EXHIBIT 10.3
CREDIT AGREEMENT
Dated as of December 15, 2003
among
LONGVIEW FIBRE COMPANY
as Borrower
Certain Subsidiaries of the Borrower
from time to time party hereto,
as Guarantors
BANK OF AMERICA, N.A.
as Administrative Agent, Swing Line Lender and L/C Issuer
and
THE OTHER LENDERS PARTY HERETO
BANC OF AMERICA SECURITIES LLC
as
Joint Lead Arranger and Sole Book Manager
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as
Joint Lead Arranger and Syndication Agent
THE BANK OF NOVA SCOTIA,
NORTHWEST FARM CREDIT SERVICES, PCA,
U.S. BANK NATIONAL ASSOCIATION
and
COOPERATIEVE CENTRALE RAIFFEISIN - BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL" NEW YORK BRANCH
as
Co-Documentation Agents
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
1.01 Defined Terms. 1
1.02 Other Interpretive Provisions. 25
1.03 Accounting Terms. 26
1.04 Rounding. 27
1.05 References to Agreements and Laws. 27
1.06 Times of Day. 27
1.07 Letter of Credit Amounts. 27
ARTICLE II COMMITMENTS and Credit Extensions 27
2.01 Committed Loans. 27
2.02 Borrowings, Conversions and Continuations of Committed Loans. 28
2.03 Letters of Credit. 29
2.04 Swing Line Loans. 38
2.05 Prepayments. 40
2.06 Termination or Reduction of Commitments. 43
2.07 Repayment of Loans. 43
2.08 Interest. 43
2.09 Fees. 44
2.10 Computation of Interest and Fees. 44
2.11 Evidence of Debt. 44
2.12 Payments Generally. 45
2.13 Sharing of Payments. 47
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 47
3.01 Taxes. 47
3.02 Illegality. 48
3.03 Inability to Determine Rates. 49
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on
Eurodollar Rate Loans. 49
3.05 Funding Losses. 50
3.06 Matters Applicable to all Requests for Compensation. 50
3.07 Survival. 51
ARTICLE IV CONDITIONS PRECEDENT TO Credit Extensions 51
4.01 Conditions of Initial Credit Extension. 51
4.02 Conditions to all Credit Extensions. 53
ARTICLE V REPRESENTATIONS AND WARRANTIES 53
5.01 Existence, Qualification and Power; Compliance with Laws. 53
5.02 Authorization; No Contravention. 54
5.03 Governmental Authorization; Other Consents. 54
5.04 Binding Effect. 54
5.05 Financial Statements; No Material Adverse Effect. 54
5.06 Litigation. 55
5.07 No Default. 55
5.08 Ownership of Property; Liens. 55
5.09 Environmental Compliance. 55
5.10 Insurance. 56
5.11 Taxes. 56
5.12 ERISA Compliance. 57
5.13 Subsidiaries. 57
5.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act. 58
5.15 Disclosure. 58
5.16 Compliance with Laws. 58
5.17 Intellectual Property; Licenses, Etc. 58
5.18 Tax Shelter Regulations. 59
5.19 Indebtedness. 59
5.20 Purpose of Loans and Letters of Credit. 59
5.21 Solvency. 59
5.22 Investments. 59
5.23 No Burdensome Restrictions. 59
5.24 Brokers' Fees. 60
5.25 Labor Matters. 60
ARTICLE VI AFFIRMATIVE COVENANTS 60
6.01 Financial Statements. 60
6.02 Certificates; Other Information. 61
6.03 Notices. 62
6.04 Payment of Obligations. 63
6.05 Preservation of Existence, Etc. 63
6.06 Maintenance of Properties; Management of Timberlands. 63
6.07 Maintenance of Insurance. 64
6.08 Compliance with Laws. 64
6.09 Books and Records. 64
6.10 Inspection Rights. 65
6.11 Use of Proceeds. 65
6.12 Performance of Obligations. 65
6.13 Guarantors. 65
ARTICLE VII NEGATIVE COVENANTS 65
7.01 Liens. 66
7.02 Investments. 68
7.03 Subsidiary Indebtedness. 70
7.04 Fundamental Changes. 71
7.05 Dispositions. 71
7.06 Restricted Payments. 72
7.07 Change in Nature of Business. 72
7.08 Transactions with Affiliates. 73
7.09 Burdensome Agreements. 73
7.10 Use of Proceeds. 73
7.11 Financial Covenants. 74
7.12 Fiscal Year; Organizational Documents. 74
7.13 Ownership of Subsidiaries. 74
7.14 Sale Leasebacks. 75
7.15 No Further Negative Pledges. 75
7.16 Operating Lease Obligations. 75
7.17 Subsidiaries. 75
7.18 Limitation on Actions with Respect to Other Indebtedness. 75
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES 76
8.01 Events of Default. 76
8.02 Remedies Upon Event of Default. 79
8.03 Application of Funds. 79
ARTICLE IX ADMINISTRATIVE AGENT 80
9.01 Appointment and Authorization of Administrative Agent. 80
9.02 Delegation of Duties. 81
9.03 Liability of Administrative Agent. 81
9.04 Reliance by Administrative Agent. 81
9.05 Notice of Default. 82
9.06 Credit Decision; Disclosure of Information by Administrative
Agent. 82
9.07 Indemnification of Administrative Agent. 83
9.08 Administrative Agent in its Individual Capacity. 83
9.09 Successor Administrative Agent. 84
9.10 Administrative Agent May File Proofs of Claim. 84
9.11 Guaranty Matters. 85
9.12 Other Agents; Arrangers and Managers. 85
ARTICLE X MISCELLANEOUS 86
10.01 Amendments, Etc. 86
10.02 Notices and Other Communications; Facsimile Copies. 87
10.03 No Waiver; Cumulative Remedies. 88
10.04 Attorney Costs, Expenses and Taxes. 88
10.05 Indemnification by the Borrower. 89
10.06 Payments Set Aside. 90
10.07 Successors and Assigns. 90
10.08 Confidentiality. 94
10.09 Set-off. 95
10.10 Interest Rate Limitation. 95
10.11 Counterparts. 95
10.12 Integration. 96
10.13 Survival of Representations and Warranties. 96
10.14 Severability. 96
10.15 Tax Forms. 96
10.16 Replacement of Lenders. 98
10.17 Governing Law. 98
10.18 Waiver of Right to Trial by Jury. 99
10.19 USA Patriot Act Notice. 99
ARTICLE xi. GUARANTY 100
11.01 The Guaranty. 100
11.02 Obligations Unconditional. 100
11.03 Reinstatement. 101
11.04 Certain Additional Waivers. 101
11.05 Remedies. 101
11.06 Rights of Contribution. 102
11.07 Guarantee of Payment; Continuing Guarantee. 102
SCHEDULES
1.01 Existing Letters of Credit
2.01 Commitments and Pro Rata Shares
5.03 Governmental Authorization; Other Consents
5.13 Subsidiaries and Other Equity Investments
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.08 Employee Termination Agreements
10.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption
F Joinder Agreement
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of December 15,
2003, among Longview Fibre Company, a Washington corporation (the
"Borrower"), certain Subsidiaries of the Borrower from time to time party
hereto, each lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender"), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.
The Borrower has requested that the Lenders provide a revolving credit
facility, and 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:
"Acquisition", by any Person, means the acquisition by such Person of all
of the Capital Stock or all or substantially all of the Property of another
Person or a division or business unit thereof, whether or not involving a
merger or consolidation with such other Person.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as the Administrative Agent may from time to time
notify the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
Without limiting the generality of the foregoing, a Person shall be deemed to
be Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote 20% or more of the securities having ordinary
voting power for the election of directors, managing general partners or the
equivalent.
"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Bank of America in its capacity as
the Administrative Agent, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the Commitments of all the Lenders. The
Aggregate Commitments as of the Closing Date shall be $250,000,000.
"Agreement" means this Credit Agreement.
"Applicable Rate" means, from time to time, for the purposes of
calculating (a) the commitment fee for the purposes of Section 2.09(a), (b)
the interest rate applicable to Eurodollar Rate Loans for the purposes of
Section 2.08, (c) the interest rate applicable to Base Rate Loans for the
purposes of Section 2.08 or (d) the Letter of Credit Fee for the purposes of
Section 2.03(i), the following percentages per annum, based upon the Funded
Indebtedness to Capitalization Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to
Section 6.02(b):
Applicable Rate
Funded
Indebtedness to
Pricing Capitalization Commitment Eurodollar Base Rate Letter of
Level Ratio Fee Rate Loans Loans Credit Fee
I Less than 0.275% 1.000% 0.000% 1.000%
II Less than 0.325% 1.250% 0.250% 1.250%
42.5%, but
greater than or
equal to 35.0%
III Less than 0.375% 1.500% 0.500% 1.500%
greater than or
equal to 42.5%
IV Less than 0.425% 1.750% 0.750% 1.750%
55.0%, but
greater than or
equal to 50.0%
V Greater than or 0.500% 2.125% 1.125% 2.125%
equal to 55.0%
Any increase or decrease in the Applicable Rate resulting from a change
in the Funded Indebtedness to Capitalization Ratio shall become effective as
of the first Business Day immediately following the date a Compliance
Certificate is delivered pursuant to Section 6.02(b); provided, however, that
if a Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level V shall apply as of the first Business Day after
the date on which such Compliance Certificate was required to have been
delivered until such Compliance Certificate is actually delivered.
Notwithstanding the foregoing, the Applicable Rate in effect from the Closing
Date through the first business day after the date on which the Borrower
delivers the required financial statements and Compliance Certificate for the
fiscal quarter ending January 31, 2004 shall be determined based upon Pricing
Level IV.
"Application Period" means, in respect of any Asset Disposition, the
period of 360 days (or such earlier date on which an Event of Default shall
have occurred or as provided for reinvestment of the proceeds thereof under the
Senior Subordinated Note Indenture), following the consummation of such Asset
Disposition.
"Arranger" means Banc of America Securities LLC, in its capacity as
joint lead arranger and sole book manager.
"Asset Disposition" means any disposition (including pursuant to a Sale
and Leaseback Transaction) of any or all of the Property (including without
limitation the Capital Stock of a Subsidiary) of any Consolidated Party whether
by sale, lease, licensing, transfer or otherwise, but other than pursuant to
any casualty or condemnation event; provided, however, that (i) the term "Asset
Disposition" shall be deemed to include any "Asset Sale" (or any comparable
term) under, and as defined in, the Senior Subordinated Note Indenture or the
documents evidencing or governing any Subordinated Indebtedness, (ii) an Equity
Issuance shall not constitute an Asset Disposition and (iii) a sale of
inventory, electricity, timber or other assets in the ordinary course of
business shall not constitute an Asset Disposition.
"Asset Disposition Prepayment Event" means, with respect to any Asset
Disposition, the failure of the Borrower to apply (or cause to be applied) the
Net Cash Proceeds of such Asset Disposition to Eligible Reinvestments during
the Application Period for such Asset Disposition to the extent such Net Cash
Proceeds exceed $10,000,000.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit E.
"Attorney Costs" means and includes all fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all out-of-
pocket expenses and disbursements of internal counsel.
"Attributable Indebtedness" 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.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended October
31, 2002, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrower and
its Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Maturity Date, (b) the date of termination of
the Aggregate Commitments pursuant to Section 2.06, and (c) the date of
termination of the commitment of each Lender to make Loans and of the
obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by
Bank of America as its "prime rate." The "prime rate" is a rate set by Bank
of America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used as
a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day specified in
the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing, as
the context may require.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where the Administrative Agent's Office is
located and, if such day relates to any Eurodollar Rate Loan, means any such
day on which dealings in Dollar deposits are conducted by and between banks
in the London interbank eurodollar market.
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is required to be accounted for as a capital lease on the
balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, capital stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated)
of capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability
company, membership interests and (v) any other interest or participation
that confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing Person.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalents" means, as at any date, (a) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-
1 or the equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper
and variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by
any Person with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States in which such Person shall have a perfected first priority security
interest (subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount of the repurchase
obligations and (e) Investments, classified in accordance with GAAP as current
assets, in money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable financial
institutions having capital of at least $500,000,000 and the portfolios of
which are limited to Investments of the character described in the foregoing
subdivisions (a) through (d).
"Change of Control" means, with respect to any Person, an event or
series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any employee
benefit plan of such person or its subsidiaries, and any person or entity
acting in its capacity as trustee, agent or other fiduciary or administrator
of any such plan) becomes the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have "beneficial ownership" of all securities that
such person or group has the right to acquire conditioned, if at all, only on
the delivery of the funds and documents necessary to exercise such right to
acquire (such right, an "option right"), whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
35% or more of the equity securities of such Person 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);
(b) during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of such
Person cease to be composed of individuals (i) who were members of that board
or equivalent governing body on the first day of such period, (ii) whose
election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (i) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body or (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);
(c) such Person shall merge or consolidate with any Person other than
in a transaction permitted under Section 7.04;
(d) any Asset Disposition shall be made that (of itself or when
combined with any or all other Asset Dispositions) constitutes a sale of all
or substantially all of the assets of the Borrower and its Subsidiaries,
taken as a whole;
(e) any event shall occur that constitutes a "Change of Control" (or
any comparable term) under, and as defined in, the documents evidencing or
governing any Subordinated Indebtedness; or
(f) any event shall occur that requires the Borrower or any Subsidiary
to repay, redeem, or repurchase (or to offer to repay, redeem or repurchase)
any Indebtedness outstanding in a principal amount in excess of $20,000,000
by reason of any change of ownership or control affecting the Borrower or
such Subsidiary.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied in accordance with Section 4.01 (or, in the case
of Section 4.01(d), satisfied or waived by the Person entitled to receive the
applicable payment).
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as to each Lender, its obligation to (a) make
Committed Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing
Line Loans, in an aggregate principal amount at any one time outstanding not
to exceed the amount set forth opposite such Lender's name on Schedule 2.01
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.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders pursuant to
Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
(b) a conversion of Committed Loans from one Type to the other, or (c) a
continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if
in writing, shall be substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D.
"Consolidated Capital Expenditures" means, as of any date for the four
fiscal quarter period ending on such date with respect to the Consolidated
Parties on a consolidated basis, all capital expenditures, as determined in
accordance with GAAP, including, without limitation, those capital
expenditures related to timberland operations; provided, however, that
Consolidated Capital Expenditures shall not include Eligible Reinvestments made
with proceeds of any Involuntary Disposition.
"Consolidated Cash Taxes" means, as of any date for the four fiscal
quarter period ending on such date with respect to the Consolidated Parties on
a consolidated basis, the aggregate of all income taxes paid in cash during
such period (irrespective of when such taxes were accrued), as determined in
accordance with GAAP.
"Consolidated EBITDDA" means, as of any date for the four fiscal quarter
period ending on such date with respect to the Consolidated Parties on a
consolidated basis, the sum of (i) Consolidated Net Income, plus (ii) an
amount which, in the determination of Consolidated Net Income, has been
deducted for (A) Consolidated Interest Expense, (B) income taxes and
(C) depreciation, depletion and amortization expense, all as determined in
accordance with GAAP.
"Consolidated Interest Expense" means, as of any date for the four
fiscal quarter period ending on such date with respect to the Consolidated
Parties on a consolidated basis, interest expense (including the amortization
of debt discount and premium, the interest component under Capital Leases,
the implied interest component under Synthetic Lease Obligations and
capitalized interest), as determined in accordance with GAAP.
"Consolidated Net Income" means, as of any date for the applicable
period ending on such date with respect to the Consolidated Parties on a
consolidated basis, net income (excluding extraordinary items) after interest
expense, income taxes and depreciation and amortization, all as determined in
accordance with GAAP (it being understood that extraordinary items, if any,
shall be excluded only to the extent the Borrower's accountants have
concurred with the treatment of such items as "extraordinary" in accordance
with GAAP and such items have been disclosed in the Borrower's financial
statements filed with the SEC).
"Consolidated Net Worth" means, as of any date with respect to the
Consolidated Parties on a consolidated basis, shareholders' equity or net
worth, as determined in accordance with GAAP.
"Consolidated Parties" means a collective reference to the Borrower and
its Subsidiaries, and "Consolidated Party" means any one of them.
"Consolidated Tangible Net Worth" means, as of any date, with respect
to the Consolidated Parties on a consolidated basis, (a) the total assets of
the Consolidated Parties at such date as set forth on a consolidated balance
sheet of the Consolidated Parties prepared in accordance with GAAP (but
excluding therefrom for the purposes hereof, capitalized interest, debt
discount and expense, goodwill, patents, trademarks, copyrights, franchises,
licenses, amounts due from officers and directors, shareholders and
Affiliates of the Borrower and any other items which would be treated as
intangibles under GAAP) less (b) the total liabilities of the Consolidated
Parties at such date as set forth on a consolidated balance sheet of the
Consolidated Parties prepared in accordance with GAAP.
"Consolidated Total Capitalization" means, as of any date of
determination with respect to the Consolidated Parties on a consolidated
basis, (i) Funded Indebtedness of the Consolidated Parties on a consolidated
basis as of such date plus (ii) Consolidated Net Worth of the Consolidated
Parties on a consolidated basis as of such date.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate."
"Credit Extension" means each of the following: (a) a Borrowing and (b)
an L/C Credit Extension.
"Debt Issuance" means the issuance by any Consolidated Party of any
Indebtedness of the type referred to in clause (a) or (b) of the definition
thereof set forth in this Section 1.1, other than any Indebtedness issued under
this Agreement and the Senior Subordinated Notes, which would result, upon
giving effect on a Pro Forma Basis to the incurrence of such Indebtedness and
to the concurrent retirement of any other Indebtedness of any Consolidated
Party, in the Borrower being out of compliance with the financial covenants set
forth in Section 7.11(a)-(c).
"Debt Issuance Prepayment Event" means the receipt by any Consolidated
Party of proceeds from any Debt Issuance.
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or Xxxxx'x of the Borrower's non-credit enhanced,
senior unsecured long term debt.
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights
of creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2%
per annum; provided, however, that with respect to a Eurodollar Rate Loan,
the Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate) otherwise applicable to such Loan plus 2% per
annum, in each case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder
within one Business Day of the date required to be funded by it hereunder,
(b) has otherwise failed to pay over to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith
dispute, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.
"Discretionary L/C Issuer" has the meaning specified in Section
2.03(b)(v).
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Eligible Assignee" has the meaning specified in Section 10.07(g).
"Eligible Reinvestment" means (i) any acquisition (whether or not
constituting a capital expenditure, but not constituting an Acquisition) of
assets or any business (or any substantial part thereof) used or useful in
the same or a similar line of business as the Borrower and its Subsidiaries
were engaged in on the Closing Date (or any reasonable extensions or
expansions thereof) and (ii) any Permitted Acquisition. The term "Eligible
Reinvestment" shall not include any item which is not a permitted application
of proceeds of an "Asset Sale" (or any comparable term) under, and as defined
in the documents evidencing or governing any Subordinated Indebtedness.
