make such demand upon the request of the Swing Line Lender.
(e) Interest
for Account of Swing Line Lender.
The
Swing Line Lender shall be responsible for invoicing the Company for interest
on
the Swing Line Loans. Until each Revolving Credit Lender funds its Base Rate
Loan or risk participation pursuant to this Section
2.04
to
refinance such Lenderβs Pro Rata Share of any Swing Line Loan, interest in
respect of such Pro Rata Share shall be solely for the account of the Swing
Line
Lender.
(f) Payments
Directly to Swing Line Lender.
The
Company shall make all payments of principal and interest in respect of the
Swing Line Loans directly to the Swing Line Lender.
2.05 Prepayments.
(a) Optional.
(i) Each
Borrower may, upon notice to the Administrative Agent, at any time or from
time
to time voluntarily prepay Loans in whole or in part without premium or penalty;
provided
that (1)
such notice must be received by the Administrative Agent not later than 11:00
a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency
Rate Loans, (B) five Business Days prior to any date of prepayment of Loans
denominated in Yen and (C) on the date of prepayment of Base Rate Loans; (2)
any
prepayment of Eurocurrency Rate Loans shall be in a principal amount of the
Revolving Credit Borrowing Minimum or a Revolving Credit Borrowing Multiple
in
excess thereof; and (3) any prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof
or, in each case, if less, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such prepayment and the
Type(s) of Loans to be prepaid and if Eurocurrency Rate Loans are to be prepaid,
the Interest Period(s) of such Loans. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of the amount of
such
Lenderβs Pro Rata Share of such prepayment. If such notice is given by a
Borrower, such 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 Eurocurrency Rate Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant to
Section
3.05.
(ii) The
Company may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided
that (1)
such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 1:00 p.m. on the date of the prepayment, and (2) any such
prepayment shall be in a minimum principal amount of $500,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given
by
the Company, the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein.
(b) Mandatory.
(i) If
for any reason the Total Outstandings at any time exceed the Aggregate
Commitments then in effect, the Borrowers shall immediately prepay Loans and/or
Cash Collateralize the L/C Obligations in an aggregate amount equal to such
excess; provided,
however,
that
the Borrowers shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section
2.05(b)(i)
unless
after the prepayment in full of the Loans and Swing Line Loans the Total
Outstandings exceed the Aggregate Commitments then in effect.
(ii) If,
on
any date, the Administrative Agent notifies the Borrowers that the sum of (A)
the aggregate principal amount of all Loans denominated in Dollars then
outstanding plus (B) the Equivalent in Dollars (determined on the third Business
Day prior to such interest payment date) of the aggregate principal amount
of
all Loans denominated in Committed Currencies then outstanding exceeds 105%
of
the Aggregate Commitments on such date, the Borrowers shall, as soon as
practicable and in any event within two Business Days after receipt of such
notice, subject to the proviso to this sentence set forth below, prepay the
outstanding principal amount of any Loans owing by the Borrowers in an aggregate
amount sufficient to reduce such sum to an amount not to exceed 100% of the
Aggregate Commitments on such date together with any interest accrued to the
date of such prepayment on the aggregate principal amount of Loans prepaid;
provided
that if
the aggregate principal amount of Base Rate Loans outstanding at the time of
such required prepayment is less than the amount of such required prepayment,
the portion of such required prepayment in excess of the aggregate principal
amount of Base Rate Loans then outstanding shall be deferred until the earliest
to occur of the last day of the Interest Period of the outstanding Eurocurrency
Rate Loans in an amount equal to the excess of such required prepayment. The
Administrative Agent shall give prompt notice of any prepayment required under
this Section
2.05(b)
to the
Borrowers and the Lenders, and shall provide prompt notice to the Borrowers
of
any such notice of required prepayment received by it from any
Lender.
(iii) Each
prepayment of Loans pursuant to this Section
2.05(b),
first,
shall
be applied to prepay L/C Borrowings outstanding at such time until all such
L/C
Borrowings are paid in full, second,
shall
be applied to prepay Swing Line Loans outstanding at such time until all such
Swing Line Loans are paid in full, third,
shall
be applied to prepay Revolving Credit Loans outstanding at such time until
all
such Revolving Credit Loans are paid in full and, fourth,
shall
be used to Cash Collateralize the L/C Obligations. Upon the drawing of any
Letter of Credit which has been Cash Collateralized, such funds shall be applied
(without any further action by or notice to or from any Borrower or any other
Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as
applicable.
(c) Prepayments
to Include Accrued Interest, Etc.
All
prepayments under this Section 2.05
shall be
made together with (i) accrued and unpaid interest to the date of such
prepayment on the principal amount so prepaid and (ii) in the case of any
such prepayment of a Eurocurrency Rate Loan on a date other than the last day
of
an Interest Period therefor, any amounts owing in respect of such Eurocurrency
Rate Loan pursuant to Section 3.05.
2.06 Termination
or Reduction of Commitments.
(a)
Optional.
The
Company may, upon notice to the Administrative Agent, terminate the unused
portion of the Letter of Credit Sublimit, the unused portion of the Swing Line
Sublimit or the unused Revolving Credit Commitments, or from time to time
permanently reduce the unused portion of the Letter of Credit Sublimit, the
unused portion of the Swing Line Sublimit or the unused Revolving Credit
Commitments; provided
that (i)
any such notice shall be received by the Administrative Agent not later than
11:00 a.m. five Business Days prior to the date of termination or reduction,
(ii) any such partial reduction shall be in an aggregate amount of $10,000,000
or any whole multiple of $1,000,000 in excess thereof and (iii) the Company
shall not terminate or reduce the unused portion of the Letter of Credit
Sublimit, the unused portion of the Swing Line Sublimit or the unused Revolving
Credit Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Outstandings would exceed the Aggregate
Commitments.
(b) Mandatory.
If
after giving effect to any reduction or termination of unused Commitments under
this Section
2.06,
the
Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of
the
Aggregate Revolving Credit Commitments, such Sublimit shall be automatically
reduced by the amount of such excess.
(c) Application
of Commitment Reductions; Payment of Fees.
The
Administrative Agent will promptly notify the Lenders of any termination or
reduction of unused portions of the Letter of Credit Sublimit, the unused
portions of the Swing Line Sublimit or the unused Revolving Credit Commitment
under this Section
2.06.
Upon
any reduction of unused Revolving Credit Commitments, the Revolving Credit
Commitment of each Lender shall be reduced by such Lenderβs Pro Rata Share of
the amount by which the Revolving Credit Facility is reduced. 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.
2.07 Repayment
of Loans.
(a) Revolving
Credit Loans.
The
Borrowers shall repay to the Administrative Agent for the ratable account of
the
Revolving Credit Lenders on the Maturity Date the aggregate principal amount
of
all Revolving Credit Advances outstanding on such date.
(b) Swing
Line Loans.
The
Company shall repay each Swing Line Loan on the earlier to occur of (i) the
date
five Business Days after such Loan is made and (ii) the Maturity
Date.
2.08 Interest.
(a) Subject
to the provisions of Section
2.08(b),
(i)
each Eurocurrency Rate Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurocurrency Rate for such Interest Period plus the 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
plus the Applicable Rate; and (iii) each Swing Line Loan shall bear interest
on
the outstanding principal amount thereof from the applicable borrowing date
at a
rate per annum equal to the Base Rate plus the Applicable Rate.
(b) If
any
amount payable by the Borrowers under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated maturity,
by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate
to
the fullest extent permitted by applicable Laws. Furthermore, upon the request
of the Required Lenders, while any Event of Default exists, the Borrowers shall
pay interest on the principal amount of all outstanding Obligations hereunder
at
a fluctuating interest rate per annum at all times equal to the Default Rate
to
the fullest extent permitted by applicable Laws. Accrued and unpaid interest
on
past due amounts (including interest on past due interest) shall be due and
payable upon demand.
(c) Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before
and after judgment, and before and after the commencement of any proceeding
under any Debtor Relief Law.
2.09 Fees.
In
addition to certain fees described in Sections
2.03(i)
and
(j):
(a)
Facility
Fee.
The
Company 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 Applicable
Rate
times
the
actual daily amount of the aggregate Revolving Credit Commitments (or, if the
Revolving Credit Commitments have terminated, on the Outstanding Amount of
all
Revolving Credit Loans, Swing Line Loans and L/C Obligations); in each case,
regardless of usage; provided,
however,
that
any facility fee accrued with respect to any of the Commitments of a Defaulting
Lender during the period prior to the time such Lender became a Defaulting
Lender and unpaid at such time shall not be payable by the Company so long
as
such Lender shall be a Defaulting Lender except to the extent that such facility
fee shall otherwise have been due and payable by the Company prior to such
time;
and provided further
that no
facility fee shall accrue on any of the Commitments of a Defaulting Lender
so
long as such Lender shall be a Defaulting Lender. The facility fee shall accrue
at all times during the Availability Period (and thereafter so long as any
Revolving Credit Loans, Swing Line Loans or L/C Obligations remain outstanding),
including at any time during which one or more of the conditions in Article
V
is not
met, and shall be due and payable quarterly in arrears on the last Business
Day
of each March, June, September and December, commencing with the first such
date
to occur after the Closing Date, and on the last day of the Availability Period
(and, if applicable, thereafter on demand). 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.
(b) Other
Fees.
(i) The
Company shall pay to BAS and the Administrative Agent for their own respective
accounts fees, and, where applicable, for the account of each Lender, in the
amounts and at the times specified in the Fee Letter. Such fees shall be fully
earned when paid and shall not be refundable for any reason
whatsoever.
2.10 Computation
of Interest and Fees.
All
computations of interest for Base Rate Loans when the Base Rate is determined
by
Bank of Americaβs βprime rateβ shall be made on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed. All other computations
of
fees and interest shall be made on the basis of a 360-day year (or, in each
case
of Loans denominated in Committed Currencies where market practice differs,
in
accordance with market practice) and actual days elapsed (which results in
more
fees or interest, as applicable, being paid than if computed on the basis of
a
365-day year). Interest shall accrue on each Loan for the day on which the
Loan
is made, and shall not accrue on a Loan, or any portion thereof, for the day
on
which the Loan or such portion is paid, provided that any Loan that is repaid
on
the same day on which it is made shall, subject to Section 2.12(a), bear
interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.11 Evidence
of Indebtedness.
(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 Borrowers
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
Borrowers hereunder to pay any amount owing with respect to the Obligations.
In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect
of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, each Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lenderβs
Loans in addition to such accounts or records. Each such Note shall (i) in
the
case of Revolving Credit Loans, be in the form of Exhibit
C
(a
βRevolving
Noteβ)
and
(ii) in the case of Swing Line Loans, be in the form of Exhibit
D
(a
βSwing
Line Noteβ).
Each
Lender may attach schedules to its Note and endorse thereon the date, Type
(if
applicable), amount and maturity of its Loans and payments with respect
thereto.
(b) In
addition to the accounts and records referred to in Section
2.11(a),
each
Lender and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such Lender
of participations in Letters of Credit and Swing Line Loans. In the event of
any
conflict between the accounts and records maintained by the Administrative
Agent
and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence
of
manifest error.
(c) Entries
made in good faith by the Administrative Agent in the Register pursuant to
Section
2.11(b),
and by
each Lender in its account or accounts pursuant to Section
2.11(a),
shall
be prima
facie
evidence
of the amount of principal and interest due and payable or to become due and
payable from each Borrower to, in the case of the Register, each Lender and,
in
the case of such account or accounts, such Lender, under this Agreement and
the
other Loan Documents, absent manifest error; provided
that the
failure of the Administrative Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of the Borrowers under
this
Agreement and the other Loan Documents.
2.12 Payments
Generally.
(a) All
payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrowers hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agentβs Office in
Dollars or the applicable Committed Currency and in immediately available funds
not later than 2:00 p.m. on the date specified herein. The Administrative Agent
will promptly distribute to each Lender its Pro Rata Share (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lenderβs Lending Office. All payments received by the
Administrative Agent after 2:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue. If any payment to be made by a 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 provided,
however,
that,
if such extension would cause payment of interest on or principal of
Eurocurrency Rate Loans to be made in the next succeeding calendar month, such
payment shall be made on the immediately preceding Business Day.
(b) (i) Unless
the Administrative Agent shall have received notice from a Lender prior to
the
proposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case
of
any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such
Borrowing) that such Lender will not make available to the Administrative Agent
such Lenderβs share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with
Section
2.02
(or, in
the case of a Borrowing of Base Rate Loans, that such Lender has made such
share
available in accordance with and at the time required by Section
2.02)
and
may, in reliance upon such assumption, make available to the applicable Borrower
a corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and such Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to such Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case
of
a payment to be made by such Lender, the greater of the Federal Funds Rate
and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by such Borrower, the
interest rate applicable to Base Rate Loans. If such Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to such
Borrower the amount of such interest paid by such Borrower for such period.
If
such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lenderβs Loan included in
such Borrowing. Any payment by the applicable Borrower shall be without
prejudice to any claim such Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.
(ii) Unless
the Administrative Agent shall have received notice from the applicable Borrower
prior to the time at which any payment is due to the Administrative Agent for
the account of the Lenders or the L/C Issuer hereunder that such Borrower will
not make such payment, the Administrative Agent may assume that such Borrower
has made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if the applicable Borrower has not in
fact made such payment, then each of the Lenders or the L/C Issuer, as the
case
may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or the L/C Issuer, in
immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of
payment to the Administrative Agent, at the greater of the Federal Funds Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
A
notice
of the Administrative Agent to any Lender or any Borrower with respect to any
amount owing under this subsection
(b)
shall be
conclusive, absent manifest error.
(c) If
any
Lender makes available to the Administrative Agent funds for any Loan to be
made
by such Lender as provided in the foregoing provisions of this Article
II,
and
such funds are not made available to any Borrower by the Administrative Agent
because the conditions to the applicable Credit Extension set forth in
Article
V
are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender)
to
such Lender, without interest.
(d) The
obligations of the Lenders hereunder to make Loans, to fund participations
in
Letters of Credit and Swing Line Loans and to make payments pursuant to
Section
11.05(b)
are
several and not joint. The failure of any Lender to make any Loan, to fund
any
such participation or to make any payment under Section
11.05(b)
on any
date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Loan, to purchase its participation
or make its payment under Section
11.05(b).
(e) Nothing
herein shall be deemed to obligate any Lender to obtain the funds for any Loan
in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any
particular place or manner.
(f) Each
Borrower hereby authorizes each Lender, if and to the extent payment owed to
such Lender is not made when due hereunder or, in the case of a Lender, under
the Note held by such Lender, to charge from time to time against any or all
of
such Borrowerβs accounts with such Lender any amount so due.
(g) Whenever
any payment received by the Administrative Agent under this Agreement or any
of
the other Loan Documents is insufficient to pay in full all amounts due and
payable to the Administrative Agent and the Lenders under or in respect of
this
Agreement and the other Loan Documents on any date, such payment shall be
distributed by the Administrative Agent and applied by the Administrative Agent
and the Lenders in the order of priority set forth in Section
9.03.
(h) To
the
extent that the Administrative Agent receives funds for application to the
amounts owing by a Borrower under or in respect of this Agreement or any Note
in
currencies other than the currency or currencies required to enable the
Administrative Agent to distribute funds to the Lenders in accordance with
the
terms of this Section
2.12,
the
Administrative Agent shall be entitled to convert or exchange such funds into
Dollars or into a Committed Currency or from Dollars to a Committed Currency
or
from a Committed Currency to Dollars, as the case may be, to the extent
necessary to enable the Administrative Agent to distribute such funds in
accordance with the terms of this Section
2.12;
provided
that
each Borrower and each of the Lenders hereby agree that the Administrative
Agent
shall not be liable or responsible for any loss, cost or expense suffered by
such Borrower or such Lender as a result of any conversion or exchange of
currencies affected pursuant to this Section
2.12(h)
or as a
result of the failure of the Administrative Agent to effect any such conversion
or exchange; and provided further
that
each Borrower agrees to indemnify the Administrative Agent and each Lender,
and
hold the Administrative Agent and each Lender harmless, for any and all losses,
costs and expenses incurred by the Administrative Agent or any Lender for any
conversion or exchange of currencies (or the failure to convert or exchange
any
currencies) in accordance with this Section
2.12(h).