"Environmental Laws" 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.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any of its 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.
"Equity Issuance" means any issuance by any Consolidated Party to any
Person of (a) shares of its Capital Stock, (b) any shares of its Capital Stock
pursuant to the exercise of options or warrants, (c) any shares of its Capital
Stock pursuant to the conversion of any debt securities to equity or (d) any
options or warrants relating to its Capital Stock. The term "Equity Issuance"
shall not be deemed to include (a) any Asset Disposition or (b) issuances
pursuant to (x) employee plans of the Borrower that are in place as of the
Closing Date to the extent such issuances are permitted pursuant to the
documentation governing those plans as in effect as of the Closing Date or
(y) new employee plans of the Borrower to the extent such issuances are
consistent with past practices of the Borrower.
"Equity Issuance Prepayment Event" means the receipt by any Consolidated
Party of proceeds from any Equity Issuance.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code
for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any
ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent
to terminate, the treatment of a plan amendment as a termination under
Sections 4041 or 4041A of ERISA with respect to, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan;
(e) an event or condition which constitutes grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as
the rate of interest at which deposits in Dollars for delivery on the first
day of such Interest Period in same day funds in the approximate amount of
the Eurodollar Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be offered
by Bank of America's London Branch to major banks in the London interbank
eurodollar market at their request at approximately 4:00 p.m. (London time)
two Business Days prior to the first day of such Interest Period.
"Eurodollar Rate Loan" means a Committed Loan that bears interest at a
rate based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Excess Proceeds" has the meaning assigned to such term in Section
6.07(b).
"Existing Credit Agreement" means that certain Credit Agreement dated
as of January 25, 2002 (as amended or modified prior to the Closing Date)
among the Borrower, Bank of America, N.A., as administrative agent, and a
syndicate of lenders.
"Existing Letters of Credit" means the letters of credit outstanding on
the Closing Date and identified on Schedule 1.01.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding
Business Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate
charged to Bank of America on such day on such transactions as determined by
the Administrative Agent.
"Fee Letter" means the letter agreement, dated October 22, 2003, among
the Borrower, the Administrative Agent and the Arranger.
"Fixed Charge Coverage Ratio" means, as of the end of any fiscal quarter
of the Consolidated Parties for the four fiscal quarter period ending on such
date with respect to the Consolidated Parties on a consolidated basis, the
ratio of (a) the sum of (i) Consolidated EBITDDA for such period minus
(ii) Consolidated Capital Expenditures for such period to (b) the sum of
(i) Consolidated Interest Expense for such period plus (ii) dividends paid by
the Borrower to its shareholders during such period plus (iii) Consolidated
Cash Taxes paid during such period.
"Foreign Lender" has the meaning specified in Section 10.15(a)(i).
"Fully Satisfied" 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, and
(c) the Commitments shall have been expired or terminated in full.
"Funded Indebtedness" means, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business), (d) all obligations of such Person
issued or assumed as the deferred purchase price of Property or services
purchased by such Person (other than trade debt incurred in the ordinary course
of business and due within six months of the incurrence thereof) which would
appear as liabilities on a balance sheet of such Person, (e) the implied
principal component of all obligations of such Person under Capital Leases,
(f) the maximum amount of all performance and standby letters of credit issued
or bankers' acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed),
(g) all preferred Capital Stock issued by such Person and which by the terms
thereof could be (at the request of the holders thereof or otherwise) subject
to mandatory sinking fund payments, redemption or other acceleration (other
than as a result of a Change of Control or an Asset Disposition that does not
in fact result in a redemption of such preferred Capital Stock) at any time
prior to the Maturity Date, (h) the principal portion of all obligations of
such Person under Synthetic Lease Obligations and other Off-Balance Sheet
Liabilities, (i) all obligations of such Person to repurchase any securities
issued by such Person at any time prior to the Maturity Date which repurchase
obligations are related to the issuance thereof, including, without limitation,
obligations commonly known as residual equity appreciation potential shares,
(j) the aggregate amount of uncollected accounts receivable of such Person
subject at such time to a sale of receivables (or similar transaction) to the
extent such transaction is effected with recourse to such Person (whether or
not such transaction would be reflected on the balance sheet of such Person in
accordance with GAAP), (k) all Funded Indebtedness of others secured by (or for
which the holder of such Funded Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, Property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (l) all Guarantees of such
Person with respect to Funded Indebtedness of another Person and (m) the Funded
Indebtedness of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer to the extent such Indebtedness
is recourse to such Person.
"Funded Indebtedness to Capitalization Ratio" means, as of the end of any
fiscal quarter of the Consolidated Parties with respect to the Consolidated
Parties on a consolidated basis, the ratio of (a) Funded Indebtedness of the
Consolidated Parties on a consolidated basis on the last day of such period to
(b) Consolidated Total Capitalization on the last day of such period.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards Board
or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the
circumstances as of the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Granting Lender" has the meaning specified in Section 10.07(h).
"Guarantee" 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 "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity or level of income or cash flow of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation, or
(iv) entered into for the purpose of assuring in any other manner the obligee
in respect of such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in respect
thereof (in whole or in part), or (b) any Lien on any assets of such Person
securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person. The
amount of any Guarantee shall be deemed to be an amount equal to the stated
or determinable amount of the related primary obligation, or portion thereof,
in respect of which such Guarantee is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as determined
by the guaranteeing Person in good faith. The term "Guarantee" as a verb has
a corresponding meaning.
"Guarantors" means, collectively, each of those Persons identified as a
"Guarantor" on the signature pages hereto, and each Person that subsequently
becomes a Guarantor hereunder pursuant to Section 6.13 by executing a Joinder
Agreement in substantially the form of Exhibit F, and "Guarantor" means any
one of them.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent, on behalf of the Lenders, pursuant to Article XI
hereof.
"Hazardous Materials" 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.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
Property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the
ordinary course of business), (d) all obligations of such Person issued or
assumed as the deferred purchase price of Property or services purchased by
such Person (other than trade debt incurred in the ordinary course of business
and due within six months of the incurrence thereof) which would appear as
liabilities on a balance sheet of such Person, (e) all obligations of such
Person under take-or-pay or similar arrangements or under commodities
agreements under which such Person must make payments notwithstanding the
failure of the counter-party to deliver the goods or services which such
counter-party is required to deliver thereunder (and, for the avoidance of
doubt shall not include arrangements under which such Person must pay for
capacity or availability that must be delivered or made available to entitle
the counter-party to payment, notwithstanding that such Person may not use such
capacity or availability), (f) the implied principal component of all
obligations of such Person under Capital Leases, (g) all net obligations of
such Person under Swap Contracts, (h) the maximum amount of all performance and
standby letters of credit issued or bankers' acceptances facilities created for
the account of such Person and, without duplication, all drafts drawn
thereunder (to the extent unreimbursed), (i) all preferred Capital Stock issued
by such Person and which by the terms thereof could be (at the request of the
holders thereof or otherwise) subject to mandatory sinking fund payments,
redemption or other acceleration (other than as a result of a Change of Control
or an Asset Disposition that does not in fact result in a redemption of such
preferred Capital Stock) at any time prior to the Maturity Date, (j) the
principal portion of all obligations of such Person under Synthetic Lease
Obligations and other Off-Balance Sheet Liabilities (excluding Operating Leases
to the extent they would otherwise be included), (k) all obligations of such
Person to repurchase any securities issued by such Person at any time prior to
the Maturity Date which repurchase obligations are related to the issuance
thereof, including, without limitation, obligations commonly known as residual
equity appreciation potential shares, (l) the aggregate amount of uncollected
accounts receivable of such Person subject at such time to a sale of
receivables (or similar transaction) to the extent such transaction is effected
with recourse to such Person (whether or not such transaction would be
reflected on the balance sheet of such Person in accordance with GAAP), (m) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on,
or payable out of the proceeds of production from, Property owned or acquired
by such Person, whether or not the obligations secured thereby have been
assumed, (n) all Guarantees of such Person with respect to Indebtedness of
another Person and (o) the Indebtedness of any partnership or unincorporated
joint venture in which such Person is a general partner or a joint venturer to
the extent such Indebtedness is recourse to such Person. The amount of any net
obligation under any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date. 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.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Interest Payment Date" 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
Eurodollar Rate Loan exceeds three months, the respective dates that fall
every three months after the beginning of such Interest Period shall also be
Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing
Line Loan), the last Business Day of each March, June, September and December
and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to
or continued as a Eurodollar Rate Loan and ending on the date one, two, three
or six months thereafter, as selected by the Borrower in its Committed Loan
Notice; 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.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the
purchase or other acquisition of 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, 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 or
product line (other than equipment, timber, timberlands, inventory and supplies
in the ordinary course of business and other than any acquisition of assets
constituting a Consolidated Capital Expenditure). 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.
"Involuntary Disposition" means any loss of, damage to or destruction of,
or any condemnation or other taking for public use of, any Property of any
Consolidated Party.
"Involuntary Disposition Prepayment Event" means, with respect to any
Involuntary Disposition, the failure of the Borrower to apply (or cause to be
applied) an amount equal to the Excess Proceeds of such Involuntary
Disposition, if any, either (i) to prepay the Loans (and cash collateralize the
L/C Obligations) in accordance with the terms of Section 2.05(b)(ii)(B) or
(ii) to make Eligible Reinvestments (including but not limited to the repair
or replacement of the Property affected by such Involuntary Disposition)
within the period of 360 days following the date of receipt of such Excess
Proceeds, subject to the terms and conditions of Section 6.07(b).
"IP Rights" has the meaning set forth in Section 5.17.
"IRS" means the United States Internal Revenue Service.
"Joinder Agreement" means a Joinder Agreement substantially in the form
of Exhibit F hereto, executed and delivered by a new Guarantor in accordance
with the provisions of Section 6.13.
"Joint Venture" means a single-purpose corporation, partnership, limited
liability company, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now or
hereafter formed by any Consolidated Party with another Person in order to
conduct a common venture or enterprise with such Person.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority
charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Pro Rata
Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when
made or refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters
of Credit hereunder, or any successor issuer of Letters of Credit hereunder,
and any Discretionary L/C Issuer.
"L/C Obligations" 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.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the L/C Issuer and the Swing Line
Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or
such other office or offices as a Lender may from time to time notify the
Borrower and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder
and shall include the Existing Letters of Credit.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to time
in use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is thirty five
(35) days prior to the Maturity Date then in effect (or, if such day is not a
Business Day, the next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to $50,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), other security interest,
charge, or as to the assets of a Person, any preference, priority or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, and any financing lease
having substantially the same economic effect as any of the foregoing, but
excluding operating leases).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Committed Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, each Joinder
Agreement and the Fee Letter.
"Loan Parties" means, collectively, the Borrower and each Guarantor.
"Material Adverse Effect" means (a) a material adverse effect upon,
the operations, business, assets, properties, liabilities (actual or
contingent), condition (financial or otherwise) or prospects of the Borrower
or the Borrower and its Subsidiaries taken as a whole; (b) a material
impairment of the ability of the Borrower or the Borrower and its
Subsidiaries taken as a whole to perform its obligations under any Loan
Document to which it is a party; or (c) a material adverse effect upon the
material rights and remedies of the Agent and the Lenders under the Loan
Documents.
"Material Domestic Subsidiary" means any Domestic Subsidiary that is a
Material Subsidiary.
"Material Foreign Subsidiary" means any foreign Subsidiary that is a
Material Subsidiary.
"Material Subsidiary" means any Subsidiary to the extent the fair
market value of the assets of such Subsidiary exceeds $5,000,000.
"Maturity Date" means December 14, 2007.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA, to
which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been
obligated to make contributions.
"Net Cash Proceeds" means the aggregate cash proceeds received by any
Consolidated Party in respect of any Asset Disposition, Equity Issuance, Debt
Issuance or Involuntary Disposition, net of (a) direct costs (including,
without limitation, legal, accounting and investment banking fees, and sales
commissions) (b) taxes paid or payable as a result thereof and (c) in the case
of any Asset Disposition, the amount necessary to prepay or retire any
Indebtedness either secured by a Permitted Lien (ranking senior to any Lien of
the Administrative Agent) on the related Property or incurred specifically in
connection with the acquisition of the Property that is included in such
Asset Disposition; it being understood that "Net Cash Proceeds" shall include,
without limitation, any cash or Cash Equivalents received upon the sale or
other disposition of any non-cash consideration received by any such
Consolidated Party in any Asset Disposition, Equity Issuance, Debt Issuance or
Involuntary Disposition. In addition and without duplication, the "Net Cash
Proceeds" of any Asset Disposition shall include any other amounts which
constitute "Net Proceeds" (or any comparable term) of such transaction under,
and as defined in the documents evidencing or governing any Subordinated
Indebtedness.
"Non-Material Subsidiary" means any Subsidiary that is not a Material
Subsidiary.
"Note" means a promissory note made by the Borrower in favor of a
Lender evidencing Loans made by such Lender, substantially in the form of
Exhibit C.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan 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 (i) 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 and (ii) any Swap Contract of any Loan Party to which a Lender or
any Affiliate of such Lender is a party (determined at the time such Swap
Contract was entered into).
"Off-Balance Sheet Liabilities" means, with respect to any Person as of
any date of determination thereof, without duplication and to the extent not
included as a liability on the consolidated balance sheet of such Person and
its Subsidiaries in accordance with GAAP: (a) with respect to any asset
securitization transaction (including any accounts receivable purchase
facility) (i) the unrecovered investment of purchasers or transferees of
assets so transferred and (ii) any other payment, recourse, repurchase, hold
harmless, indemnity or similar obligation of such Person or any of its
Subsidiaries in respect of assets transferred or payments made in respect
thereof, other than limited recourse provisions that are customary for
transactions of such type and that neither (x) have the effect of limiting
the loss or credit risk of such purchasers or transferees with respect to
payment or performance by the obligors of the assets so transferred nor (y)
impair the characterization of the transaction as a true sale under
applicable Laws (including Debtor Relief Laws); (b) the monetary obligations
under any financing lease (excluding any operating lease) or so-called
"synthetic," tax retention or off-balance sheet lease transaction which, upon
the application of any Debtor Relief Law to such Person or any of its
Subsidiaries, would be characterized as indebtedness; or (c) the monetary
obligations under any sale and leaseback transaction which does not create a
liability on the consolidated balance sheet of such Person and its
Subsidiaries; or (d) any other monetary obligation arising with respect to
any other transaction which (i) upon the application of any Debtor Relief Law
to such Person or any of its Subsidiaries, would be characterized as
indebtedness or (ii) is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated
balance sheet of such Person and its Subsidiaries (for purposes of this
clause (d), any transaction structured to provide tax deductibility as
interest expense of any dividend, coupon or other periodic payment will be
deemed to be the functional equivalent of a borrowing).
"Operating Lease" means, as applied to any Person, any lease (including,
without limitation, leases which may be terminated by the lessee at any time)
of any Property (whether real, personal or mixed) which is not a Capital Lease
other than any such lease in which that Person is the lessor.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or
articles of formation or organization and operating agreement; and (c) with
respect to any partnership, joint venture, trust or other form of business
entity, the partnership, joint venture or other applicable agreement of
formation or organization and any agreement, instrument, filing or notice
with respect thereto filed in connection with its formation or organization
with the applicable Governmental Authority in the jurisdiction of its
formation or organization and, if applicable, any certificate or articles of
formation or organization of such entity.
"Outstanding Amount" means (i) with respect to Committed Loans and
Swing Line Loans on any date, the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments
of Committed 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.
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that
is subject to Title IV of ERISA and is sponsored or maintained by the
Borrower or any ERISA Affiliate or to which the Borrower or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a
multiple employer or other plan described in Section 4064(a) of ERISA, has
made contributions at any time during the immediately preceding five plan
years.
"Permitted Acquisition" means an Acquisition by the Borrower or any
Subsidiary of the Borrower permitted pursuant to the terms of Section 7.02(i).
"Permitted Asset Disposition" means any Asset Disposition permitted by
Section 7.05.
"Permitted Investments" means, at any time, Investments by the
Consolidated Parties permitted to exist at such time pursuant to the terms of
Section 7.02.
"Permitted Liens" means, at any time, Liens in respect of Property of the
Consolidated Parties permitted to exist at such time pursuant to the terms of
Section 7.01.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any
such plan that is subject to Section 412 of the Code or Title IV of ERISA,
any ERISA Affiliate.
"Pro Forma Basis" means, for purposes of calculating (utilizing the
principles set forth in the second paragraph of Section 1.03) compliance with
each of the financial covenants set forth in Section 7.11(a)-(c) in respect of
a proposed transaction, that such transaction shall be deemed to have
occurred as of the first day of the four fiscal-quarter period ending as of
the most recent fiscal quarter end preceding the date of such transaction with
respect to which the Administrative Agent has received the Required Financial
Information. As used herein, "transaction" shall mean (i) any Asset
Disposition as referred to in Section 7.05 or (ii) any Acquisition as
referred to in Section 7.04(i). In connection with any calculation of the
financial covenants set forth in Section 7.11(a)-(c) upon giving effect to a
transaction on a Pro Forma Basis:
(A) for purposes of any such calculation in respect of any
Asset Disposition as referred to in Section 7.05, (1) income statement items
(whether positive or negative) attributable to the Property disposed of shall
be excluded and (2) any Indebtedness which is retired in connection with such
transaction shall be excluded and deemed to have been retired as of the first
day of the applicable period; and
(B) for purposes of any such calculation in respect of any
Acquisition as referred to in Section 7.04(i), (1) any Indebtedness incurred
by any Consolidated Party in connection with such transaction (x) shall be
deemed to have been incurred as of the first day of the applicable period and
(y) if such Indebtedness has a floating or formula rate, shall have an
implied rate of interest for the applicable period for purposes of this
definition determined by utilizing the rate which is or would be in effect
with respect to such Indebtedness as at the relevant date of determination,
(2) income statement items (whether positive or negative) attributable to the
Person or Property acquired shall be included beginning as of the first day
of the applicable period and (3) pro forma adjustments may be included to the
extent that such adjustments would be permitted under GAAP and give effect to
events that are (x) directly attributable to such transaction, (y) expected
to have a continuing impact on the Consolidated Parties and (z) factually
supportable.
"Pro Forma Compliance Certificate" means a certificate of a Responsible
Officer of the Borrower delivered to the Administrative Agent in connection
with any Acquisition as referred to in Section 7.02(i), as applicable, and
containing reasonably detailed calculations, upon giving effect to the
applicable transaction on a Pro Forma Basis, of the Funded Indebtedness to
Capitalization Ratio, the Fixed Charge Coverage Ratio and Consolidated Net
Worth as of the most recent fiscal quarter end preceding the date of the
applicable transaction with respect to which the Administrative Agent shall
have received the Required Financial Information.
"Pro Rata Share" 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 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 8.02, 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.
"Property" means any interest in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible.