2.13 Sharing
of Payments.
If,
other
than as expressly provided elsewhere herein, any Lender shall obtain on account
of the Loans made by it, or the participations in L/C Obligations or in Swing
Line Loans held by it, any payment (whether voluntary, involuntary, through
the
exercise of any right of setoff, 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 Loans made by them and/or such
subparticipations in the participations in L/C Obligations or Swing Line Loans
held by them, as the case may be, 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 under any of the circumstances described in Section
11.05
(including pursuant to any settlement entered into by the purchasing Lender
in
its discretion), 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 Lenderβs ratable share (according
to the proportion of (i) the amount of such paying Lenderβs 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, without further interest thereon. Each 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 setoff, but subject to Section
11.08)
with
respect to such participation as fully as if such Lender were the direct
creditor of such 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
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 Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations
purchased.
2.14 Designated
Borrowers. (a) Effective
as of the date hereof, each of the Subsidiaries listed on Schedule
II
hereto
shall be a βDesignated Borrowerβ hereunder and may receive Loans for its account
on the terms and conditions set forth in this Agreement.
(b) The
Company may at any time, upon not less than 15 Business Daysβ notice from the
Company to the Administrative Agent (or such shorter period as may be agreed
by
the Administrative Agent in its sole discretion), designate any Eligible
Subsidiary of the Company (an βApplicant
Borrowerβ)
as a
Designated Borrower to receive Loans hereunder by delivering to the
Administrative Agent (which shall promptly deliver counterparts thereof to
each
Lender) a duly executed notice and agreement in substantially the form of
Exhibit G
(a
βDesignated
Borrower Request and Assumption Agreementβ).
The
parties hereto acknowledge and agree that prior to any Applicant Borrower
becoming entitled to utilize the credit facilities provided for herein the
Administrative Agent and the Lenders shall have received such supporting
resolutions, incumbency certificates, opinions of counsel and other documents
or
information, in form, content and scope reasonably satisfactory to the
Administrative Agent, as may be required by the Administrative Agent or the
Required Lenders in their sole discretion, and Notes signed by such new
Borrowers to the extent any Lenders so require. If the Administrative Agent
and
the Required Lenders agree that an Applicant Borrower shall be entitled to
receive Loans hereunder, then promptly following receipt of all such requested
resolutions, incumbency certificates, opinions of counsel and other documents
or
information, the Administrative Agent shall send a notice in substantially
the
form of Exhibit H
(a
βDesignated
Borrower Noticeβ) to
the Company and the Lenders specifying the effective date upon which the
Applicant Borrower shall constitute a Designated Borrower for purposes hereof,
whereupon each of the Lenders agrees to permit such Designated Borrower to
receive Loans hereunder, on the terms and conditions set forth herein, and
each
of the parties agrees that such Designated Borrower otherwise shall be a
Borrower for all purposes of this Agreement; provided
that no
Committed Loan Notice or Letter of Credit Application may be submitted by or
on
behalf of such Designated Borrower until the date five Business Days after
such
effective date.
(c) The
Obligations of the Company and each Designated Borrower that is a Domestic
Subsidiary shall be joint and several in nature. The Obligations of all
Designated Borrowers that are Foreign Subsidiaries shall be several in
nature.
(d) Each
Subsidiary of the Company that is or becomes a βDesignated Borrowerβ pursuant to
this Section 2.14
hereby
irrevocably appoints the Company as its agent for all purposes relevant to
this
Agreement and each of the other Loan Documents, including (i) the giving
and receipt of notices, (ii) the execution and delivery of all documents,
instruments and certificates contemplated herein and all modifications hereto,
and (iii) the receipt of the proceeds of any Loans made by the Lenders, to
any such Designated Borrower hereunder. Any acknowledgment, consent, direction,
certification or other action which might otherwise be valid or effective only
if given or taken by all Borrowers, or by each Borrower acting singly, shall
be
valid and effective if given or taken only by the Company, whether or not any
such other Borrower joins therein. Any notice, demand, consent, acknowledgement,
direction, certification or other communication delivered to the Company in
accordance with the terms of this Agreement shall be deemed to have been
delivered to each Designated Borrower.
(e) The
Company may from time to time, upon not less than 15 Business Daysβ notice from
the Company to the Administrative Agent (or such shorter period as may be agreed
by the Administrative Agent in its sole discretion), terminate a Designated
Borrowerβs status as such, provided
that
there are no outstanding Loans payable by such Designated Borrower, or other
amounts payable by such Designated Borrower on account of any Loans made to
it,
as of the effective date of such termination. The Administrative Agent will
promptly notify the Lenders of any such termination of a Designated Borrowerβs
status.
2.15 Increase
in Commitments.
(a) The
Company may, at any time prior to the Maturity Date, with the consent of the
Administrative Agent (not to be unreasonably withheld), request that the
aggregate amount of the Commitments be increased by an amount equal to
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (each a
βCommitment
Increaseβ)
to be
effective as of a date that is at least 90 days prior to the scheduled Maturity
Date then in effect (the βIncrease
Dateβ)
as
specified in the related notice to the Administrative Agent; provided,
however,
that
(i) in no event shall the aggregate amount of the Commitment Increases exceed
$75,000,000 and (ii) on the date of any request by the Company for a Commitment
Increase and on the related Increase Date, the applicable conditions set forth
in Article
V
shall be
satisfied.
(b) The
Administrative Agent shall promptly notify the Lenders and any Eligible Assignee
as it shall identify (subject to the approval of the Administrative Agent,
the
L/C Issuer and the Swing Line Lender, which approvals shall not be unreasonably
withheld or delayed) of a request by the Company for a Commitment Increase,
which notice shall include (i) the proposed amount of such requested Commitment
Increase, (ii) the proposed Increase Date and (iii) the date by which Lenders
wishing to participate in the Commitment Increase must commit to an increase
in
the amount of their respective Commitments (the βCommitment
Dateβ).
The
requested Commitment Increase shall be allocated among the Lenders and any
Eligible Assignees willing to participate therein in such amounts as are agreed
between the Company and the Administrative Agent. The Company shall prepay
any
Committed Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section
3.05)
to the
extent necessary to keep the outstanding Committed Loans ratable with any
revised Pro Rata Shares arising from any nonratable increase in the Commitments
under this Section.
(c) Promptly
following each Commitment Date, the Administrative Agent shall notify the
Company as to the amount, if any, by which any Lender or any Eligible Assignee
is willing to participate in the requested Commitment Increase; provided,
however,
that
the Commitment of each such Eligible Assignee shall be in an amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(d) On
each
Increase Date, each Eligible Assignee that was not, prior to such date, a Lender
hereunder and accepts an offer to participate in a requested Commitment Increase
in accordance with Section
2.15(c)
(each
such Eligible Assignee, an βAssuming
Lenderβ)
shall
become a Lender party to this Agreement as of such Increase Date and the
Commitment of each Eligible Assignee that, prior to such date, was a Lender
and
accepts an offer to participate in such a requested Commitment Increase (an
βIncreasing
Lenderβ)
shall
be so increased by such amount as of such Increase Date; provided,
however,
that
the Administrative Agent shall have received on or before such Increase Date
the
following, each dated such date:
(i) (A)
certified copies of resolutions of the board of directors of each Borrower
and
each Subsidiary Guarantor approving the Commitment Increase and the
corresponding modifications to this Agreement and (B) an opinion of counsel
for
each Borrower and each Subsidiary Guarantor (which may be in-house counsel),
in
form and substance satisfactory to, and covering such matters as may be
reasonably requested by, the Administrative Agent;
(ii) an
assumption agreement from each Assuming Lender, if any, in form and substance
satisfactory to the Company and the Administrative Agent (each an βAssumption
Agreementβ),
duly
executed by such Eligible Assignee, the Administrative Agent and the Company;
(iii) confirmation
from each Increasing Lender of the increase in the amount of its Commitment
in a
writing satisfactory to the Company and the Administrative Agent;
(iv) Notes,
if
requested, payable to the order of the Assuming Lenders and the Increasing
Lenders evidencing the aggregate indebtedness of each Borrower to such Lenders
after giving effect to the applicable Commitment Increase;
(v) a
revised
Schedule
2.01
hereto
setting forth the Commitment of each Lender after giving effect to the
applicable Commitment Increase; and
(vi) a
certificate of each Loan Party dated as of the date of the Increase Date signed
by a Responsible Officer of such Loan Party certifying that, before and after
giving effect to such increase, (A) the representations and warranties of the
Company and each other Loan Party contained in Article
VI
or any
other Loan Document shall be true and correct in all material respects on and
as
of the Increase Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall
be
true and correct in all material respects as of such earlier date, and except
that for purposes of this Section
2.15,
the
representations and warranties contained in Sections
6.05(a)
and
(b)
shall be
deemed to refer to the most recent statements furnished pursuant to Sections
7.01(a)
and
(b),
respectively, and (B) no Default exists or would result from such proposed
Commitment Increase.
On
each
Increase Date, upon fulfillment of the conditions set forth in the immediately
preceding sentence of this Section
2.15(d),
the
Administrative Agent shall notify the Lenders (including, without limitation,
each Assuming Lender) and the Company, on or before 1:00 P.M. (New York City
time), by telecopier, of the occurrence of the Commitment Increase to be
effected on such Increase Date and shall record in the Register the relevant
information with respect to each Increasing Lender and each Assuming Lender
on
such date.
ARTICLE
III
3.01 Taxes.
(a) Any
and
all payments by any Loan Party 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, excluding,
in the
case of the Administrative Agent and each Lender, taxes imposed on or measured
by its overall 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 (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and liabilities being hereinafter referred to as βTaxesβ).
If a
Loan Party 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), each of the Administrative Agent and such Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Loan Party shall make such deductions, (iii)
such Loan Party 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, such Loan Party shall furnish to the
Administrative Agent or Lender (as the case may be) (which shall forward the
same to such Lender) the original or a certified copy of a receipt evidencing
payment thereof to the extent such a receipt is issued therefor, or other
written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent.
(b) In
addition, each Loan Party 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
βOther
Taxesβ).
(c) If
a Loan
Party 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, such Loan Party shall also pay to the Administrative Agent or
to
such Lender, as the case may be, at the time interest is paid, such additional
amount that the Administrative Agent or such Lender specifies is necessary
to
preserve the after-tax yield (after factoring in all taxes, including taxes
imposed on or measured by net income) that the Administrative Agent or such
Lender would have received if such Taxes or Other Taxes had not been
imposed.
(d) Each
Loan
Party 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 additions to tax, 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. Payment under this Section
3.01(d)
shall be
made within 30 days after the date such Lender or the Administrative Agent
makes
a demand therefor.
3.02 Illegality.
If
any
Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurocurrency Rate Loans, or to
determine or charge interest rates based upon the Eurocurrency Rate, then,
on
notice thereof by such Lender to the Company through the Administrative Agent,
any obligation of such Lender to make or continue Eurocurrency Rate Loans or
to
convert Base Rate Loans to Eurocurrency Rate Loans shall be suspended until
such
Lender notifies the Administrative Agent and the Company that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
each Loan Party shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurocurrency Rate
Loans of such Lender to Dollar denominated Base Rate Loans, either on the last
day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurocurrency Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurocurrency Rate Loans.
Upon
any such prepayment or conversion, the applicable Loan Party shall also pay
accrued 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
Required Lenders determine that (i) for any reason adequate and reasonable
means
do not exist for determining the Eurocurrency Rate for any requested Interest
Period with respect to a proposed Eurocurrency Rate Loan, (ii) they are
unable to obtain matching deposits in the London inter-bank market at or about
11:00 A.M. (London time) on the second Business Day before the making of a
Borrowing in sufficient amounts to fund their respective Revolving Credit Loans
as a part of such Borrowing during its Interest Period or (iii) the
Eurocurrency Rate for any Interest Period for such Loans will not adequately
reflect the cost to such Required Lenders of making, funding or maintaining
their respective Eurocurrency Rate Loans for such Interest Period, the
Administrative Agent will promptly so notify the Company and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Eurocurrency
Rate
Loans in the applicable currency shall be suspended until the Administrative
Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, each Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or,
failing that, will be deemed to have converted such request into a request
for a
Committed Borrowing of Dollar denominated Base Rate Loans in the amount
specified therein.
3.04 Increased
Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency 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, in each case after the date hereof, or such
Lenderβs compliance therewith, there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining Eurocurrency 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 Section
3.04(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), each 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, in each case after the
date
hereof, 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 Lenderβs
obligations hereunder (taking into consideration its policies with respect
to
capital adequacy and such Lenderβs desired return on capital), then from time to
time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), each Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
(c) Each
Borrower shall pay to each Lender, as long as such Lender shall be required
to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as βEurocurrency
liabilitiesβ),
additional interest on the unpaid principal amount of each Eurocurrency 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
such
Borrower shall have received at least 15 daysβ 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, each Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any
continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such
Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);
(b) any
failure by such 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 such Borrower;
or
(c) any
assignment of a Eurocurrency Rate Loan on a day other than the last day of
the
Interest Period therefor as a result of a request by the Company pursuant to
Section 11.15;
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.
Each Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For
purposes of calculating amounts payable by any Borrower to the Lenders under
this Section
3.05,
each
Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it
at
the Eurocurrency Rate for such Loan by a matching deposit or other borrowing
in
the London interbank eurocurrency market for a comparable amount and for a
comparable period, whether or not such Eurocurrency Rate 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 the additional amount or amounts to be paid to it hereunder 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
Lenderβs making a claim for compensation under Section
3.01
or
3.04,
the
Company may replace such Lender in accordance with Section
11.15.
3.07 Survival.
All
of
the Borrowersβ obligations under this Article
III
shall
survive termination of the Aggregate Commitments and repayment of all other
Obligations hereunder.
ARTICLE
IV
4.01 The
Guaranty.
(a) Each
of
the Subsidiary Guarantors (other than the Company) hereby jointly and severally
guarantees to each Lender and the Administrative Agent as hereinafter provided,
as primary obligor and not as surety, the prompt payment of the Obligations
in
full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) strictly
in
accordance with the terms thereof. The Subsidiary Guarantors hereby further
agree that if any of the Obligations are not paid in full when due (whether
at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash
collateralization or otherwise), the Subsidiary Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever,
and
that in the case of any extension of time of payment or renewal of any of the
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of such
extension or renewal.
(b) The
Company hereby guarantees to each Lender and the Administrative Agent as
hereinafter provided, as primary obligor and not as surety, the prompt payment
of the Designated Borrower Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof.
The Company hereby further agrees that if any of the Designated Borrower
Obligations are not paid in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization
or
otherwise), the Company will promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Designated Borrower Obligations, the same will be promptly paid
in
full when due (whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) in accordance
with the terms of such extension or renewal.
(c) Notwithstanding
any provision to the contrary contained herein or in any other of the Loan
Documents, the obligations of each Guarantor under this Agreement and the other
Loan Documents shall be limited to an aggregate amount equal to the largest
amount that would not render such obligations subject to avoidance under the
Debtor Relief Laws or any comparable provisions of any applicable state
law.
4.02 Obligations
Unconditional.
(a) The
obligations of the Subsidiary Guarantors under Section
4.01(a)
are
joint and several, absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Loan Documents
or any other agreement or instrument referred to therein, or any substitution,
release, impairment or exchange of any other guarantee of or security for any
of
the Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section
4.02(a)
that the
obligations of the Subsidiary Guarantors hereunder shall be absolute and
unconditional under any and all circumstances. Each Subsidiary Guarantor agrees
that such Subsidiary Guarantor shall have no right of subrogation, indemnity,
reimbursement or contribution against the Company or any other Subsidiary
Guarantor for amounts paid under this Article
IV
until
such time as the Obligations have been paid in full.
(b) The
obligations of the Company under Section
4.01(b)
are
absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Loan Documents or any other agreement
or instrument referred to therein, or any substitution, release, impairment
or
exchange of any other guarantee of or security for any of the Designated
Borrower Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section
4.02(b)
that the
obligations of the Company hereunder shall be absolute and unconditional under
any and all circumstances. The Company agrees that it shall have no right of
subrogation, indemnity, reimbursement or contribution against the any Designated
Borrower for amounts paid under this Article
IV
until
such time as the Designated Borrower Obligations have been paid in
full.