"Register" has the meaning set forth in Section 10.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been
waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b)
with respect to an L/C Credit Extension, a Letter of Credit Application, and
(c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
"Required Financial Information" means, with respect to each fiscal
period or quarter of the Borrower, (a) the financial statements required to
be delivered pursuant to Section 6.01(a) or (b) for such fiscal period or
quarter, and (b) the certificate of a Responsible Officer of the Borrower
required by Section 6.02(b) to be delivered with the financial statements
described in clause (a) above.
"Required Lenders" means, as of any date of determination, Lenders
having at least 66-2/3% of the Aggregate Commitments or, 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 8.02, Lenders
holding in the aggregate at least 66-2/3% of the Total Outstandings (with the
aggregate amount of each Lender's risk participation and funded participation
in L/C Obligations and Swing Line Loans being deemed "held" by such Lender
for purposes of this definition); provided that the 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.
"Responsible Officer" means the chief executive officer, chief
operating officer, president, chief financial officer, treasurer or assistant
treasurer of a Loan Party. Any document delivered hereunder that is signed
by a Responsible Officer of a Loan Party shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means (i) any dividend or other payment or
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of any Consolidated Party, now or hereafter outstanding
(including without limitation any payment in connection with any dissolution,
merger, consolidation or disposition involving any Consolidated Party), or to
the holders, in their capacity as such, of any shares of any class of Capital
Stock of any Consolidated Party, now or hereafter outstanding (other than
dividends or distributions payable in Capital Stock of the applicable Person
and dividends or distributions payable (directly or indirectly through
Subsidiaries) to the Borrower), (ii) any redemption, retirement, sinking fund
or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of Capital Stock of any Consolidated
Party, now or hereafter outstanding, (iii) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of Capital Stock of any Consolidated Party, now or
hereafter outstanding, and (iv) any payment or prepayment of principal of, or
premium, if any, on (including any redemption, purchase, retirement,
defeasance, sinking fund or similar payment with respect to) the Senior
Subordinated Notes. Notwithstanding the foregoing, the term Restricted Payment
shall not include any redemption of share purchase rights issued pursuant to
the Borrower's shareholder rights plan existing on the Closing Date (as the
same may be amended from time to time) or any similar successor or replacement
shareholder rights plan, for a redemption price not to exceed $0.01 per share
purchase right.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means any arrangement pursuant to which
any Consolidated Party, directly or indirectly, becomes liable as lessee,
guarantor or other surety with respect to any lease, whether an Operating Lease
or a Capital Lease, of any Property (a) which such Consolidated Party has sold
or transferred (or is to sell or transfer) to a Person which is not a
Consolidated Party or (b) which such Consolidated Party intends to use for
substantially the same purpose as any other Property which has been sold or
transferred (or is to be sold or transferred) by such Consolidated Party to
another Person which is not a Consolidated Party in connection with such lease,
provided that any transaction that satisfies the conditions in preceding
subsection (a) or (b) shall not constitute a "Sale and Leaseback Transaction"
where lessor under such lease is organized under the laws of a jurisdiction
outside of the United States, the Property is located in the United States and
the obligations in respect of the lease or incurred in connection therewith for
which the Consolidated Party is liable have been defeased.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Senior Subordinated Note" means any one of the 10.0% Senior Subordinated
Notes due 2009, issued by the Borrower in favor of the Senior Subordinated
Noteholders pursuant to the Senior Subordinated Note Indenture, as such Senior
Subordinated Notes may be amended, modified, restated or supplemented and in
effect from time to time in accordance with the terms hereof.
"Senior Subordinated Note Indenture" means the Indenture, dated as of
January 25, 2002, by and among the Borrower and the Trustee for the Senior
Subordinated Noteholders, as the same may be amended, modified, restated or
supplemented and in effect from time to time in accordance with the terms
hereof.
"Senior Subordinated Noteholder" means any one of the holders from time
to time of the Senior Subordinated Notes.
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (i) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the normal course of business, (ii) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary course,
(iii) such Person is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such Person's
Property would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which such Person
is engaged or is to engage, (iv) 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 and (v) 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. In computing the amount of contingent liabilities at any
time, it is intended that such liabilities will be computed at the amount
which, in 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.
"SPC" has the meaning specified in Section 10.07(h).
"Subordinated Indebtedness" means Indebtedness outstanding under the
Senior Subordinated Note Indenture and the Senior Subordinated Notes and any
other Indebtedness of the Borrower which by its terms is subordinated to the
Obligations in a manner and to an extent acceptable to the Required Lenders.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a
majority of the shares of securities or other interests having ordinary
voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the
happening of a contingency) are at the time beneficially owned, or the
management of which is otherwise controlled, directly, or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a "Subsidiary" or to "Subsidiaries" shall
refer to a Subsidiary or Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot
contracts, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether
or not any such transaction is governed by or subject to any master
agreement, and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed
by, any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a "Master Agreement"), including any such
obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or
after the date such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a), the amount(s)
determined as the xxxx-to-market value(s) for such Swap Contracts, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant
to Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.04(b), which, if in writing, shall be substantially in
the form of Exhibit B.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$20,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is
part of, and not in addition to, the Aggregate Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property 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). In no
event shall any Operating Lease be construed as a Synthetic Lease Obligation.
"Threshold Amount" means $5,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all
Loans and all L/C Obligations.
"Type" means, with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current
value of that Pension Plan's assets, determined in accordance with the
assumptions used for funding the Pension Plan pursuant to Section 412 of the
Code for the applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
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 "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the Loan
Document in which such reference appears.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" 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 "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through" means
"to and including."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data
(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 Borrower or the Required Lenders shall so request, the Administrative
Agent, the Lenders and the Borrower shall negotiate in good faith to amend
such ratio or requirement to preserve the original intent thereof in light of
such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio or requirement shall continue
to be computed in accordance with GAAP prior to such change therein and
(ii) the Borrower shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect
to such change in GAAP.
(c) Notwithstanding the above, the parties hereto acknowledge and
agree that, for purposes of all calculations made under the financial
covenants set forth in Section 7.11 (including without limitation for
purposes of the definitions of "Applicable Percentage" and "Pro Forma Basis"
set forth in Section 1.01), (i) after consummation of any Asset Disposition
for consideration (cash and non-cash) in excess of $10,000,000 (A) income
statement items (whether positive or negative) and capital expenditures
attributable to the Property disposed of shall be excluded to the extent
relating to any period occurring prior to the date of such transaction and
(B) Indebtedness which is retired shall be excluded and deemed to have been
retired as of the first day of the applicable period and (ii) after
consummation of any Acquisition for an Investment for consideration (cash and
non-cash) in excess of $10,000,000 (A) income statement items (whether
positive or negative) and capital expenditures attributable to the Person or
Property acquired shall, to the extent not otherwise included in such income
statement items for the Consolidated Parties in accordance with GAAP or in
accordance with any defined terms set forth in Section 1.01, be included to
the extent relating to any period applicable in such calculations, (B) to the
extent not retired in connection with such Acquisition, Indebtedness of the
Person or Property acquired shall be deemed to have been incurred as of the
first day of the applicable period and (C) pro forma adjustments may be
included to the extent that such adjustments would be permitted under GAAP
and give effect to items that are (x) directly attributable to such
transaction, (y) expected to have a continuing impact on the Consolidated
Parties and (z) factually supportable.
1.04 Rounding.
Any financial ratios required to be maintained by the Borrower pursuant
to this Agreement shall be calculated by dividing the appropriate component
by the other component, carrying the result to one place more than the number
of places by which such ratio is expressed herein and rounding the result up
or down to the nearest number (with a rounding-up if there is no nearest
number).
1.05 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 Pacific time (daylight or standard, as applicable).
1.07 Letter of Credit Amounts.
Unless otherwise specified, all references herein to the amount of a
Letter of Credit at any time shall be deemed to mean the maximum face amount
of such Letter of Credit available for draws after giving effect to all
increases thereof contemplated by such Letter of Credit or the Letter of
Credit Application therefor, whether or not such maximum face amount is in
effect at such time.
ARTICLE II
COMMITMENTS and Credit Extensions
2.01 Committed Loans.
Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a "Committed Loan") to the
Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at any time outstanding the
amount of such Lender's Commitment; provided, however, that after giving
effect to any Committed Borrowing, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount
of the Committed Loans of any Lender, plus such Lender's Pro Rata Share of
the Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata
Share of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Commitment. Within the limits of each Lender's Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.01, prepay under Section 2.05, and reborrow under this
Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate
Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Committed
Loans.
(a) Each Committed Borrowing, each conversion of Committed Loans from
one Type to the other, and each continuation of Eurodollar Rate Loans shall
be made upon irrevocable notice from the Borrower to the Administrative
Agent, which may be given by telephone (provided that such telephonic notice
complies with the information requirements of the form of Committed Loan
Notice attached hereto). Each such notice must be received by the
Administrative Agent not later than 9:00 a.m. (i) three Business Days prior
to the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans, and (ii) on the requested date of any Borrowing of
Base Rate Committed Loans. Each telephonic notice by the Borrower pursuant
to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each
Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be
in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each
Borrowing of or conversion to Base Rate Committed Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Committed Borrowing, a
conversion of Committed Loans from one Type to the other, or a continuation
of Eurodollar Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business
Day), (iii) the principal amount of Committed Loans to be borrowed, converted
or continued, (iv) the Type of Committed Loans to be borrowed or to which
existing Committed Loans are to be converted, and (v) if applicable, the
duration of the Interest Period with respect thereto. If the Borrower fails
to specify a Type of Committed Loan in a Committed Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall be made as, or
converted to, Base Rate Loans. Any such automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate
Loans in any such Committed Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.
(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 Committed Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall
notify each Lender of the details of any automatic conversion to Base Rate
Loans described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available
to the Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 11:00 a.m. on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is
the initial Credit Extension, Section 4.01), the Administrative Agent shall
make all funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account of
the Borrower on the books of Bank of America with the amount of such funds or
(ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date the Committed
Loan Notice with respect to such Borrowing is given by the 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 Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may
be continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and
the Lenders of the interest rate applicable to any Interest Period for
Eurodollar Rate Loans upon determination of such interest rate. The
determination of the Eurodollar 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 Borrower and
the Lenders of any change in Bank of America's prime rate used in determining
the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions
of Committed Loans from one Type to the other, and all continuations of
Committed Loans as the same Type, there shall not be more than six Interest
Periods in effect with respect to Committed Loans.
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 the Borrower or any Subsidiary,
and to amend or renew Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drafts under the
Letters of Credit; and (B) the Lenders severally agree to participate in
Letters of Credit issued for the account of the Borrower; provided that the
L/C Issuer shall not be obligated to make any L/C Credit Extension with
respect to any Letter of Credit, and no Lender shall be obligated to
participate in any Letter of Credit if as of the date of such L/C Credit
Extension, (x) the Total Outstandings would exceed the Aggregate Commitments,
(y) the aggregate Outstanding Amount of the Committed Loans of any Lender,
plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of
all Swing Line Loans would exceed such Lender's Commitment, or (z) the
Outstanding Amount of the L/C Obligations would exceed the Letter of Credit
Sublimit. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower's ability to obtain Letters of Credit shall
be fully revolving, and accordingly the Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. 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. Each Letter of Credit Application shall be prepared and
signed by the Borrower; provided, however, that the Borrower shall be
permitted to designate any Subsidiary or other third party as the account
party for the requested Letter of Credit, although, notwithstanding such
designation, the Company shall be the actual account party for all purposes
of this Agreement for such Letters of Credit and such designation shall not
affect the Borrower's reimbursement obligations hereunder with respect to
such Letter of Credit.
(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 (provided that any such Letter of Credit may have
an expiration date more than one year from the date of issuance if required
under related industrial revenue bond documents and agreed to by the L/C
Issuer), unless the Required Lenders have approved such expiry date;
(C) subject to Section 2.03(b)(vi), the expiry date of such requested
Letter of Credit would occur after the Letter of Credit Expiration Date;
(D) the issuance of such Letter of Credit would violate one or more
policies of the L/C Issuer applicable to all applicants for letters of credit
of the L/C Issuer generally; or
(E) such Letter of Credit is in an initial amount less than $100,000,
or is to be denominated in a currency other than Dollars.
(iii) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit; 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 Borrower delivered to the L/C Issuer (with a copy
to the Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the Borrower.
Such Letter of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business Days (or
such later date and time as the L/C Issuer may agree in a particular instance
in its sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business
Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the L/C Issuer may require. In the
case of a request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to
the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date
of amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter of
Credit Application from the Borrower and, if not, the L/C Issuer will provide
the Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer
of confirmation from the Administrative Agent that the requested issuance or
amendment is permitted in accordance with the terms hereof, then, subject to
the terms and conditions hereof, the L/C Issuer shall, on the requested date,
issue a Letter of Credit for the account of the Borrower or enter into the
applicable amendment, as the case may be, in each case in accordance with the
L/C Issuer's usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer a
risk participation in such Letter of Credit in an amount equal to the product
of such Lender's Pro Rata Share times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree
to issue a Letter of Credit that has automatic renewal provisions (each, an
"Auto-Renewal Letter of Credit"); 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 "Nonrenewal Notice Date") in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Borrower shall not be required to
make a specific request to the L/C Issuer for any such renewal. Once an
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 five 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 Lender or the Borrower that one or more of the
applicable conditions specified in Section 4.02 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 Borrower
and the Administrative Agent a true and complete copy of such Letter of
Credit or amendment.
(v) Any Lender with a Commitment (in such capacity, a "Discretionary
L/C Issuer") may from time to time, at the written request of the Borrower
(with a copy to the Administrative Agent) and with the consent of the
Administrative Agent (such consent not to be unreasonably withheld), and in
such Lender's sole discretion, agree to issue one or more Letters of Credit
for the account of the Borrower on the same terms and conditions in all
respects as are applicable to the Letters of Credit issued by the L/C Issuer
hereunder by executing and delivering to the Administrative Agent a written
agreement to such effect, among (and in form and substance satisfactory to)
the Borrower, the Administrative Agent and such Discretionary L/C Issuer.
With respect to each of the Letters of Credit issued (or to be issued)
thereby, each of the Discretionary L/C Issuers shall have all of the same
rights and obligations under and in respect of this Agreement and the other
Loan Documents, and shall be entitled to all of the same benefits (including,
without limitation, the rights, obligations and benefits set forth in
Sections 2.03, 9.07 and 10.01), as are afforded to the L/C Issuer hereunder
and thereunder. The Administrative Agent shall promptly notify each of the
Lenders with a Commitment of the appointment of any Discretionary L/C Issuer.
Each Discretionary L/C Issuer shall provide to the Administrative Agent, on a
monthly basis, a report that details the activity with respect to each Letter
of Credit issued by such Discretionary L/C Issuer (including an indication of
the maximum amount then in effect with respect to each such Letter of
Credit).
(vi) The L/C Issuer may, in its sole discretion, issue one or more
Letters of Credit hereunder, with expiry dates that would occur after the
Letter of Credit Expiration Date (and after the Maturity Date), to the extent
the Borrower has agreed to fully Cash Collateralize the L/C Obligations
relating to such Letters of Credit on the Letter of Credit Expiration Date in
accordance with the terms of Section 2.03(g). In the event the Borrower
fails to Cash Collateralize the outstanding L/C Obligations on the Letter of
Credit Expiration Date, each outstanding Letter of Credit shall automatically
be deemed to be drawn in full and the Borrower shall be deemed to have
requested a Base Rate Committed Loan to be funded by the Lenders on the
Letter of Credit Expiration Date to reimburse such drawing (with the proceeds
of such Loan being used to Cash Collateralize outstanding L/C Obligations as
set forth in Section 2.03(g)) in accordance with the provisions of Section
2.03(c). If a Base Rate Committed Loan cannot be made because the conditions
set forth in Section 4.02 cannot be satisfied or for any other reason, the
Borrower shall be deemed to have incurred an L/C Borrowing from the L/C
Issuer and each Lender shall be obligated to fund its Pro Rata Share of such
L/C Borrowing in the form of an L/C Advance in accordance with the provisions
of Section 2.03(c) (with the proceeds of such L/C Advance being used to Cash
Collateralize outstanding L/C Obligations as set forth in Section 2.03(g)).
The funding by a Lender of its Pro Rata Share of such Base Rate Committed
Loan or such L/C Advance, as applicable, to Cash Collateralize the
outstanding L/C Obligations on the Letter of Credit Expiration Date shall be
deemed payment by such Lender in respect of its participation interest in
such L/C Obligations.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall notify
the Borrower and the Administrative Agent thereof. Not later than 9:00 a.m.
on the date of any payment by the L/C Issuer under a Letter of Credit (each
such date, an "Honor Date"), the Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of such
drawing. If the Borrower fails to so reimburse the L/C Issuer by such time,
the Administrative Agent shall promptly notify each Lender of the Honor Date,
the amount of the unreimbursed drawing (the "Unreimbursed Amount"), and the
amount of such Lender's Pro Rata Share thereof. In such event, the Borrower
shall be deemed to have requested a Committed Borrowing of Base Rate Loans to
be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set forth
in Section 4.02 (other than the delivery of a Committed Loan Notice). Any
notice given by the L/C Issuer or the Administrative Agent pursuant to this
Section 2.03(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 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
Agent's Office in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 11:00 a.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 Lender that so makes funds available shall be deemed to
have made a Base Rate Committed Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of Base Rate Loans because the conditions
set forth in Section 4.02 cannot be satisfied or for any other reason, the
Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so refinanced,
which L/C Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such event, each
Lender's payment to the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(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 Lender funds its Committed Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount
drawn under any Letter of Credit, interest in respect of such Lender's Pro
Rata Share of such amount shall be solely for the account of the L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default; (C) any other
occurrence, event or condition, whether or not similar to any of the
foregoing; or (D) with respect to the obligation of each Lender to fund and
satisfy its participation in an L/C Borrowing in accordance with this Section
2.03, the occurrence of the Letter of Credit Expiration Date or the Maturity
Date or the termination of the Commitments hereunder; provided, however, that
each Lender's obligation to make Committed Loans pursuant to this Section
2.03(c) is subject to the conditions set forth in Section 4.02 (other than
delivery by the Borrower of a Committed Loan Notice). No such making of an
L/C Advance shall relieve or otherwise impair the obligation of the Borrower
to reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If any 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 Federal Funds
Rate from time to time in effect. A certificate of the L/C Issuer submitted
to any Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with Section 2.03(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Pro Rata Share thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's 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 10.06 (including
pursuant to any settlement entered into by the L/C Issuer in its discretion),
each Lender shall pay to the Administrative Agent for the account of the L/C
Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds Rate
from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to
reimburse the L/C Issuer for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement
under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that the Borrower may have at any time against any beneficiary or
any transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the L/C Issuer or any
other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the
terms of such Letter of Credit; or any payment made by the L/C Issuer under
such Letter of Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim
of noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and
its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have
any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document. None
of the L/C Issuer, any Agent-Related Person nor any of the respective
correspondents, participants or assignees of the L/C Issuer shall be liable
to any Lender for (i) any action taken or omitted in connection herewith at
the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to any
Letter of Credit or Letter of Credit Application. The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, any
Agent-Related Person, nor any of the respective correspondents, participants
or assignees of the L/C Issuer, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the
Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Borrower
which the Borrower proves were caused by the L/C Issuer's willful misconduct
or gross negligence or the L/C Issuer's willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of
a Letter of Credit. In furtherance and not in limitation of the foregoing,
the L/C Issuer may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(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 Letter of Credit may
for any reason remain outstanding and partially or wholly undrawn, the
Borrower shall immediately Cash Collateralize the then Outstanding Amount of
all L/C Obligations (in an amount equal to such Outstanding Amount determined
as of the date of such L/C Borrowing or the Letter of Credit Expiration Date,
as the case may be). For purposes hereof, "Cash Collateralize" means to
pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the L/C
Issuer (which documents are hereby consented to by the Lenders). The
Borrower hereby grants to the Administrative Agent, for the benefit of the
L/C Issuer and the Lenders, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing. Cash
collateral shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America.