(c) Without
limiting the generality of the foregoing subsections
(a)
and
(b),
it is
agreed that, to the fullest extent permitted by law, the occurrence of any
one
or more of the following shall not alter or impair the liability of any
Guarantor hereunder which shall remain absolute and unconditional as described
above:
(i) at
any
time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Obligations shall be extended,
or
such performance or compliance shall be waived;
(ii) any
of
the acts mentioned in any of the provisions of any of the Loan Documents or
any
other agreement or instrument referred to in the Loan Documents shall be done
or
omitted;
(iii) the
maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any
right under any of the Loan Documents or any other agreement or instrument
referred to in the Loan Documents shall be waived or any other guarantee of
any
of the Obligations or any security therefor shall be released, impaired or
exchanged in whole or in part or otherwise dealt with; or
(iv) any
of
the Obligations shall be determined to be void or voidable (including, without
limitation, for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including, without limitation, any
creditor of any Guarantor).
With
respect to its obligations hereunder, each Guarantor hereby expressly waives
diligence, presentment, demand of payment, protest and all notices whatsoever,
and any requirement that the Administrative Agent or any Lender exhaust any
right, power or remedy or proceed against any Person under any of the Loan
Documents or any other agreement or instrument referred to in the Loan Documents
or against any other Person under any other guarantee of, or security for,
any
of the Obligations.
4.03 Reinstatement.
(a) The
obligations of the Subsidiary Guarantors under this Article
IV
shall be
automatically reinstated if and to the extent that for any reason any payment
by
or on behalf of any Person in respect of the Obligations is rescinded or must
be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Subsidiary Guarantor agrees that it will indemnify the Administrative Agent
and
each Lender on demand for all reasonable costs and expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such reasonable costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
(b) The
obligations of the Company under this Article
IV
shall be
automatically reinstated if and to the extent that for any reason any payment
by
or on behalf of any Person in respect of the Designated Borrower Obligations
is
rescinded or must be otherwise restored by any holder of any of the Designated
Borrower Obligations, whether as a result of any proceedings in bankruptcy
or
reorganization or otherwise, and the Company agrees that it will indemnify
the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) incurred by the Administrative Agent or such Lender in connection
with
such rescission or restoration, including any such reasonable costs and expenses
incurred in defending against any claim alleging that such payment constituted
a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
4.04 Certain
Additional Waivers.
Each
Guarantor agrees that such Guarantor shall have no right of recourse to security
for the Obligations, except through the exercise of rights of subrogation
pursuant to Section
4.02
and
through the exercise of rights of contribution pursuant to Section
4.06.
4.05 Remedies.
(a) The
Subsidiary Guarantors agree that, to the fullest extent permitted by law, as
between the Subsidiary Guarantors, on the one hand, and the Administrative
Agent
and the Lenders, on the other hand, the Obligations may be declared to be
forthwith due and payable as provided in Section
9.02
(and
shall be deemed to have become automatically due and payable in the
circumstances provided in said Section
9.02)
for
purposes of Section
4.01(a)
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing the Obligations from becoming automatically due
and
payable) as against any other Person and that, in the event of such declaration
(or the Obligations being deemed to have become automatically due and payable),
the Obligations (whether or not due and payable by any other Person) shall
forthwith become due and payable by the Subsidiary Guarantors for purposes
of
Section
4.01(a).
(b) The
Company agrees that, to the fullest extent permitted by law, as between the
Company, on the one hand, and the Administrative Agent and the Lenders, on
the
other hand, the Designated Borrower Obligations may be declared to be forthwith
due and payable as provided in Section
9.02
(and
shall be deemed to have become automatically due and payable in the
circumstances provided in said Section
9.02)
for
purposes of Section
4.01(b)
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing the Designated Borrower Obligations from becoming
automatically due and payable) as against any other Person and that, in the
event of such declaration (or the Designated Borrower Obligations being deemed
to have become automatically due and payable), the Designated Borrower
Obligations (whether or not due and payable by any other Person) shall forthwith
become due and payable by the Company for purposes of Section
4.01(b).
4.06 Rights
of Contribution.
The
Subsidiary Guarantors hereby agree as among themselves that, in connection
with
payments made hereunder, each Subsidiary Guarantor shall have a right of
contribution from each other Subsidiary Guarantor in accordance with applicable
Law. Such contribution rights shall be subordinate and subject in right of
payment to the Obligations until such time as the Obligations have been Fully
Satisfied, and none of the Subsidiary Guarantors shall exercise any such
contribution rights until the Obligations have been paid in full.
4.07 Guarantee
of Payment; Continuing Guarantee.
(a) The
guarantee given by the Subsidiary Guarantors in this Article
IV
is a
guaranty of payment and not of collection, is a continuing guarantee, and shall
apply to all Obligations whenever arising.
(b) The
guarantee given by the Company in this Article
IV
is a
guaranty of payment and not of collection, is a continuing guarantee, and shall
apply to all Designated Borrower Obligations whenever arising.
ARTICLE
V
5.01 Conditions
of Initial Credit Extension.
The
obligation of each Lender to make its initial Credit Extension hereunder is
subject to satisfaction of the following conditions precedent:
(a) The
Administrative Agentβs 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 signing Loan
Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in
form
and substance satisfactory to the Administrative Agent and its legal
counsel:
(i) executed
counterparts of this Agreement and the other Loan Documents, each properly
executed by a Responsible Officer of the signing Loan Party and, in the case
of
this Agreement, sufficient in number for distribution to the Administrative
Agent, each Lender and the Company;
(ii) certificates
representing the Pledged Shares referred to in the Pledge Agreement accompanied
by undated stock powers executed in blank;
(iii) Uniform
Commercial Code financing statements in the state of incorporation or formation
of each Loan Party in order to perfect and protect the liens and security
interests created under the Pledge Agreement, and evidence that all other action
that the Administrative Agent may deem reasonably necessary or desirable in
order to perfect and protect the liens and security interests created under
the
Pledge Agreement has been taken (including, without limitation, receipt of
duly
executed payoff letters and UCC-3 termination statements);
(iv) such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may require evidencing the identity, authority and capacity
of each Responsible Officer thereof authorized to act as a Responsible Officer
in connection with this Agreement and the other Loan Documents to which such
Loan Party is a party or is to be a party;
(v) such
documents and certifications as the Administrative Agent may reasonably require
to evidence that each Loan Party is duly organized or formed, and that each
of
the Company and each Loan Party is validly existing and in good standing in
its
state of incorporation or formation;
(vi) a
favorable opinion of Xxxxxxx & Torrance LLP, counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender dated as of the Closing
Date, in form and substance satisfactory to the Administrative
Agent;
(vii) a
Notice
of Borrowing or Notice of Issuance, as applicable, relating to the initial
Credit Extension;
(viii) evidence
that the Existing Credit Agreement has been or concurrently with the Closing
Date is being terminated and all Liens securing obligations under the Existing
Credit Agreement have been or concurrently with the Closing Date are being
released; and
(ix) such
other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender
reasonably may require.
(b) All
fees
required to be paid on or before the Closing Date shall have been
paid.
5.02 Conditions
to all Credit Extensions.
The
obligation of each Lender to honor any Request for Credit Extension (other
than
a Committed Loan Notice requesting only a conversion of Loans to the other
Type,
or a continuation of Eurocurrency Rate Loans) is subject to the following
conditions precedent:
(a) The
representations and warranties of the Company and each other Loan Party
contained in Article
VI
or any
other Loan Document 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 in all material respects as of such earlier
date, and except that for purposes of this Section
5.02,
the
representations and warranties contained in Sections
6.05(a)
and
(b)
shall be
deemed to refer to the most recent statements furnished pursuant to Sections
7.01(a)
and
(b),
respectively.
(b) No
Default shall exist, or would result from such proposed Credit Extension or
from
the application of the proceeds therefrom.
(c) The
Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender
shall have received a Request for Credit Extension in accordance with the
requirements hereof.
(d) If
the
applicable Borrower is a Designated Borrower, then the conditions of
Section 2.14
to the
designation of such Borrower as a Designated Borrower shall have been met to
the
satisfaction of the Administrative Agent.
(e) In
the
case of a Credit Extension to be denominated in Sterling, Yen or Euro, there
shall not have occurred any change in national or international financial,
political or economic conditions or currency exchange rates or exchange controls
which in the reasonable opinion of the Administrative Agent (in the case of
any
Loans to be denominated in Sterling, Yen or Euro) would make it materially
impracticable for such Credit Extension to be denominated in
the
Sterling, Yen or Euro, as applicable.
(f) The
Administrative Agent shall have received a certificate signed by a Responsible
Officer of the Company dated as of the date of such Credit Extension certifying
that such proposed Credit Extension is, and when incurred or issued will be,
together with the Total Outstandings (i) permitted under the Indenture and
(ii)
shall constitute both βSenior Debtβ and βDesignated Senior Debtβ under, and as
defined in, the Indenture.
(g) The
Administrative Agent shall have received such other approvals, opinions or
documents as any Lender through the Administrative Agent may reasonably
request.
5.03 Conditions
to Initial Credit Extension to any Designated Borrower.
The
obligation of each Lender to honor any Request for Credit Extension in
connection with the initial Credit Extension to any Designated Borrower shall
be
subject to satisfaction of the additional conditions precedent:
(a) The
Administrative Agent shall have received a Note executed by such Designated
Borrower in favor of each Lender requesting a Note.
(b) The
Administrative Agent shall have received a duly executed Designated Borrower
Request and Assumption Agreement and such other documents requested pursuant
to
Section
2.14(b).
(c) The
Administrative Agent shall have received, to the extent not already in its
possession, such certificates, together with executed and undated stock powers,
of such Designated Borrower or, where such Designated Borrower is a Foreign
Subsidiary, of the first-tier Foreign Subsidiary parent entity of such
Designated Borrower.
(d) The
Administrative Agent shall have received an opinion of counsel for such
Designated Borrower in form and substance reasonably acceptable to the
Administrative Agent and covering such matters relating to the transactions
contemplated hereby as the Administrative Agent may reasonably request;
provided
that in
the event that such opinion is not delivered on the date of such initial Credit
Extension to such Designated Borrower, such opinion shall be delivered no later
that the 30th day following such date and the aggregate amount of Revolving
Loans and L/C Obligations of all such Designated Borrowers for which opinions
have not been delivered shall not at any time exceed $1,000,000 prior to the
date such opinion is delivered in compliance with this subsection
(d).
(e) The
Administrative Agent shall have received a letter from US Corporation System
in
New York, New York (or such other agent to receive service of process in New
York, New York reasonably acceptable to the Administrative Agent) indicating
its
consent to its appointment by such Designated Borrower (that is a Foreign
Subsidiary) as its agent to receive service of process.
(f) The
representations and warranties contained in Article VI shall be true and correct
in all material respects on and as of the date of such Credit Extension as
though made on and as of such date (except for representations and warranties
that refer to a specific date, and then as of such specific date), and no
Default shall have occurred and be continuing or would result
therefrom.
Each
Request for Credit Extension (other than a Committed Loan Notice requesting
only
a conversion of Loans to the other Type or a continuation of Eurocurrency Rate
Loans) submitted by the Company shall be deemed to be a representation and
warranty that the conditions specified in Sections
5.02(a),
(b)
and, in
the case of a Credit Extension to an Designated Borrower, (c),
have
been satisfied on and as of the date of the applicable Credit
Extension.
ARTICLE
VI
Each
Loan
Party represents and warrants to the Administrative Agent and the Lenders
that:
6.01 Existence,
Qualification and Power; Compliance with Laws.
Each
Loan
Party and each of its Subsidiaries (a) is duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and
all
requisite governmental licenses, authorizations, consents and approvals to
(i)
own or lease its assets and carry on its business and (ii) execute, deliver
and
perform its obligations under the Loan Documents to which it is a party, (c)
is
duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is
in
compliance with all Laws; except in each case referred to in clause (b)(i),
(c)
or (d), to the extent that failure to do so could not reasonably be expected
to
have a Material Adverse Effect.
6.02 Authorization;
No Contravention.
The
execution, delivery and performance by each Loan Party of each Loan Document
to
which such Person is or is to be a party, and the consummation of the
Transaction, are within such Loan Partyβs corporate or other powers, have been
duly authorized by all necessary corporate or other organizational action,
and
do not and will not (a) contravene the terms of any of such Personβs
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any material Lien under, or require any
material payment to be made under (i) any Contractual Obligation to which such
Person is a party or affecting such Person or the properties of such Person
or
any of its Subsidiaries or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate any Law that would adversely affect the
rights of the Lenders or the Administrative Agent under the Loan Documents.
No
Loan Party or any of its Subsidiaries is in violation of any Law or in breach
of
any such Contractual Obligation, the violation or breach of which could be
reasonably likely to have a Material Adverse Effect.
6.03 Governmental
Authorization; Other Consents.
No
approval, consent, exemption, authorization, or other action by, or notice
to,
or filing (other than security filings) with, any Governmental Authority or
any
other Person is necessary or required in connection with (i) the execution,
delivery or performance by, or enforcement against, any Loan Party of this
Agreement or any other Loan Document, or for the consummation of the
Transaction, (ii) the grant by any Loan Party of the Liens granted by it
pursuant to the Collateral Documents, (iii) the perfection or maintenance
of the Liens created under the Collateral Documents (including the first
priority nature thereof) or (iv) the exercise by the Administrative Agent
or any Lender of its rights under the Loan Documents or the remedies in respect
of the Collateral pursuant to the Collateral Documents.
6.04 Binding
Effect.
This
Agreement has been, and each other Loan Document, when delivered hereunder,
will
have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered
will
constitute, a legal, valid and binding obligation of such Loan Party,
enforceable against each Loan Party that is party thereto in accordance with
its
terms, except to the extent that enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium other similar
laws
generally affecting creditorsβ rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
6.05 Financial
Statements; No Material Adverse Effect.
(a) The
Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of the
Company and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Company and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness,
to the extent required by GAAP.
(b) The
unaudited consolidated financial statements of the Company and its Subsidiaries
dated September 30, 2005, and the related consolidated statements of income
or
operations, shareholdersβ equity and cash flows for the fiscal quarter ended on
that date (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of the Company and
its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments. (c) Since
the
date of the Audited Financial Statements, there has been no event or
circumstance, other than as publicly announced to date, either individually
or
in the aggregate, that has had or could reasonably be expected to have a
Material Adverse Effect.
6.06 Litigation.
There
are
no actions, suits, proceedings, claims or disputes pending or, to the knowledge
of the Loan Parties after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against any Loan Party or any of its Subsidiaries or against
any of their properties or revenues that (a) purport to affect or pertain to
this Agreement, any other Loan Document or the consummation of the Transaction,
or (b) except as specifically disclosed on Schedule
6.06
(the
βDisclosed
Litigationβ),
either individually or in the aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect, and there has been
no
material adverse change in the status, or financial effect on any Loan Party,
of
the matters described on Schedule
6.06
hereto.
6.07 No
Default.
Neither
any Loan Party nor any Subsidiary is in default under or with respect to, or
a
party to, any Contractual Obligation that could, either individually or in
the
aggregate, reasonably be expected to have a Material Adverse Effect. No Default
has occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan
Document.
6.08 Ownership
of Property.
Each
Loan
Party and each of its Subsidiaries has good record and marketable title in
fee
simple to, or valid leasehold interests in, all real property necessary or
used
in the ordinary conduct of its business, except for such defects in title as
could not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect.
6.09 Environmental
Compliance.
(a) Each
Loan
Party and its Subsidiaries conduct in the ordinary course of business a review
of the effect of existing Environmental Laws and claims alleging potential
liability or responsibility for violation of any Environmental Law on their
respective businesses, operations and properties, and as a result thereof such
Loan Party has reasonably concluded that, except as specifically disclosed
in
Schedule
6.09,
such
claims alleging violation of Environmental Laws could not, individually or
in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
(b) Except
as
otherwise set forth on Schedule
6.09,
none of
the properties currently owned or operated by any Loan Party or any of its
Subsidiaries is listed or proposed for listing on the NPL or on the
CERCLIS.
(c) All
Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently owned or operated by any Loan
Party or any of its Subsidiaries have been disposed of in a manner not
reasonably expected to result in material liability to the Company and its
Subsidiaries, taken as a whole.
6.10 Insurance.
The
properties of the Loan Parties and their Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of any Loan
Party, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the applicable Loan Party or the
applicable Subsidiary operates, provided that no coverage in respect of
terrorism shall be required.
6.11 Taxes.
The
Loan
Parties and their 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 those which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
any Loan Party or any Subsidiary that would, if made, have a Material Adverse
Effect.
6.12 ERISA
Compliance.
(a) Each
Plan
is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended
to
qualify under Section 401(a) of the Code has received a favorable determination
letter from the IRS or an application for such a letter is currently being
processed by the IRS with respect thereto and, to the best knowledge of the
Loan
Parties, nothing has occurred which would prevent, or cause the loss of, such
qualification. Each Loan Party and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any
Plan.
(b) There
are
no pending or, to the best knowledge of the Loan Parties, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect
to
any Plan that could be reasonably be expected to have a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(c) (i)
No
ERISA Event has occurred or is reasonably expected to occur; (ii) no Loan
Party nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any
liability under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iii) no Loan
Party nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any
liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201
or
4243 of ERISA with respect to a Multiemployer Plan; and (iv) no Loan Party nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.
(d) With
respect to each scheme or arrangement mandated by a government other than the
United States (a βForeign
Government Scheme or Arrangementβ)
and
with respect to each employee benefit plan maintained or contributed to by
any
Loan Party or any Subsidiary of any Loan Party that is not subject to United
States law (a βForeign
Planβ):
(A) Any
employer and employee contributions required by law or by the terms of any
Foreign Government Scheme or Arrangement or any Foreign Plan have been made,
or,
if applicable, accrued, in accordance with normal accounting
practices.
(B) Each
Foreign Plan required to be registered has been registered and has been
maintained in good standing with applicable regulatory authorities.
6.13 Subsidiaries;
Equity Interests.
As
of the
Closing Date, no Loan Party has any Subsidiaries other than those specifically
disclosed in Schedule
6.13,
and all
of the outstanding Equity Interests in such Subsidiaries have been validly
issued, are fully paid and non-assessable and are directly or indirectly owned
by a Loan Party free and clear of all Liens except those created under the
Collateral Documents. All of the outstanding Equity Interests in each Loan
Party
and its Subsidiaries have been validly issued, are fully paid and
non-assessable.
6.14 Margin
Regulations; Investment Company Act; Public Utility Holding Company
Act.
(a) No
Borrower is engaged, nor will it engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within
the
meaning of Regulation U issued by the FRB), or extending credit for the purpose
of purchasing or carrying margin stock and no proceeds of any Borrowings or
drawings under any Letter of Credit will be used to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock.
(b) No
Loan
Party, nor any Person Governing any Loan Party, nor any Subsidiary (i) is a
βholding company,β or a βsubsidiary companyβ of a βholding company,β or an
βaffiliateβ of a βholding companyβ or of a βsubsidiary companyβ of a βholding
company,β within the meaning of the Public Utility Holding Company Act of 1935,
or (ii) is or is required to be registered as an βinvestment companyβ under the
Investment Company Act of 1940. Neither the making of any Loan, nor the issuance
of any Letters of Credit, nor the application of the proceeds or repayment
thereof by any Borrower, nor the consummation of the other transactions
contemplated by the Loan Documents, will violate any provision of any such
Act
or any rule, regulation or order of the SEC thereunder.
6.15 Disclosure.
Each
Loan
Party has disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its
Subsidiaries is subject, and all other matters known to it, that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. All written information and information orally presented in
any
Organized Setting, in each case, heretofore furnished by the Company or any
of
its Subsidiaries to the Administrative Agent or any Lender for purposes of
or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by or on behalf of any Loan Party
to
the Administrative Agent or any Lender will be, true and accurate in all
material respects on the date as of which such information is stated or
certified. For purposes of this Section
6.15,
βOrganized
Settingβ
means
any formal meeting with any of the Administrative Agent and/or the Lenders
or
any conference call with any of the Administrative Agent and/or Lenders relating
to the Loan Documents.
6.16 Compliance
with Laws.
Each
Loan
Party and each Subsidiary is in compliance in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted or (b) the failure
to comply therewith, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
6.17 Intellectual
Property; Licenses, Etc. Each
Loan
Party and its Subsidiaries own, or possess the right to use, all of the
trademarks, service marks, trade names, copyrights, patents, and licenses
(collectively, βIP
Rightsβ)
that
are used in the operation of their respective businesses, without conflict
with
the rights of any other Person. To the best knowledge of each Loan Party, no
slogan or other advertising device, product, process, method, substance, part
or
other material now employed by any Loan Party or any Subsidiary infringes upon
any rights held by any other Person. Except as disclosed on Schedule
6.17,
no
claim or litigation regarding any of the foregoing is pending or, to the best
knowledge of each Loan Party, threatened, which, either individually or in
the
aggregate, could reasonably be expected to have
a
Material Adverse Effect.
6.18 Solvency.
The
Loan Parties are, individually and together with their Subsidiaries on a
consolidated basis, Solvent.
6.19 Casualty,
Etc. Neither
the business nor the properties of any Loan Party or any of its Subsidiaries
are
affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public
enemy or other casualty (whether or not covered by insurance) that could be
reasonably likely to have a Material Adverse Effect.
6.20 Perfection,
Etc.
All
filings and other actions necessary or desirable to perfect and protect the
security interest in the Collateral created under the Collateral Documents
have
been duly made or taken and are in full force and effect, and the Collateral
Documents create in favor of the Administrative Agent for the benefit of the
Secured Parties a valid and, together with such filings and other actions,
perfected first priority security interest in the Collateral, securing the
payment of the Secured Obligations, and all filings and other actions necessary
or desirable to perfect and protect such security interest have been duly taken.
The Loan Parties are the legal and beneficial owners of the Collateral free
and
clear of any Lien, except for the liens and security interests created or
permitted under the Loan Documents.
6.21 Swap
Obligations.
Neither
the Borrowers nor any of their Subsidiaries have incurred any outstanding
obligations under any Swap Contracts, other than Permitted Swap
Obligations.
ARTICLE
VII
So
long
as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder which is accrued and payable shall remain unpaid or unsatisfied,
or
any Letter of Credit shall remain outstanding, each Loan Party shall, and shall
(except in the case of the covenants set forth in Sections 7.01, 7.02, 7.03
and
7.11) cause each Subsidiary to:
7.01 Financial
Statements.
Deliver
to the Administrative Agent, in form and detail reasonably satisfactory to
the
Administrative Agent and the Required Lenders:
(a) upon
the
earlier of the date that is 90 days after the end of each fiscal year of the
Company or the date such information is filed with the SEC, a consolidated
and
consolidating balance sheet of the Company and its Subsidiaries as at the end
of
such fiscal year, and the related consolidated and consolidating statements
of
income or operations, shareholdersβ equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by (i) a report and opinion of an independent certified
public accountant of nationally recognized standing reasonably acceptable to
the
Required Lenders, which report and opinion shall be prepared in accordance
with
generally accepted auditing standards and shall not be subject to any βgoing
concernβ or like qualification or exception or any qualification or exception as
to the scope of such audit that would be material to the Company and its
Subsidiaries, taken as a whole and (ii) to the extent filed with the SEC, a
copy
of the attestation report filed with the SEC of such independent certified
public accountant of nationally recognized standing as to the Companyβs internal
controls pursuant to Section 404 of Xxxxxxxx-Xxxxx; and
(b) upon
the
earlier of the date that is 60 days after the end of each of the first three
fiscal quarters of each fiscal year of the Company or the date such information
is filed with the SEC, a consolidated and consolidating balance sheet of the
Company and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated and consolidating statements of income or operations,
shareholdersβ equity and cash flows for such fiscal quarter and for the portion
of the Companyβs fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter 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 Company
as fairly presenting the financial condition, results of operations,
shareholdersβ equity and cash flows of the Company and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and
the
absence of footnotes.
As
to any
information contained in materials furnished pursuant to Section 7.02(b), the
Company shall not be separately required to furnish such information under
Section 7.01(a) or (b), but the foregoing shall not be in derogation of the
obligation of the Company to furnish the information and materials described
in
Sections 7.01(a) and (b) at the times specified therein.
7.02 Certificates;
Other Information.
Deliver
to the Administrative Agent, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:
(a) concurrently
with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by
a Responsible Officer of the Company;
(b) promptly
after the same are available, copies of each Form 10-K, Form 10-Q, Form 8-K
and
Form S-3, in each case, as filed with the SEC;
(c) promptly
upon receipt thereof, copies of all notices, requests and other documents
received by any Loan Party or any of its Subsidiaries under or pursuant to
any
instrument, indenture, loan or credit or similar agreement, in each case, that
is material, regarding or related to any breach or default by any party thereto
or any other event that could materially impair the value of the interests
or
the rights of any Loan Party or otherwise have a Material Adverse Effect and
copies of any amendment, modification or waiver of any provision of any
instrument, indenture, loan or credit or similar agreement and, from time to
time upon request by the Administrative Agent, such information and reports
regarding such instruments, indentures and loan and credit and similar
agreements as the Administrative Agent may reasonably request;
(d) promptly
after the assertion or occurrence thereof, notice of any Environmental Action
against or of any noncompliance by any Loan Party or any of its Subsidiaries
with any Environmental Law or Environmental Permit that could reasonably be
expected to have a Material Adverse Effect; and
(e) promptly,
such additional information regarding the business, financial or corporate
affairs of any Loan Party or any Subsidiary, or compliance with the terms of
the
Loan Documents, as the Administrative Agent or any Lender may from time to
time
reasonably request.
Documents
required to be delivered pursuant to Section 7.01(a) or (b) or Section 7.02(b)
(to the extent any such documents are included in materials otherwise filed
with
the SEC) may be delivered electronically and if so delivered, shall be deemed
to
have been delivered on the date (i) on which the Company posts such documents,
or provides a link thereto on the Companyβs website on the Internet at the
website address listed on Schedule 11.02; or (ii) on which such documents are
posted on the Companyβs behalf on IntraLinks/IntraAgency or another relevant
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Company shall deliver paper copies
of such documents to the Administrative Agent or any Lender that requests the
Company to deliver such paper copies until a written request to cease delivering
paper copies is given by the Administrative Agent or such Lender and (ii) the
Company shall notify (which may be by facsimile or electronic mail) the
Administrative Agent and each Lender of the posting of any such documents and
provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained
herein, in every instance the Company shall be required to provide paper copies
of the Compliance Certificates required by Section 7.02(a) to the Administrative
Agent. Except for such Compliance Certificates, the Administrative Agent shall
have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility
to
monitor compliance by the Company with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.
The
Company hereby acknowledges that (a) the Administrative Agent and/or BAS will
make available to the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of the Company hereunder (collectively, the βBorrower
Materialsβ) by posting the Borrower Materials on IntraLinks or another similar
electronic system (the βPlatformβ) and (b) certain of the Lenders may be
βpublic-sideβ Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Company or its securities) (each,
a
βPublic Lenderβ). The Company hereby agrees that (w) all Borrower Materials that
are to be made available to Public Lenders shall be clearly and conspicuously
marked βPUBLICβ which, at a minimum, shall mean that the word βPUBLICβ shall
appear prominently on the first page thereof; (x) by marking Borrower Materials
βPUBLIC,β the Company shall be deemed to have authorized the Administrative
Agent, BAS and the Lenders to treat such Borrower Materials as not containing
any material non-public information with respect to the Company or its
securities for purposes of United States federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 11.07); (y) all
Borrower Materials marked βPUBLICβ are permitted to be made available through a
portion of the Platform designated as βPublic Investor;β and (z) the
Administrative Agent and BAS shall be entitled to treat any Borrower Materials
that are not marked βPUBLICβ as being suitable only for posting on a portion of
the Platform not marked as βPublic Investor.β Notwithstanding the foregoing, the
Company shall be under no obligation to xxxx any Borrower Materials
βPUBLIC.β
7.03 Notices.
Promptly
notify the Administrative Agent and each Lender:
(a) within
10
days after any officer of any Loan Party obtains knowledge of the occurrence
of
any Default;
(b) within
10
days after any officer of any Loan Party obtains knowledge of any matter that
has resulted or could reasonably be expected to result in a Material Adverse
Effect;
(c) of
the
occurrence of any ERISA Event;
(d) of
any
material change in accounting policies or financial reporting practices by
the
Company; and
Each
notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Company setting forth details of the occurrence
referred to therein and stating what action the Company has taken and proposes
to take with respect thereto. Each notice pursuant to Section 7.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.
7.04 Payment
of Obligations.
Pay
and
discharge as the same shall become due and payable, all its obligations and
liabilities, including (a) all material tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless
the
same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained
by
such Loan Party or such Subsidiary; (b) all material lawful claims which, if
unpaid, would by law become a Lien upon its property; and (c) all material
Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.
7.05 Preservation
of Existence, Etc.
(a)
Preserve, renew and maintain in full force and effect its legal existence and
good standing under the Laws of the jurisdiction of its organization except
in a
transaction permitted by Section 8.04 or 8.05; provided, however, that the
Company and its Subsidiaries may cause to occur or consummate any merger or
consolidation permitted under Section 8.04 or dissolution permitted under
Section 8.05(f); (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary in the normal conduct
of
its business, except to the extent that failure to do so could not reasonably
be
expected to have a Material Adverse Effect; and (c) preserve or renew all of
its
registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material
Adverse Effect.
7.06 Maintenance
of Properties.
Maintain,
preserve and protect all of its material properties and equipment useful and
necessary in the operation of its business in good working order and condition,
ordinary wear and tear excepted.
7.07 Maintenance
of Insurance.
Maintain
with financially sound and reputable insurance companies not Affiliates of
any
Loan Party, insurance with respect to its properties and business against loss
or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons, provided that
insurance coverage in respect of terrorism shall not be required.
7.08 Compliance
with Laws.
Comply
in
all material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its business or property, except
in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted; or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.
7.09 Books
and Records.
Maintain
proper books of record and account, in which full, true and correct entries
in
conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Company or
such Subsidiary, as the case may be; and (b) maintain such books of record
and
account in material conformity with all applicable requirements of any
Governmental Authority having regulatory jurisdiction over such Loan Party
or
such Subsidiary, as the case may be.
7.10 Inspection
Rights.
Permit
representatives and independent contractors of the Administrative Agent and
each
Lender to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom,
and to discuss its affairs, finances and accounts with its officers, employees
and independent public accountants, all at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Company.
7.11 Use
of
Proceeds.
Use
the
proceeds of the Credit Extensions for working capital or other general corporate
purposes not in contravention of any Law or of any Loan Document.
7.12 Covenant
to Guarantee Obligations and Pledge Equity Interests.