(h) Applicability of ISP98. Unless otherwise expressly agreed by the
L/C Issuer and the Borrower when a Letter of Credit is issued (including any
such agreement applicable to an Existing Letter of Credit), the rules of the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be
in effect at the time of issuance) shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its
Pro Rata Share a Letter of Credit fee for each Letter of Credit equal to the
Applicable Rate times the daily maximum amount available to be drawn under
such Letter of Credit (whether or not such maximum amount is then in effect
under such Letter of Credit). Such letter of credit fees shall be computed
on a quarterly basis in arrears. Such letter of credit fees shall be 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. 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 Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting
fee for each Letter of Credit equal to 0.125% times the daily maximum amount
available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit). Such letter
of credit fees shall be computed on a quarterly basis in arrears. Such
fronting fee for each Letter of Credit shall be 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. In addition, the Borrower shall pay directly to the L/C Issuer for
its own account the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees to make loans (each such loan, a "Swing
Line Loan") to the Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Pro Rata Share of the
Outstanding Amount of Committed Loans and L/C Obligations of the Lender
acting as Swing Line Lender, may exceed the amount of such Lender's
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 Committed Loans of any
Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all
L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount
of all Swing Line Loans shall not exceed such Lender's Commitment. Within
the foregoing limits, and subject to the other terms and conditions hereof,
the Borrower may borrow under this Section 2.04, prepay under Section 2.05,
and reborrow under this Section 2.04. Immediately upon the making of a Swing
Line Loan, each 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 Lender's Pro Rata Share times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made
upon the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone (provided that such
telephonic notice complies with the informational requirements of the form of
Swing Line Loan Notice attached hereto. Each such notice must be received by
the Swing Line Lender and the Administrative Agent not later than 3:00 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 in integral multiples of
$100,000), and (ii) the requested borrowing date, which shall be a Business
Day. Each such telephonic notice must be confirmed promptly by delivery to
the Swing Line Lender and the Administrative Agent of a written Swing Line
Loan Notice, appropriately completed and signed by a Responsible Officer of
the Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with
the Administrative Agent (by telephone or in writing) that the Administrative
Agent has also received such Swing Line Loan Notice and, if not, the Swing
Line Lender will notify the Administrative Agent (by telephone or in writing)
of the contents thereof. Unless the Swing Line Lender has received notice
(by telephone or in writing) from the Administrative Agent (including at the
request of any Lender) prior to 3:00 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 IV is not then satisfied, then, subject to
the terms and conditions hereof, the Swing Line Lender will, not later than
4:00 p.m. on the borrowing date specified in such Swing Line Loan Notice,
make the amount of its Swing Line Loan available to the Borrower.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each
Lender make a Base Rate Committed Loan in an amount equal to such Lender's
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 Commitments and the conditions set
forth in Section 4.02. The Swing Line Lender shall furnish the Borrower with
a copy of the applicable Committed Loan Notice promptly after delivering such
notice to the Administrative Agent. Each 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 Agent's Office not
later than 11:00 a.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds so
received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Committed Borrowing in accordance with Section 2.04(c)(i), the request
for Base Rate Committed 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 Lenders fund its risk participation in the relevant Swing Line Loan and
each Lender's 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 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 Federal Funds Rate from time to time in effect. 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 Lender's obligation to make Committed 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 set-off, counterclaim, recoupment, defense or
other right which such Lender may have against the Swing Line Lender, the
Borrower or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender's obligation to make Committed Loans pursuant to this Section 2.04(c)
is subject to the conditions set forth in Section 4.02. No such funding of
risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided
herein.
(d) Repayment of Participations.
(i) At any time after any 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 Lender's 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
10.06 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each 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 Borrower for interest on the Swing
Line Loans. Until each Lender funds its Base Rate Committed Loan or risk
participation pursuant to this Section 2.04 to refinance such Lender's 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 Borrower shall make
all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
2.05 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have the right to
prepay Loans in whole or in part from time to time; provided, however, that (i)
such notice must be received by the Administrative Agent not later than 9:00
a.m. (A) three Business Days prior to any date of prepayment of Eurodollar
Rate Loans and (B) on the date of prepayment of Base Rate Committed Loans and
(ii) each partial prepayment of (A) Eurodollar Rate Loans shall be in a minimum
principal amount of $5,000,000 and integral multiples of $1,000,000 in excess
thereof (or, the then remaining principal balance of the Committed Loans, if
less) and (B) Base Rate Loans shall be in a minimum principal amount of
$500,000 and integral multiples of $100,000 in excess thereof (or, the then
remaining principal balance of the Committed Loans, if less) or, in the case of
Swing Line Loans, in a minimum principal amount of $500,000 and multiples of
$100,000 in excess thereof. Subject to the foregoing terms, amounts prepaid
under this Section 2.05(a) shall be applied as the Borrower may elect; provided
that if the Borrower shall fail to specify its elected application with respect
to any voluntary prepayment, such voluntary prepayment shall be applied first
to Swing Line Loans and then to Committed Loans, and with respect to Committed
Loans first to Base Rate Loans and then to Eurodollar Loans in direct order of
Interest Period maturities. All prepayments under this Section 2.05(a) shall
be subject to Section 3.05, but otherwise without premium or penalty and shall
be accompanied by interest on the principal amount prepaid through the date
of prepayment.
(b) Mandatory Prepayments.
(i) (A) Aggregate Commitments. If at any time, the sum of the
aggregate outstanding principal amount of Committed Loans plus L/C Obligations
plus Swing Line Loans shall exceed the Aggregate Commitments, the Borrower
immediately shall prepay the Swing Line Loans, then the Committed Loans and
(after the Committed Loans have been repaid) cash collateralize the L/C
Obligations, in an amount sufficient to eliminate such excess.
(B) Letter of Credit Sublimit. If at any time, the sum of
the aggregate principal amount of L/C Obligations shall exceed the Letter of
Credit Sublimit, the Borrower immediately shall cash collateralize the L/C
Obligations in an amount sufficient to eliminate such excess.
(C) Swing Line Sublimit. If at any time, the outstanding
principal amount of the Swing Line Loans shall exceed the Swing Line Sublimit,
the Borrower immediately shall prepay the Swing Line Loans in an amount
sufficient to eliminate such excess.
(ii) (A) Asset Dispositions. Immediately upon the occurrence of
any Asset Disposition Prepayment Event the Borrower shall prepay the Loans in
an aggregate amount equal to 100% of the Net Cash Proceeds of the related Asset
Disposition not applied (or caused to be applied) by the Borrower during the
related Application Period to make Eligible Reinvestments as contemplated by
the terms of Section 7.05(g) (such prepayment to be applied as set forth in
clause (v) below).
(B) Involuntary Dispositions. Immediately upon the
occurrence of an Involuntary Disposition Prepayment Event, the Borrower shall
prepay the Loans in an aggregate amount equal to 100% of the Excess Proceeds
not used to make Eligible Reinvestments (such prepayment to be applied as set
forth in clause (v) below).
(iii) Debt Issuances. Immediately upon the occurrence of a
Debt Issuance Prepayment Event, the Borrower shall prepay the Loans in an
aggregate amount equal to 100% of the Net Cash Proceeds of the related Debt
Issuance (such prepayment to be applied as set forth in clause (v) below).
(iv) Equity Issuances. Immediately upon the occurrence of an
Equity Issuance Prepayment Event, the Borrower shall prepay the Loans in an
aggregate amount equal to 50% of the Net Cash Proceeds of the related Equity
Issuance (such prepayment to be applied as set forth in clause (v) below).
(v) Application of Mandatory Prepayments. Subject to the next
succeeding paragraph, all amounts required to be paid pursuant to this
Section 2.05(b) shall be applied as follows: (A) with respect to all amounts
prepaid pursuant to Section 2.05(b)(i)(A), first, to Swing Line Loans, second,
to Committed Loans and (after the Committed Loans have been repaid) to a cash
collateral account in respect of L/C Obligations, (B) with respect to all
amounts prepaid pursuant to Section 2.05(b)(i)(B), to a cash collateral account
in respect of L/C Obligations, (C) with respect to all amounts prepaid pursuant
to Section 2.05(b)(i)(C), to Swing Line Loans, (D) with respect to all amounts
prepaid pursuant to Section 2.05(b)(ii), first to the Swing Line Loans and then
Committed Loans and (after all such Loans have been repaid) to a cash
collateral account in respect of L/C Obligations (with a corresponding
reduction in the Aggregate Commitments in an amount equal to all amounts
applied, or available to be applied, to Swing Line Loans, Committed Loans and
in respect of L/C Obligations pursuant to this clause (D)) and (E) with respect
to all amounts prepaid pursuant to Section 2.05(b)(iii) or (iv), first to the
Swing Line Loans and then to Committed Loans and (after all Committed Loans
and Swing Line Loans have been repaid) to a cash collateral account in
respect of L/C Obligations. Within the parameters of the applications set
forth above, prepayments shall be applied first to Base Rate Loans and then to
Eurodollar Loans in direct order of Interest Period maturities. All
prepayments under this Section 2.05(b) shall be subject to Section 3.05, but
otherwise without premium or penalty, and shall be accompanied by interest on
the principal amount prepaid through the date of prepayment.
Notwithstanding the foregoing, to the extent that any mandatory
prepayment required under this Section 2.05 would have the effect of reducing
the Aggregate Commitments below the amount necessary to support L/C
Obligations, such portion of the prepayment shall be applied to a cash
collateral account in respect of such L/C Obligations and the Aggregate
Commitments shall not be reduced thereby.
(vi) Prepayment Account. If the Borrower is required to make a
mandatory prepayment of Eurodollar Loans under this Section 2.05(b), the
Borrower shall have the right, as long as no Default or Event of Default then
exists, in lieu of making such prepayment in full, to deposit an amount equal
to such mandatory prepayment with the Administrative Agent in a cash
collateral account maintained (pursuant to documentation reasonably
satisfactory to the Administrative Agent) by and in the sole dominion and
control of the Administrative Agent. Any amounts so deposited shall be held
by the Administrative Agent as collateral for the prepayment of such
Eurodollar Loans and shall be applied to the prepayment of the applicable
Eurodollar Loans at the end of the current Interest Periods applicable
thereto. At the request of the Borrower, amounts so deposited shall be
invested by the Administrative Agent in cash maturing prior to the date or
dates on which it is anticipated that such amounts will be applied to prepay
such Eurodollar Loans; any interest earned on such cash will be for the
account of the Borrower and the Borrower will deposit with the Administrative
Agent the amount of any loss on any such cash to the extent necessary in
order that the amount of the prepayment to be made with the deposited amounts
may not be reduced.
2.06 Termination or Reduction of Commitments.
The Borrower may, upon notice to the Administrative Agent, terminate
the Aggregate Commitments, or from time to time permanently reduce the
Aggregate Commitments; provided that (i) any such notice shall be received by
the Administrative Agent not later than 9:00 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 $5,000,000 or any whole multiple of $1,000,000
in excess thereof, (iii) the Borrower shall not terminate or reduce the
Aggregate Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Outstandings would exceed the Aggregate
Commitments, and (iv) if, after giving effect to any reduction of the
Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall
be automatically reduced by the amount of such excess. The Administrative
Agent will promptly notify the Lenders of any such notice of termination or
reduction of the Aggregate Commitments. Any reduction of the Aggregate
Commitments shall be applied to the Commitment of each Lender according to
its Pro Rata Share. All commitment 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) The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Committed Loans outstanding on such date.
(b) The Borrower shall repay each 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 subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate
Committed 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, at the Borrower's option, (x)
the Base Rate plus the Applicable Rate or (y) such other rate mutually agreed
to by the Borrower and the Swing Line Lender at the time of the borrowing of
such Swing Line Loan.
(b) If any amount payable by the Borrower under any Loan Document is
not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, 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, unless otherwise agreed to by the Required Lenders while
any Event of Default exists, the Borrower shall pay interest on the principal
amount of all outstanding Obligations hereunder at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws. 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 subsections (i) and (j) of
Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share, a
commitment fee equal to the Applicable Rate times the actual daily amount by
which the Aggregate Commitments exceed the sum of (i) the Outstanding Amount
of Committed Loans and (ii) the Outstanding Amount of L/C Obligations. The
commitment fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article
IV is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the Maturity Date.
The commitment fee shall be calculated quarterly in arrears, and if there is
any change in the Applicable Rate during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.
(b) Other Fees. The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees 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 America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All
other computations of fees and interest shall be made on the basis of a 360-
day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year).
Interest shall accrue on each Loan for the day on which the Loan is made, and
shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the
same day on which it is made shall, subject to Section 2.12(a), bear interest
for one day.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made
by the Lenders to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between
the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts
and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender made through the
Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach
schedules to its Note and endorse thereon the date, Type (if applicable),
amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance
with its usual practice accounts or records evidencing the purchases and
sales by such Lender of participations in Letters of Credit and 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.
2.12 Payments Generally.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative
Agent's Office in Dollars and in immediately available funds not later than
12:00 noon on the date specified herein. The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lender's Lending Office. All payments received by the
Administrative Agent after 12:00 noon shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) If any payment to be made by the Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.
(c) Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that
the Borrower or such Lender, as the case may be, has timely made such payment
and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to
the extent that such payment was not in fact made to the Administrative Agent
in immediately available funds, then:
(i) if the Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately
available funds, together with interest thereon in respect of each day from
and including the date such amount was made available by the Administrative
Agent to such Lender to the date such amount is repaid to the Administrative
Agent in immediately available funds at the Federal Funds Rate from time to
time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent to
the Borrower to the date such amount is recovered by the Administrative Agent
(the "Compensation Period") at a rate per annum equal to the Federal Funds
Rate from time to time in effect. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's
Committed Loan included in the applicable Borrowing. If such Lender does not
pay such amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent may make a demand therefor upon the Borrower, and
the Borrower shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal to the
rate of interest applicable to the applicable Borrowing. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent or the
Borrower may have against any Lender as a result of any default by such
Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds
for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the
Borrower by the Administrative Agent because the conditions to the applicable
Credit Extension set forth in Article IV are not satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without
interest.
(e) The obligations of the Lenders hereunder to make Committed Loans
and to fund participations in Letters of Credit and Swing Line Loans are
several and not joint. The failure of any Lender to make any Committed Loan
or to fund any such participation on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other Lender
to so make its Committed Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds
for any Loan in any particular place or manner.
2.13 Sharing of Payments.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Committed 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 set-off, or
otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders
such participations in the Committed Loans 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 Committed
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 10.06 (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 Lender's ratable share (according to the
proportion of (i) the amount of such paying Lender's required repayment to
(ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered, without further interest thereon. The
Borrower agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by law, exercise all its rights
of payment (including the right of set-off, but subject to Section 10.09)
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation. The
Administrative Agent will keep records (which shall be conclusive and binding
in the absence of manifest error) of participations purchased under this
Section 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.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and all liabilities with respect thereto, 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 "Taxes"). If the Borrower shall be required by any Laws to deduct any
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section), 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) the Borrower shall
make such deductions, (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable Laws, and (iv) within 30 days after the date of such payment, the
Borrower shall furnish to the Administrative Agent (which shall forward the
same to such Lender) the original or a certified copy of a receipt evidencing
payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property
taxes or charges or similar levies which arise from any payment made under
any Loan Document or from the execution, delivery, performance, enforcement
or registration of, or otherwise with respect to, any Loan Document
(hereinafter referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to
the Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent 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) The Borrower agrees to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts
payable under this Section) paid by the Administrative Agent and such Lender,
(ii) amounts payable under Section 3.01(c) and (iii) any liability (including
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 subsection (d) shall be made within 30 days
after the date the Lender or the Administrative Agent makes a demand
therefor.
3.02 Illegality.
If any Lender reasonably determines that any Law has made it unlawful,
or that any Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make, maintain or fund Eurodollar
Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurodollar Rate Loans or to convert Base Rate Committed Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to
such determination no longer exist, which such Lender agrees to do promptly
after permitted by applicable Laws. Upon receipt of such notice, the
Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain
such Eurodollar Rate Loans to such day, or immediately, if such Lender may
not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted. 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 for any reason adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
that the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost
to such Lenders of funding such Loan, the Administrative Agent will promptly
so notify the Borrower and each Lender. Thereafter, the obligation of the
Lenders to make or maintain Eurodollar Rate Loans shall be suspended until
the Administrative Agent (upon the instruction of the Required Lenders)
revokes such notice. Upon receipt of such notice, the Borrower may revoke
any pending request for a Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Committed Borrowing of Base Rate Loans in the
amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy;
Reserves on
Eurodollar Rate Loans.
(a) If any Lender determines that as a result of the introduction of
or any change in or in the interpretation of any Law, or such Lender's
compliance therewith, there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Rate Loans
or (as the case may be) issuing or participating in Letters of Credit, or a
reduction in the amount received or receivable by such Lender in connection
with any of the foregoing (excluding for purposes of this subsection (a) any
such increased costs or reduction in amount resulting from (i) Taxes or Other
Taxes (as to which Section 3.01 shall govern), (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States
or any foreign jurisdiction or any political subdivision of either thereof
under the Laws of which such Lender is organized or has its Lending Office,
and (iii) reserve requirements contemplated by Section 3.04(c)), then from
time to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has
the effect of reducing the rate of return on the capital of such Lender or
any corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time
to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
(c) The Borrower shall pay to each Lender, as long as such Lender
shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid principal
amount of each Eurodollar Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender
in good faith, which determination shall be conclusive), which shall be due
and payable on each date on which interest is payable on such Loan, provided
the Borrower shall have received at least 15 days' prior notice (with a copy
to the Administrative Agent) of such additional interest from such Lender.
If a Lender fails to give notice 15 days prior to the relevant Interest
Payment Date, such additional interest shall be due and payable 15 days from
receipt of such notice.
3.05 Funding Losses.
Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 10.16;
including any loss of anticipated profits and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan or from fees payable to terminate the deposits from which
such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded
each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by
a matching deposit or other borrowing in the London interbank eurodollar
market for a comparable amount and for a comparable period, whether or not
such Eurodollar Rate Loan was in fact so funded.
3.06 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 Lender's making a claim for compensation under Section
3.01 or 3.04, the Borrower may replace such Lender in accordance with Section
10.16.