Upon the
formation or acquisition of any new direct or indirect Domestic Subsidiaries
by
any Loan Party, then the Company shall, in each case at the Companyβs
expense:
(i) within
15 Business Days after such formation or acquisition, cause each such
Subsidiary, and cause each direct and indirect parent of such Subsidiary (if
it
has not already done so), to duly execute and deliver to the Administrative
Agent (A) a Joinder Agreement, in form and substance satisfactory to the
Administrative Agent guaranteeing the other Loan Partiesβ obligations under the
Loan Documents and (B) deliver to the Administrative Agent documents of the
types referred to in Sections 5.01(a)(ii), (iii), (iv) and (v),
(ii) within
60
days after such formation or acquisition, deliver to the Administrative Agent,
upon the request of the Administrative Agent in its sole discretion, a signed
copy of a favorable opinion with respect to such Subsidiary, addressed to the
Administrative Agent and the other Secured Parties, of counsel for the Loan
Parties reasonably acceptable to the Administrative Agent as to the matters
contained in the legal opinion delivered pursuant to Section
5.01(a)(vi)
with
respect to the Subsidiary Guarantors as of the Closing Date, and
(iii) at
any
time and from time to time, promptly execute and deliver any and all further
instruments and documents and take all such other action as the Administrative
Agent may deem reasonably necessary or desirable in obtaining the full benefits
of, or in perfecting and preserving the Liens of, such Joinder Agreement and
the
Pledge Agreement;
provided,
that
each Loan Party shall cause (A) 100% of the issued and outstanding Equity
Interests of each Domestic Subsidiary and (B) 66% of the issued and outstanding
Equity Interests entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not
entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2))
in
each First-Tier Foreign Subsidiary to be subject at all times to a perfected
Lien in favor of the Administrative Agent pursuant to the terms and conditions
of the Collateral Documents, together with any filings and deliveries reasonably
necessary in connection therewith to perfect the security interests therein,
all
in form and substance reasonably satisfactory to the Administrative
Agent,
provided,
further however,
that
the Company shall be permitted to exempt any Subsidiary from the requirements
of
this Section 7.12 (whereby such Subsidiary will be a Non-Qualified Subsidiary
for purposes of this Agreement), so long as (x) the consolidated assets of
such
Non-Qualified Subsidiary shall not exceed 2.5% of the total assets of the
Company and its Subsidiaries, taken as a whole, and (y) the assets of all
Non-Qualified Subsidiaries, taken as a whole, shall not exceed 10% of the total
assets of the Company and its Subsidiaries taken as a whole.
7.13 Compliance
with Environmental Laws.
(a)
Comply, and cause all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; (b) obtain and renew all
Environmental Permits necessary for its operations and properties; and (c)
if
required by Environmental Law, conduct any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action necessary
to remove and clean up all Hazardous Materials from any of its properties,
in
accordance with the requirements of all Environmental Laws; except in each
case
of (a), (b) and/or (c) above, where such non-compliance does not or could not
be
reasonably expected to have a Material Adverse Effect; provided, however, that
no Loan Party nor any of its Subsidiaries shall be required to undertake any
such cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect to such
circumstances.
7.14 Further
Assurances.
Promptly upon request by the Administrative Agent, (i) correct any material
defect or error that may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof, and (ii) do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and re-register
any and all such further acts, deeds, certificates, assurances and other
instruments as the Administrative Agent may reasonably require from time to
time
in order to carry out more effectively the purposes of the Loan
Documents.
ARTICLE
VIII
So
long
as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder which is accrued and payable shall remain unpaid or unsatisfied,
or
any Letter of Credit shall remain outstanding, no Loan Party shall, nor shall
it
permit any Subsidiary to, directly or indirectly:
8.01 Liens.
Create,
incur, assume or suffer to exist any Lien upon any of its property, assets
or
revenues, whether now owned or hereafter acquired, or sign or file or suffer
to
exist under the Uniform Commercial Code of any jurisdiction a financing
statement that names the Loan Party or any of its Subsidiaries as debtor, or
sign or suffer to exist any security agreement authorizing any secured party
thereunder to file such financing statement, or assign any accounts or other
right to receive income, other than the following:
(a) Liens
pursuant to any Loan Document;
(b) Permitted
Liens;
(c) Liens
existing on the date hereof and listed on Schedule 8.01(c) and any renewals
or
extensions thereof, provided that the property covered thereby is not changed
and the amount not increased or the direct or any contingent obligor changed
and
any renewal or extension of the obligations secured or benefited thereby is
permitted by Section 8.03(b); and
(d) Liens
securing (i) factoring programs of Foreign Subsidiaries in an aggregate amount
up to $20,000,000 at any time outstanding and (ii) Indebtedness permitted by
Section 8.03(c) in an aggregate amount up to $25,000,000 at any time
outstanding.
8.02 Investments.
Make
or
hold any Investments, except:
(a) Investments
outstanding as of the Closing Date (such Investments in excess of $1,000,000
are
set forth on Schedule 8.02(a)) and any replacements of such Investments with
Investments of equal amount thereto;
(b) deposits
with, or time deposits with, including certificates of deposits issued by,
(i)
any office located in the United States of any bank or trust company that is
organized under the laws of the United States or any state thereof and has
capital surplus and undivided profits aggregating at least $100,000,000, (ii)
any Lender or (iii) any foreign bank for which S&P or Xxxxxβx issues a
rating of βAβ or higher and which has capital surplus and undivided profits
aggregating at least $100,000,000;
(c) Investments
held by any Loan Party or such Subsidiary in the form of Cash
Equivalents;
(d) Investments
made in another Person pursuant to a merger, stock or asset acquisition made
in
compliance with subsection (i) of Section 8.04(a);
(e) Investments
to the extent permitted pursuant to Section 8.03 or 8.08;
(f) Investments
consisting of Permitted Swap Obligations;
(g) Investments
in Blankets Business; and
(h) other
Investments in an aggregate amount not to exceed $50,000,000 (of which an
aggregate amount of up to $20,000,000 shall be available for Investments in
joint ventures of the Company or its Subsidiaries;
For
the
purposes hereof, the amount of any Investment shall be the original costs of
such Investment plus the cost of all additions thereto, without adjustments
for
increases or decreases in value, write-ups, write-downs or write-offs with
respect to such Investment.
8.03 Indebtedness.
Create,
incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness
under this Agreement and the other Loan Documents;
(b) Indebtedness
(including, without limitation, credit lines) outstanding on the date hereof
and
listed on Schedule 8.03(b) and any refinancings, refundings, renewals or
extensions thereof; provided that the amount of such Indebtedness is not
increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount
paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized
thereunder and, in respect of any such Indebtedness that is material, the direct
and contingent obligors thereof shall not be changed, in each case, as a result
of or in connection with such refinancing, refunding, renewal or extension;
provided still further that the terms relating to principal amount,
amortization, maturity, collateral (if any) and subordination (if any), and
other material terms taken as a whole, of any such extending, refunding or
refinancing Indebtedness, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any material
respect to the Loan Parties or the Lenders than the terms of any agreement
or
instrument governing the Indebtedness being extended, refunded or
refinanced;
(c) Indebtedness
(in addition to the allowances in the other subsections of this Section 8.03)
in
an aggregate principal amount at any time outstanding not to exceed 10% of
Tangible Assets; provided that the Company and its Subsidiaries shall not be
permitted to incur additional Indebtedness under this subsection (c) during
the
existence of an Event of Default or if an Event of Default would occur after
giving effect to the incurrence of such Indebtedness;
(d) Indebtedness
consisting of Guarantees of the Company with respect to (i) Indebtedness of
any
Subsidiary to the extent that such Subsidiaryβs Indebtedness is permitted to be
incurred pursuant to a subsection (other than this subsection (d)) and (ii)
Indebtedness of any Person that is not a Subsidiary, provided that the aggregate
principal amount of such Indebtedness shall not at any time exceed $20,000,000
(without giving effect to any write-offs or write-downs of such
Indebtedness);
(e) intercompany
loans (i) involving only the Company and a Qualified Subsidiary, (ii) between
Qualified Subsidiaries, (iii) between Non-Qualified Subsidiaries, (iv) from
a
Non-Qualified Subsidiary to the Company or a Qualified Subsidiary, in each
case,
so long as the payee with respect to such intercompany loans is Solvent, both
before and after giving effect to such intercompany loan and (v) intercompany
loans from the Company or any Qualified Subsidiary to a Non-Qualified Subsidiary
in an aggregate amount for all such Indebtedness under this clause (v) not
to
exceed $20,000,000 at any time;
(f) Indebtedness
consisting of Permitted Swap Obligations; and
(g) Indebtedness
(other than Indebtedness of a type described in subsections (a) through (f)
above) subordinated to Indebtedness under this Agreement.
8.04 Fundamental
Changes.
Merge,
dissolve, liquidate, consolidate with or into another Person, or Dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) to or in favor
of
any Person, except that, so long as no Default exists or would result
therefrom:
(a) the
Company or any Subsidiary may merge with or acquire another Person, through
a
stock, asset or any other similar transaction, which is the business of
specialty chemicals or any related business and related equipment if (i) the
Company or such Subsidiary is the surviving entity, (ii) such acquisition is
friendly and is done with the recommendation of the acquireeβs board of
directors or similar governing body and (iii) the Company has delivered to
the
Administrative Agent a certificate executed by a Responsible Officer (A)
certifying that no Default has occurred and is continuing both before and after
giving effect to such transaction and (B) demonstrating pro forma compliance
with Section 8.11 after giving effect to such transaction; and
(b) any
Subsidiary of a Loan Party may merge with a Loan Party or a Wholly-Owned
Consolidated Subsidiary of a Loan Party if (i) such Loan Party or such
Wholly-Owned Consolidated Subsidiary, as the case may be, is the surviving
entity of such merger and (ii) immediately after giving effect to such merger,
no Default shall have occurred or be continuing.
8.05 Dispositions.
Make
any
Disposition or enter into any agreement to make any Disposition,
except:
(a) Dispositions
of obsolete or worn out property, whether now owned or hereafter acquired,
in
the ordinary course of business;
(b) Dispositions
of inventory in the ordinary course of business;
(c) Dispositions
by the Company to any Qualified Subsidiary;
(d) other
Dispositions (i) for fair market value, (ii) the proceeds of which shall be
reinvested into the business of the Company and its Subsidiaries within 270
days
from receipt of the Net Cash Proceeds therefor and (iii) so long as the Loan
Parties are in pro forma compliance with the covenants contained in Section
8.11,
both
before and after giving effect to such Disposition;
(e) Disposition
of Colorspan and/or the Blankets Business;
(f) the
dissolution of any Subsidiary that (i) is not a Loan Party and (ii) is not
material to the business of the Company and its Subsidiaries, taken as a
whole;
(g) other
Dispositions in an aggregate amount not to exceed $5,000,000 during the term
of
this Agreement; and
(h) Dispositions
otherwise expressly permitted under the terms of this Agreement.
8.06 Restricted
Payments.
Declare
or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, or issue or sell any Equity Interests or
accept any capital contributions, other than (a) so long as no Default shall
have occurred and be continuing at the time of any action described below or
would result therefrom, Restricted Payments in an aggregate amount for all
such
Restricted Payments not to exceed $130,000,000, such amount increased on a
cumulative basis by 50% of Consolidated Net Income and decreased on a cumulative
basis by 100% of consolidated net losses (other than non-cash losses) and (b)
in
addition to Restricted Payments permitted under subsection (a) above, cash
dividends by the Company not to exceed an aggregate amount of up to $8,000,000
in any fiscal year of the Company; provided that this Section 8.06 shall not
prohibit any dividend or distribution within 60 days after the declaration
thereof if such declaration was not prohibited by this Section 8.06; provided
further that, notwithstanding the foregoing, this Section 8.06 shall not
prohibit or otherwise restrict the use of Excess Cash to repurchase capital
stock of the Company, but solely to the extent that no Revolving Credit Loans
are outstanding at the time of any such repurchase.
8.07 Change
in Nature of Business.
Engage
in
any material line of business substantially different from those lines of
business conducted by the Company and its Subsidiaries on the date hereof or
any
business substantially related or incidental thereto.
8.08 Transactions
with Affiliates.
Enter
into any transaction of any kind with any Affiliate of the Company, whether
or
not in the ordinary course of business, other than on fair and reasonable terms
substantially as favorable to the Company or such Subsidiary as would be
obtainable by the Company or such Subsidiary at the time in a comparable armβs
length transaction with a Person other than an Affiliate, provided that the
foregoing restriction shall not apply to:
(a) participation
by the Company or any Subsidiary in, or effecting any transaction in connection
with, any joint enterprise or other joint arrangement with any Affiliate if
the
Company or such Subsidiary, as applicable, participates in the ordinary course
of its business and on a basis no less advantageous than the basis on which
such
Affiliate participates;
(b) any
transactions among the Company and its wholly-owned Subsidiaries;
(c) any
payment from any Subsidiary to the Company; or
(d) intercompany
Indebtedness permitted under Section 8.03.
8.09 Burdensome
Agreements.
Enter
into or permit to exist any Contractual Obligation (other than this Agreement
or
any other Loan Document) that (a) limits the ability (i) of any Loan Party
to
perform its obligations under any Loan Document or (ii) except as permitted
under Section 8.01, of the Company or any Subsidiary to create, incur, assume
or
suffer to exist Liens on property of such Person or (b) requires the grant
of a
Lien to secure an obligation of such Person if a Lien is granted to secure
another obligation of such Person.
8.10 Use
of
Proceeds.
Use
the
proceeds of any Credit Extension, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others
for the purpose of purchasing or carrying margin stock or to refund Indebtedness
originally incurred for such purpose.
8.11 Financial
Covenants.
(a) Consolidated
Interest Coverage Ratio.
Permit
the Consolidated Interest Coverage Ratio as of the end of any fiscal quarter
of
the Company to be less than (i) for any fiscal quarter ending during the period
from the Closing Date to and including December 31, 2006, 2.75 to 1.0 and (ii)
for any fiscal quarter ending on and after March 31, 2007, 3.0 to
1.0.
(b) Consolidated
Leverage Ratio.
Permit
the Consolidated Leverage Ratio as of the end of any fiscal quarter of the
Company to be greater than (i) for any fiscal quarter period ending during
the
period from the Closing Date to and including December 31, 2006, 3.5 to 1.0
and
(ii) for any fiscal quarter ending on and after March 31, 2007, 3.25 to
1.0.
(c) Consolidated
Senior Leverage Ratio.
Permit
the Consolidated Senior Leverage Ratio as of the end of any fiscal quarter
of
the Company to be greater than 2.0 to 1.0.
8.12 Amendments
of Organization Documents.
Amend
any of its Organization Documents in any manner that would conflict with its
obligations under the Loan Documents.
8.13 Accounting
Changes.
Make
any (a) significant change in accounting policies or reporting practices, except
as permitted or required by generally accepted accounting principles, or
(b) change its fiscal year.
8.14 Prepayments,
Etc. of Indebtedness.
Unless
the Company can demonstrate to the Administrative Agent, in a certificate of
a
Responsible Officer of the Company, pro forma compliance with the covenants
contained in Section 8.11, both before and after giving effect to such
prepayment, redemption, purchase, defeasance or other satisfaction of such
Indebtedness, (a) prepay, redeem, purchase, defease or otherwise satisfy prior
to the scheduled maturity thereof in any manner, or make any payment in
violation of any subordination terms of, any Indebtedness in an amount in excess
of $5,000,000, except (i) the prepayment of the Credit Extensions in
accordance with the terms of this Agreement and (ii) regularly scheduled or
required repayments or redemptions of Indebtedness listed on Schedule 8.03(b),
or (b) amend, modify or change in any material manner any term or condition
of
any such Indebtedness listed on Schedule 8.03(b).
ARTICLE
IX
9.01 Events
of Default.
Any
of
the following shall constitute an Event of Default:
(a) Non-Payment.
The
Company or any other Loan Party fails to pay (i) when and as required to be
paid
herein, any amount of principal of any Loan or any L/C Obligation, or (ii)
within five days after the same becomes due, any interest on any Loan or on
any
L/C Obligation, or any facility or other fee due hereunder, or (iii) within
five
days after the same becomes due, any other amount payable hereunder or under
any
other Loan Document; or
(b) Specific
Covenants.
The
Company fails to perform or observe any term, covenant or agreement contained
in
any of (i) Section 7.01, 7.02, or 7.03, if such failure continues for 3 Business
Days or (ii) Section 7.05, 7.09, 7.10, 7.11, 7.12 or Article VIII;
or
(c) Other
Defaults.
Any
Loan Party fails to perform or observe any other covenant or agreement (not
specified in Section 9.01(a) or (b) above) contained in any Loan Document on
its
part to be performed or observed and such failure continues for 30 days;
or
(d) Representations
and Warranties.
Any
representation, warranty, certification or statement of fact made or deemed
made
by or on behalf of the Company or any other Loan Party herein, in any other
Loan
Document, or in any document delivered in connection herewith or therewith
shall
be incorrect or misleading, in each case in any material respect, when made
or
deemed made; or
(e) Cross-Default.