3.07 Survival.
All of the Borrower's obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other
Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO Credit Extensions
4.01 Conditions of Initial Credit Extension.
The occurrence of the Closing Date, the effectiveness of this Agreement
and the obligation of each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:
(a) Loan Documents, Organization Documents, Etc. The Administrative
Agent's receipt of the following, each of which shall be originals or
facsimiles (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the 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;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) copies of the Organization Documents of each Loan Party certified
to be true and complete as of a recent date by the appropriate Governmental
Authority of the state or other jurisdiction of its incorporation or
organization, where applicable, and certified by a secretary or assistant
secretary of such Loan Party to be true and correct as of the Closing Date;
(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; and
(v) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or
formed, and is validly existing, in good standing and qualified to engage in
business in (A) the jurisdiction of its incorporation or organization and
(B) each jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification, except to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(b) Opinions of Counsel. The Administrative Agent shall have received,
in each case dated as of the Closing Date and in form and substance reasonably
satisfactory to the Administrative Agent a legal opinion of Xxxxxxx Coie LLP,
special counsel for the Loan Parties;
(c) Officer's Certificates. The Administrative Agent shall have
received a certificate or certificates executed by a Responsible Officer of the
Borrower as of the Closing Date, in form and substance satisfactory to the
Administrative Agent, stating that (A) the conditions specified in
Sections 4.02(a) and (b) have been satisfied as of the Closing Date, (B) the
Borrower is in compliance with all existing material financial obligations,
(C) all governmental, shareholder and third party consents and approvals, if
any, with respect to the Loan Documents and the transactions contemplated
thereby have been obtained (and attaching copies thereof), (D) no action, suit,
investigation or proceeding is pending or threatened in any court or before any
arbitrator or governmental instrumentality that purports to affect the Borrower
or any transaction contemplated by the Loan Documents, if such action, suit,
investigation or proceeding could have a Material Adverse Effect, and (E)
immediately after giving effect to the initial Loans hereunder, (1) no Default
or Event of Default exists and (2) all representations and warranties contained
herein and in the other Loan Documents are true and correct in all material
respects.
(d) Fees. Any fees required to be paid on or before the Closing Date
shall have been paid.
(e) Attorney Costs. The Borrower shall have paid all Attorney Costs
of the Administrative Agent to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of Attorney Costs as shall constitute its
reasonable estimate of Attorney Costs incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between the Borrower and the
Administrative Agent).
(f) Existing Credit Agreement. The Administrative Agent shall have
received evidence, in form and substance satisfactory to the Administrative
Agent, that the Existing Credit Agreement has been, or concurrently with the
Closing Date is being, terminated and all obligations of the Borrower under
the Existing Credit Agreement have been, or concurrently with the Closing
Date are being, paid and fully satisfied.
(g) Accuracy of Representations and Warranties. The representations and
warranties of the Loan Parties contained in Article V or any other Loan
Document, or which are contained in any document furnished at any time under
or in connection herewith or therewith, shall be true and correct on and as
of the Closing Date.
(h) No Default. No Default shall exist and be continuing as of the
Closing Date.
(i) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably requested by any Lender,
including, but not limited to, information regarding litigation, tax,
accounting, labor, insurance, pension liabilities (actual or contingent), real
estate leases, material contracts, debt agreements, property ownership and
contingent liabilities of the Consolidated Parties.
4.02 Conditions to all Credit Extensions.
The obligation of each Lender to honor any Request for Credit Extension
(other than a Committed Loan Notice requesting only a conversion of Committed
Loans to the other Type, or a continuation of Eurodollar Rate Loans) is
subject to the following conditions precedent:
(a) The representations and warranties of the Borrower and each other
Loan Party contained in Article V or any other Loan Document, or which are
contained in any document furnished at any time under or in connection
herewith or therewith, shall be true and correct on and as of the date of
such Credit Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be
true and correct as of such earlier date, and except that for purposes of
this Section 4.02, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01.
(b) No Default shall exist, or would result from, such proposed
Credit Extension.
(c) There shall not have been commenced against any Consolidated Party
an involuntary case under any applicable Debtor Relief Law, now or hereafter in
effect, or any case, proceeding or other action for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or for the
winding up or liquidation of its affairs, and such involuntary case or other
case, proceeding or other action shall remain undismissed.
(d) The Administrative Agent and, if applicable, the L/C Issuer shall
have received a Request for Credit Extension in accordance with the
requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurodollar Rate Loans) submitted by the Borrower shall be
deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a), (b) and (c) have been satisfied on and as of the date of
the applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Loan Parties, jointly and severally, represent and warrant to the
Administrative Agent and the Lenders that:
5.01 Existence, Qualification and Power; Compliance with Laws.
Each Consolidated Party (a) is a 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 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.
5.02 Authorization; No Contravention.
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is a party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not
(a) contravene the terms of any of such Person's Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, (i) any Contractual Obligation to which such Person is a
party 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 (including without limitation Regulation U or
Regulation X issued by the FRB.
5.03 Governmental Authorization; Other Consents.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or
performance by, or enforcement against, any Loan Party of this Agreement or
any other Loan Document except for consents, authorizations, notices and
filings described on Schedule 5.03.
5.04 Binding Effect.
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party
that is party thereto. This Agreement constitutes, and each other Loan
Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms except as enforceability may be
limited by applicable Debtor Relief Laws and by general equitable principals
(whether enforcement is sought by proceedings in equity or at law).
5.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except
as otherwise expressly noted therein; (ii) fairly present the financial
condition of the Consolidated Parties 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 Consolidated Parties as
of the date thereof, including liabilities for taxes, material commitments
and Indebtedness.
(b) The unaudited consolidated financial statements of the
Consolidated Parties dated July 31, 2003, and the related consolidated
statements of income or operations, shareholders' 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 Consolidated Parties 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, either individually or in the aggregate, that
has had or could reasonably be expected to have a Material Adverse Effect.
5.06 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 Consolidated Party or
against any of their properties or revenues that (a) purport to affect or
pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (b) either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
5.07 No Default.
No Consolidated Party is in default under or with respect to any
Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has
occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan Document.
5.08 Ownership of Property; Liens.
Each Consolidated Party has good record and marketable title in fee
simple to, or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of its business, except for such defects in
title as could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. The property of the Consolidated Parties
is subject to no Liens, other than Liens permitted by Section 7.01.
5.09 Environmental Compliance.
Except in each case as where the existence and/or occurrence of any of
the following could not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the real Properties and all operations at the real
Properties are in compliance with all applicable Environmental Laws, there is
no violation of any Environmental Law with respect to the real Properties or
the businesses, and there are no conditions relating to the real Properties or
the businesses that could give rise to liability under any applicable
Environmental Laws.
(b) None of the real Properties contains, or has previously contained,
any Hazardous Materials at, on or under the real Properties in amounts or
concentrations that constitute or constituted a violation of, or could give
rise to liability under, Environmental Laws.
(c) No Consolidated Party has received any written or verbal notice of,
or inquiry from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the real Properties or the businesses, nor does any Responsible Officer of
any Loan Party have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) Hazardous Materials have not been transported or disposed of from
the real Properties, or generated, treated, stored or disposed of at, on or
under any of the real Properties or any other location, in each case by or on
behalf of any Consolidated Party in violation of, or in a manner that could
give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of the Responsible Officers of the Borrower,
threatened, under any Environmental Law to which any Consolidated Party is or
will be named as a party, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with respect
to the Consolidated Parties, the real Properties or the businesses.
(f) There has been no release, or threat of release, of Hazardous
Materials at or from the real Properties, or arising from or related to the
operations (including, without limitation, disposal) of any Consolidated Party
in connection with the real Properties or otherwise in connection with the
businesses, in violation of or in amounts or in a manner that could give rise
to liability under Environmental Laws.
5.10 Insurance.
The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Borrower, in such amounts (after giving effect to any self-insurance
compatible with the following standards), with such deductibles and covering
such risks in accordance with normal industry practice, and as required by
applicable Laws.
5.11 Taxes.
The Consolidated Parties 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 Consolidated Party that would, if made,
have a Material Adverse Effect.
5.12 ERISA Compliance.
(a) Each Plan is in compliance with the applicable provisions of
ERISA, the Code and other Federal or state Laws, except for such
noncompliance as would not result in a Material Adverse Effect. Each Plan
that is intended to qualify under Section 401(a) of the Code (i) has received
a favorable determination letter from the IRS, (ii) has remaining a period of
time under the Code or applicable Treasury regulations or IRS pronouncements
in which to request, and to make any amendments necessary to obtain, such a
letter from the IRS, or (iii) if reliance is permitted under IRS Announcement
2001-77, relies on the favorable opinion letter of the master, prototype or
volume submitter plan sponsor of the Plan. To the best knowledge of the
Borrower, nothing has occurred which would prevent, or cause the loss of,
qualification of any such Plan. The Borrower 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 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 Pension Plan has any Unfunded Pension Liability; (iii) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA);
(iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability)
under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan;
and (v) neither the Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Sections 4069 or 4212(c) of ERISA;
except, in each case in clauses (i) through (v) above, to the extent such
event or condition, together with all other such events or conditions, could
not reasonably be expected to result in a Material Adverse Effect.
(d) To the extent they relate to a Multiemployer Plan, the
representations contained in Section 5.12(a), (b) and (c) are made only to
the knowledge of the Borrower.
5.13 Subsidiaries.
As of the Closing Date, the Borrower has no Subsidiaries other than
those specifically disclosed in Part (a) of Schedule 5.13 and has no equity
investments in any other corporation or entity other than those specifically
disclosed in Part (b) of Schedule 5.13.
5.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act.
(a) The Borrower is not engaged and will not 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.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, or (ii) is or is required to be
registered as an "investment company" under the Investment Company Act of
1940.
5.15 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. No report, financial statement,
certificate or other information furnished (whether in writing or orally) by
or on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
5.16 Compliance with Laws.
Each Consolidated Party is in compliance in all material respects with
the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted or
(b) the failure to comply therewith, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
5.17 Intellectual Property; Licenses, Etc.
Each Consolidated Party owns, or possesses the right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively,
"IP Rights") that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person.
To the best knowledge of the Loan Parties, no slogan or other advertising
device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Borrower or any
Subsidiary infringes upon any rights held by any other Person. No claim or
litigation regarding any of the foregoing is pending or, to the best
knowledge of the Loan Parties, threatened, which, either individually or in
the aggregate, could reasonably be expected to have a Material Adverse
Effect.
5.18 Tax Shelter Regulations.
The Borrower does not intend to treat the Loans and/or Letters of
Credit and related transactions as being a "reportable transaction" (within
the meaning of Treasury Regulation section 1.6011-4). If the Borrower
determines to take any action inconsistent with such intention, it will
promptly notify the Administrative Agent thereof. If the Borrower
acknowledges that the Administrative Agent and/or one or more of the Lenders
may treat the Loans and/or Letters of Credit as part of a transaction that is
subject to Treasury Regulation section 1.6011-y or 301.6112-1, and the
Administrative Agent and/or such Lender or Lenders, as applicable, may file
such IRS forms or maintain such lists and other records as they may determine
is required by such Treasury Regulations.
5.19 Indebtedness.
Except as otherwise permitted under Section 7.03, the Borrower's
Subsidiaries have no Indebtedness.
5.20 Purpose of Loans and Letters of Credit.
The proceeds of the Loans hereunder shall be used solely by the
Borrower (a) to refinance existing Indebtedness and (b) to provide for
working capital, commercial paper back up and any other lawful corporate
purposes of the Borrower and its Subsidiaries (including, without limitation,
Permitted Acquisitions). The Letters of Credit shall be used only for or in
connection with credit support required for bonds issued in respect of
financings for which a Borrower is responsible for, directly or indirectly,
repayment, appeal bonds, reimbursement obligations arising in connection with
surety and reclamation bonds, reinsurance and obligations not otherwise
aforementioned relating to transactions entered into by the applicable
account party in the ordinary course of business.
5.21 Solvency.
The Loan Parties are Solvent on a Consolidated Basis.
5.22 Investments.
All Investments of each Consolidated Party are Permitted Investments.
5.23 No Burdensome Restrictions.
No Consolidated Party is a party to any agreement or instrument or
subject to any other obligation or any charter or corporate restriction or
any provision of any applicable law, rule or regulation which, individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
5.24 Brokers' Fees.
No Consolidated Party has any obligation to any Person in respect of
any finder's, broker's, investment banking or other similar fee in connection
with any of the transactions contemplated under the Loan Documents.
5.25 Labor Matters.
None of the Consolidated Parties has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five years
which has had or could reasonably be expected to have a Material Adverse
Effect.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter
of Credit shall remain outstanding, each Loan Party shall, and shall (except
in the case of the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11)
cause each Subsidiary to:
6.01 Financial Statements.
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a consolidated balance sheet of the
Consolidated Parties as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders' 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 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 "going concern" or like
qualification, exception, assumption or explanatory language or any
qualification, exception, assumption or explanatory language as to the scope
of such audit; and
(b) as soon as available, but in any event within 45 days after the
end of each of the first three fiscal quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Consolidated Parties as at the
end of such fiscal quarter, and the related consolidated statements of income
or operations, shareholders' equity and cash flows for such fiscal quarter
and for the portion of the Borrower's fiscal year then ended, setting forth
in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by a Responsible
Officer of the Borrower as fairly presenting the financial condition, results
of operations, shareholders' equity and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to
Section 6.02, the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in subsections (a) and (b) above at the times specified
therein.
6.02 Certificates; Other Information.
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified
public accountants certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or, if any such Default shall exist, stating the nature and status of
such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower (i) demonstrating
compliance with the financial covenants contained in Section 7.11 by
calculation thereof as of the end of each such fiscal period, (ii) stating that
no Default or Event of Default exists, or if any Default or Event of Default
does exist, specifying the nature and extent thereof and what action the
Borrower proposes to take with respect thereto, (iii) demonstrating pursuant to
a Pro Forma Compliance Certificate that, upon giving effect on a Pro Forma
Basis to each Asset Disposition in excess of $10,000,000 consummated in the
applicable period, the Borrower would be in compliance with the financial
covenants set forth in Section 7.11(a)-(c) and (iv) in the case of the
certificate delivered with the financial statements provided for in Section
6.01(a) only, setting forth information regarding the amount of all Asset
Dispositions, Equity Issuances and Debt Issuances that were made during the
applicable fiscal year;
(c) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the stockholders of the Borrower, and copies of all annual, regular, periodic
and special reports and registration statements which the Borrower may file
or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered
to the Administrative Agent pursuant hereto;
(d) promptly after the Borrower has notified the Administrative Agent
of any intention by the Borrower to treat the Loans and/or Letters of Credit
and related transactions as being a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4), a duly completed copy of
IRS Form 8886 or any successor form; and
(e) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower 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 6.01(a) or (b)
or Section 6.02(d) (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 Borrower posts such documents, or provides a link thereto on the
Borrower's website on the Internet at the website address listed on Schedule
10.02; or (ii) on which such documents are posted on the Borrower's 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 Borrower shall deliver paper copies of such documents to the
Administrative Agent until a written request to cease delivering paper copies
is given by the Administrative Agent and (ii) the Borrower 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 Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(c) 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 Borrower with any such request for delivery, and
each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.
6.03 Notices.
(a) Promptly notify the Administrative Agent and each Lender of the
occurrence of any Default and the nature thereof;
(b) Promptly notify the Administrative Agent and each Lender of any
matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or any
default under, a Contractual Obligation of the Borrower or any Subsidiary;
(ii) any dispute, litigation, investigation, proceeding or suspension between
the Borrower or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws;
(c) Promptly notify the Administrative Agent and each Lender of the
occurrence of any ERISA Event;
(d) Promptly notify the Administrative Agent and each Lender of any
material change in accounting policies or financial reporting practices by
the Borrower or any Subsidiary;
(e) Promptly and in any event within fifteen Business Days after any
Responsible Officer obtains knowledge of any change or possible change in a
Debt Rating;
(f) Upon the reasonable written request of the Administrative Agent
following the occurrence of any event or the discovery of any condition which
the Administrative Agent or the Required Lenders reasonably believe has caused
(or could be reasonably expected to cause) the representations and warranties
set forth in Section 5.09 to be untrue in any material respect, the Borrower
will furnish or cause to be furnished to the Administrative Agent, at the
Borrower's expense, a report of an environmental assessment of reasonable
scope, form and depth, (including, where appropriate, invasive soil or
groundwater sampling) by a consultant reasonably acceptable to the
Administrative Agent as to the nature and extent of the presence of any
Hazardous Materials on any Property and as to the compliance by any
Consolidated Party with Environmental Laws at such Property. If the Loan
Parties fail to deliver such an environmental report within seventy-five (75)
days after receipt of such written request then the Administrative Agent may
arrange for same, and the Consolidated Parties hereby grant to the
Administrative Agent and its representatives access to the Property to
reasonably undertake such an assessment (including, where appropriate, invasive
soil or groundwater sampling). The reasonable cost of any assessment arranged
for by the Administrative Agent pursuant to this provision will be payable by
the Borrower on demand.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of
the occurrence referred to therein and stating what action the Borrower has
taken and proposes to take with respect thereto. Each notice pursuant to
Section 6.03(a) shall describe with particularity any and all provisions of
this Agreement and any other Loan Document that have been breached.
6.04 Payment of Obligations.
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 the Borrower or such Subsidiary, unless the
failure to make any such payment (i) could give rise to an immediate right
for completion of a foreclosure sale on a Lien securing such amounts or (ii)
could reasonably be expected to have a Material Adverse Effect, pay and
discharge as the same shall become due and payable, all its obligations and
liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets; (b) all lawful claims
which, if unpaid, would by law become a Lien upon its property; and (c) all
Indebtedness in excess of the Threshold Amount, as and when due and payable,
but subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.
6.05 Preservation of Existence, Etc.
(a) Preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04 or 7.05; (b)
take all reasonable action to maintain all rights, privileges, permits,
licenses and franchises necessary or desirable in the normal conduct of its
business, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (c) preserve or renew all of
its registered patents, trademarks, trade names and service marks, the non-
preservation of which could reasonably be expected to have a Material Adverse
Effect.
6.06 Maintenance of Properties; Management of Timberlands.
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order
and condition, ordinary wear and tear and Involuntary Dispositions excepted;
(b) make all necessary repairs thereto and renewals and replacements thereof
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; (c) use the standard of care typical in the industry
in the operation and maintenance of its facilities; and (d) manage its
timberlands in accordance with the guidelines established by the American
Forest & Paper Association's Sustainable Forestry Initiative effective as of
the Closing Date.
6.07 Maintenance of Insurance.
(a) The Borrower will, and will cause each of its Subsidiaries to, at
all times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and liabilities
and with such deductibles or self-insurance retentions as are in accordance
with normal industry practice, and as required by Applicable Law.
(b) In the event that the Consolidated Parties receive Net Cash
Proceeds in excess of $5,000,000 in aggregate amount during any fiscal year of
the Consolidated Parties ("Excess Proceeds") on account of Involuntary
Dispositions, the Borrower shall, within the period of 360 days following the
date of receipt of such Excess Proceeds, apply (or cause to be applied) an
amount equal to such Excess Proceeds to (i) make Eligible Reinvestments
(including but not limited to the repair or replacement of the related
Property) or (ii) prepay the Loans (and cash collateralize L/C Obligations) in
accordance with the terms of Section 2.05(b)(ii)(B); provided, however, that
such Person shall not undertake replacement or restoration of such Property
unless, after giving pro forma effect to any Funded Indebtedness to be incurred
in connection with such replacement or restoration, the Borrower would be in
compliance with the financial covenants set forth in Section 7.11(a)-(c) as of
the most recent fiscal quarter end preceding the date of determination with
respect to which the Agent has received the Audited Financial Statements
(assuming, for purposes hereof, that such Funded Indebtedness was incurred as
of the first day of the four fiscal-quarter period ending as of such fiscal
quarter end). Pending final application of any Excess Proceeds, the Borrower
may apply such Excess Proceeds to temporarily reduce the Committed Loans or to
make Permitted Investments.
6.08 Compliance with Laws.
Comply in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its
business or property, except in such instances in which (a) such requirement
of Law or order, writ, injunction or decree is being contested in good faith
by appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
6.09 Books and Records.
(a) 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 Borrower 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 the Borrower or such Subsidiary, as the case may be.
6.10 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 directors, officers, 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
Borrower; provided, however, that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at
the expense of the Borrower at any time during normal business hours and
without advance notice.
6.11 Use of Proceeds.
Use the proceeds of the Credit Extensions solely for the purposes set
forth in Section 5.20.
6.12 Performance of Obligations.
The Borrower will, and will cause each of its Subsidiaries to, perform in
all material respects in accordance with customary trade practices all of its
obligations under the terms of all material agreements, indentures, mortgages,
security agreements or other debt instruments to which it is a party or by
which it is bound; provided, however, that the Borrower or such Subsidiary may
contest any such obligation in good faith and by proper proceedings so long as
adequate reserves are maintained with respect thereto to the extent required by
GAAP.
6.13 Guarantors.
Notify the Administrative Agent at the time that any Person becomes a
Material Domestic Subsidiary and, to the extent no adverse tax consequences
would occur as a result thereof, a Material Foreign Subsidiary, and promptly
thereafter (and in any event within 30 days), cause such Person to (a) become a
Guarantor by executing and delivering to the Administrative Agent a Joinder
Agreement and such other documents as the Administrative Agent shall deem
appropriate for such purpose, and (b) deliver to the Administrative Agent
documents of the types referred to in clauses (iii), (iv) and (v) of Section
4.01(a) and favorable opinions of counsel to such Person (which shall cover,
among other things, the legality, validity, binding effect and enforceability
of the documentation referred to in clause (a)), all in form, content and scope
reasonably satisfactory to the Administrative Agent.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter
of Credit shall remain outstanding (to the extent such Letter of Credit is
not fully Cash Collateralized in accordance with Section 2.03(g)), no Loan
Party shall, nor shall it permit any Subsidiary to, directly or indirectly:
7.01 Liens.
Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens in favor of the Administrative Agent, if any, to secure the
Obligations;
(b) Liens (other than Liens created or imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or Liens for taxes
being contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established (and as to
which the Property subject to any such Lien is not yet subject to foreclosure,
sale or loss on account thereof);
(c) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or pursuant
to customary reservations or retentions of title arising in the ordinary course
of business, provided that such Liens secure only amounts not yet due and
payable or, if due and payable, are unfiled and no other action has been taken
to enforce the same or are being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with GAAP have
been established (and as to which the Property subject to any such Lien is not
yet subject to foreclosure, sale or loss on account thereof);
(d) Liens (other than Liens created or imposed under ERISA) incurred or
deposits made by any Consolidated Party in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types
of social security, or to secure the performance of tenders, statutory
obligations, bids, leases, government contracts, performance and return-of-
money bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(e) Liens in connection with attachments or judgments (including
judgment or appeal bonds) to the extent such attachments or judgments do not
constitute an Event of Default under Sections 8.01(g) or (h), provided that the
judgments secured shall, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall have been
discharged within 30 days after the expiration of any such stay;
(f) easements, rights-of-way, restrictions (including zoning
restrictions), encumbrances in the nature of leases or subleases granted to
others, minor defects or irregularities in title, reservations of mineral, oil
and gas and water or other similar rights existing on the date of acquisitions
of any property by the Borrower or any Subsidiary, encroachments or questions
of locations, boundary and area which an accurate survey may disclose,
exceptions and reservations in United States patents or state deeds, any
prohibition or limitation on the use, occupancy or improvement of land
resulting from the rights of the public or riparian owners to use any waters
which may cover the land and other similar charges or encumbrances, in each
case incidental to, and not interfering with, the ordinary conduct of the
business of the Borrower or any Subsidiary;
(g) Liens on Property of any Person securing purchase money
Indebtedness (including Capital Leases and Synthetic Leases) of such Person
permitted under Section 7.03(c), provided that any such Lien attaches to such
Property concurrently with or within 90 days after the acquisition thereof;
(h) leases or subleases granted to others not interfering in any
material respect with the business of any Consolidated Party;
(i) any interest of title of a lessor under, and Liens arising from UCC
financing statements (or equivalent filings, registrations or agreements in
foreign jurisdictions) relating to, leases permitted by this Agreement;
(j) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(k) Liens deemed to exist in connection with Investments in repurchase
agreements permitted under Section 7.02;
(l) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(m) Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection;
(n) Liens of sellers of goods to the Borrower and any of its
Subsidiaries arising under Article 2 of the Uniform Commercial Code or similar
provisions of applicable law in the ordinary course of business, covering
only the goods sold and securing only the unpaid purchase price for such
goods and related expenses;
(o) any interest of title of a buyer in connection with, and Liens
arising from UCC financing statements relating to, a sale of receivables
permitted by this Agreement;
(p) Liens existing as of the Closing Date and set forth on Schedule
7.01;
(q) Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with the Borrower or any Subsidiary of
the Borrower; provided that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated with the Borrower
or the Subsidiary;
(r) Liens on property existing at the time of acquisition of the
property by the Borrower or any Subsidiary of the Borrower, provided that
such Liens were in existence prior to the contemplation of such acquisition;
(s) Liens created or assumed in the ordinary course of business of
exploring for, developing or producing oil, gas or other minerals (including
borrowings in connection therewith) on, or any interest in, or on any
proceeds from the sale of, property acquired for such purposes, production
therefrom (including the proceeds thereof), or material or equipment located
thereon;
(t) Liens arising from the pledge of any bonds, debentures, notes or
similar instruments which are purchased and held by any remarketing agent for
the account of, or as agent for, the Borrower;
(u) any extension, renewal or replacement, in whole or in part, of
any Lien described in the foregoing clauses (a) through (u); provided that
any such extension, renewal or replacement shall be no more restrictive in
any material respect than the Lien extended, renewed or replaced and shall
not extend to any other Property of the Consolidated Parties other than such
item of Property originally covered by such Lien or by improvement thereof or
additions or accessions thereto;
(v) loggers' Liens and stumpage Liens arising in the ordinary course
of business of the Borrower and its Subsidiaries; and
(w) Liens which are permitted under the Senior Subordinated Note
Indenture and which secure Indebtedness incurred after the Closing Date in
compliance with this Agreement, provided the aggregate principal amount
outstanding of such Indebtedness does not at any time exceed five percent
(5%) of the book value of the Property of the Consolidated Parties, measured
as of the most recently ended fiscal quarter for which the Compliance
Certificate required under Section 6.02(b) has been delivered.
7.02 Investments.
Make any Investments, except:
(a) Investments consisting of cash and Cash Equivalents;
(b) Investments consisting of accounts receivable created, acquired or
made by any Consolidated Party in the ordinary course of business and payable
or dischargeable in accordance with customary trade terms;
(c) Investments consisting of Capital Stock, obligations, securities or
other property received by any Consolidated Party in settlement of accounts
receivable (created in the ordinary course of business) from bankrupt obligors;
(d) Investments existing as of the Closing Date and set forth in
Schedule 7.02;
(e) Investments consisting of advances or loans to labor or material
suppliers or customers in the ordinary course of business that do not exceed
$10,000,000 in the aggregate at any one time outstanding;
(f) Investments consisting of advances or loans to directors, officers,
employees or agents in the ordinary course of business that do not exceed
$2,000,000 in the aggregate at any one time outstanding; provided that all such
advances must be in compliance with applicable Laws, including, but not
limited to, the Xxxxxxxx-Xxxxx Act of 2002;
(g) Investments (i) in a Loan Party, (ii) by a Subsidiary of the
Borrower that is not a Loan Party in a wholly owned Subsidiary of the Borrower
and (iii) so long as the Borrower is in compliance with Section 7.17, by the
Loan Parties in Subsidiaries that are not Loan Parties and/or by the Borrower
or any of its Subsidiaries in any Person to the extent required for the
Borrower or any Subsidiary to conduct business with such Person, provided such
Investments pursuant to this clause (iii) do not exceed $5,000,000 in the
aggregate at any one time outstanding;
(h) any Eligible Reinvestment of the proceeds of any Involuntary
Disposition as contemplated by Section 6.07(b) or of any Asset Disposition as
contemplated by Section 7.05(g); or
(i) So long as the Borrower is in compliance with Section 7.17,
Investments consisting of an Acquisition by the Borrower or any Subsidiary of
the Borrower, provided that:
(i) the Property acquired (or the Property of the Person acquired)
in such Acquisition is used or useful in the same or a similar line of
business as the Borrower and its Subsidiaries were engaged in on the Closing
Date (or any reasonable extensions or expansions thereof),
(ii) in the case of an Acquisition of the Capital Stock of another
Person, the board of directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition,
(iii) the Borrower shall have delivered to the Administrative
Agent, with respect to each such Acquisition for an Investment involving
consideration (cash and non-cash) in excess of $20,000,000, (A) a Pro Forma
Compliance Certificate demonstrating that, upon giving effect to such
Acquisition on a Pro Forma Basis, the Consolidated Parties would be in
compliance with the financial covenants set forth in Section 7.11(a)-(c) and
(B) a certificate of an Responsible Officer of the Borrower (1) demonstrating
that at least 90% of Consolidated EBITDDA for the most recently ended fiscal
year period for each of the Consolidated Parties and the acquired Person or
Property preceding the date of such Acquisition with respect to which the
Administrative Agent shall have received the Required Financial Information
has been audited in accordance with GAAP, in the case of the Borrower, as
required by Section 6.01(a) and, in the case of the acquired Person or
Property, by an independent certified public accountant of recognized national
standing reasonably acceptable to the Administrative Agent (whose opinion shall
not be limited as to the scope or qualified as to going concern status or any
other material qualifications or exceptions) and (2) to the extent that audited
financial information for the acquired Person or Property is required under the
terms of the foregoing clause (1), certifying that the quarterly financial
statements with respect to the Person or Property acquired for each fiscal
quarter period ending after the date of the last audit and immediately prior to
the date of such Acquisition have been prepared in accordance with GAAP
(subject to audit adjustments and the absence of footnotes) and reviewed by
independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent,
(iv) the representations and warranties made by the Borrower in any
Loan Document shall be true and correct in all material respects at and as if
made as of the date of such Acquisition (before and after giving effect
thereto) except to the extent such representations and warranties expressly
relate to an earlier date,
(v) if such transaction involves the purchase of an interest in a
partnership between the Borrower (or a Subsidiary of the Borrower) as a general
partner and entities unaffiliated with the Borrower or such Subsidiary as the
other partners, such transaction shall be effected by having such equity
interest acquired by a corporate holding company directly or indirectly wholly-
owned by the Borrower newly formed for the sole purpose of effecting such
transaction and
(vi) the aggregate consideration (including cash and non-cash
consideration and any assumption of Indebtedness, but excluding consideration
consisting of any Capital Stock of the Borrower issued to the seller of the
Capital Stock or Property acquired in such Acquisition and consideration
consisting of the proceeds of any Equity Issuance by the Borrower consummated
subsequent to the Closing Date and the proceeds of any Asset Disposition, or
Involuntary Disposition consummated subsequent to the Closing Date) paid by
the Consolidated Parties for all such Acquisitions occurring after the Closing
Date shall not exceed ten percent (10%) of Consolidated Tangible Net Worth; or
(j) Investments in Joint Ventures that do not exceed $50,000,000 in the
aggregate during the term of this Agreement.
7.03 Subsidiary Indebtedness.
Permit any of the Borrower's Subsidiaries to create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness arising under this Agreement and the other Loan
Documents;
(b) Indebtedness of the Subsidiaries set forth in Schedule 7.03
(and renewals, refinancings and extensions thereof on terms and conditions no
less favorable to such Person than such existing Indebtedness and in amounts no
greater than such existing Indebtedness at the time of such renewal,
refinancing or extension);
(c) purchase money Indebtedness (including obligations in respect
of Capital Leases and Synthetic Lease Obligations) hereafter incurred by the
Subsidiaries to finance fixed assets provided that (i) the total of all such
Indebtedness (other than Indebtedness set forth on Schedule 7.03) for all such
Persons taken together shall not exceed an aggregate principal amount of
$10,000,000 at any one time outstanding; (ii) such Indebtedness when incurred
shall not exceed the value of the asset(s) financed; and (iii) no such
Indebtedness shall be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such refinancing;
(d) obligations of the Subsidiaries in respect of Swap Contracts
entered into in order to manage existing or anticipated interest rate or
exchange rate risks and not for speculative purposes;
(e) intercompany Indebtedness and Guarantees permitted under
Section 7.02;
(f) in addition to the Indebtedness otherwise permitted by this
Section 7.03, other Indebtedness hereafter incurred by the Subsidiaries,
provided that (i) the loan documentation with respect to such Indebtedness
shall not contain covenants or default provisions relating to any Consolidated
Party that are more restrictive than the covenants and default provisions
contained in the Loan Documents, (ii) no Default or Event of Default shall
exist before or after giving effect on a Pro Forma Basis to the incurrence
thereof, (iii) the aggregate principal amount of such Indebtedness shall not
exceed $2,000,000 at any time and (iv) such Indebtedness is permitted under
the Senior Subordinated Note Indenture.
7.04 Fundamental Changes.
Except in connection with a Permitted Asset Disposition, permit any
Consolidated Party to enter into any transaction of merger or consolidation or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); provided that, notwithstanding the foregoing provisions of this
Section 7.04, (a) the Borrower may merge or consolidate with any of its
Subsidiaries, provided that the Borrower shall be the continuing or surviving
corporation, (b) any Subsidiary of the Borrower may be merged or consolidated
with or into any other Subsidiary of the Borrower, provided that if any such
Subsidiary is a Guarantor, such Guarantor shall be the continuing or surviving
entity, (c) any Subsidiary of the Borrower may merge with any Person that is
not the Borrower in connection with an Asset Disposition permitted under
Section 7.05, (d) the Borrower or any Subsidiary of the Borrower may merge with
any Person other than a Consolidated Party in connection with a Permitted
Acquisition, provided that, if such transaction involves the Borrower or a
Guarantor, the Borrower or such Guarantor shall be the continuing or surviving
corporation and (e) any wholly owned Subsidiary of the Borrower may dissolve,
liquidate or wind up its affairs at any time provided that such dissolution,
liquidation or winding up, as applicable, could not have a Material Adverse
Effect.
7.05 Dispositions.
Permit any Consolidated Party to make any Asset Disposition unless
(a) such Asset Disposition constitutes an exchange of Property in the ordinary
course of such Consolidated Party's business or the consideration paid in
connection therewith is in cash or Cash Equivalents and in an amount not less
than the fair market value of the Property disposed of, (b) if such transaction
is a Sale and Leaseback Transaction, such transaction is not prohibited by the
terms of Section 7.14, (c) such transaction does not involve the sale or other
disposition of a minority equity interest in any Consolidated Party, (d) such
transaction does not involve a sale or other disposition of receivables other
than receivables owned by or attributable to other Property concurrently being
disposed of in a transaction otherwise permitted under this Section 7.05,
(e) the aggregate proceeds received in cash or Cash Equivalents by the
Consolidated Parties from all of the assets sold or otherwise disposed of by
the Consolidated Parties in any fiscal year shall not exceed $75,000,000,
(f) if such Asset Disposition is for consideration (cash and non-cash) in
excess of $10,000,000, no later than five (5) Business Days prior to such Asset
Disposition, the Borrower shall have delivered to the Administrative Agent (i)
a Pro Forma Compliance Certificate demonstrating that, upon giving effect on
a Pro Forma Basis to such transaction, the Borrower would be in compliance
with the financial covenants set forth in Section 7.11(a)-(c) and (ii)
notification from the Borrower in form and substance satisfactory to the
Administrative Agent and specifying the anticipated date of such Asset
Disposition, briefly describing the assets to be sold or otherwise disposed of
and setting forth the net book value of such assets, the aggregate
consideration and the Net Cash Proceeds to be received for such assets in
connection with such Asset Disposition, (g) the Borrower shall, to the extent
required under this Agreement, apply (or cause to be applied) an amount equal
to the Net Cash Proceeds of such Asset Disposition to, as applicable, (i)
prepay or retire debt in accordance with clause (c) of the definition of Net
Cash Proceeds, (ii) make Eligible Reinvestments or (iii) prepay the Loans (and
cash collateralize L/C Obligations) in accordance with the terms of
Section 2.05(b)(ii)(A), (h) such Asset Disposition is permitted under the
Senior Subordinated Note Indenture and (i) no Default or Event of Default shall
exist before or after giving effect to such Asset Disposition. Pending final
application of the Net Cash Proceeds of any Asset Disposition, the Consolidated
Parties may apply such Net Cash Proceeds to temporarily reduce the Committed
Loans or to make Investments in Cash Equivalents.
7.06 Restricted Payments.
Permit any Consolidated Party to directly or indirectly, declare,
order, make or set apart any sum for or pay any Restricted Payment, except
(a) to make dividends or other distributions payable to the Borrower
(directly or indirectly through Subsidiaries), (b) as expressly permitted by
Section 7.02 and (c) to pay dividends to the Borrower's shareholders and/or
repurchase shares of the Borrower's Capital Stock, provided (i) such payments
are permitted under the Senior Subordinated Note Indenture, (ii) no Default
or Event of Default shall exist on the date of, or shall result from, the
making of any such payments, (iii) the aggregate amount paid in any fiscal
year of the Borrower to make such dividends to the Borrower's shareholders
and/or repurchase shares of the Borrower's Capital Stock shall not exceed
Consolidated Net Income for such fiscal year and (iv) the amount of any
payment to make such dividends to the Borrower's shareholders and/or
repurchase shares of the Borrower's Capital Stock shall not, when aggregated
with all other such payments made during the term of this Agreement, exceed
the sum of (I) $10,000,000 and (II) 50% of cumulative Consolidated Net Income
since August 1, 2002 (measured as of the most recently ended fiscal quarter
for which the Compliance required under Section 6.02(b) has been delivered)
and (d) to make purchases, repurchases or redemptions of Senior Subordinated
Notes on the open market or pursuant to the Senior Subordinated Note Indenture,
provided (i) such payments are permitted under the Senior Subordinated Note
Indenture, (ii) no Default or Event of Default shall exist on the date of, or
shall result from, the making of any such payments, (iii) with respect to any
such payment, to the extent such payment together with any other such
payments will exceed in the aggregate $10,000,000, the Borrower shall have
demonstrated a ratio of (A) Funded Indebtedness (as of the last day of the
relevant fiscal quarter) to (B) Consolidated EBITDDA (for the four fiscal
quarter period ending as of the last day of the relevant fiscal quarter) of
less than 2.75:1 as of the last day of each of the two most recently ended
fiscal quarters for which the Compliance Certificate required under Section
6.02(b) has been delivered (as evidenced by a certificate reasonably
acceptable to the Administrative Agent delivered in conjunction with the
financial statements and Compliance Certificate required under Sections 6.01
and 6.02(b)) and (iv) the aggregate amount paid during the term of this
Agreement to make such payments shall not exceed $100,000,000; provided
further that to the extent the Borrower can demonstrate pursuant to the
certificate delivered in accordance with clause (iii) hereof that the ratio
(A) Funded Indebtedness (as of the last day of the relevant fiscal quarter)
to (B) Consolidated EBITDDA (for the four fiscal quarter period ending as of
the last day of the relevant fiscal quarter) as of the last day of each of
the two most recently ended fiscal quarters for which the Compliance
Certificate required under Section 6.02(b) has been delivered is less than
2.50:1.0, the dollar limitation set forth in clause (iv) hereof shall not
apply to such purchases, repurchases or redemptions of Senior Subordinated
Notes made at such time.
7.07 Change in Nature of Business.
Engage in any material line of business substantially different from
those lines of business conducted by the Borrower and its Subsidiaries on the
date hereof or any business substantially related or incidental thereto.
7.08 Transactions with Affiliates.
Permit any Consolidated Party to enter into or permit to exist any
transaction or series of transactions with any officer, director, shareholder,
Subsidiary or other Affiliate of such Person other than (a) advances of working
capital to the Borrower, (b) transfers of cash and assets to the Borrower,
(c) intercompany transactions expressly permitted by Section 7.02, Section
7.03, Section 7.04, Section 7.05 or Section 7.06, (d) normal compensation and
reimbursement of expenses of officers and directors, (e) agreements and
arrangements entered into with employees of the Borrower in connection with
termination of their employment therewith (i) existing as of the Closing Date
and set forth on Schedule 7.08 and (ii) from and after the Closing Date in an
aggregate amount not to exceed $10,000,000 over the term of this Agreement, and
(f) except as otherwise specifically limited in this Agreement, other
transactions which are entered into in the ordinary course of such Person's
business on terms and conditions substantially as favorable to such Person as
would be obtainable by it in a comparable arms-length transaction with a Person
other than an officer, director, shareholder, Subsidiary or Affiliate.
7.09 Burdensome Agreements.
Permit any Consolidated Party to directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Person to (a) pay dividends or make
any other distributions to the Borrower on its Capital Stock or with respect
to any other interest or participation in, or measured by, its profits,
(b) pay any Indebtedness or other obligation owed to the Borrower, (c) make
loans or advances to the Borrower, (d) sell, lease or transfer any of its
Property to the Borrower, or (e) act as the Borrower and pledge its assets
pursuant to the Loan Documents or any renewals, refinancings, exchanges,
refundings or extension thereof, except (in respect of any of the matters
referred to in clauses (a)-(d) above) for such encumbrances or restrictions
existing under or by reason of (i) this Agreement and the other Loan
Documents, (ii) the Senior Subordinated Note Indenture and the Senior
Subordinated Notes, in each case as in effect as of the Closing Date, (iii)
applicable law, (iv) any document or instrument governing Indebtedness incurred
pursuant to Section 7.03(c), provided that any such restriction contained
therein relates only to the asset or assets constructed or acquired in
connection therewith, (v) any Permitted Lien or any document or instrument
governing any Permitted Lien, provided that any such restriction contained
therein relates only to the asset or assets subject to such Permitted Lien or
(vi) customary restrictions and conditions contained in any agreement
relating to the sale of any Property permitted under Section 7.05 pending the
consummation of such sale.
7.10 Use of Proceeds.
Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase
or carry margin stock (within the meaning of Regulation U of the FRB) or to
extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
7.11 Financial Covenants.
(a) Funded Indebtedness to Capitalization Ratio. Permit
the Funded Indebtedness to Capitalization Ratio, as of the last day of each
fiscal quarter of the Consolidated Parties, to be greater than:
Period Ratio
Closing Date through and including July 31, 2004 57.5%
August 1, 2004 and thereafter 55.0%
(b) Consolidated Net Worth. Permit the Consolidated Net
Worth at any time to be less than $364,381,000 (which represents 85% of Net
Worth as of July 31, 2003), increased on a cumulative basis as of the end of
each fiscal quarter of the Consolidated Parties, commencing with the fiscal
quarter ending October 31, 2003, by an amount equal to (x) 50% of Consolidated
Net Income (to the extent positive) for such fiscal quarter and (y) 100% of the
Net Cash Proceeds of any Equity Issuances consummated during such fiscal
quarter.
(c) Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio, as of the last day of each fiscal quarter of the Consolidated
Parties, to be less than 1.35:1.0.
7.12 Fiscal Year; Organizational Documents.
Permit any Consolidated Party to (a) change its fiscal year or (b)
amend, modify or change its articles of incorporation (or corporate charter
or other similar organizational document) or bylaws (or other similar
document) to the extent such change, amendment or modification could
reasonably be expected to have a Material Adverse Effect.
7.13 Ownership of Subsidiaries.
Notwithstanding any other provisions of this Agreement to the contrary,
permit any Consolidated Party to (i) permit any Person (other than the
Borrower or any wholly owned Subsidiary of the Borrower) to own any Capital
Stock of any Subsidiary of the Borrower, except (A) to qualify directors
where required by applicable law or to satisfy other requirements of
applicable law with respect to the ownership of Capital Stock of Foreign
Subsidiaries or (B) as a result of or in connection with a dissolution,
merger, consolidation or disposition of a Subsidiary not prohibited by
Section 7.04 or Section 7.05, (ii) permit any Subsidiary of the Borrower to
issue or have outstanding any shares of preferred Capital Stock or
(iii) permit, create, incur, assume or suffer to exist any Lien on any
Capital Stock of any Subsidiary of the Borrower, except for Permitted Liens.
7.14 Sale Leasebacks.
Permit any Consolidated Party to enter into any Sale and Leaseback
Transaction, except for such transactions that do not involve lease
obligations which in the aggregate would exceed $10,000,000 in any fiscal
year and which are otherwise permitted under this Agreement.
7.15 No Further Negative Pledges.
Permit any Consolidated Party to enter into, assume or become subject
to any agreement prohibiting or otherwise restricting the existence of any
Lien upon any of its Property in favor of the Administrative Agent (for the
benefit of the Lenders) for the purpose of securing the Obligations, whether
now owned or hereafter acquired, or requiring the grant of any security for
any obligation if such Property is given as security for the Obligations,
except (a) in connection with any document or instrument governing
Indebtedness incurred pursuant to Section 7.03(c), provided that any such
restriction contained therein relates only to the asset or assets constructed
or acquired (or proceeds thereof) in connection therewith, (b) in connection
with any Permitted Lien or any document or instrument governing any Permitted
Lien, provided that any such restriction contained therein relates only to
the asset or assets subject to such Permitted Lien (or proceeds thereof),
(c) pursuant to customary restrictions and conditions contained in any
agreement relating to the sale of any Property permitted under Section 7.05,
pending the consummation of such sale, (d) in connection with any document or
instrument governing other Indebtedness the issuance of which would not cause
a Default or Event of Default hereunder, provided that the aggregate amount
of each Transaction (for the purposes hereof, "Transaction" means each class
of Indebtedness having separate voting rights) for the incurrence of such
Indebtedness is in excess of $20,000,000, (e) customary non-assignment
provisions in contracts and (f) pursuant to the terms and conditions
contained in the Senior Subordinate Note Indenture.
7.16 Operating Lease Obligations.
Permit any Consolidated Party to enter into, assume or permit to exist
any obligations for the payment of rental under Operating Leases which in the
aggregate for all such Persons would exceed $10,000,000 in any fiscal year.
7.17 Subsidiaries.
Create, acquire or permit to exist any Subsidiaries other than Non-
Material Subsidiaries, unless such Subsidiary shall immediately become a
Guarantor hereunder pursuant to Section 6.13 hereof.
7.18 Limitation on Actions with Respect to Other Indebtedness.
The Borrower will not, nor will it permit any of its Subsidiaries to:
(a) (i) amend or modify any of the terms of any Indebtedness of such
Person (other than Indebtedness arising under the Loan Documents) if such
amendment or modification would add or change any terms in a manner materially
adverse to the Lenders, or (ii) materially shorten the final maturity or
average life to maturity of any such Indebtedness or require any payment
thereon to be made sooner than originally scheduled or increase the interest
rate or fees applicable thereto above applicable market rates, or (iii) make
(or give any notice with respect thereto) any voluntary or optional payment or
prepayment of any such Indebtedness that, as of the Closing Date, has a
maturity date after the Maturity Date, or make (or give any notice with respect
thereto) any redemption or acquisition for value or defeasance (including
without limitation, by way of depositing money or securities with the trustee
with respect thereto before due for the purpose of paying when due), refund,
refinance or exchange with respect thereto, other than (A) prepayments made by
the Borrower in connection with any Asset Disposition permitted under Section
7.05, in the amount necessary to prepay or retire any Indebtedness either
secured by a Permitted Lien (ranking senior to any Lien of the Administrative
Agent) on the related Property or incurred in connection with the acquisition
of any Property that is disposed of in connection with such Asset Disposition,
(B) redemptions and/or prepayments in connection with a refinancing of such
Indebtedness permitted under this Agreement and (C) redemptions and/or
prepayments that do not exceed $20,000,000 in the aggregate after the Closing
Date and that are reasonably deemed necessary by the Borrower to consummate
amendments (which are permitted hereunder) to the Borrower's senior note
Indebtedness generally;
(b) after the issuance thereof, amend or modify any of the terms of any
Subordinated Indebtedness of such Person if such amendment or modification
would (i) add or change any terms in a manner materially adverse to such Person
or to the Lenders, (ii) materially shorten the final maturity or average life
to maturity thereof, (iii) require any payment thereon to be made sooner than
originally scheduled, (iv) increase the interest rate or fees applicable
thereto or (v) change any subordination provision thereof in a manner adverse
to the Lenders;
(c) make interest payments in respect of any Subordinated Indebtedness
in violation of the applicable subordination provisions;
(d) except as permitted under clause (e) below, make (or give any
notice with respect thereto) any voluntary or optional payment or prepayment in
respect of any Subordinated Indebtedness;
(e) make (or give any notice with respect thereto) any redemption,
acquisition for value or defeasance (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due
for the purpose of paying when due), refund, refinance or exchange of any
Subordinated Indebtedness; provided, however, that the Borrower may make
purchases, repurchases and redemptions of Senior Subordinated Notes to the
extent such transaction is permitted under Section 7.06; or
(f) designate any other Indebtedness of such Person as "Designated
Senior Debt" (as such term is used in the Senior Subordinated Note Indenture)
other than Indebtedness designated as "Designated Senior Debt" as of the
Closing Date and identified as such on Schedule 7.03.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. The Borrower 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 three Business Days after the same
becomes due, any interest on any Loan or on any L/C Obligation, or any
commitment or other fee due hereunder, or (iii) within five Business Days
after the same becomes due, any other amount payable hereunder or under any
other Loan Document; or
(b) Specific Covenants. The Borrower shall
(i) default in the due performance or observance of any
term, covenant or agreement contained in Sections 6.05, 6.11 or Article VII;
(ii) default in the due performance or observance of any term, covenant
or agreement contained in Sections 6.01 and 6.02(a), (b), (e) or (f) and such
default shall continue unremedied for a period of at least 5 Business Days
after the earlier of a Responsible Officer of the Borrower becoming aware of
such default or written notice thereof by the Administrative Agent or any
Lender; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (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
Borrower or any other Loan Party herein, in any other Loan Document, or in
any document delivered in connection herewith or therewith shall prove untrue
in any material respect on the date as of which it was deemed to have been
made; or
(e) Cross-Default. (i) The Borrower or any 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 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 Borrower 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 Borrower or any Subsidiary
is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Borrower or such Subsidiary as a result thereof
is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
is appointed without the application or consent of such Person and the
appointment continues undischarged or unstayed for 60 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all
or any material part of its property is instituted without the consent of
such Person and continues undismissed or unstayed for 60 calendar days, or an
order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any
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 the Borrower 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 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 liability of the Borrower under Title IV of ERISA to the Pension
Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the
Threshold Amount, or (ii) the Borrower 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 Loan Document, at any time
after its execution and delivery and for any reason other than as expressly
permitted hereunder 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 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;
(k) Change of Control. There occurs any Change of Control with
respect to the Borrower; or
(l) Senior Subordinated Debt Documentation. (i) There shall occur and
be continuing any "Event of Default" (or any comparable term) under, and as
defined in the documents evidencing or governing any Subordinated Debt,
(ii) any of the Obligations for any reason shall cease to be "Designated Senior
Debt" (or any comparable term) under, and as defined in the documents
evidencing or governing any Subordinated Indebtedness, (iii) any Indebtedness
other than the Obligations shall constitute "Designated Senior Indebtedness"
(or any comparable term) under, and as defined in, the Senior Subordinated Note
Indenture or any other documents evidencing or governing any Subordinated
Indebtedness or (iv) the subordination provisions of the documents evidencing
or governing any Subordinated Indebtedness shall, in whole or in part,
terminate, cease to be effective or cease to be legally valid, binding and
enforceable against any holder of the applicable Subordinated Indebtedness.
8.02 Remedies Upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of an actual or deemed
entry of an order for relief with respect to the Borrower under the
Bankruptcy Code of the United States, the obligation of each Lender to make
Loans and any obligation of the L/C Issuer to make L/C Credit Extensions
shall automatically terminate, the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically
become due and payable, and the obligation of the Borrower to Cash
Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or
any Lender.
8.03 Application of Funds.
After the exercise of remedies provided for in Section 8.02 (or after
the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 8.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following
order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including 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 payment of that portion of the Obligations constituting
unpaid principal of the Loans, L/C Borrowings and Swap Contracts between any
Loan Party and any Lender or Affiliate of any Lender and to Cash
Collateralize the undrawn amounts of Letters of Credit, ratably among the
Lenders in proportion to the respective amounts described in this clause
Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth 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 IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent.
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under
the provisions of this Agreement and each other Loan Document and to exercise
such powers and perform such duties as are expressly delegated to it by the
terms of this Agreement or any other Loan Document, together with such powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere herein or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall the Administrative Agent have or
be deemed to have any fiduciary relationship with any Lender or participant,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and
in the other Loan Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law. Instead, such term is
used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith,
and the L/C Issuer shall have all of the benefits and immunities (i) provided
to the Administrative Agent in this Article IX with respect to any acts taken
or omissions suffered by the L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and the applications and
agreements for letters of credit pertaining to such Letters of Credit as
fully as if the term "Administrative Agent" as used in this Article IX and in
the definition of "Agent-Related Person" included the L/C Issuer with respect
to such acts or omissions, and (ii) as additionally provided herein with
respect to the L/C Issuer.
9.02 Delegation of Duties.
The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
9.03 Liability of Administrative Agent.
No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby (except
for its own gross negligence or willful misconduct in connection with its
duties expressly set forth herein), or (b) be responsible in any manner to
any Lender or participant for any recital, statement, representation or
warranty made by any Loan Party or any officer thereof, contained herein or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or any other Loan Document,
or the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document, or for any failure of any Loan
Party or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party or any Affiliate thereof.
9.04 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel
to any Loan Party), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under any Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate and, if it so requests, it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement or any other
Loan Document in accordance with a request or consent of the Required Lenders
(or such greater number of Lenders as may be expressly required hereby in any
instance) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall
be deemed to have consented to, approved or accepted or to be satisfied with,
each document or other matter 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.
9.05 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default, except with respect to defaults in
the payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Default and stating
that such notice is a "notice of default." The Administrative Agent will
notify the Lenders of its receipt of any such notice. The Administrative
Agent shall take such action with respect to such Default as may be directed
by the Required Lenders in accordance with Article VIII; provided, however,
that unless and until the Administrative Agent has received any such
direction, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
as it shall deem advisable or in the best interest of the Lenders.
9.06 Credit Decision; Disclosure of Information by Administrative
Agent.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related
Person to any Lender as to any matter, including whether Agent-Related
Persons have disclosed material information in their possession. Each Lender
represents to the Administrative Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial
and other condition and creditworthiness of the Loan Parties and their
respective Subsidiaries, and all applicable bank or other regulatory Laws
relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Borrower and the
other Loan Parties hereunder. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan Documents, and
to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Loan Parties. Except for
notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent herein, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any of the
Loan Parties or any of their respective Affiliates which may come into the
possession of any Agent-Related Person.
9.07 Indemnification of Administrative Agent.
Whether or not the transactions contemplated hereby are consummated,
the Lenders shall indemnify upon demand each Agent-Related Person (to the
extent not reimbursed by or on behalf of any Loan Party and without limiting
the obligation of any Loan Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related
Person's own gross negligence or willful misconduct; provided, however, that
no action taken in accordance with the directions of the Required Lenders
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing, each Lender
shall reimburse the Administrative Agent upon demand for its ratable share of
any costs or out-of-pocket expenses (including Attorney Costs) incurred by
the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such expenses by
or on behalf of the Borrower. The undertaking in this Section shall survive
termination of the Aggregate Commitments, the payment of all other
Obligations and the resignation of the Administrative Agent.
9.08 Administrative Agent in its Individual Capacity.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of the Loan Parties and their
respective Affiliates as though Bank of America were not the Administrative
Agent or the L/C Issuer hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding any Loan Party or
its Affiliates (including information that may be subject to confidentiality
obligations in favor of such Loan Party or such Affiliate) and acknowledge
that the Administrative Agent shall be under no obligation to provide such
information to them. With respect to its Loans, Bank of America shall have
the same rights and powers under this Agreement as any other Lender and may
exercise such rights and powers as though it were not the Administrative
Agent or the L/C Issuer, and the terms "Lender" and "Lenders" include Bank of
America in its individual capacity.
9.09 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon 30
days' notice to the Lenders; provided that any such resignation by Bank of
America shall also constitute its resignation as L/C Issuer and Swing Line
Lender. If the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent
shall be consented to by the Borrower at all times other than during the
existence of an Event of Default (which consent of the Borrower shall not be
unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Borrower, a successor administrative agent from
among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, the Person acting as such successor
administrative agent shall succeed to all the rights, powers and duties of
the retiring Administrative Agent, L/C Issuer and Swing Line Lender and the
respective terms "Administrative Agent," "L/C Issuer" and "Swing Line Lender"
shall mean such successor administrative agent, Letter of Credit issuer and
swing line lender, and the retiring Administrative Agent's appointment,
powers and duties as Administrative Agent shall be terminated and the
retiring L/C Issuer's and Swing Line Lender's rights, powers and duties as
such shall be terminated, without any other or further act or deed on the
part of such retiring L/C Issuer or Swing Line Lender or any other Lender,
other than the obligation of the successor L/C Issuer to issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or to 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. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article IX and Sections 10.04 and 10.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent, L/C Issuer or Swing Line Lender under this Agreement.
If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above.
9.10 Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise
and irrespective of whether the Administrative Agent shall have made any
demand on the Borrower) shall be entitled and empowered, by intervention in
such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the
Lenders and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders and the Administrative Agent under Sections 2.03(i)
and (j), 2.09 and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Lender to make such payments to the Administrative
Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders, to pay to the Administrative
Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any
other amounts due the Administrative Agent under Sections 2.09 and 10.04.
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 any plan of reorganization, arrangement, adjustment or
composition affecating the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.
9.11 Guaranty Matters.
The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion to release any Guarantor from its obligations
under the Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder. Upon request by the Administrative Agent at
any time, the Required Lenders will confirm in writing the Administrative
Agent's authority to release any Guarantor from its obligations under the
Guaranty pursuant to this Section 9.11.
9.12 Other Agents; Arrangers and Managers.
None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent," "documentation
agent," "co-agent," "book manager," "lead manager," "arranger," "lead
arranger" or "co-arranger" shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than, in the
case of such Lenders, those applicable to all Lenders as such. Without
limiting the foregoing, none of the Lenders or other Persons so identified
shall have or be deemed to have any fiduciary relationship with any Lender.
Each Lender acknowledges that it has not relied, and will not rely, on any of
the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower or any other
Loan Party therefrom, shall be effective unless in writing signed by the
Required Lenders and the Borrower or the applicable Loan Party, as the case
may be, and acknowledged by the Administrative Agent, and each such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:
(a) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent
of such Lender;
(b) postpone any date fixed by this Agreement or any other Loan
Document for any payment (excluding mandatory prepayments) of principal,
interest, 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;
(c) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (v) of the second
proviso to this Section 10.01) 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 "Default
Rate" or to waive any obligation of the Borrower 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;
(d) change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent
of each Lender;
(e) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without
the written consent of each Lender; or
(f) release all or substantially all of the value of the Guarantees
given by the Guarantors without the written consent of each 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 Letter of Credit Application relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Lender in addition to
the Lenders required above, affect the rights or duties of the Swing Line
Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document; (iv) Section 10.07(h)
may not be amended, waived or otherwise modified without the consent of each
Granting Lender all or any part of whose Loans are being funded by an SPC at
the time of such amendment, waiver or other modification; and (v) 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.
10.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing
(including by facsimile transmission). All such written notices shall be
mailed, faxed or delivered to the applicable address, facsimile number or
(subject to subsection (c) below) electronic mail address, 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 Borrower, the Administrative Agent, the L/C Issuer or
the Swing Line Lender, to the address, facsimile number, electronic mail
address or telephone number specified for such Person on Schedule 10.02 or to
such other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the other parties;
and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its Administrative
Questionnaire or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a notice
to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line
Lender.
All such notices and other communications shall be deemed to be given
or made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by or
on behalf of the relevant party hereto; (B) if delivered by mail, four
Business Days after deposit in the mails, postage prepaid; (C) if delivered
by facsimile, when sent and receipt has been confirmed by telephone; and (D)
if delivered by electronic mail (which form of delivery is subject to the
provisions of subsection (c) below), when delivered; provided, however, that
notices and other communications to the Administrative Agent, the L/C Issuer
and the Swing Line Lender pursuant to Article II shall not be effective until
actually received by such Person. In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness
of any such documents and signatures shall, subject to applicable Law, have
the same force and effect as manually-signed originals and shall be binding
on all Loan Parties, the Administrative Agent and the Lenders. The
Administrative Agent may also require that any such documents and signatures
be confirmed by a manually-signed original thereof; provided, however, that
the failure to request or deliver the same shall not limit the effectiveness
of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such
as financial statements and other information as provided in Section 6.02,
and to distribute Loan Documents for execution by the parties thereto, and
may not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Committed Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of the Borrower even if (i) such notices
were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify each Agent-Related Person
and each Lender from all losses, costs, expenses and liabilities resulting
from the reliance by such Person on each notice purportedly given by or on
behalf of the Borrower, except to the extent any such losses, costs, expenses
or liabilities were caused by the gross negligence or willful misconduct of
any Agent-Related Person or any Lender. All telephonic notices to and other
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 No Waiver; Cumulative Remedies.
No failure by any Lender or the Administrative Agent to exercise, and
no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
10.04 Attorney Costs, Expenses and Taxes.
The Borrower agrees (a) to pay or reimburse the Administrative Agent
for all costs and expenses incurred in connection with the development,
preparation, negotiation and execution of this Agreement and the other Loan
Documents and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration
of the transactions contemplated hereby and thereby, including all Attorney
Costs, and (b) to pay or reimburse the Administrative Agent and each Lender
for all costs and expenses incurred in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or the other Loan Documents (including all such costs and expenses
incurred during any "workout" or restructuring in respect of the Obligations
and during any legal proceeding, including any proceeding under any Debtor
Relief Law), including all Attorney Costs. The foregoing costs and expenses
shall include all search, filing, recording, title insurance and appraisal
charges and fees and taxes related thereto, and other out-of-pocket expenses
incurred by the Administrative Agent and the cost of independent public
accountants and other outside experts retained by the Administrative Agent or
any Lender. All amounts due under this Section 10.04 shall be payable within
ten Business Days after demand therefor. The agreements in this Section
shall survive the termination of the Aggregate Commitments and repayment of
all other Obligations.
10.05 Indemnification by the Borrower.
Whether or not the transactions contemplated hereby are consummated,
the Borrower shall indemnify and hold harmless each Agent-Related Person,
each Lender and their respective Affiliates, directors, officers, employees,
counsel, agents and attorneys-in-fact (collectively the "Indemnitees") from
and against any and all liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at any
time be imposed on, incurred by or asserted against any such Indemnitee in
any way relating to or arising out of or in connection with (a) the
execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby; provided that only the Administrative
Agent shall be entitled to reimbursement for Attorney Costs in connection
with the actions described in Section 10.04(a), (b) any Commitment, 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), or (c) any
actual or alleged presence or release of Hazardous Materials on or from any
property currently or formerly owned or operated by the Borrower, any
Subsidiary or any other Loan Party, or any Environmental Liability related in
any way to the Borrower, any Subsidiary or any other Loan Party, or (d) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory
(including any investigation of, preparation for, or defense of any pending
or threatened claim, investigation, litigation or proceeding) and regardless
of whether any Indemnitee is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses or disbursements 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.
No Indemnitee shall be liable for any damages arising from the use by others
of any information or other materials obtained through IntraLinks or other
similar information transmission systems in connection with this Agreement,
nor shall any Indemnitee have any liability for any indirect or consequential
damages relating to this Agreement or any other Loan Document or arising out
of its activities in connection herewith or therewith (whether before or
after the Closing Date). All amounts due under this Section 10.05 shall be
payable within ten Business Days after demand therefor. The agreements in
this Section shall survive the resignation of the Administrative Agent, the
replacement of any Lender, the termination of the Aggregate Commitments and
the repayment, satisfaction or discharge of all the other Obligations.
10.06 Payments Set Aside.
To the extent that any payment by or on behalf of the Borrower is made
to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of
such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had not occurred,
and (b) each Lender severally agrees to pay to the Administrative Agent upon
demand its applicable share of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to
the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
10.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of subsection
(d) of this Section, (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) or (i) of this
Section, or (iv) to an SPC in accordance with the provisions of subsection
(h) of this Section (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 Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans (including for
purposes of this subsection (b), participations in L/C Obligations and in
Swing Line Loans) at the time owing to it); provided that (i) except in the
case of an assignment of the entire remaining amount of the assigning
Lender's Commitment and the Loans at the time owing to it or in the case of
an assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as
defined in subsection (g) of this Section) with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 unless each of the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); (ii) each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender's rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, except that this clause (ii)
shall not apply to rights in respect of Swing Line Loans; (iii) any
assignment of a Commitment must be approved by the Administrative Agent, the
L/C Issuer and the Swing Line Lender unless the Person that is the proposed
assignee is itself a Lender (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); and (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of
$3,500. 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 Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and,
in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease
to be a party hereto but shall continue to be entitled to the benefits of
Sections 3.01, 3.04, 3.05, 10.04 and 10.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment).
Upon request, the Borrower (at its expense) shall execute and deliver a Note
to the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection
(d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and 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 "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of
such Lender's rights and/or obligations under this Agreement (including all
or a portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment, waiver
or other modification described in the first proviso to Section 10.01 that
directly affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b)
of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 10.09 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.13 as though it
were a Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.01 or 3.04 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 3.01 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 10.15 as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its
Note, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank or a bank in the
farm credit banking system; 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:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing,
the Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower (an "SPC") the option to provide all or
any part of any Committed Loan that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to fund any Committed Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to
make all or any part of such Committed Loan, the Granting Lender shall be
obligated to make such Committed Loan pursuant to the terms hereof. Each
party hereto hereby agrees that (i) neither the grant to any SPC nor the
exercise by any SPC of such option shall increase the costs or expenses or
otherwise increase or change the obligations of the Borrower under this
Agreement (including its obligations under Section 3.04), (ii) no SPC shall
be liable for any indemnity or similar payment obligation under this
Agreement for which a Lender would be liable, and (iii) the Granting Lender
shall for all purposes, including the approval of any amendment, waiver or
other modification of any provision of any Loan Document, remain the lender
of record hereunder. The making of a Committed Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and
as if, such Committed Loan were made by such Granting Lender. In furtherance
of the foregoing, each party hereto hereby agrees (which agreement shall
survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or join
any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof. Notwithstanding anything to
the contrary contained herein, any SPC may (i) with notice to, but without
prior consent of the Borrower and the Administrative Agent and without paying
any processing fee therefor, assign all or any portion of its right to
receive payment with respect to any Committed Loan to the Granting Lender and
(ii) disclose on a confidential basis any non-public information relating to
its funding of Committed Loans to any rating agency, commercial paper dealer
or provider of any surety or Guarantee or credit or liquidity enhancement to
such SPC.
(i) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may create a security interest in all or any portion of
the Loans owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security
for such obligations or securities, provided that unless and until such
trustee actually becomes a Lender in compliance with the other provisions of
this Section 10.07, (i) no such pledge shall release the pledging Lender from
any of its obligations under the Loan Documents and (ii) such trustee shall
not be entitled to exercise any of the rights of a Lender under the Loan
Documents even though such trustee may have acquired ownership rights with
respect to the pledged interest through foreclosure or otherwise.
(j) Notwithstanding anything to the contrary contained herein, if at
any time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, (i) upon 30 days' notice to the
Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days'
notice to the Borrower, resign as Swing Line Lender. In the event of any
such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing
Line Lender hereunder; provided, however, that no failure by the Borrower to
appoint any such successor shall affect the resignation of Bank of America as
L/C Issuer or Swing Line Lender, as the case may be. If Bank of America
resigns as L/C Issuer, it shall retain all the rights and obligations of the
L/C Issuer hereunder with respect to all Letters of Credit outstanding as of
the effective date of its resignation as L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Lenders to make Base
Rate Committed Loans or fund 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 Committed Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section 2.04(c).
10.08 Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors,
officers, employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent
requested by any regulatory authority; (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process;
(d) to any other party to this Agreement; (e) in connection with the exercise
of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder; (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any Eligible Assignee of or Participant in, or any prospective Eligible
Assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterparty's or prospective
counterparty's professional advisor) to any credit derivative transaction
relating to obligations of the Loan Parties; (g) with the consent of the
Borrower; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available
to the Administrative Agent or any Lender on a nonconfidential basis from a
source other than the Borrower; or (i) to the National Association of
Insurance Commissioners or any other similar organization. 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. For the purposes of this
Section, "Information" means all information received from any Loan Party
relating to any Loan Party or its business, other than any such information
that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Loan Party; provided that,
in the case of information received from a Loan Party after the date hereof,
such information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information. Notwithstanding anything herein
to the contrary, "Information" shall not include, and the Borrower, the other
Loan Parties, the Administrative Agent and each Lender and the respective
Affiliates of each of the foregoing (and the respective partners, directors,
officers, employees, agents, advisors and other representatives of each of
the foregoing and their Affiliates) may disclose without limitation of any
kind (a) any information with respect to the U.S. federal and state income
tax treatment of the transactions contemplated hereby and any facts that may
be relevant to understanding such tax treatment, which facts shall not
include for this purpose the names of the parties or any other Person named
herein, or information that would permit identification of the parties or
such other Persons, or any pricing terms or other nonpublic business or
financial information that is unrelated to such tax treatment or facts, and
(b) all materials of any kind (including opinions or other tax analyses)
relating to such tax treatment or facts that are provided to any of the
Persons referred to above.
10.09 Set-off.
In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each
Lender is authorized at any time and from time to time, without prior notice
to the Borrower or any other Loan Party, any such notice being waived by the
Borrower (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, and each Loan Party hereby grants
a security interest in all such deposits and indebtedness to the
Administrative Agent for the benefit of the Administrative Agent and the
Lenders, 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 Borrower and the Administrative Agent after any such set-off
and application made by such Lender; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and
application.
10.10 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents
shall not exceed the maximum rate of non-usurious interest permitted by
applicable Law (the "Maximum Rate"). If the Administrative Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining
whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may,
to the extent permitted by applicable Law, (a) characterize any payment that
is not principal as an expense, fee, or premium rather than interest, (b)
exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.
10.11 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
10.12 Integration.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights
or remedies in favor of the Administrative Agent or the Lenders in any other
Loan Document shall not be deemed a conflict with this Agreement. Each Loan
Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
10.13 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be
relied upon by the Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may
have had notice or knowledge of any Default 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.
10.14 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.
10.15 Tax Forms.
(a) (i) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall deliver
to the Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or 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 Borrower 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 Borrower pursuant to this Agreement) or such other
evidence satisfactory to the Borrower 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 Borrower 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 Borrower 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 Borrower 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 Borrower 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 10.15(a) or (B) if such Lender shall
have failed to satisfy the foregoing provisions of this Section 10.15(a);
provided that if such Lender shall have satisfied the requirement of this
Section 10.15(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 10.15(a) shall relieve the Borrower 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 Borrower is not required to pay
additional amounts under this Section 10.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is
a "United States person" 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, and costs and
expenses (including Attorney Costs) of the Administrative Agent. The
obligation of the Lenders under this Section shall survive the termination of
the Aggregate Commitments, repayment of all other Obligations hereunder and
the resignation of the Administrative Agent.
10.16 Replacement of Lenders.
Under any circumstances set forth herein providing that the Borrower
shall have the right to replace a Lender as a party to this Agreement, the
Borrower 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 Borrower in such instance) pursuant to
Section 10.07(b) to one or more other Lenders or Eligible Assignees procured
by the Borrower; provided, however, that if the Borrower elects to exercise
such right with respect to any Lender pursuant to Section 3.06(b), it shall
be obligated to replace all Lenders that have made similar requests for
compensation pursuant to Section 3.01 or 3.04. The Borrower shall (x) pay in
full all principal, interest, fees and other amounts owing to such Lender
through the date of 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 Lender's Commitment and outstanding Loans
and participations in L/C Obligations and Swing Line Loans.
10.17 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE
AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER,
THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY
LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF SUCH STATE.
10.18 Waiver of Right to Trial by Jury.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY
LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN
DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.19 USA Patriot Act Notice.
Each Lender and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements
of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender
or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act.
ARTICLE xi.
GUARANTY
11.01 The Guaranty.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Swap Contract, 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 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 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.
Notwithstanding any provision to the contrary contained herein or in any
other of the Loan Documents or Swap Contracts, 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.
11.02 Obligations Unconditional.
The obligations of the Guarantors under Section 11.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Loan Documents or Swap
Contracts, 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 11.02 that the obligations of
the Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right
of subrogation, indemnity, reimbursement or contribution against the Borrower
or any other Guarantor for amounts paid under this Article XI until such time
as the Obligations have been Fully Satisfied. Without limiting the generality
of the foregoing, 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:
(a) 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;
(b) any of the acts mentioned in any of the provisions of any of
the Loan Documents, any Swap Contract between any Consolidated Party and any
Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents or such Swap Contracts shall be done or
omitted;
(c) 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, any Swap Contract
between any Consolidated Party and any Lender, or any Affiliate of a Lender, or
any other agreement or instrument referred to in the Loan Documents or such
Swap Contracts 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;
(d) any Lien granted to, or in favor of, the Agent or any Lender
or Lenders as security for any of the Obligations shall fail to attach or be
perfected; or
(e) 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 Agent or any Lender exhaust
any right, power or remedy or proceed against any Person under any of the Loan
Documents, any Swap Contract between any Consolidated Party and any Lender, or
any Affiliate of a Lender, or any other agreement or instrument referred to in
the Loan Documents or such Swap Contracts, or against any other Person under
any other guarantee of, or security for, any of the Obligations.
11.03 Reinstatement.
The obligations of the Guarantors under this Article XI 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 Guarantor agrees that it will indemnify the Agent and each Lender on
demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Agent or such Lender in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
11.04 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 11.02 and through the exercise of rights of
contribution pursuant to Section 11.06.
11.05 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agent and the Lenders, on the
other hand, the Obligations may be declared to be forthwith due and payable as
provided in Section 8.02 (and shall be deemed to have become automatically due
and payable in the circumstances provided in said Section 8.02) for purposes of
Section 11.01 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 Guarantors
for purposes of Section 11.01. The Guarantors acknowledge and agree that to
the extent their obligations hereunder become secured, the Lenders may exercise
their remedies thereunder in accordance with the terms of the applicable
security documents.
11.06 Rights of Contribution.
The Guarantors hereby agree as among themselves that, in connection with
payments made hereunder, each Guarantor shall have a right of contribution from
each other 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
Guarantors shall exercise any such contribution rights until the Obligations
have been Fully Satisfied.
11.07 Guarantee of Payment; Continuing Guarantee.
The guarantee in this Article XI is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER: LONGVIEW FIBRE COMPANY,
a Washington corporation
By:
Name:
Title:
ADMINISTRATIVE AGENT
AND LENDERS: BANK OF AMERICA, N.A.,
as Administrative Agent
By:
Name:
Title:
BANK OF AMERICA, N.A.,
as a Lender, an L/C Issuer
and Swing Line Lender
By:
Name:
Title:
[OTHER LENDERS]