(i) Any
Loan Party or any Significant Subsidiary (A) fails to make any payment when
due
(whether by scheduled maturity, required prepayment, acceleration, demand,
or
otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness
hereunder and Indebtedness under Swap Contracts) having an aggregate principal
amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement)
of
more than the Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee in excess
of the Threshold Amount or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee
or agent on behalf of such holder or holders or beneficiary or beneficiaries)
to
cause, with the giving of notice if required, such Indebtedness to be demanded
or to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease or
redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be
demanded; or (ii) there occurs under any Swap Contract an Early Termination
Date
(as defined in such Swap Contract) resulting from (A) any event of default
under
such Swap Contract as to which the Company or any Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (B) any Termination Event (as so
defined) under such Swap Contract as to which the Company or any Subsidiary
is
an Affected Party (as defined in such Swap Contract) and, in either event,
the
Swap Termination Value owed by the Loan Party or such Subsidiary as a result
thereof is greater than the Threshold Amount; or
(f) Insolvency
Proceedings, Etc.
Any
Loan Party or any Significant Subsidiary institutes or consents to the
institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of
its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any
such Person or to all or any material part of its property is instituted without
the consent of such Person and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; or
(g) Inability
to Pay Debts; Attachment.
(i) Any
Loan Party or any Significant Subsidiary becomes unable or admits in writing
its
inability or fails generally to pay its debts as they become due, or (ii) any
writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person
and
is not released, vacated or fully bonded within 30 days after its issue or
levy;
or
(h) Judgments.
There
is entered against any Loan Party or any Subsidiary (i) a final judgment or
order for the payment of money in an aggregate amount exceeding the Threshold
Amount (to the extent not covered by independent third-party insurance as to
which the insurer is rated at least βAβ by A.M. Best Company and does not
dispute coverage), or (ii) any one or more non-monetary final judgments that
have, or could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect and, in either case, (A) enforcement proceedings
are
commenced by any creditor upon such judgment or order, or (B) there is a period
of 30 consecutive days during which a stay of enforcement of such judgment,
by
reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA.
(i) An
ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which
has resulted or could reasonably be expected to result in a Material Adverse
Effect, or (ii) the Company or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount;
or
(j) Invalidity
of Loan Documents.
Any
material provision of any Loan Document, at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in
full
force and effect; or any Loan Party contests in any manner the validity or
enforceability of any material provision of any Loan Document; or any Loan
Party
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
(k) Change
of Control.
There
occurs any Change of Control; or
(l) Collateral
Document.
Any
Collateral Document after delivery thereof pursuant to Section 5.01 or 7.12
shall for any reason (other than pursuant to the terms thereof) cease to create
a valid and perfected first priority lien on and security interest in the
Collateral purported to be covered thereby and is not, upon the written request
of the Administrative Agent, promptly corrected; or
9.02 Remedies
Upon Event of Default.
If
any
Event of Default occurs and is continuing, the Administrative Agent shall,
at
the request of, or may, with the consent of, the Required Lenders, take any
or
all of the following actions:
(a) declare
the commitment of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments
and
obligation shall be terminated;
(b) declare
the unpaid principal amount of all outstanding Loans, all interest accrued
and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Company;
(c) require
that the Company Cash Collateralize the L/C Obligations (in an amount equal
to
the then Outstanding Amount thereof); and
(d) exercise
on behalf of itself, the Lenders and the L/C Issuer all rights and remedies
available to it, the Lenders and the L/C Issuer under the Loan Documents or
applicable Law;
provided,
however,
that
upon the occurrence of an actual or deemed entry of an order for relief with
respect to any Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of the L/C Issuer
to
make L/C Credit Extensions shall automatically terminate, the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable, and the obligation of the Company
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.
9.03 Application
of Funds.
After
the
exercise of remedies provided for in Section 9.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have
automatically been required to be Cash Collateralized as set forth in the
proviso to Section 9.02), any amounts received on account of the Obligations
shall be applied by the Administrative Agent in the following
order:
First,
to
payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under
Article III) payable to the Administrative Agent in its capacity as
such;
Second,
to
payment of that portion of the Obligations constituting fees, indemnities and
other amounts (other than principal and interest) payable to the Lenders
(including Attorney Costs and amounts payable under Article III), ratably among
them in proportion to the amounts described in this clause Second payable to
them;
Third,
to
payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and L/C Borrowings, ratably among the Lenders in
proportion to the respective amounts described in this clause Third payable
to
them;
Fourth,
to (a)
payment of that portion of the Obligations constituting unpaid principal of
the
Loans and L/C Borrowings, (b) payment of breakage, termination or other
payments, and any interest accrued thereon, due under any Secured Hedge
Agreement and (c) payments of amounts due under any Treasury Management
Agreement between any Loan Party and any Lender, or any Affiliate of a Lender,
ratably among the Lenders, the L/C Issuer, the Hedge Banks and any Affiliate
of
a Lender in proportion to the respective amounts described in this clause Fourth
payable to or held by them;
Fifth,
to the
Administrative Agent for the account of the L/C Issuer, to Cash Collateralize
that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit;
Sixth,
to the
payment of all other Obligations of the Loan Parties owing under or in respect
of the Loan Documents that are due and payable to the Administrative Agent
and
the other Secured Parties on such date, ratably based upon the respective
aggregate amounts of all such Obligations owing to the Administrative Agent
and
the other Secured Parties on such date; and
Last,
the
balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Company or as otherwise required by Law.
Subject
to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Fifth above shall be applied
to
satisfy drawings under such Letters of Credit as they occur. If any amount
remains on deposit as Cash Collateral after all Letters of Credit have either
been fully drawn or expired, such remaining amount shall be applied to the
other
Obligations, if any, in the order set forth above.
ARTICLE
X
ADMINISTRATIVE
AGENT
10.01 Appointment
and Authority.
(a) Each
of
the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America
to
act on its behalf as the Administrative Agent hereunder and under the other
Loan
Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto. The provisions of this Article are solely for
the
benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither
the Company nor any other Loan Party shall have rights as a third party
beneficiary of any of such provisions.
(b) The
Administrative Agent shall also act as the βcollateral agentβ under the Loan
Documents, and each of the Lenders (in its capacities as a Lender, Swing Line
Lender and potential Hedge Bank) and the L/C Issuer hereby irrevocably appoints
and authorizes the Administrative Agent to act as the agent of such Lender
and
the L/C Issuer for purposes of acquiring, holding and enforcing any and all
Liens on Collateral granted by any of the Loan Parties to secure any of the
Obligations, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Administrative Agent, as βcollateral
agentβ and any co-agents, sub-agents and attorneys-in-fact appointed by the
Administrative Agent pursuant to Section 10.02 for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under
the
Collateral Documents, or for exercising any rights and remedies thereunder
at
the direction of the Administrative Agent), shall be entitled to the benefits
of
all provisions of this Article X and Article XI (including
Sections 11.04(c), as though such co-agents, sub-agents and
attorneys-in-fact were the βcollateral agentβ under the Loan Documents) as if
set forth in full herein with respect thereto.
10.02 Delegation
of Duties.
The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through
any
one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Article shall apply to any such sub-agent and
to
the Related Parties of the Administrative Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication
of
the credit facilities provided for herein as well as activities as
Administrative Agent.
10.03 Rights
as a Lender.
The
Person serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise
the
same as though it were not the Administrative Agent and the term βLenderβ or
βLendersβ shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the
Company or any Subsidiary or other Affiliate thereof as if such Person were
not
the Administrative Agent hereunder and without any duty to account therefor
to
the Lenders.
10.04 Exculpatory
Provisions.
The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents. Without limiting
the
generality of the foregoing, the Administrative Agent:
(a) shall
not
be subject to any fiduciary or other implied duties, regardless of whether
a
Default has occurred and is continuing;
(b) shall
not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
or
by the other Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number
or
percentage of the Lenders as shall be expressly provided for herein or in the
other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any
Loan
Document or applicable law; and
(c) shall
not, except as expressly set forth herein and in the other Loan Documents,
have
any duty to disclose, and shall not be liable for the failure to disclose,
any
information relating to the Company or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or
any of its Affiliates in any capacity.
The
Administrative Agent shall not be liable for any action taken or not taken
by it
(i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under
the
circumstances as provided in Sections
11.01
and
9.02)
or (ii)
in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until notice describing such Default is given to the Administrative Agent
by
the Company, a Lender or the L/C Issuer.
The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents
of
any certificate, report or other document delivered hereunder or thereunder
or
in connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or
any
other agreement, instrument or document, or the creation, perfection or priority
of any Lien purported to be created by the Collateral Documents, (v) the value
or the sufficiency of any Collateral, or (v) the satisfaction of any condition
set forth in Article
V
or
elsewhere herein, other than to confirm receipt of items expressly required
to
be delivered to the Administrative Agent.
(a) The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by
it to be genuine and to have been signed, sent or otherwise authenticated by
the
proper Person. The Administrative Agent also may rely upon any statement made
to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Company), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by
it
in accordance with the advice of any such counsel, accountants or
experts.
(b) Without
limiting the generality of the provisions of Section 10.04, for purposes of
determining compliance with the conditions specified in Section 5.01, each
Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
10.06 Non-Reliance
on Administrative Agent and Other Lenders.
Each
Lender and the L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
10.07 Resignation
of Administrative Agent.
The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuer and the Company. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with
the
Company, to appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint
a
successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Company and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (a) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents (except
that
in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the
retiring Administrative Agent shall continue to hold such collateral security
until such time as a successor Administrative Agent is appointed) and
(b) all payments, communications and determinations provided to be made by,
to or through the Administrative Agent shall instead be made by or to each
Lender and the L/C Issuer directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successorβs appointment as Administrative Agent
hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Company to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After the retiring Administrative
Agentβs resignation hereunder and under the other Loan Documents, the provisions
of this Article and Section 11.04 shall continue in effect for the benefit
of such retiring Administrative Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any
of
them while the retiring Administrative Agent was acting as Administrative
Agent.
Any
resignation by Bank of America as Administrative Agent pursuant to this Section
shall also constitute its resignation as L/C Issuer and Swing Line Lender.
Upon
the acceptance of a successorβs appointment as Administrative Agent hereunder,
(i) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender,
(ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from
all
of their respective duties and obligations hereunder or under the other Loan
Documents, and (iii) the successor L/C Issuer shall issue letters of credit
in
substitution for the Letters of Credit, if any, outstanding at the time of
such
succession or make other arrangements satisfactory to the retiring L/C Issuer
to
effectively assume the obligations of the retiring L/C Issuer with respect
to
such Letters of Credit.
10.08 Administrative
Agent May File Proofs of Claim.
In case
of the pendency of any proceeding under any Debtor Relief Law or any other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall
then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand
on
the Company) shall be entitled and empowered, by intervention in such proceeding
or otherwise
(a) to
file
and prove a claim for the whole amount of the principal and interest owing
and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that
are owing and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders, the L/C Issuer and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders, the L/C Issuer and the Administrative Agent under
Sections 2.03(i) and (j) and 2.09) allowed in such judicial proceeding;
and
(b) to
collect and receive any monies or other property payable or deliverable on
any
such claims and to distribute the same;
and
any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender and the L/C Issuer to make such payments to the Administrative Agent
and,
if the Administrative Agent shall consent to the making of such payments
directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent
any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other
amounts due the Administrative Agent under Sections 2.09.
Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or the L/C
Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or the L/C Issuer to
authorize the Administrative Agent to vote in respect of the claim of any Lender
or the L/C Issuer or in any such proceeding.
10.09 Collateral
and Guaranty Matters.
The
Lenders and the L/C Issuer irrevocably authorize the Administrative Agent,
at
its option and in its discretion,
(a) to
release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments and
payment in full of all Obligations (other than contingent indemnification
obligations not yet accrued and payable) and the expiration or termination
of
all Letters of Credit, (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan Document,
or (iii) subject to Section 11.01, if approved, authorized or ratified in
writing by the Required Lenders; and
(b) to
release any Subsidiary Guarantor from its obligations under the Guaranty if
such
Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.
Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agentβs authority to release its interest
in particular types or items of property, or to release any Guarantor from
its
obligations under the Guaranty pursuant to this Section 10.09. In each case
as
specified in this Section 10.09, the Administrative Agent will, at the Companyβs
expense, execute and deliver to the applicable Loan Party such documents as
such
Loan Party may reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted under the
Collateral Documents, or to release such Guarantor from its obligations under
the Guaranty, in each case in accordance with the terms of the Loan Documents
and this Section 10.09.
10.10 Assignment
under Dutch Law.
In
connection with any assignment and delegation of all, or any part of, Loans,
the
Commitments, the L/C Obligations and the other rights or obligations of any
Lender (or former Lender) hereunder, the Administrative Agent is authorized
on
behalf of both the assignor Lender and the assignee Lender, without necessity
of
any notice to or further consent from such Lenders (or former Lenders, if
applicable), to take any action the Administrative Agent deems reasonably
necessary or appropriate to assign a corresponding interest in the community
of
Lenders (which is a community in accordance with Article 166 (and subsequent
articles) of Book 3 of the Dutch Civil Code), including, without limitation,
the
rights and interests of such assignor Lender (whether held directly or
indirectly through the Administrative Agent) under any Loan Documents in any
pledged stock or equity interest of any corporation or other legal entity
organized under the laws of the Kingdom of the Netherlands and constituting
Collateral, to the assignee Lender. The Administrative Agent will notify the
Company and each pledgor of any pledged stock or entity on interests of any
such
corporation or other legal entity organized under the laws of the Kingdom of
the
Netherlands of the assignment of the rights under this Agreement and under
any
deed of pledge or similar Loan Documents evidencing such security interests
to
the assignee Lender in writing in advance. Each such pledgor and the Company
acknowledge and agree that Lenders may assign their interests from time to
time
as described in this Section 10.10.
10.11 No
Other Duties, Etc.
Anything herein to the contrary notwithstanding, neither the Book Manager or
Lead Arranger listed on the cover page hereof shall have any powers, duties
or
responsibilities under this Agreement or any of the other Loan Documents, except
in its capacity, as applicable, as the Administrative Agent, a Lender or the
L/C
Issuer hereunder.
ARTICLE
XI
11.01 Amendments,
Etc.
No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Company or any other Loan
Party
therefrom, shall be effective unless in writing signed by the Required Lenders
and the Company or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, waiver or consent
shall:
(a) waive
any
condition set forth in Section 5.01(a), or, in the case of the initial Credit
Extension, Section 5.02, without the written consent of each
Lender;
(b) extend
or
increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 9.02) without the written consent of such
Lender;
(c) postpone
any date scheduled for any payment of principal or interest under Sections
2.07
or 2.08, or any date fixed by the Administrative Agent for the payment of fees
or other amounts due to the Lenders (or any of them) hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby;
(d) reduce
the principal of, or the rate of interest specified herein on, any Loan or
L/C
Borrowing, or (subject to clause (iv) of the second proviso to this
Section 11.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required Lenders shall
be necessary (i) to amend the definition of βDefault Rateβ or to waive any
obligation of the Company to pay interest at the Default Rate or (ii) to amend
any financial covenant hereunder (or any defined term used therein) even if
the
effect of such amendment would be to reduce the rate of interest on any Loan
or
L/C Borrowing or to reduce any fee payable hereunder;
(e) change
any provision of this Section 11.01 or the definition of βRequired Lendersβ or
any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender;
(f) release
all or substantially all of the Collateral in any transaction or series of
related transactions, without the written consent of each Lender;
(g) release
the Company or any Designated Borrower or all or substantially all of the
Subsidiary Guarantors, from its or their obligations under the Loan Documents
without the written consent of each Lender directly affected thereby;
or
(h) impose
any greater restriction on the ability of any Lender to assign any of its rights
or obligations hereunder without the written consent of Lenders having more
than
50% of the Aggregate Credit Exposures then in effect. For purposes of this
clause, the aggregate amount of each Lenderβs risk participation and funded
participation in L/C Obligations and Swing Line Loans shall be deemed to be
held
by such Lender;
and
provided further
that (i)
no amendment, waiver or consent shall, unless in writing and signed by the
L/C
Issuer in addition to the Lenders required above, affect the rights or duties
of
the L/C Issuer under this Agreement or any Issuer Document relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Swing Line Lender in addition
to the Lenders required above, affect the rights or duties of the Swing Line
Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of, or any fees or other amounts
payable to, the Administrative Agent under this Agreement or any other Loan
Document; and (iv) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall
have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
(a) Notices
Generally.
Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in subsection (b) below), all notices
and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall
be
made to the applicable telephone number, as follows:
(i) if
to the
Company, the Administrative Agent, the L/C Issuer or the Swing Line Lender,
to
the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 11.02; and
(ii) if
to any
other Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire.
Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below shall be effective as provided in such
subsection (b).
(b) Electronic
Communications.
Notices
and other communications to the Lenders and the L/C Issuer hereunder may be
delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, provided that the foregoing shall not apply to notices
to
any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C
Issuer, as applicable, has notified the Administrative Agent that it is
incapable of receiving notices under such Article by electronic communication.
The Administrative Agent or the Company may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures
may be limited to particular notices or communications.
Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
senderβs receipt of an acknowledgement from the intended recipient (such as by
the βreturn receipt requestedβ function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication
is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business
on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described
in
the foregoing clause (i) of notification that such notice or communication
is available and identifying the website address therefor.
(c) The
Platform.
THE
PLATFORM IS PROVIDED βAS ISβ AND βAS AVAILABLE.β THE AGENT PARTIES (AS DEFINED
BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS
OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN
OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH
THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent
or any of its Related Parties (collectively, the βAgent Partiesβ) have any
liability to any Borrower, any Lender, the L/C Issuer or any other Person for
losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of any Borrowersβ or the Administrative
Agentβs transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined
by a court of competent jurisdiction by a final and nonappealable judgment
to
have resulted from the gross negligence or willful misconduct of such Agent
Party; provided, however, that in no event shall any Agent Party have any
liability to any Borrower, any Lender, the L/C Issuer or any other Person for
indirect, special, incidental, consequential or punitive damages (as opposed
to
direct or actual damages).
(d) Change
of Address, Etc.
Each of
the Company, the Administrative Agent, the L/C Issuer and the Swing Line Lender
may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Company, the Administrative
Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees
to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices
and other communications may be sent and (ii) accurate wire instructions for
such Lender.
(e) Reliance
by Administrative Agent, L/C Issuer and Lenders.
The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Committed Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of any 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 Borrowers shall indemnify the Administrative Agent, the L/C Issuer,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrowers. All telephonic
notices to and other telephonic communications with the Administrative Agent
may
be recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
11.03 No
Waiver; Cumulative Remedies.
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
or any other Loan Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided, and provided under each other Loan Document, are cumulative
and
not exclusive of any rights, remedies, powers and privileges provided by
law.
(a) Costs
and Expenses.
The
Loan Parties shall pay (i) all reasonable out-of-pocket expenses incurred
by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in
connection with the syndication of the credit facilities provided for herein,
the preparation, negotiation, execution, delivery and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all reasonable out-of-pocket expenses
incurred by the Administrative Agent, any Lender or the L/C Issuer (including
the reasonable fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the L/C Issuer), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B)
in
connection with Loans made or Letters of Credit issued hereunder, including
all
such reasonable out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) Indemnification
by the Borrowers.
The
Borrowers shall indemnify the Administrative Agent (and any sub-agent thereof),
each Lender and the L/C Issuer, and each Related Party of any of the foregoing
Persons (each such Person being called an βIndemniteeβ) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities
and
related expenses (including the reasonable fees, charges and disbursements
of
any counsel for any Indemnitee), incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by any Borrower or any other Loan Party
arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
of their respective obligations hereunder or thereunder or the consummation
of
the transactions contemplated hereby or thereby, or, in the case of the
Administrative Agent (and any sub-agent thereof) and its Related Parties only,
the administration of this Agreement and the other Loan Documents, (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under
a
Letter of Credit if the documents presented in connection with such demand
do
not strictly comply with the terms of such Letter of Credit), (iii) any
actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Company or any of its Subsidiaries, or any
Environmental Liability related in any way to the Company or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based
on
contract, tort or any other theory, whether brought by a third party or by
the
Company or any other Loan Party or any of the Companyβs or such Loan Partyβs
directors, shareholders or creditors, and regardless of whether any Indemnitee
is a party thereto; provided
that
such indemnity shall not, as to any Indemnitee, be available to the extent
that
such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Company or any
other Loan Party against an Indemnitee for a material breach of such
Indemniteeβs obligations hereunder or under any other Loan Document, if the
Company or such Loan Party has obtained a final and nonappealable judgment
in
its favor on such claim as determined by a court of competent
jurisdiction.
(c) Reimbursement
by Lenders.
To the
extent that any Borrower for any reason fails to indefeasibly pay any amount
required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any
Related Party of any of the foregoing, each Lender severally agrees to pay
to
the Administrative Agent (or any such sub-agent), the L/C Issuer or such Related
Party, as the case may be, such Lenderβs Pro Rata Share (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought)
of
such unpaid amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by
or asserted against the Administrative Agent (or any such sub-agent) or the
L/C
Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) or L/C
Issuer in connection with such capacity. The obligations of the Lenders under
this subsection (c) are subject to the provisions of
Section 2.12(d).
(d) Waiver
of Consequential Damages, Etc.
To the
fullest extent permitted by applicable law, no Borrower shall assert, and each
Borrower hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred
to in subsection (b) above shall be liable for any damages arising from the
use
by unintended recipients of any information or other materials distributed
to
such unintended recipients by such Indemnitee through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby
or
thereby other than for direct or actual damages resulting from the gross
negligence or willful misconduct of such Indemnitee as determined by a final
and
nonappealable judgment of a court of competent jurisdiction.
(e) Payments.
All
amounts due under this Section shall be payable not later than ten Business
Days
after written demand therefor.
(f) Survival.
The
agreements in this Section shall survive the resignation of the Administrative
Agent , the L/C Issuer and the Swing Line Lender, the replacement of any Lender,
the termination of the Aggregate Commitments and the repayment, satisfaction
or
discharge of all the other Obligations.
11.05 Payments
Set Aside.
To
the
extent that any payment by or on behalf of any Borrower is made to the
Administrative Agent or any Lender, or the Administrative Agent or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent
or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent or such Lender in its discretion)
to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent
of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
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 higher of the Federal Funds Rate from
time
to time in effect and the cost of funds incurred by the Administrative Agent
in
respect of such amount in the case of Loans denominated in Committed
Currencies.
11.06 Successors
and Assigns.
(a) Successors
and Assigns Generally.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby,
except that no Borrower nor any other Loan Party may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender and no Lender may assign
or
otherwise transfer any of its rights or obligations hereunder except (i) to
an
assignee in accordance with the provisions of Section 11.06(b), (ii) by way
of
participation in accordance with the provisions of Section 11.06(d), or (iii)
by
way of pledge or assignment of a security interest subject to the restrictions
of Section 11.06(f) (and any other attempted assignment or transfer by any
party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments
by Lenders.
Any
Lender may at any time assign to one or more assignees all or a portion of
its
rights and obligations under this Agreement (including all or a portion of
its
Commitment(s) and the Loans (including for purposes of this Section
11.06(b),
participations in L/C Obligations and in Swing Line Loans) at the time owing
to
it); provided
that any
such assignment shall be subject to the following conditions:
(i) Minimum
Amounts.
(A) in
the
case of an assignment of the entire remaining amount of the assigning Lenderβs
Commitment under any Facility and the Loans at the time owing to it under such
Facility or in the case of an assignment to a Lender, an Affiliate of a Lender
or an Approved Fund, no minimum amount need be assigned; and
(B) in
any
case not described in subsection (b)(i)(A) of this Section, the aggregate amount
of the Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment, determined
as of the date the Assignment and Assumption with respect to such assignment
is
delivered to the Administrative Agent or, if βTrade Dateβ is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000, in the case of any assignment in respect of the Revolving Credit
Facility, unless each of the Administrative Agent and, so long as no Event
of
Default has occurred and is continuing, the Company otherwise consents (each
such consent not to be unreasonably withheld or delayed); provided,
however,
that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee
(or
to an Eligible Assignee and members of its Assignee Group) will be treated
as a
single assignment for purposes of determining whether such minimum amount has
been met;
(ii) Proportionate
Amounts.
Each
partial assignment shall be made as an assignment of a proportionate part of
all
the assigning Lenderβs rights and obligations under this Agreement with respect
to the Loans or the Commitment assigned, except that this clause (ii) shall
not
(A) apply to the Swing Line Lenderβs rights and obligations in respect of Swing
Line Loans or (B) prohibit any Lender from assigning all or a portion of its
rights and obligations among separate Facilities on a non-pro rata
basis;
(iii) Required
Consents.
No
consent shall be required for any assignment except to the extent required
by
subsection (b)(i)(B) of this Section and, in addition:
(A) the
consent of the Company (such consent not to be unreasonably withheld or delayed)
shall be required unless (1) an Event of Default has occurred and is continuing
at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;
(B) the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of (i) any
Term Commitment or Revolving Credit Commitment if such assignment is to a Person
that is not a Lender with a Commitment in respect of the applicable Facility,
an
Affiliate of such Lender or an Approved Fund with respect to such Lender or
(ii)
any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or
an
Approved Fund; and
(C) the
consent of the L/C Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation
of
the assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding); and
(D) the
consent of the Swing Line Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment in respect of the Revolving
Credit Facility.
(iv) Assignment
and Assumption.
The
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Assumption, together with a processing and recordation fee
in
the amount, if any, required as set forth in Schedule
11.06;
provided,
however,
that
the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment. The assignee,
if
it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
(v) No
Assignment to Borrower.
No such
assignment shall be made to the Company or any of the Companyβs Affiliates or
Subsidiaries.
(vi) No
Assignment to Natural Persons.
No such
assignment shall be made to a natural person.
Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the assignee thereunder shall be a party
to
this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lenderβs rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections
3.01,
3.04,
3.05
and
11.04
with
respect to facts and circumstances occurring prior to the effective date of
such
assignment). Upon request, the applicable Borrower (at its expense) shall
execute and deliver a Note to the assignee Lender. Any assignment or transfer
by
a Lender of rights or obligations under this Agreement that does not comply
with
this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with
Section
11.06(d).
(c) Register.
The
Administrative Agent, acting solely for this purpose as an agent of the
applicable Borrower, shall maintain at the Administrative Agentβs Office a copy
of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments
of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the βRegisterβ). The entries in
the Register shall be conclusive, and the applicable 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 applicable Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Participations.
Any
Lender may at any time, without the consent of, or notice to, the Company or
the
Administrative Agent, sell participations to any Person (other than a natural
person or the Company or any of the Companyβs Affiliates or Subsidiaries) (each,
a βParticipantβ) in all or a portion of such Lenderβs rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the
Loans (including such Lenderβs participations in L/C Obligations and/or Swing
Line Loans) owing to it); provided that (i) such Lenderβs 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 applicable Borrower, the Administrative Agent, the Lenders
and the L/C Issuer shall continue to deal solely and directly with such Lender
in connection with such Lenderβs 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 described in the first proviso
to
Section 11.01 that affects such Participant. Subject to subsection (e) of this
Section, the Company agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section 11.06(b).
To the extent permitted by law, each Participant also shall be entitled to
the
benefits of Section 11.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) Limitations
upon Participant Rights.
A
Participant shall not be entitled to receive any greater payment under Section
3.01 or 3.04 than the applicable Lender would have been entitled to receive
with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Companyβs 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 Company is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the applicable, to comply with Section 3.01(e) as
though it were a Lender.
(f) Certain
Pledges.
Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its Note, if any)
to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder
or
substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) As
used
herein, the following terms have the following meanings:
βEligible
Assigneeβ
means
any Person that meets the requirements to be an assignee under Section
11.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be
required under Section 11.06(b)(iii)).
βFundβ
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.
βApproved
Fundβ
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.
(h) Electronic
Execution of Assignments.
The
words βexecution,β βsigned,β βsignature,β and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures
or
the keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature or
the
use of a paper-based recordkeeping system, as the case may be, to the extent
and
as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
(i) Resignation
as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Revolving Credit Commitments and Revolving Credit
Loans pursuant to Section 11.06(b), Bank of America may, (i) upon 30 daysβ
notice to the Company and the Lenders, resign as L/C Issuer and/or (ii) upon
30
daysβ notice to the Company, resign as Swing Line Lender. In the event of any
such resignation as L/C Issuer or Swing Line Lender, the Company shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing
Line
Lender hereunder; provided, however, that no failure by the Company to appoint
any such successor shall affect the resignation of Bank of America as L/C Issuer
or Swing Line Lender, as the case may be. If Bank of America resigns as L/C
Issuer, it shall retain all the rights, powers, privileges and duties of the
L/C
Issuer hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as L/C Issuer and all L/C Obligations with
respect thereto (including the right to require the Lenders to make Base Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain
all
the rights of the Swing Line Lender provided for hereunder with respect to
Swing
Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Loans
or fund risk participations in outstanding Swing Line Loans pursuant to Section
2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line
Lender, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line
Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters
of credit in substitution for the Letters of Credit, if any, outstanding at
the
time of such succession or make other arrangements satisfactory to Bank of
America to effectively assume the obligations of Bank of America with respect
to
such Letters of Credit.
11.07 Confidentiality.
Each
of
the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain
the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliatesβ
respective partners, directors, officers, employees, agents, advisors (including
accountants, legal counsel and other advisors) and representatives (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 (including any self-regulatory authority, such as the National
Association of Insurance Commissioners); (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process;
(d)
to any other party to this Agreement; (e) in connection with the exercise of
any
remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement, any suit, any other Loan Document or the enforcement
of rights hereunder or thereunder; (f) subject to an agreement containing
provisions substantially the same as those of this Section 11.07, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant
in,
any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the obligations of the Loan Parties; (g) with the consent of the
Company; (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section
11.07
or
(ii) becomes available to the Administrative Agent, any Lender, the L/C
Issuer or any of their respective Affiliates on a nonconfidential basis from
a
source other than the Company; or (j) to any rating agency when required by
it
(it being understood that, prior to any such disclosure, such rating agency
shall undertake to preserve the confidentiality of any Information relating
to
the Loan Parties received by it from such Lender). In addition, the
Administrative Agent and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to
the
Administrative Agent and the Lenders in connection with the administration
and
management of this Agreement, the other Loan Documents, the Commitments, and
the
Credit Extensions. βInformationβ
means
all information received from any Loan Party or any Subsidiary thereof relating
to any Loan Party or any Subsidiary thereof or their respective businesses,
other than any such information that is available to the Administrative Agent,
any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure
by
any Loan Party or any Subsidiary thereof, provided that, in the case of
information received from a Loan Party or any such Subsidiary after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section
11.07
shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential
information.
Each
of
the Administrative Agent, the Lenders and the L/C Issuer acknowledges that
(a)
the Information may include material non-public information concerning the
Company or a Subsidiary, as the case may be, (b) it has developed compliance
procedures regarding the use of material non-public information and (c) it
will
handle such material non-public information in accordance with applicable Law,
including Federal and state securities Laws.
11.08 Setoff.
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 and the making
of
the request or the granting of the consent specified by Section
9.02
to
authorize the Administrative Agent to declare the Loans due and payable pursuant
to the provisions of Section
9.02,
each
Lender and each of their respective Affiliates is authorized at any time and
from time to time, without prior notice to the Company or any other Loan Party,
any such notice being waived by the Company (on its own behalf and on behalf
of
each Loan Party) to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held by, and other Indebtedness at any time owing by, such Lender
to
or for the credit or the account of the respective Loan Parties against any
and
all Obligations owing to such Lender hereunder or under any other Loan Document,
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
or
denominated in a currency different from that of the applicable deposit or
Indebtedness. Each Lender agrees promptly to notify the Company 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 setoff
and
application. The rights of the Administrative Agent and each Lender and their
respective Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of setoff) that the
Administrative Agent, such Lender and their respective Affiliates may
have.
11.09 Interest
Rate Limitation.
Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid
or
agreed to be paid under the Loan Documents shall not exceed the maximum rate
of
non-usurious interest permitted by applicable Law (the βMaximum
Rateβ).
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 Company.
In determining whether the interest contracted for, charged, or received by
an
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
11.10 Counterparts.
This
Agreement and each other Loan Document 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. Delivery by telecopier
of
an executed counterpart of a signature page to this Agreement and each other
Loan Document shall be effective as delivery of an original executed counterpart
of this Agreement and such other Loan Document. The Administrative Agent may
also require that any such documents and signatures delivered by telecopier
be
confirmed by a manually-signed original thereof; provided that the failure
to
request or deliver the same shall not limit the effectiveness of any document
or
signature delivered by telecopier.
11.11 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 Agents
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.
11.12 Survival
of Representations and Warranties.
All
representations and warranties made hereunder and in any other Loan Document
or
other document delivered pursuant hereto or thereto or in connection herewith
or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made
by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge
of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
11.13 Severability.
If
any
provision of this Agreement or the other Loan Documents is held to be illegal,
invalid or unenforceable, (a) the legality, validity and enforceability of
the
remaining provisions of this Agreement and the other Loan Documents shall not
be
affected or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that
of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.14 Tax
Forms.
(a)
(i) Each
Lender that is not a βUnited States personβ within the meaning of Section
7701(a)(30) of the Code (a βForeign Lenderβ) shall deliver to the Administrative
Agent, prior to receipt of any payment subject to withholding under the Code
(or
upon 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
Foreign Lender and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Foreign Lender by the Company
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Foreign Lender by the Company
pursuant to this Agreement) or such other evidence satisfactory to the Company
and the Administrative Agent that such Foreign Lender is entitled to an
exemption from, or reduction of, U.S. withholding tax, including any exemption
pursuant to Section 881(c) of the Code. Thereafter and from time to time, each
such Foreign Lender shall (A) promptly submit to the Administrative Agent 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
Company and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to
be
made to such Foreign Lender by the Company pursuant to this Agreement, (B)
promptly notify the Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or reduction, 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 Company make any deduction or withholding for taxes from amounts
payable to such Foreign Lender
(ii) Each
Foreign Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Lender
under any of the Loan Documents (for example, in the case of a typical
participation by such Lender), shall deliver to the Administrative Agent on
the
date when such Foreign Lender ceases to act for its own account with respect
to
any portion of any such sums paid or payable, and at such other times as may
be
necessary in the determination of the Administrative Agent (in the reasonable
exercise of its discretion), (A) two duly signed completed copies of the forms
or statements required to be provided by such Lender as set forth above, to
establish the portion of any such sums paid or payable with respect to which
such Lender acts for its own account that is not subject to U.S. withholding
tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or any
successor thereto), together with any information such Lender chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish that such Lender is not acting for its
own
account with respect to a portion of any such sums payable to such
Lender.
(iii) The
Company shall not be required to pay any additional amount to any Foreign Lender
under Section 3.01 (A) with respect to any Taxes required to be deducted or
withheld on the basis of the information, certificates or statements of
exemption such Lender transmits with an IRS Form W-8IMY pursuant to this Section
11.14(a) or (B) if such Lender shall have failed to satisfy the foregoing
provisions of this Section 11.14(a); provided that if such Lender shall have
satisfied the requirement of this Section 11.14(a) on the date such Lender
became a Lender or ceased to act for its own account with respect to any payment
under any of the Loan Documents, nothing in this Section 11.14(a) shall relieve
the Company of its obligation to pay any amounts pursuant to Section 3.01 in
the
event that, as a result of any change in any applicable Law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced
rate.
(iv) The
Administrative Agent may, without reduction, withhold any Taxes required to
be
deducted and withheld from any payment under any of the Loan Documents with
respect to which the Company is not required to pay additional amounts under
this Section 11.14(a).
(b) Upon
the
request of the Administrative Agent, each Lender that is a βUnited States
personβ within the meaning of Section 7701(a)(30) of the Code shall deliver to
the Administrative Agent two duly signed completed copies of IRS Form W-9.
If
such Lender fails to deliver such forms, then the Administrative Agent may
withhold from any interest payment to such Lender an amount equivalent to the
applicable back-up withholding tax imposed by the Code, without
reduction.
(c) If
any
Governmental Authority asserts that the Administrative Agent did not properly
withhold or backup withhold, as the case may be, any tax or other amount from
payments made to or for the account of any Lender, such Lender shall indemnify
the Administrative Agent therefor, including all penalties and interest, any
taxes imposed by any jurisdiction on the amounts payable to the Administrative
Agent under this Section 11.14, and costs and expenses (including Attorney
Costs) of the Administrative Agent. The obligation of the Lenders under this
Section 11.14 shall survive the termination of the Aggregate Commitments,
repayment of all other Obligations hereunder and the resignation of the
Administrative Agent.
11.15 Replacement
of Lenders.
Under
any
circumstances set forth herein providing that the Company shall have the right
to replace a Lender as a party to this Agreement, the Company may, upon notice
to such Lender and the Administrative Agent, replace such Lender by causing
such
Lender to assign its Commitment (with the assignment fee to be paid by the
Company in such instance) pursuant to Section 11.06(b) to one or more other
Lenders or Eligible Assignees procured by the Company; provided, however, that
if the Company elects to exercise such right with respect to any Lender pursuant
to Section 3.06(b), it shall be obligated to replace all Lenders that have
made
similar requests for compensation pursuant to Section 3.01 or 3.04. The Company
shall (x) pay in full all principal, interest, fees and other amounts owing
to
such Lender through the date of replacement (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 and the
Swing Line Lender as each may reasonably require with respect to any continuing
obligation to fund participation interests in any L/C Obligations or any Swing
Line Loans 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 Assumption with respect to such Lenderβs Commitment and
outstanding Loans and participations in L/C Obligations and Swing Line
Loans.
11.16 Governing
Law.
THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN
ACCORDANCE WITH, the LAW OF THE STATE OF NEW YORK.
(a) 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 NEW YORK CITY
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH PARTY HERETO 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. EACH PARTY HERETO 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.
(b) EACH
LOAN
PARTY HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS US CORPORATION
SYSTEMS WITH OFFICES ON THE DATE HEREOF IN NEW YORK, NEW YORK (OR SUCH OTHER
AGENT TO RECEIVE SERVICE OF PROCESS IN NEW YORK, NEW YORK (OR SUCH OTHER AGENT
TO RECEIVE SERVICE OF PROCESS IN NEW YORK, NEW YORK AS IS REASONABLY ACCEPTABLE
TO THE ADMINISTRATIVE AGENT), AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE,
ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY,
SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH
MAY
BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE,
APPOINTEE, AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH LOAN
PARTY
AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK ON THE
TERMS
AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT
UNDER THIS AGREEMENT. EACH LOAN PARTY FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO SUCH LOAN PARTY AT ITS ADDRESS SET FORTH ON SCHEDULE 11.02,
SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT, ANY
LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY
BORROWER IN ANY OTHER JURISDICTION.
11.17 Judgment.
(a)
If for
the purposes of obtaining judgment in any court it is necessary to convert
a sum
due hereunder in Dollars into another currency, the parties hereto agree, to
the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase Dollars with such other currency at the
Administrative Agentβs principal office in London at 11:00 A.M. (London time) on
the Business Day preceding that on which final judgment is given.
(b) If
for
the purposes of obtaining judgment in any court it is necessary to convert
a sum
due hereunder in a Committed Currency into Dollars, the parties agree to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase such Committed Currency with Dollars at
the
Administrative Agentβs principal office in London at 11:00 A.M. (London time) on
the Business Day preceding that on which final judgment is given.
(c) The
obligation of the Company in respect of any sum due from it in any currency
(the
βPrimary Currencyβ) to any Lender or the Administrative Agent hereunder shall,
notwithstanding any judgment in any other currency, be discharged only to the
extent that on the Business Day following receipt by such Lender or the
Administrative Agent (as the case may be), of any sum adjudged to be so due
in
such other currency, such Lender or the Administrative Agent (as the case may
be) may in accordance with normal banking procedures purchase the applicable
Primary Currency with such other currency; if the amount of the applicable
Primary Currency so purchased is less than such sum due to such Lender or the
Administrative Agent (as the case may be) in the applicable Primary Currency,
the Company agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent (as the case
may
be) against such loss, and if the amount of the applicable Primary Currency
so
purchased exceeds such sum due to any Lender or the Administrative Agent (as
the
case may be) in the applicable Primary Currency, such Lender or the
Administrative Agent (as the case may be) agrees to remit to the Company such
excess.
11.18 Substitution
of Currency.
If a
change in any Committed Currency occurs pursuant to any applicable law, rule
or
regulation of any governmental, monetary or multi-national authority, this
Agreement (including, without limitation, the definitions of Eurocurrency Rate)
will be amended to the extent determined by the Administrative Agent (acting
reasonably and in consultation with the Company) to be necessary to reflect
the
change in currency and to put the Lenders and the Company in the same position,
so far as possible, that they would have been in if no change in such Committed
Currency had occurred.
11.19 Binding
Effect.
This
Agreement shall become effective when it shall have been executed by the Company
and the Administrative Agent shall have been notified by each Lender, Swing
Line
Lender and the L/C Issuer that each such Lender, Swing Line Lender and the
L/C
Issuer has executed it and thereafter shall be binding upon and inure to the
benefit of the Company, the Administrative Agent and each Lender and their
respective successors and assigns, except that the Company shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lenders.
11.20 Waiver
of Right to Trial by Jury.
EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
11.21 No
Advisory or Fiduciary Responsibility.
In
connection with all aspects of each transaction contemplated hereby, the Company
and the Loan Parties each acknowledge and agree, and acknowledge their
respective Affiliatesβ understanding, that: (i) the credit facility provided for
hereunder and any related arranging or other services in connection therewith
(including in connection with any amendment, waiver or other modification hereof
or of any other Loan Document) are an armβs-length commercial transaction
between the Company, each Loan Party and their respective Affiliates, on the
one
hand, and the Administrative Agent and BAS, on the other hand, and the Company
and each Loan Party is capable of evaluating and understanding and understands
and accepts the terms, risks and conditions of the transactions contemplated
hereby and by the other Loan Documents (including any amendment, waiver or
other
modification hereof or thereof); (ii) in connection with the process leading
to
such transaction, the Administrative Agent and BAS each is and has been acting
solely as a principal and is not the financial advisor, agent or fiduciary,
for
the Company, the Loan Parties or any of their respective Affiliates,
stockholders, creditors or employees or any other Person; (iii) neither the
Administrative Agent nor BAS has assumed or will assume an advisory, agency
or
fiduciary responsibility in favor of the Company or any Loan Party with respect
to any of the transactions contemplated hereby or the process leading thereto,
including with respect to any amendment, waiver or other modification hereof
or
of any other Loan Document (irrespective of whether the Administrative Agent
or
BAS has advised or is currently advising the Company, any Loan Party or any
of
their respective Affiliates on other matters) and neither the Administrative
Agent nor BAS has any obligation to the Company, any Loan Party or any of their
respective Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan
Documents; (iv) the Administrative Agent and BAS and their respective Affiliates
may be engaged in a broad range of transactions that involve interests that
differ from those of the Company, any Loan Party and their respective
Affiliates, and neither the Administrative Agent nor BAS has any obligation
to
disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Administrative Agent and BAS have not provided and
will not provide any legal, accounting, regulatory or tax advice with respect
to
any of the transactions contemplated hereby (including any amendment, waiver
or
other modification hereof or of any other Loan Document) and the Company each
Loan Party has consulted its own legal, accounting, regulatory and tax advisors
to the extent it has deemed appropriate. The Company and each Loan Party hereby
waives and releases, to the fullest extent permitted by law, any claims that
it
may have against the Administrative Agent and BAS with respect to any breach
or
alleged breach of agency or fiduciary duty.
11.22 USA
PATRIOT Act Notice.
Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Company that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the βActβ), it
is required to obtain, verify and record information that identifies each Loan
Party, which information includes the name and address of each Loan Party and
other information that will allow such Lender or the Administrative Agent,
as
applicable, to identify each Loan Party in accordance with the Act.
11.23 Waiver
of Notice of Termination.
Those
Lenders party hereto which are also party to the Existing Credit Agreement
hereby waive any prior notice requirement under the Existing Credit Agreement
with respect to the termination of commitments thereunder and the making of
any
prepayments thereunder.
CHAR1\875908v7
114
|
BORROWER:
|
MACDERMID,
INCORPORATED,
|
|
a
Connecticut corporation
|
By:
Name:
Title:
|
GUARANTORS:
|
AUTOTYPE
HOLDINGS (USA) INC.,
|
|
an
Illinois corporation
|
By:
Name:
Title:
CANNING
XXXX, LLC,
a
Delaware limited liability company
By: X.
Xxxxxxx USA, LLC,
a
Delaware limited liability company,
its
sole
member
By:
Name:
Title:
CHAR1\875908v7
DYNACIRCUITS,
LLC,
an
[Illinois] limited liability company
[By: MacDermid,
Incorporated,
a
Connecticut corporation,
its
member]
By:
Name:
Title:
[By: Echo
International, Inc.
a
Delaware corporation,
its
member]
By:
Name:
Title:
ECHO
INTERNATIONAL, INC.,
a
Delaware corporation
By:
Name:
Title:
MACDERMID
ACUMEN, INC.,
a
Delaware corporation
By:
Name:
Title:
MACDERMID
AUTOTYPE INCORPORATED,
a
Delaware corporation
By:
Name:
Title:
CHAR1\875908v7
MACDERMID
COLORSPAN, INC.,
a
Delaware corporation
By:
Name:
Title:
MACDERMID
INVESTMENT CORP.,
a
Delaware corporation
By:
Name:
Title:
MACDERMID
OVERSEAS ASIA LIMITED,
a
Delaware corporation
By:
Name:
Title:
MACDERMID
PRINTING SOLUTIONS, LLC,
a
Delaware limited liability company
By: MacDermid,
Incorporated,
a
Connecticut corporation,
its
sole
member
By:
Name:
Title:
MACDERMID
SOUTH AMERICA, INCORPORATED,
a
Delaware corporation
By:
Name:
Title:
MACDERMID
SOUTH ATLANTIC, INCORPORATED,
a
Delaware corporation
By:
Name:
Title:
MACDERMID
TARTAN, INC.,
a
Delaware corporation
By:
Name:
Title:
MACDERMID
TOWER, INC.,
a
Delaware corporation
By:
Name:
Title:
MACDERMID
US HOLDINGS, LLC,
a
Delaware limited liability company
By: MacDermid,
Incorporated
a
Connecticut corporation,
its
sole
member
By:
Name:
Title:
NAPP
SYSTEMS INC.,
an
Iowa
corporation
By:
Name:
Title:
SPECIALTY
POLYMERS, INC.,
a
Massachusetts corporation
By:
Name:
Title:
SUPRATECH
SYSTEMS INC.,
a
Delaware corporation
By:
Name:
Title:
X.
XXXXXXX INC.,
a
Delaware corporation
By:
Name:
Title:
X.
XXXXXXX USA, LLC,
a
Delaware limited liability company
By: MacDermid,
Incorporated,
a
Connecticut corporation,
its
sole
member
By:
Name:
Title:
|
ADMINISTRATIVE
AGENT:
|
BANK
OF AMERICA, N.A.,
|
|
as
Administrative Agent
|
By:
Name:
Title:
CHAR1\875908v7
|
LENDERS:
|
BANK
OF AMERICA, N.A.,
|
|
as
a Lender, L/C Issuer and Swing Line
Lender
|
By:
Name:
Title:
CHARTER
ONE BANK, N.A.,
as
a
Lender
By:
Name:
Title:
XXXXX
FARGO BANK, N.A.,
as
a
Lender
By:
Name:
Title:
LASALLE
BANK NATIONAL ASSOCIATION,
as
a
Lender
By:
Name:
Title:
THE
NORTHERN TRUST COMPANY,
as
a
Lender
By:
Name:
Title:
UMB
BANK
COLORADO, N.A.,
as
a
Lender
By:
Name:
Title: