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PUBLISHED CUSIP NUMBER____________
CREDIT AGREEMENT
DATED AS OF APRIL 29, 2005
AMONG
SYNAGRO TECHNOLOGIES, INC.,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT, SWING LINE LENDER AND L/C ISSUER,
XXXXXX COMMERCIAL PAPER INC.,
AS SYNDICATION AGENT,
AND
CIBC WORLD MARKETS CORP.,
AS DOCUMENTATION AGENT
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BANC OF AMERICA SECURITIES LLC,
XXXXXX BROTHERS INC.
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Defined Terms...............................................................................1
Section 1.02 Other Interpretative Provisions............................................................40
Section 1.03 Accounting Terms and Determinations........................................................41
Section 1.04 Rounding...................................................................................41
Section 1.05 Times of Day...............................................................................41
Section 1.06 Letter of Credit Amounts...................................................................41
Section 1.07 Classes and Types of Borrowings............................................................42
ARTICLE II
THE CREDIT FACILITIES
Section 2.01 Commitments to Lend........................................................................42
Section 2.02 Notice of Borrowings.......................................................................45
Section 2.03 Notice to Lenders; Funding of Loans........................................................46
Section 2.04 Evidence of Loans..........................................................................48
Section 2.05 Letters of Credit..........................................................................48
Section 2.06 Interest...................................................................................59
Section 2.07 Extension and Conversion...................................................................60
Section 2.08 Maturity of Loans..........................................................................62
Section 2.09 Prepayments................................................................................62
Section 2.10 Adjustment of Commitments..................................................................65
Section 2.11 Fees.......................................................................................67
Section 2.12 Pro-rata Treatment.........................................................................68
Section 2.13 Sharing of Payments by Lenders.............................................................68
Section 2.14 Payments Generally; Administrative Agent's Clawback........................................69
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01 Taxes......................................................................................70
Section 3.02 Illegality.................................................................................73
Section 3.03 Inability to Determine Rates...............................................................73
Section 3.04 Increased Costs and Reduced Return; Capital Adequacy.......................................73
Section 3.05 Compensation for Losses....................................................................75
Section 3.06 Base Rate Loans Substituted for Affected Eurodollar Loans..................................75
Section 3.07 Mitigation Obligations; Replacement of Lenders.............................................76
Section 3.08 Survival...................................................................................76
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01 Conditions to Initial Credit Extension.....................................................76
Section 4.02 Conditions to All Credit Extensions........................................................82
Section 4.03 Conditions Precedent to Facilities Increase................................................82
TABLE OF CONTENTS (cont.)
PAGE
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01 Existence, Qualification and Power; Compliance with Laws...................................83
Section 5.02 Authorization; No Contravention............................................................84
Section 5.03 Governmental Authorization; Other Consents.................................................84
Section 5.04 Binding Effect.............................................................................84
Section 5.05 Financial Condition; No Material Adverse Effect............................................84
Section 5.06 Litigation.................................................................................85
Section 5.07 No Default.................................................................................85
Section 5.08 Ownership of Property; Liens...............................................................86
Section 5.09 Environmental Compliance...................................................................86
Section 5.10 Insurance..................................................................................86
Section 5.11 Taxes......................................................................................86
Section 5.12 ERISA; Foreign Pension Plans; Employee Benefit Arrangements................................86
Section 5.13 Subsidiaries; Equity Interests.............................................................88
Section 5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.............88
Section 5.15 Disclosure.................................................................................88
Section 5.16 Compliance with Law........................................................................89
Section 5.17 Intellectual Property......................................................................89
Section 5.18 Purpose of Loans and Letters of Credit.....................................................89
Section 5.19 Solvency...................................................................................90
Section 5.20 Collateral Documents.......................................................................90
ARTICLE VI
AFFIRMATIVE COVENANTS
Section 6.01 Financial Statements.......................................................................90
Section 6.02 Certificates; Other Information............................................................91
Section 6.03 Notices....................................................................................94
Section 6.04 Payment of Obligations.....................................................................95
Section 6.05 Preservation of Existence Etc..............................................................95
Section 6.06 Maintenance of Properties..................................................................95
Section 6.07 Maintenance of Insurance; Certain Proceeds.................................................96
Section 6.08 Compliance with Laws.......................................................................96
Section 6.09 Books and Records; Lender Meeting..........................................................97
Section 6.10 Inspection Rights..........................................................................97
Section 6.11 Use of Proceeds............................................................................97
Section 6.12 Additional Loan Parties; Additional Security...............................................97
Section 6.13 Interest Rate Protection Agreements.......................................................100
Section 6.14 Project Subsidiaries......................................................................100
ARTICLE VII
NEGATIVE COVENANTS
Section 7.01 Limitation on Indebtedness................................................................101
Section 7.02 Restriction on Liens......................................................................104
Section 7.03 Nature of Business........................................................................106
Section 7.04 Consolidation, Merger and Dissolution.....................................................106
Section 7.05 Asset Dispositions........................................................................107
Section 7.06 Investments...............................................................................109
Section 7.07 Restricted Payments, etc..................................................................112
Section 7.08 Prepayments of Indebtedness, etc..........................................................113
Section 7.09 Transactions with Affiliates..............................................................113
Section 7.10 Fiscal Year; Organizational and Other Documents...........................................114
Section 7.11 Restrictions with Respect to Intercorporate Transfers.....................................114
Section 7.12 Limitations on Certain Activities.........................................................115
Section 7.13 Sale and Leaseback Transactions...........................................................115
Section 7.14 Additional Negative Pledges...............................................................115
Section 7.15 Impairment of Security Interests..........................................................116
Section 7.16 Financial Covenants.......................................................................116
Section 7.17 No Other "Designated Senior Debt".........................................................117
ii
TABLE OF CONTENTS (cont.)
PAGE
ARTICLE VIII
DEFAULTS
Section 8.01 Events of Default.........................................................................117
Section 8.02 Acceleration; Remedies....................................................................120
Section 8.03 Allocation of Payments After Event of Default.............................................120
ARTICLE IX
AGENCY PROVISIONS
Section 9.01 Appointment and Authority.................................................................123
Section 9.02 Rights as a Lender........................................................................123
Section 9.03 Exculpatory Provisions....................................................................123
Section 9.04 Reliance by Administrative Agent..........................................................124
Section 9.05 Delegation of Duties......................................................................124
Section 9.06 Resignation of Administrative Agent.......................................................124
Section 9.07 Non-Reliance on Administrative Agent and Other Lenders....................................125
Section 9.08 No Other Duties, Etc......................................................................125
Section 9.09 Administrative Agent May File Proofs of Claim.............................................125
Section 9.10 Collateral and Guaranty Matters...........................................................126
Section 9.11 Related Obligations.......................................................................126
Section 9.12 Agents' Fees; Joint Lead Arrangers Fees...................................................127
ARTICLE X
MISCELLANEOUS
Section 10.01 Amendments, Etc...........................................................................127
Section 10.02 Notices; Effectiveness; Electronic Communication..........................................129
Section 10.03 No Waiver; Cumulative Remedies............................................................130
Section 10.04 Expenses; Indemnity; Damage Waiver........................................................131
Section 10.05 Payments Set Aside........................................................................132
Section 10.06 Successors and Assigns....................................................................133
Section 10.07 Treatment of Certain Information; Confidentiality.........................................136
Section 10.08 Right of Setoff...........................................................................137
Section 10.09 Interest Rate Limitation..................................................................137
Section 10.10 Counterparts; Integration; Effectiveness..................................................138
Section 10.11 Survival of Representations and Warranties................................................138
Section 10.12 Severability..............................................................................138
Section 10.13 Replacement of Lenders....................................................................138
Section 10.14 Governing Law; Jurisdiction Etc...........................................................139
Section 10.15 Waiver of Jury Trial......................................................................140
Section 10.16 USA Patriot Act Notice; Lenders' Compliance Certification.................................140
Section 10.17 Judgment Currency.........................................................................141
Section 10.18 Conflict..................................................................................142
iii
Table of Contents (cont.)
SCHEDULES:
Schedule 1.01A - Refinanced Agreements
Schedule 1.01B - Identified Capital Expenditures
Schedule 1.01C - Project Subsidiaries
Schedule 1.01D - Scheduled Capital Expenditures
Schedule 1.01E - Synthetic Lease Obligations
Schedule 2.01 Lenders and Commitments
Schedule 2.05 - Existing Letters of Credit
Schedule 4.01(i) - Mortgaged Properties
Schedule 5.03 - Required Consents, Authorizations,
Notices and Filings
Schedule 5.05 - Certain Liabilities
Schedule 5.06 - Litigation
Schedule 5.12 - ERISA
Schedule 5.13 - Subsidiaries
Schedule 5.16 - Compliance with Law
Schedule 5.17 - Intellectual Property
Schedule 5.20 - Mortgage Recordings
Schedule 7.01 - Indebtedness
Schedule 7.02 - Existing Liens
Schedule 7.06 - Existing Investments
Schedule 7.09 - Transactions with Affiliates
Schedule 10.02 Administrative Agent's Office,
Certain Addresses for Notices
EXHIBITS:
Exhibit A-1 - Form of Notice of Borrowing
Exhibit A-2 - Form of Notice of Extension/Conversion
Exhibit A-3 - Form of Letter of Credit Request
Exhibit A-4 - Form of Swing Line Loan Request
Exhibit B-1 - Form of Revolving Note
Exhibit B-2 - Form of Term B Closing Date Note
Exhibit B-3 - Form of Term B Delayed Draw Note
Exhibit B-4 - Form of Swing Line Note
Exhibit C - Form of Assignment and Assumption
Exhibit D Form of Compliance Certificate
Exhibit E - Form of Opinion of Special Local Counsel
for the Company and the Other Loan
Parties (Real Property Collateral)
iv
Table of Contents (cont.)
PAGE
Exhibit F - Form of Subsidiary Guaranty
Exhibit G-1 - Form of Security Agreement
Exhibit G-2 Form of Pledge Agreement
Exhibit G-3 - Form of Perfection Certificate
Exhibit G-4 - Form of Mortgage
Exhibit H - Form of Intercompany Note
Exhibit I - Form of Intercompany Note Subordination
Provisions
Exhibit J - Form of Loan Party Accession Agreement
Exhibit K - Form of OFAC/Anti-Terrorism Compliance
Certificate
Exhibit L - Form of Solvency Certificate
v
CREDIT AGREEMENT
This Credit Agreement (this "AGREEMENT") is entered into as of
April 29, 2005 among SYNAGRO TECHNOLOGIES, INC., a Delaware corporation (the
"COMPANY), each lender from time to time party hereto (collectively, the
"LENDERS" and individually, a "LENDER"), BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer, XXXXXX COMMERCIAL PAPER
INC., as Syndication Agent, and CIBC WORLD MARKETS CORP., as Documentation
Agent.
The Company has requested the Lenders to provide credit
facilities to the Company in the aggregate principal amount of $305,000,000,
subject to increase as provided herein, for the purposes described herein. The
Lenders are willing to make the requested credit facilities available on the
terms and conditions set forth herein. Accordingly, in consideration of the
mutual covenants and agreements herein contained, the parties hereto covenant
and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 DEFINED TERMS. As used in this Agreement, the
following terms shall have the meanings set forth below:
"ACCESSION AGREEMENT" means a Loan Party Accession Agreement,
substantially in the form of EXHIBIT J hereto, executed and delivered by an
Additional Subsidiary Guarantor after the Closing Date in accordance with
SECTION 6.12(A) or (D).
"ADDITIONAL COLLATERAL DOCUMENTS" has the meaning specified in
SECTION 6.12(B).
"ADDITIONAL LETTER OF CREDIT" means any letter of credit
issued hereunder by a L/C Issuer on or after the Closing Date.
"ADDITIONAL SUBSIDIARY GUARANTOR" means each Person that
becomes a Subsidiary Guarantor after the Closing Date by execution of an
Accession Agreement as provided in SECTION 6.12.
"ADJUSTED EURODOLLAR RATE" means, for the Interest Period for
each Eurodollar Loan comprising part of the same Group, the quotient obtained
(expressed as a decimal, carried out to five decimal places) by dividing (i) the
applicable Eurodollar Rate for such Interest Period by (ii) 1.00 minus the
Eurodollar Reserve Percentage.
"ADMINISTRATIVE AGENT" means Bank of America, N.A. 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 Company and the Lenders pursuant to SECTION 10.02.
"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.
"AGENT" means the Administrative Agent, the Syndication Agent,
the Documentation Agent or the Collateral Agent and any successors and assigns
in such capacity, and "AGENTS" means any two or more of them.
"AGGREGATE COMMITMENTS" means the Commitments of all the
Lenders.
"AGREEMENT" means this Credit Agreement, as amended, modified
or supplemented from time to time.
"APPLICABLE MARGIN" means, (i) with respect to Term B Loans,
2.25% per annum for Eurodollar Loans and 1.25% per annum for Base Rate Loans,
and (ii) for purposes of calculating (A) the applicable interest rate for any
day for any Revolving Loan or any Swing Line Loan, (B) the applicable rate of
the Revolving Commitment Fee for any day for purposes of SECTION 2.11(A) or (C)
the applicable rate of the Letter of Credit Fee for any day for purposes of
SECTION 2.11(B)(I), the applicable percentage set forth below corresponding to
the Leverage Ratio as of the most recent Calculation Date:
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Applicable Applicable
Margin Margin Applicable
for for Base Margin
Pricing Leverage Eurodollar Rate for Revolving Letter of
Level Ratio Loans Loans Commitment Fees Credit Fee
----------- -------------------- ---------------- --------------- ---------------- ----------------
I => 4.00 to 1.0 2.75% 1.75% .500% 2.75%
----------- -------------------- ---------------- --------------- ---------------- ----------------
II < 4.00 to 1.0 but 2.50% 1.50% .500% 2.50%
=> 3.25 to 1.0
----------- -------------------- ---------------- --------------- ---------------- ----------------
III < 3.25 to 1.0 but 2.25% 1.25% .500% 2.25%
=> 2.75 to 1.0
----------- -------------------- ---------------- --------------- ---------------- ----------------
IV < 2.75 to 1.0 but 2.00% 1.00% .500% 2.00%
=> 2.25 to 1.0
----------- -------------------- ---------------- --------------- ---------------- ----------------
V < 2.25 to 1.0 1.75% 0.75% .375% 1.75%
=========== ==================== ================ =============== ================ ================
Each Applicable Margin shall be determined and adjusted quarterly on the date
(each a "CALCULATION DATE") five Business Days after the earlier of the actual
delivery date by which the Company provides, or the required delivery date by
which the Company is required to provide, the consolidated financial information
required by SECTION 6.01(A) or (B), as applicable, and the Compliance
Certificate required by SECTION 6.02(A) for the fiscal quarter or year of the
Company most recently ended prior to the Calculation Date; PROVIDED, HOWEVER,
that: (i) each initial Applicable Margin shall be based on Pricing Level I (as
shown above) and shall remain at Pricing Level I until the first Calculation
Date occurring after the end of the first full fiscal quarter of the Company
subsequent to the Closing Date and, thereafter, each Applicable Margin shall be
based on the Pricing Level (as shown above) corresponding to the Leverage Ratio
as of the last day of the most recently ended fiscal quarter or year of the
Company preceding the applicable Calculation Date; and (ii) if the Company fails
to provide the consolidated financial information required by SECTION 6.01(A) or
(B), as applicable, or the Compliance Certificate required by SECTION 6.02(A)
for the most recently ended fiscal quarter or year of the Company preceding any
applicable Calculation Date, each Applicable Margin from such Calculation Date
shall be based on Pricing Level I (as shown above) until such time as such
consolidated financial information and an appropriate officer's certificate is
provided, whereupon each Applicable Margin shall be based on the Pricing Level
(as shown above) corresponding to the Leverage Ratio as of the last day of the
most recently ended fiscal quarter or year of the Company preceding such
Calculation Date. Each Applicable Margin shall be effective from one Calculation
Date until the next Calculation Date. Any adjustment in the Applicable Margins
shall be applicable to all Loans and Letters of Credit then existing or
subsequently made or issued.
-2-
"APPLICABLE PERCENTAGE" means (i) with respect to Loans or
Commitments of one Class of any Lender at any time, its Revolving Commitment
Percentage, Term B Closing Date Commitment Percentage or Term B Delayed Draw
Commitment Percentage, as applicable, or (ii) with respect to the Loans or
Commitments of all Classes of a Lender at any time, the percentage (carried out
to the ninth decimal place) of the Aggregate Commitments represented by such
Lender's Commitments of all Classes at such time. If the Commitments of each
Lender have been terminated pursuant to SECTION 8.02 or if the Aggregate
Commitments have expired, then the Applicable Percentage of each Lender shall be
determined based on the Applicable Percentage of such Lender most recently in
effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender of each Class and for all Classes is set forth
opposite the name of such Lender on SCHEDULE 2.01 opposite the Commitments of
the applicable Class or under the caption "Aggregate Commitment Percentage", as
applicable, or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.
"APPLICABLE PREPAYMENT PERCENTAGE" means at any date (i) 75%
if the Leverage Ratio as of the last day of the most recent fiscal year of the
Company equals or exceeds 3.50 to 1.0, (ii) 50% if such Leverage Ratio is less
than 3.50 to 1.0 but equals or exceeds 3.00 to 1.0, (iii) 25% if such Leverage
Ratio is less than 3.00 to 1.0 but equals or exceeds 2.50 to 1.0 and (iv) 0% if
such Leverage Ratio is less than 2.50 to 1.0.
"APPROVED FUND" means with respect to any Lender any Fund that
is administered or managed by (i) a Lender, (ii) an Affiliate of such Lender or
(iii) an entity that administers or manages such Lender.
"ASSET DISPOSITION" means any sale, (including any
Sale/Leaseback Transaction, whether or not involving a Capital Lease), lease (as
lessor), transfer or other disposition (including any such transaction effected
by way of merger or consolidation and including any sale or other disposition by
any Group Company of Equity Interests of a Subsidiary, but excluding any sale or
other disposition by way of Casualty or Condemnation) by any Group Company of
any asset. For avoidance of doubt, an Equity Issuance by any Person shall not
constitute an Asset Disposition by that Person.
"ASSIGNEE GROUP" means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption
entered into by a Lender and an Eligible Assignee (with the consent of any party
whose consent is required by SECTION 10.06(B), and accepted by the
Administrative Agent, in substantially in the form of EXHIBIT C hereto or any
other form approved by the Administrative Agent.
"ATTRIBUTABLE INDEBTEDNESS" means, at any date, (i) 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 (ii) in respect of any Synthetic Lease Obligation of any Person,
except those leases set forth on SCHEDULE 1.01E, the capitalized or principal
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 or other agreement were accounted for as a Capital
Lease.
"AUDITED FINANCIAL STATEMENTS" means the audited consolidated
balance sheet of the Company and its Consolidated Subsidiaries for the fiscal
year ended December 31, 2004, and the related consolidated statements of
operations, stockholders' equity and cash flows for such fiscal year of the
Company and its Consolidated Subsidiaries, including the notes thereto.
-3-
"AUTO-EXTENSION LETTER OF CREDIT" has the meaning specified in
SECTION 2.05(D).
"AVAILABLE CASH" means, for any Reference Period for the
Company and its Subsidiaries (determined on a consolidated basis, without
duplication for such Reference Period), the sum (which may be negative) of:
(i) Consolidated EBITDA for such Reference Period; PLUS
(ii) to the extent not included in
Consolidated EBITDA for such Reference Period and not required
to be utilized in connection with a repayment or prepayment of
the Loans made or to be made pursuant to SECTION 2.09(B)(II),
all cash gains attributable to Asset Dispositions out of the
ordinary course of business, if any, of the Company and its
Consolidated Subsidiaries during such period; PLUS
(iii) to the extent not included in
determining Consolidated EBITDA for such Reference Period, (A)
the cash amount realized in respect of extraordinary or
non-recurring gains during such Reference Period and (B) cash
received during such Reference Period on account of non-cash
gains or non-cash income excluded from Consolidated EBITDA in
any period prior to such Reference Period; MINUS
(iv) the aggregate amount (without
duplication) of: (A) Cash Interest Expense for such Reference
Period (excluding that portion of the Project Non-Recourse
Debt Service Amount for such period attributable to
Consolidated Interest Expense); (B) Consolidated Scheduled
Debt Payments made during such Reference Period (excluding
that portion of the Project Non-Recourse Debt Service Amount
for such period attributable to scheduled amortization of
indebtedness); (C) voluntary prepayments of Consolidated
Funded Indebtedness during such period; PROVIDED that (x) such
prepayments are otherwise permitted hereunder and (y) if such
Indebtedness consists of a revolving line of credit, the
commitments under such line of credit are permanently reduced
by the amount of such prepayment; (D) mandatory prepayments of
the Loans made pursuant to SECTION 2.09(B)(IV) during such
Reference Period and mandatory prepayments of all other
Consolidated Funded Indebtedness during such Reference Period
(other than mandatory prepayments from or with the proceeds of
any Qualifying Equity Issuance, Debt Issuance (exclusive of
Revolving Loans), Asset Disposition not included in the
determination of Consolidated Net Income for the applicable
period (except to the extent that any gain therefrom is
included pursuant to CLAUSE (II) above in the determination of
Available Cash for such Reference Period) or Casualty Event);
(E) Consolidated Capital Expenditures made during such
Reference Period (excluding (x) any to the extent financed,
directly or indirectly, with the proceeds of any Qualifying
Equity Issuance, Debt Issuance (exclusive of Revolving Loans),
Asset Disposition not included in the determination of
Consolidated Net Income for the applicable period (except to
the extent that any gain therefrom is included pursuant to
CLAUSE (II) above in the determination of Available Cash for
such Reference Period) or Casualty Event and (y) Scheduled
Capital Expenditures); (F) Taxes paid in cash for such
Reference Period; (G) cash payments during such Reference
Period for Permitted Business Acquisitions (excluding any to
the extent financed, directly or indirectly, with (x) the
proceeds of any Qualifying Equity Issuance, Debt Issuance
(exclusive of Revolving Loans) or Asset Disposition not
included in the determination of Consolidated Net Income for
the applicable period (except to the extent that any gain
therefrom is included pursuant to CLAUSE (II) above in the
determination of Available Cash for such Reference Period) or
(y) Cumulative Distributable Cash not used to pay dividends on
capital stock under SECTION 7.07(III)) and (H) cash payments
during such Reference Period for Investments (other than
Exempt Investments); MINUS
-4-
(v) all cash extraordinary or cash
non-recurring losses, if any, during such Reference Period
(whether or not accrued in such period); MINUS
(vi) without duplication of any amount
deducted under CLAUSE (V) of the definition of "Consolidated
EBITDA", all payments made in cash during such Reference
Period on account of non-cash losses or non-cash charges
expensed during or prior to such Reference Period; MINUS
(vii) cash earn-out payments during such
Reference Period to sellers of assets acquired in Permitted
Business Acquisitions.
"AVAILABLE EQUITY ISSUANCE AMOUNT" means at any date the Net
Cash Proceeds of one or more Qualifying Equity Issuances occurring during the
period from but not including the Closing Date to the date of determination
remaining after the aggregate amount of such Net Cash Proceeds which have been
applied for any purpose specified in CLAUSE (II) of the definition of
"Qualifying Equity Issuance".
"AVAILABILITY PERIOD" means the period from and including the
Closing Date to the earliest of (i) the Revolving Termination Date, (ii) the
date of the termination of the Commitments pursuant to SECTION 2.10 and (iii)
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(A).
"BANK OF AMERICA" means Bank of America, N.A., a national
banking association, and its successors.
"BANK SECRECY ACT" means the Financial Recordkeeping and
Reporting of Currency and Foreign Transactions Act of 1970, 31 U.S.C. 1051, et
seq., as the same may be amended, supplemented, modified, replaced or otherwise
in effect from time to time.
"BASE RATE" means, for any day, a fluctuating rate per annum
equal to the higher of (i) the Federal Funds Rate plus 1/2 of 1% and (ii) the
rate of interest in effect for such day as publicly announced from time to time
by Bank of America as its "prime rate". The "prime rate" is a rate set by Bank
of America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"BASE RATE LOAN" means a Loan that bears interest based on the
Base Rate.
"BORROWING" has the meaning specified in SECTION 1.07.
"BUSINESS ACQUISITION" means the acquisition by the Company or
one or more of its Subsidiaries of all (other than Nominal Shares) of the Equity
Interests of, or all (or any division, line of business or any substantial part
for which audited financial statements or other financial information reasonably
satisfactory to the Administrative Agent is available) or substantially all of
the assets or property of, another Person.
"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 or
the Company's chief executive office is located, except that (i) when used in
SECTION 2.05 with respect to any action taken by or with respect to any L/C
Issuer, the term "BUSINESS DAY" shall not include any day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the
jurisdiction where such L/C Issuer's Lending Office is located, and (ii) if such
day relates to a borrowing of, a payment or prepayment of principal of or
interest on, or the Interest Period for, a Eurodollar Loan, or a notice by the
Company with respect to any such borrowing, payment, prepayment or Interest
Period, such day shall also be a day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market.
-5-
"CAPITAL LEASE" of any Person means any lease of (or other
arrangement conveying the right to use) property (whether real, personal or
mixed) by such Person as lessee which would, in accordance with GAAP, be
required to be accounted for as a capital lease on the balance sheet of such
Person.
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person,
all obligations of such Person as lessee under Capital Leases, in each case
taken at the amount thereof accounted for as liabilities in accordance with
GAAP.
"CASH COLLATERALIZE" means to pledge and deposit with or
deliver to the Collateral Agent, for the benefit of the L/C Issuers and the
Revolving Lenders, as collateral for the L/C Obligations, cash, Cash Equivalents
or deposit balances pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and the L/C Issuers.
"CASH EQUIVALENTS" means, at any time:
(i) any evidence of debt, maturing not more
than one year after such time, issued or guaranteed by the
United States of America or any agency thereof;
(ii) commercial paper, maturing not more
than one year from the date of issue, or demand notes issued
by any domestic corporation not an Affiliate of the Company,
in each case (unless issued by a Lender of its holding
company) rated at least A-1 by S&P or P-1 by Xxxxx'x;
(iii) any certificate of deposit (or time
deposits represented by such certificate of deposit),
eurodollar time deposit or bankers' acceptance, maturing not
more than one year after such time, or overnight Federal funds
transactions with a member of the Federal Reserve System that
are issued or sold by a commercial banking institution that is
organized under the Laws of the United States, any State
thereof or the District of Columbia, any foreign bank or its
branches or agencies (fully protected against currency
fluctuations) and has a combined capital and surplus and
undivided profits of not less than $500,000,000;
(iv) any repurchase agreement entered into
with any Lender (or other commercial banking institution of
the stature referred to in CLAUSE (III) above) which (A) is
secured by a fully perfected security interest in any
obligation of the type described in any of CLAUSES (I) through
(III) above and (B) has a market value at the time such
repurchase agreement is entered into of not less than 100% of
the repurchase obligation of such Lender (or other commercial
banking institution) thereunder;
(v) investments in short-term asset
management accounts offered by any Lender (or other commercial
banking institution of the stature referred to in clause (iii)
above) for the purpose of investing in loans to any
corporation (other than the Company or an Affiliate of the
Company), state or municipality, in each case organized under
the laws of any state of the United States or of the District
of Columbia; and
-6-
(vi) shares of any money market fund that
(A) has 95% of its assets invested continuously in the types
of investments referred to in clause (i) through (v) above,
(B) has net assets in excess of $500,000 and (C) is rated at
least "A-1" by S&P or "P-1" by Xxxxx'x.
"CASH INTEREST EXPENSE" means, for any period, for the Company
and its Subsidiaries determined on a consolidated basis without duplication in
accordance with GAAP, the excess of (i) Consolidated Interest Expense minus (ii)
in each case to the extent included in the determination of Consolidated
Interest Expense for such period, all non-cash amounts attributable to
amortization of financing costs paid in such period (including deferred
Transaction Expenses and other non-cash interest expense, including, without
limitation, the amount of debt discount and debt issuance cost amortized,
charges relating to write-ups or write-downs in the book or carrying value of
existing Funded Indebtedness, interest payable in evidences of Indebtedness or
by addition to the principal of the related Indebtedness) or to amortization of
debt discounts or accrued interest payable in kind for such period.
"CASH MANAGEMENT OBLIGATION" means, as applied to any Person,
any direct or indirect liability, contingent or otherwise, of such Person in
respect of treasury management services to, for the benefit of or otherwise in
respect of any Person (including intraday credit, Automated Clearing House (ACH)
services, foreign exchange services, daylight overdrafts and zero balance
arrangements) provided by any Lender or its Affiliates, including obligations
for the payment of agreed interest and reasonable, fees, charges, expenses and
disbursements in connection therewith.
"CASUALTY" means any casualty, damage, destruction or other
similar loss with respect to real or personal property or improvements.
"CASUALTY INSURANCE POLICY" means any insurance policy
maintained by any Group Company covering losses with respect to Casualties.
"CHANGE IN LAW" means the occurrence, after the date of this
Agreement, of any of the following: (i) the adoption or taking effect of any
law, rule, regulation or treaty; (ii) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof by any
Governmental Authority; or (iii) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any
Governmental Authority.
"CHANGE OF CONTROL" means (i) any "person" or "group" (within
the meaning of Section 13(d) or 14(d) of the Exchange Act) other than a member
of the Sponsor Group has become the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to
have "beneficial ownership" of all securities that any such Person has the right
to acquire, whether such right is exercisable immediately or only after the
passage of time, but excluding any pledgee of pledged shares so long as such
pledgee has not foreclosed on such pledged shares), by way of merger,
consolidation or otherwise, of more than the greater of (x) 35% or more of the
Voting Securities of the Company on a fully-diluted basis after giving effect to
the conversion and exercise of all outstanding Equity Equivalents (whether or
not such securities are then currently convertible or exercisable but solely to
the extent freely exercisable) or (y) the Voting Securities of the Company
(determined as set forth in CLAUSE (X) above) owned, directly or indirectly, by
the Sponsor Group or (ii) the occupation of a majority of the seats (other than
vacant seats) on the Board of Directors of the Company by Persons who were not
(A) nominated by at least a majority of the Board of Directors of the Company,
(B) appointed by directors so nominated or (C) designated or nominated by the
Sponsor Group.
"CLASS" has the meaning specified in SECTION 1.07.
-7-
"CLOSING DATE" means the date when this Agreement becomes
effective and the first Credit Extension occurs in accordance with SECTIONS 4.01
and 4.02.
"CODE" means the Internal Revenue Code of 1986, as amended,
and the rules and regulations promulgated thereunder.
"COLLATERAL" means all of the property which is subject or is
purported to be subject to the Liens granted by the Collateral Documents.
"COLLATERAL AGENT" means Bank of America, N.A., in its
capacity as collateral agent for the Finance Parties under the Collateral
Documents, and its successor or successors in such capacity.
"COLLATERAL DOCUMENTS" means, collectively, the Security
Agreement, the Pledge Agreement, the Depositary Bank Agreements, each Mortgage,
any Additional Collateral Documents, any additional pledges, security
agreements, patent, trademark or copyright filings or mortgages required to be
delivered pursuant to the Finance Documents and any instruments of assignment,
control agreements, lockbox letters or other instruments or agreements executed
pursuant to the foregoing.
"COMMITMENT" means (i) with respect to each Lender, its
Revolving Commitment, Term B Closing Date Commitment and/or Term B Delayed Draw
Commitment, as and to the extent applicable, (ii) with respect to each L/C
Issuer, its L/C Commitment and (iii) with respect to the Swing Line Lender, the
Swing Line Commitment, in each case as set forth on SCHEDULE 2.01 or in the
applicable Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as its Commitment of the applicable Class, as any
such amount may be adjusted from time to time in accordance with this Agreement.
"COMMITMENT FEES" has the meaning specified in SECTION
2.11(A).
"COMPANY" means Synagro Technologies, Inc., a Delaware
corporation, and its successors.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of EXHIBIT D hereto.
"CONDEMNATION" means any taking by a Governmental Authority of
property or assets, or any part thereof or interest therein, for public or
quasi-public use under the power of eminent domain, by reason of any public
improvement or condemnation or in any other manner.
"CONDEMNATION AWARD" means all proceeds of any Condemnation or
transfer in lieu thereof.
"CONSOLIDATED ADJUSTED WORKING CAPITAL" means at any date the
excess of (i) Consolidated Current Assets (excluding cash and Cash Equivalents
classified as such in accordance with GAAP) over (ii) Consolidated Current
Liabilities (excluding the current portion of any Consolidated Funded
Indebtedness).
"CONSOLIDATED CAPITAL EXPENDITURES" means for any period the
aggregate amount of all expenditures (whether paid in cash or other
consideration or accrued as a liability) that would, in accordance with GAAP, be
included as additions to property, plant and equipment and other capital
expenditures of the Company and its Consolidated Subsidiaries for such period,
excluding interest capitalized during construction, as the same are or would be
set forth in a consolidated statement of cash flows of the Company and its
Consolidated Subsidiaries for such period (including the amount of assets leased
under any Capital Lease), but excluding (to the extent that they would otherwise
be included) (i) any such expenditures made for the replacement or restoration
of assets to the extent paid for by any Casualty Insurance Policy or
Condemnation Award with respect to the asset or assets being replaced or
restored to the extent such expenditures are permitted under the Loan Documents
and (ii) Interim Purchase Transactions.
-8-
"CONSOLIDATED CURRENT ASSETS" means at any date the
consolidated current assets of the Company and its Consolidated Subsidiaries
determined as of such date.
"CONSOLIDATED CURRENT LIABILITIES" means at any date the
consolidated current liabilities of the Company and its Consolidated
Subsidiaries determined as of such date.
"CONSOLIDATED EBITDA" means for any period the sum of:
(i) Consolidated Net Income for such period;
PLUS
(ii) to the extent not otherwise included in
the determination of Consolidated Net Income for such period,
all proceeds of business interruption insurance policies, if
any, received by the Company or any Consolidated Subsidiary
during such period; PLUS
(iii) without duplication, those amounts
which, in the determination of Consolidated Net Income for
such period, have been deducted for (A) Consolidated Interest
Expense, (B) lease expense in respect of Synthetic Lease
Obligations and Sale/Leaseback Transactions accounted for as
Operating Leases under GAAP, (C) provisions for Federal,
state, local and foreign income, value added and similar
Taxes, (D) depreciation, amortization (including, without
limitation, amortization of goodwill and other intangible
assets), impairment of goodwill and other non-cash charges or
expenses (excluding any such non-cash charge or expense to the
extent that it represents amortization of a prepaid cash
expense that was paid in a prior period), (E) unrealized
losses on financial derivatives recognized in accordance with
SFAS No. 133, (F) non-cash compensation expense, or other
non-cash expenses or charges, arising from the granting of
stock options, the granting of stock appreciation rights and
similar arrangements (including any strike price reductions
for dividends paid, repricing, amendment, modification,
substitution or change of any such stock option, stock
appreciation rights or similar arrangements), (G) one-time,
non-cash, purchase accounting adjustments, (H) any financial
advisory fees, accounting fees, legal fees and other similar
advisory and consulting fees and related out-of-pocket
expenses of the Company and its Subsidiaries incurred as a
result of the Transaction (including the write-off of previous
debt and equity issuance costs), (I) the amount of (x) any
expense to the extent that a corresponding amount is received
in cash by a Group Company from a Person other than the
Company or any Subsidiary of the Company under any agreement
providing for reimbursement of such expense or (y) any
expenses with respect to liability or casualty events,
business interruption or product recalls, to the extent
covered by insurance (it being understood that if the amount
received in cash under any such agreement in any period
exceeds the amount of expense paid during such period such
excess amounts received may be carried forward and applied
against expenses in future periods), (J) financial advisory
fees, accounting fees, legal fees and other similar advisory
and consulting fees and related out-of-pocket expenses of the
Company and its Consolidated Subsidiaries incurred as a result
of Permitted Business Acquisitions after the Closing Date to
the extent not exceeding $10,000,000 in the aggregate during
such period, (K) non-recurring cash charges resulting from
severance, integration and other adjustments made as a result
of Permitted Business Acquisitions, PROVIDED that the amounts
referred to in this CLAUSE (K) reported in any fiscal year
ending after December 31, 2004 shall not, in the aggregate,
exceed $5,000,000 and (L) extraordinary or non-recurring
losses (including those arising from permitted Asset
Dispositions (other than sales in the ordinary course of
business) and Casualties); MINUS
-9-
(iv) without duplication, any amount which,
in the determination of Consolidated Net Income for such
period, has been included for or in respect of (A) interest
income, if any, exceeding the amount of offsetting interest
expense in the determination of Consolidated Interest Expense
for such period, (B) unrealized gains on financial derivatives
recognized in accordance with SFAS No. 133, (C) extraordinary
or nonrecurring gains (including those arising from permitted
Asset Dispositions (other than sales in the ordinary course of
business) and Casualties) and (D) any non-cash income or
non-cash gains, all as determined in accordance with GAAP;
MINUS
(v) the aggregate amount of cash payments
made during such period in respect of any non-cash accrual,
reserve or other non-cash charge or expense recognized in a
prior period in respect of cash charges or expenses
anticipated at the time in respect of a future period which
were added to Consolidated Net Income to determine
Consolidated EBITDA for such prior period and which do not
otherwise reduce Consolidated Net Income for the current
period; MINUS
(vi) the Project Non-Recourse Debt Service
Amount.
For purposes of calculating Consolidated EBITDA for any period of four
consecutive fiscal quarters (each, a "TEST PERIOD") pursuant to any
determination of the Leverage Ratio, the Interest Coverage Ratio or the Fixed
Charge Coverage Ratio, if during such Test Period (or in the case of pro-forma
calculations, during the period from the last day of such Test Period to and
including the date as of which such calculation is made) any Group Company shall
have made an Asset Disposition or a Permitted Business Acquisition, Consolidated
EBITDA for such Test Period shall be calculated after giving effect thereto on a
Pro-Forma Basis, giving effect to projected or anticipated cost savings
permitted or required by Regulations S-K or S-X under the Securities Act or
otherwise agreed to by the Administrative Agent in its reasonable discretion.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum of
(i) Cash Interest Expense plus (ii) Consolidated Scheduled Debt Payments for
such period, in each case excluding that attributable to Project Non-Recourse
Debt.
"CONSOLIDATED FUNDED INDEBTEDNESS" means at any date the
Funded Indebtedness of the Company and its Consolidated Subsidiaries as of such
date, determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INDEBTEDNESS" means at any date the Indebtedness
of the Company and its Consolidated Subsidiaries, determined on a consolidated
basis as of such date.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the
total interest expense, whether paid or accrued and whether or not capitalized,
(including, without limitation, amortization of debt issuance costs and original
issue discount, interest capitalized during construction, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments under Capital Leases and the implied interest
component of Synthetic Leases (regardless of whether accounted for as interest
expense under GAAP), all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptances and net costs
(included in interest expense) in respect of Swap Obligations constituting
interest rate swaps, collars, caps or other arrangements requiring payments
contingent upon interest rates of the Company and its Consolidated
Subsidiaries), net of interest income, in each case determined on a consolidated
basis for such period; PROVIDED that any interest on Indebtedness of another
Person that is guaranteed by the Company or any of its Consolidated Subsidiaries
or secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) a Lien on, or payable out of
the proceeds of the sale of or production from, assets of the Company or any of
its Consolidated Subsidiaries (whether or not such guarantee or Lien is called
upon) shall be included.
"CONSOLIDATED NET INCOME" means, for any period, the net
income (or net loss) after taxes and before dividends of the Company and its
Consolidated Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; PROVIDED that there shall be excluded from the calculation
of Consolidated Net Income for any period (i) the income (or loss) of (A) any
Project Subsidiary and (B) any Person in which any other Person (other than the
Company or any of its Wholly-Owned Subsidiaries which is not a Project
Subsidiary) has an ownership interest, except to the extent in the case of each
of CLAUSES (A) and (B) that dividends or distributions on capital stock of such
Project Subsidiary or other Person are declared and made to the Company or such
Wholly-Owned Subsidiary which is not a Project Subsidiary during such period for
the amount of such Project Subsidiary's or other Person's accrued net income (or
net loss) (as evidenced by a copy of the resolutions attached to the Compliance
Certificate delivered with the financial statements for such period pursuant to
SECTION 6.02), (ii) the income (or loss) of any Person accrued prior to the date
it becomes a Consolidated Subsidiary of the Company or is merged with or into or
consolidated with the Company or any of its Consolidated Subsidiaries or that
Person's assets are acquired by the Company or any of its Consolidated
Subsidiaries, except as provided in the definitions of "CONSOLIDATED EBITDA" and
"PRO-FORMA BASIS" herein and (iii) the income of any Subsidiary of the Company
to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary.
-10-
"CONSOLIDATED SCHEDULED DEBT PAYMENTS" means, for any period,
the sum of all regularly scheduled payments of principal on the Loans and all
other Consolidated Funded Indebtedness (including, without limitation, the
principal component of Capital Lease Obligations, Purchase Money Indebtedness
and Synthetic Lease Obligations (regardless of whether accounted for as
indebtedness under GAAP) paid or payable during such period), but excluding
payments due on Revolving Loans and Swing Line Loans during such period;
PROVIDED that Consolidated Scheduled Debt Payments for any period shall not
include voluntary prepayments of Consolidated Funded Indebtedness, mandatory
prepayments of the Term Loans pursuant to SECTION 2.09(B) or other mandatory
prepayments (other than by virtue of scheduled amortization) of Consolidated
Funded Indebtedness (but Consolidated Scheduled Debt Payments for a period shall
be adjusted to reflect the effect on scheduled payments of principal for such
period of the application of any prepayments of Consolidated Funded Indebtedness
during or preceding such period).
"CONSOLIDATED SUBSIDIARY" means with respect to any Person at
any date any Subsidiary of such Person the accounts of which would be
consolidated with those of such Person in its consolidated financial statements
if such statements were prepared as of such date in accordance with GAAP.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound.
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
-11-
"CREDIT EXTENSION" means a Borrowing or an L/C Credit
Extension.
"CUMULATIVE DISTRIBUTABLE CASH" means, for the Company and its
Consolidated Subsidiaries as of any date of determination, the sum of:
(i) the amount of one regularly-scheduled
dividend payment (or, if the first such dividend payment is
paid from the Company's excess cash referred to in the second
sentence of SECTION 4.01(F) following the consummation of the
Transaction on the Closing Date, such dividend payment and one
additional regularly scheduled dividend payment) to be made
during the period commencing on the Business Day immediately
following the Closing Date through the date of delivery
pursuant to SECTION 6.01 of the financial statements for the
first full fiscal quarter of the Company following the Closing
Date in accordance with the "Dividend Policy and Restrictions"
section of the Registration Statement; PLUS
(ii) Available Cash for the Reference Period
most recently ended prior to such date; MINUS
(iii) the aggregate amount of dividends paid
during the period commencing on the Business Day after the
Closing Date through the last day of such Reference Period of
the type described in SECTION 7.07(II) to Persons other than
the Company or a Consolidated Subsidiary and of the type
described in SECTION 7.07(III); MINUS
(iv) without duplication of amounts
attributable to Consolidated Capital Expenditures which have
been deducted pursuant to CLAUSE (IV)(E) of the definition of
Available Cash for the Reference Period most recently ended
prior to such date, the aggregate amounts paid by the Company
and its Consolidated Subsidiaries during the period commencing
on the Closing Date through the last day of the Reference
Period most recently ended prior to such date in respect of
Permitted Business Acquisitions financed with Cumulative
Distributable Cash which is not used to pay dividends of the
type described in SECTION 7.07(III).
"DEBT EQUIVALENTS" of any Person means (i) any Equity Interest
of such Person which by its terms (or by the terms of any security for which it
is convertible or for which it is exchangeable or exercisable), or upon the
happening of any event or otherwise (including an event which would constitute a
Change of Control), (A) matures or is mandatorily redeemable or subject to any
mandatory repurchase requirement, pursuant to a sinking fund or otherwise or (B)
is convertible into or exchangeable for Indebtedness or Debt Equivalents, in
each case in whole or in part, on or prior to the 90 day anniversary of the
later of the Revolving Termination Date or the Term Maturity Date and (ii) if
such Person is a Subsidiary of the Company but not a Subsidiary Guarantor, any
Preferred Stock of such Person; PROVIDED, HOWEVER, that any Equity Interests
that would not constitute Debt Equivalents but for provisions thereof giving
holders thereof (or the holders of any security into or for which such Equity
Interests is convertible, exchangeable or exercisable) the right to require the
issuer thereof to redeem such Equity Interests upon the occurrence of a Change
of Control or an Asset Disposition occurring prior to the 180th day after the
Maturity Date shall not constitute Debt Equivalents if such Equity Interests
provide that the issuer thereof will not redeem any such Equity Interests
pursuant to such provisions prior to the payment in full of the Obligations
(other than contingent indemnity obligations).
"DEBT ISSUANCE" means the issuance by any Group Company of any
Indebtedness.
"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.
-12-
"DEFAULT" means any condition or event that constitutes an
Event of Default or that, with the giving of notice, the passage of applicable
cure periods, or both pursuant to ARTICLE VIII, would be an Event of Default.
"DEFAULT RATE" means (i) when used with respect to Senior
Credit Obligations other than Letter of Credit Fees, an interest rate equal to
(A) the Base Rate plus (B) the Applicable Margin applicable to Revolving Base
Rate Loans plus (C) 2.00% per annum; PROVIDED, HOWEVER, that with respect to a
Eurodollar Loan, the Default Rate shall be an interest rate equal to the
interest rate (including any Applicable Margin) otherwise applicable to such
Loan plus 2.00% per annum, and (ii) when used with respect to Letter of Credit
Fees, a rate equal to (A) the Applicable Margin applicable to Revolving
Eurodollar Loans plus (B) 2.00% per annum.
"DEFAULTING LENDER" means any Lender that (i) has failed to
make a Loan or purchase a Participation Interest in a Swing Line Loan or an L/C
Obligation required pursuant to the terms of this Agreement within one Business
Day of the date required to be funded by it hereunder, (ii) has otherwise failed
to pay to the Administrative Agent or any Lender any other amount required to be
paid by it hereunder or any other Loan Document within one Business Day of the
date when due, unless the subject of a good faith dispute or (iii) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"DEPOSITARY BANK AGREEMENT" means an agreement between a Loan
Party and any bank or other depositary institution, substantially in the form of
EXHIBIT D to the Security Agreement, as the same may be amended, modified or
supplemented from time to time.
"DOLLARS" and "$" means lawful money of the United States of
America.
"DOMESTIC SUBSIDIARY" means with respect to any Person each
Subsidiary of such Person that is organized under the laws of the United States
or any political subdivision thereof, and "DOMESTIC SUBSIDIARIES" means any two
or more of them.
"ELIGIBLE ASSIGNEE" means (i) a Lender, (ii) an Affiliate of a
Lender, (iii) an Approved Fund and (iv) any other Person (other than a natural
person) approved by (A) the Administrative Agent, (B) in the case of any
assignment of a Revolving Commitment, the L/C Issuers and the Swing Line Lender
and (C) unless an Event of Default has occurred and is continuing at the time
any assignment is effected pursuant to SECTION 10.06(B), the Company (each such
approval not to be unreasonably withheld or delayed); PROVIDED that
notwithstanding the foregoing, "ELIGIBLE ASSIGNEE" shall not include the Company
or any of the Company's Affiliates or Subsidiaries.
"EMPLOYEE BENEFIT ARRANGEMENTS" means in any jurisdiction the
material benefit schemes or arrangements in respect of any employees or past
employees operated by any Group Company or in which any Group Company
participates and which provide benefits on retirement, ill-health, injury, death
or voluntary withdrawal from or termination of employment, including termination
indemnity payments and life assurance and post-retirement medical benefits,
other than Plans and Foreign Pension Plans.
"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.
-13-
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of remediation, fines,
penalties or indemnities), of any Group Company directly or indirectly resulting
from or based on (i) violation of any Environmental Law, (ii) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Material, (iii) exposure to any Hazardous Material, (iv) the release or
threatened release of any Hazardous Material into the environment or (v) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"EQUITY EQUIVALENTS" means with respect to any Person any
rights, warrants, options, convertible securities, exchangeable securities,
indebtedness or other rights, in each case exercisable for or convertible or
exchangeable into, directly or indirectly, Equity Interests of such Person or
securities exercisable for or convertible or exchangeable into Equity Interests
of such Person, whether at the time of issuance or upon the passage of time or
the occurrence of some future event.
"EQUITY INTERESTS" means all shares of capital stock,
partnership interests (whether general or limited), limited liability company
membership interests, beneficial interests in a trust and any other interest or
participation that confers on a Person the right to receive a share of profits
or losses, or distributions of assets, of an issuing Person, but excluding any
debt securities convertible into such Equity Interests.
"EQUITY ISSUANCE" means (i) any sale or issuance by any Group
Company to any Person other than the Company or a Subsidiary of the Company of
any Equity Interests or any Equity Equivalents (other than any such Equity
Equivalents that constitute Indebtedness) and (ii) the receipt by any Group
Company of any cash capital contributions, whether or not paid in connection
with any issuance of Equity Interests of any Group Company, from any Person
other than the Company or a Subsidiary of the Company.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulation promulgated thereunder.
"ERISA AFFILIATE" means each entity that is a member of a
"controlled group of corporations," under "common control" or an "affiliated
service group" with a Group Company within the meaning of Section 414(b), (c) or
(m) of the Code, or required to be aggregated with a Group Company under Section
414(o) of the Code or is under "common control" with a Group Company, within the
meaning of Section 4001(a)(14) of ERISA.
"ERISA EVENT" means:
(i) a reportable event as defined in Section
4043 of ERISA and the regulations issued under such Section
with respect to a Plan, excluding, however, such events as to
which the PBGC by regulation has waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event;
(ii) the requirements of Section 4043(b) of
ERISA apply with respect to a contributing sponsor, as defined
in Section 4001(a)(13) of ERISA, of any Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with
respect to such Plan within the following 30 days;
-14-
(iii) the failure to meet the minimum
funding standard of Section 412 of the Code with respect to
any Plan (whether or not waived in accordance with Section
412(d) of the Code), the application for a minimum funding
waiver under Section 303 of ERISA with respect to any Plan,
the failure to make by its due date a required installment
under Section 412(m) of the Code with respect to any Plan or
the failure to make any required contribution to a
Multiemployer Plan;
(iv) (A) the incurrence of any material
liability by a Group Company pursuant to Title I of ERISA or
to the penalty or excise tax provisions of the Code relating
to employee benefit plans (as defined in Section 3 of ERISA),
or the occurrence or existence of any event, transaction or
condition that could reasonably be expected to result in the
incurrence of any such material liability by a Group Company
pursuant to Title I of ERISA or to such penalty or excise tax
provisions of the Code; or (B) the incurrence of any material
liability by a Group Company or an ERISA Affiliate pursuant to
Title IV of ERISA or the occurrence or existence of any event,
transaction or condition that could reasonably be expected to
result in the incurrence of any such material liability or
imposition of any lien on any of the rights, properties or
assets of a Group Company or any ERISA Affiliate pursuant to
Title IV of ERISA or to Section 401(a)(29) or 412 of the Code;
(v) the provision by the administrator of
any Plan of a notice pursuant to Section 4041(a)(2) of ERISA
(or the reasonable expectation of such provision of notice) of
intent to terminate such Plan in a distress termination
described in Section 4041(c) of ERISA, the institution by the
PBGC of proceedings to terminate any Plan or the occurrence of
any event or condition which could reasonably be expected to
constitute grounds under ERISA for the termination of a Plan
by the PBGC, or the appointment of a trustee by the PBGC to
administer any Plan;
(vi) the withdrawal of a Group Company or
ERISA Affiliate in a complete or partial withdrawal (within
the meaning of Section 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential material
liability therefor, or the receipt by a Group Company or ERISA
Affiliate of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245
of ERISA, or that it intends to terminate or has terminated
under Section 4041A or 4042 of ERISA;
(vii) the imposition of material liability
(or the reasonable expectation thereof) on a Group Company or
ERISA Affiliate pursuant to Section 4062, 4063, 4064 or 4069
of ERISA or by reason of the application of Section 4212(c) of
ERISA;
(viii) the assertion of a material claim
(other than routine claims for benefits) against any Plan
other than a Multiemployer Plan or the assets thereof, or
against a Group Company or ERISA Affiliate in connection with
any Plan;
(ix) the receipt from the United States
Internal Revenue Service of notice of the failure of any Plan
(or any Employee Benefit Arrangement intended to be qualified
under Section 401(a) of the Code) to qualify under Section
401(a) of the Code, or the failure of any trust forming part
of any Plan to qualify for exemption from taxation under
Section 501(a) of the Code, and, with respect to Multiemployer
Plans, notice thereof to any Group Company; and
(x) the establishment or amendment by a
Group Company of any Welfare Plan that provides
post-employment welfare benefits in a manner that would
reasonably be expected to result in a Material Adverse Effect.
-15-
"EURODOLLAR LOAN" means at any date a Loan which bears
interest at a rate based on the Eurodollar Rate.
"EURODOLLAR RATE" means, for any Interest Period with respect
to any Eurodollar Loan, the rate per annum equal to British Bankers Association
LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time), at approximately 11:00 A.M. (London
time) two Business Days prior to the commencement of such Interest Period for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "EURODOLLAR RATE" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Loan being made,
continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America's London Branch to major
banks in the London interbank eurodollar market at their request at
approximately 11:00 A.M. (London time) two Business days prior to the
commencement of such Interest Period.
"EURODOLLAR RESERVE PERCENTAGE" means for any day during any
Interest Period, the reserve percentage (expressed as a decimal, carried out to
five decimal places) in effect on such day, whether or not applicable to any
Lender, under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any other entity succeeding to the functions
currently performed thereby) for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to "Eurocurrency
liabilities"). The Adjusted Eurodollar Rate for each outstanding Eurodollar Loan
shall be adjusted automatically on and as of the effective date of any change in
the Eurodollar Reserve Percentage.
"EVENT OF DEFAULT" has the meaning specified in SECTION 8.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"EXCLUDED TAXES" means, with respect to the Administrative
Agent, any Lender, any L/C Issuer or any other recipient of any payment to be
made by or on account of any obligation of the Company hereunder, (i) taxes
imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its Lending Office is located, (ii) any branch profits taxes
imposed by the United States or any similar tax imposed by any other
jurisdiction in which the Company is located and (iii) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Company under
SECTION 10.13), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
SECTION 3.01(E), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Company with respect to such
withholding tax pursuant to SECTION 3.01(A).
"EXEMPT INVESTMENTS" means (i) any Investment made pursuant to
SECTION 7.06(A)(II) through (xi), (XIII) through (XV), (XVIII) and (XIX) and
(ii) any Investment made pursuant to SECTION 7.06(A)(XI) in a Loan Party.
-16-
"EXISTING CREDIT AGREEMENT" means the Third Amended and
Restated Credit Agreement dated as of May 8, 2002, as amended by the First
Amendment dated as of December 6, 2002, the Second Amendment dated as of April
4, 2003, the Third Amendment dated as of May 6, 2003 and the Fourth Amendment
dated as of March 9, 2004, among the Company, the various financial institutions
from time to time party thereto, Bank of America, as Administrative Agent,
issuing bank and Swing Line Bank and Banc of America Securities LLC, as Lead
Arranger and Book Manager.
"EXISTING INDEBTEDNESS" has the meaning specified in SECTION
7.01(I).
"EXISTING LETTERS OF CREDIT" means the letters of credit
issued before the Closing Date and described by date of issuance, letter of
credit number, undrawn amount, name of beneficiary and date of expiry on
SCHEDULE 2.05 hereto, and "EXISTING LETTER OF CREDIT" means any one of them.
"FACILITIES INCREASE" has the meaning specified in SECTION
2.10(A).
"FACILITIES INCREASE DATE(S)" has the meaning specified in
SECTION 2.10(A).
"FAILED LOAN" has the meaning specified in SECTION 2.03(D).
"FEDERAL FUNDS RATE" means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; PROVIDED that (i) 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 (ii) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America, N.A. on such day on such transactions as determined
by the Administrative Agent.
"FEE LETTER" means the letter agreement dated January 27, 2005
among the Joint Lead Arrangers and the Company.
"FINANCE DOCUMENT" means (i) each Loan Document and (ii) each
Swap Agreement between one or more Loan Parties and a Swap Creditor evidencing
Swap Obligations permitted hereunder, and "FINANCE DOCUMENTS" means all of them,
collectively.
"FINANCE OBLIGATIONS" means, at any date, (i) all Senior
Credit Obligations, (ii) all Swap Obligations of a Loan Party permitted
hereunder owed or owing to any Swap Creditor and (iii) all Cash Management
Obligations owing to a Lender or one or more of its Affiliates.
"FINANCE PARTY" means each Lender, the Swing Line Lender, each
L/C Issuer, each Swap Creditor, each Agent and each Indemnitee and their
respective successors and assigns, and "FINANCE PARTIES" means any two or more
of them, collectively.
"FIXED CHARGE COVERAGE RATIO" means, for any period, the ratio
of (i) Consolidated EBITDA LESS the aggregate amount of Consolidated Capital
Expenditures for such period (exclusive of the portion thereof financed with (A)
any Indebtedness, (B) any Qualifying Equity Issuance, (C) the Net Cash Proceeds
of Asset Dispositions received during such period that are not required to be
applied to repay Loans or cash collateralize L/C Obligations pursuant to SECTION
2.09(B)(II) or (D) in the case of Consolidated Capital Expenditures of Project
Subsidiaries, the portion thereof not exceeding, in the aggregate for all
Project Subsidiaries, the amount financed with Investments permitted under
SECTION 7.06(A)(XVII)) LESS the aggregate amount of Taxes paid in cash during
such period to (ii) Consolidated Fixed Charges for such period.
-17-
"FOREIGN CASH EQUIVALENTS" means:
(i) securities issued or fully guaranteed by
the United Kingdom or any instrumentality thereof (as long as
that the full faith and credit of the United Kingdom is
pledged in support of those securities);
(ii) certificates of deposit, eurodollar
time deposits, overnight bank deposits and bankers'
acceptances of any foreign bank, or its branches or agencies
(fully protected against currency fluctuations) that, at the
time of acquisition, are rated at least "A-1" by S&P or "P-1"
by Xxxxx'x, and (ii) certificates of deposit, eurodollar time
deposits, banker's acceptances and overnight bank deposits, in
each case of any non-U.S. commercial bank having capital and
surplus in excess of $500,000,000 and a Thomson BankWatch
Rating of at least "B";
(iii) repurchase obligations with a term of
not more than seven days with respect to securities of the
types described in CLAUSE (I) or (II) 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 in which the Company or one or more of its
Subsidiaries 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;
(iv) investments in short-term asset
management accounts offered by any Lender (or other commercial
banking institution of the stature referred to in clause (ii)
above) for the purpose of investing in loans to any
corporation (other than the Company or an Affiliate of the
Company), in each case organized under the laws of the United
Kingdom; and
(v) shares of any money market fund that (A)
has at least 95% of its assets invested continuously in the
types of investments referred to in CLAUSES (I) through (IV)
above, (B) has net assets in excess of $500,000 and (C) is
rated at least "A-1" by S&P or "P-1" by Xxxxx'x.
"FOREIGN LENDER" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Company is a resident for
tax purposes. For purposes of this definition, the United States, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"FOREIGN PENSION PLAN" means any material plan, fund
(including, without limitation, any superannuation fund) or other similar
program established or maintained outside the United States by any Group Company
primarily for the benefit of employees of any Group Company residing outside the
United States, which plan, fund or other similar program provides, or results
in, retirement income, a deferral of income in contemplation of retirement or
payments to be made upon termination of employment, and which plan is not
subject to ERISA or the Code.
"FOREIGN SUBSIDIARY" means with respect to any Person any
Subsidiary of such Person that is not a Domestic Subsidiary of such Person.
"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.
-18-
"FUNDED INDEBTEDNESS" means, with respect to any Person and
without duplication, (i) all Indebtedness of such Person of the types referred
to in CLAUSES (I), (II), (III), (V), and (VII) of the definition of
"Indebtedness" in this SECTION 1.01, (ii) all Indebtedness of others of the type
referred to in CLAUSE (I) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) a
Lien on, or payable out of the proceeds of production from, any property or
asset of such Person, whether or not the obligations secured thereby have been
assumed by such Person, (iii) all Guaranty Obligations of such Person with
respect to Indebtedness of others of the type referred to in CLAUSE (I) above
and (iv) all Indebtedness of the type referred to in CLAUSE (I) above of any
other Person (including any partnership in which such Person is a general
partner and any unincorporated joint venture in which such Person is a joint
venturer) to the extent such Person would be liable therefor under any
applicable law or any agreement or instrument by virtue of such Person's
ownership interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such Person shall not be
liable therefor.
"GAAP" means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the Accounting
Principles Board, the Public Company Accounting Oversight 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 the government of the United
States or any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central bank).
"GROUP COMPANY" means any of the Company or its respective
Subsidiaries (regardless of whether or not consolidated with the Company for
purposes of GAAP), and "GROUP COMPANIES" means all of them, collectively.
"GROUP COMPANY MATERIALS" has the meaning specified in SECTION
6.02(K).
"GROUP" means at any time a group of Loans consisting of (i)
all Loans which are Base Rate Loans at such time or (ii) all Loans which are
Eurodollar Loans having the same Interest Period at such time; PROVIDED that, if
a Loan of any particular Lender is converted to or made as a Base Rate Loan
pursuant to ARTICLE III, such Loan shall be included in the same Group or Group
of Loans from time to time as it would have been had it not been so converted or
made.
"GUARANTY" means the Guaranty, substantially in the form of
EXHIBIT F hereto, by the Subsidiary Guarantors in favor of the Administrative
Agent, as the same may be amended, modified or supplemented from time to time.
"GUARANTY OBLIGATION" means, with respect to any Person,
without duplication, any obligation (other than endorsements in the ordinary
course of business of negotiable instruments for deposit or collection)
guarantying, intended to guaranty, or having the economic effect of guarantying,
any Indebtedness of any other Person in any manner, whether direct or indirect,
and including, without limitation, any obligation, whether or not contingent,
(i) to purchase any such Indebtedness or any property constituting security
therefor, (ii) to advance or provide funds or other credit support for the
payment or purchase of such Indebtedness or obligation or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including, without limitation, maintenance agreements, support agreements,
comfort letters, take or pay arrangements, put agreements, performance
guaranties or similar agreements or arrangements) for the benefit of the holder
of Indebtedness of such other Person, (iii) to lease or purchase property,
securities or services primarily for the purpose of assuring the owner of such
Indebtedness or (iv) to otherwise assure or hold harmless the owner of such
Indebtedness against loss in respect thereof. The amount of any Guaranty
Obligation hereunder shall (subject to any limitations set forth therein) be
deemed to be an amount equal to the outstanding principal amount (or maximum
principal amount, if larger) of the Indebtedness in respect of which such
Guaranty Obligation is made.
-19-
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants or environmental contaminants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls, radon gas and all other substances or wastes regulated pursuant to
any Environment Law because of their hazardous or deleterious properties.
"HONOR DATE" has the meaning specified in SECTION 2.05(F).
"INDEBTEDNESS" means, as to any Person at a particular time,
without duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP:
(i) all obligations of such Person for
borrowed money;
(ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar
instruments;
(iii) all obligations of such Person under
conditional sale or other title retention agreements relating
to property purchased by such Person to the extent of the
value of such property (other than customary reservations or
retentions of title under agreements with suppliers entered
into in the ordinary course of business);
(iv) all obligations, other than
intercompany items, of such Person to pay the deferred
purchase price of property or services (other than trade
accounts payable and accrued expenses arising in the ordinary
course of business and due within six months of the incurrence
thereof);
(v) the Attributable Indebtedness of such
Person in respect of Capital Lease Obligations, Sale/Leaseback
Transactions and Synthetic Lease Obligations (regardless of
whether accounted for as indebtedness under GAAP);
(vi) all obligations, contingent or
otherwise, of such Person to reimburse any bank or other
Person in respect of amounts paid under a letter of credit,
bankers' acceptance or similar instrument;
(vii) all obligations of the types specified
in CLAUSES (I) THROUGH (VI) above of others secured by (or for
which the holder of such obligations has an existing right,
contingent or otherwise, to be secured by) a Lien on, or
payable out of the proceeds of production from, any property
or asset of such Person, whether or not such obligation is
assumed by such Person; PROVIDED that the amount of any
Indebtedness of others that constitutes Indebtedness of such
Person solely by reason of this CLAUSE (VII) shall not for
purposes of this Agreement exceed the greater of the book
value or the fair market value of the properties or assets
subject to such Lien and, for the avoidance of doubt,
excluding any Performance Guaranty;
-20-
(viii) all Guaranty Obligations of such
Person;
(ix) all Debt Equivalents of such Person;
and
(x) the Indebtedness of any other Person
(including any partnership in which such Person is a general
partner and any unincorporated joint venture in which such
Person is a joint venturer) to the extent such Person would be
liable therefor under applicable Law or any agreement or
instrument (excluding for the avoidance of doubt any
Performance Guaranty) by virtue of such Person's ownership
interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such
person shall not be liable therefor; PROVIDED that (i)
Indebtedness shall not include (A) deferred compensation
arrangements, (B) earn-out obligations until matured or
earned, (C) non-compete or consulting obligations incurred in
connection with Permitted Business Acquisitions or (D) deemed
Indebtedness pursuant to FASB 133 or 150 and (ii) the amount
of any Limited Recourse Indebtedness of any Person shall be
equal to the lesser of (A) the aggregate principal amount of
such Limited Recourse Indebtedness for which such Person
provides credit support of any kind (including any undertaking
agreement or instrument that would constitute Indebtedness),
is directly or indirectly liable as a guarantor or otherwise
or is the lender and (B) the fair market value of any assets
securing such Indebtedness or to which such Indebtedness is
otherwise recourse.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITEE" has the meaning specified in SECTION 10.04(B).
"INSURANCE PROCEEDS" means all insurance proceeds (other than
business interruption insurance proceeds), damages, awards, claims and rights of
action with respect to any Casualty.
"INTELLECTUAL PROPERTY" has the meaning set forth in the
Security Agreement.
"INTERCOMPANY NOTE" means a promissory note contemplated by
SECTION 7.06(A)(XI) or (XII), substantially in the form of EXHIBIT H hereto, and
"INTERCOMPANY NOTES" means any two or more of them.
"INTEREST COVERAGE RATIO" means for any period the ratio of
(i) Consolidated EBITDA to (ii) Cash Interest Expense (excluding that in respect
of Project Non-Recourse Debt) for such period.
"INTEREST PAYMENT DATE" means (i) as to Base Rate Loans, the
last Business Day of each March, June, September and December and the Maturity
Date for Loans of the applicable Class and (ii) as to Eurodollar Loans, the last
day of each applicable Interest Period and the Maturity Date for Loans of the
applicable Class, and in addition where the applicable Interest Period for a
Eurodollar Loan is greater than three months, then also the respective dates
that fall every three months after the beginning of such Interest Period.
"INTEREST PERIOD" means with respect to each Eurodollar Loan,
a period commencing on the date of borrowing specified in the applicable Notice
of Borrowing or on the date specified in the applicable Notice of
Extension/Conversion and ending one, two, three or six (or, if deposits of such
duration are available in the London interbank eurodollar market to all of the
Lenders having Commitments on Loans of the applicable Class, nine or twelve)
months thereafter, as the Company may elect in the applicable notice; PROVIDED
that:
-21-
(i) any Interest Period which would
otherwise end on a day which is not a Business Day shall,
subject to CLAUSE (IV) below, 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 which 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 a calendar month;
(iii) if so provided in written notice to
the Company by the Administrative Agent at the direction of
the Required Lenders, no Interest Period in excess of one
month may be selected at any time when an Event of Default is
then in existence; and
(iv) no Interest Period may be selected
which would end after the Maturity Date for Loans of the
applicable Class.
"INTERIM PURCHASE TRANSACTION" means a transaction in which
any Group Company facilitates the acquisition of equipment intended to be leased
by temporarily purchasing such equipment and then selling such equipment to the
proposed lessor within 365 days of the purchase.
"INVESTMENT" in any Person means (i) the acquisition (whether
for cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets (other than inventory, machinery, equipment and other
assets in the ordinary course of business), Equity Interests, Equity
Equivalents, Debt Equivalents, Indebtedness or other securities of such Person,
(ii) any deposit with, or advance, loan or other extension of credit to or for
the benefit of such Person (other than deposits made in connection with
Operating Leases or the purchase of equipment or inventory, each in the ordinary
course of business) or (iii) any other capital contribution to such Person,
including by way of Guaranty Obligations of any obligation of such Person, any
support for a letter of credit issued on behalf of such Person incurred for the
benefit of such Person. For the purposes of ARTICLE VII, the outstanding amount
of any Investment by any Person in another Person shall be calculated as the
excess of (i) the initial amount of such Investment (including the fair market
value of all property transferred by such Person as part of such Investment)
over (ii) the sum of (A) all returns of principal or capital thereof received by
the investing Person on or prior to such time (including returns of principal or
capital in the form of cash dividends, cash distributions and cash repayments of
Indebtedness) and (B) all liabilities of the investing Person constituting all
or a part of the initial amount of such Investment expressly transferred prior
to such time in connection with the sale or disposition of such Investment, but
only to the extent the investing Person is fully released of such liabilities by
such transfer.
"ISP" means, with respect to any Letter of Credit, 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).
"LAWS" means, collectively, all applicable 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, directives,
requests, licenses, authorizations and permits issued by any Governmental
Authority.
"L/C BORROWING" means a Revolving Borrowing made pursuant to
SECTION 2.05(F)(IV) and (V) to refinance Unreimbursed Amounts in respect of
drawn Letters of Credit.
-22-
"L/C CASH COLLATERAL ACCOUNT" has the meaning specified in the
Security Agreement.
"L/C COMMITMENT" means the commitment of one or more L/C
Issuers to issue Letters of Credit in an aggregate face amount at any one time
outstanding (together with the amounts of any unreimbursed drawings thereon) of
up to the L/C Sublimit.
"L/C CREDIT EXTENSION" means, with respect to any Letter of
Credit, the issuance thereof or extension of the expiry date thereof, or the
increase of the amount thereof.
"L/C DISBURSEMENT" means a payment or disbursement made by an
L/C Issuer pursuant to a Letter of Credit.
"L/C DOCUMENTS" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor and any agreements, instruments,
Guarantee Obligations or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (i) the
rights and obligations of the parties concerned or at risk or (ii) any
collateral security for such obligations.
"L/C ISSUER" means (i) Bank of America, in its capacity as
issuer of Letters of Credit under SECTION 2.05(B), and its successor or
successors in such capacity, (ii) each Lender listed in SCHEDULE 2.05 hereto as
the issuer of an Existing Letter of Credit and (iii) any other Lender which the
Company shall have designated as an "L/C ISSUER" by notice to the Administrative
Agent.
"L/C OBLIGATIONS" means at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become, available to be
drawn under Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus (ii) the
aggregate amount of all Unreimbursed Amounts not then paid by the Company as
provided in SECTION 2.05(F)(II), (III), (IV) OR (V) to the applicable L/C
Issuers in respect of drawings under Letters of Credit, including any portion of
any such obligation to which a Lender has become subrogated pursuant to SECTION
2.05(F)(VI). For all purposes of this Agreement and all other Loan Documents, if
on any date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of
the ISP, such Letter of Credit shall be deemed to be "outstanding" in the amount
so remaining available to be drawn.
"L/C SUBLIMIT" means an amount equal to $50,000,000. The L/C
Sublimit is a part of, and not in addition to, the Revolving Committed Amount.
"LENDER" means each bank or other lending institution listed
on SCHEDULE 2.01, each Eligible Assignee that becomes a Lender pursuant to
SECTION 10.06(B) and their respective successors and shall include, as the
context may require, the Swing Line Lender in such capacity and each L/C Issuer
in such capacity.
"LENDING OFFICE" means (i) with respect to any Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of
such Lender) designated for such Type of Loan in such Lender's Administrative
Questionnaire or in any applicable Assignment and Assumption pursuant to which
such Lender became a Lender hereunder or such other office of such Lender (or of
an Affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Company as the office by which its Loans of such
Type are to be made and maintained and (ii) with respect to any L/C Issuer and
for each Letter of Credit, the "Lending Office" of such L/C Issuer (or of an
Affiliate of such L/C Issuer) designated on the signature pages hereto or such
other office of such L/C Issuer (or of an Affiliate of such L/C Issuer) as such
L/C Issuer may from time to time specify to the Administrative Agent and the
Company as the office by which its Letters of Credit are to be issued and
maintained.
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"LETTER OF CREDIT" means an Existing Letter of Credit or an
Additional Letter of Credit, and "LETTERS OF CREDIT" means any combination of
the foregoing.
"LETTER OF CREDIT EXPIRATION DATE" means the day that is seven
days prior to the Revolving Termination Date then in effect (or, if such day is
not a Business Day, the next preceding Business Day).
"LETTER OF CREDIT FEE" has the meaning specified in SECTION
2.11(B)(I).
"LETTER OF CREDIT REQUEST" has the meaning specified in
SECTION 2.05(D).
"LEVERAGE RATIO" means on any day the ratio of (i)
Consolidated Funded Indebtedness (excluding Project Non-Recourse Debt) as of the
last day of the fiscal quarter of the Company ending on, or most recently
preceding, such date to (ii) Consolidated EBITDA for the four consecutive fiscal
quarters of the Company ended on, or most recently preceding, such day.
"LIEN" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), charge, or preference, priority or other security interest or
preferential arrangement in the nature of a security interest of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any easement, right of way or other encumbrance on title to Real
Property, and any financing lease having substantially the same economic effect
as any of the foregoing). Solely for the avoidance of doubt, the filing of a
Uniform Commercial Code financing statement that is a protective lease filing in
respect of an operating lease that does not constitute a security interest in
the leased property or otherwise give rise to a Lien does not constitute a Lien
solely on account of being filed in a public office.
"LIMITED RECOURSE INDEBTEDNESS" means with respect to any
Person, Indebtedness to the extent: (i) such Person (A) provides no credit
support of any kind (including any undertaking, agreement or instrument that
would constitute Indebtedness), (B) is not directly or indirectly liable as a
guarantor or otherwise or (C) does not constitute the lender; and (ii) no
default with respect thereto would permit upon notice, lapse of time or both any
holder of any other Indebtedness (other than the Loans or the Notes) of such
Person to declare a default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity and includes
without limitation Project Non-Recourse Debt.
"LOAN" means a Revolving Loan, a Term B Closing Date Loan, a
Term B Delayed Draw Loan or a Swing Line Loan (or a portion of any Revolving
Loans, Term B Closing Date Loans, Term B Delayed Draw Loans or Swing Line
Loans), individually or collectively as appropriate; PROVIDED that, if any such
loan or loans (or portions thereof) are combined or subdivided pursuant to a
Notice of Extension/Conversion, the term "LOAN" shall refer to the combined
principal amount resulting from such combination or to each of the separate
principal amounts resulting from such subdivision, as the case may be.
"LOAN DOCUMENTS" means this Agreement, the Notes, the
Guaranty, the Collateral Documents, the Perfection Certificate, each Accession
Agreement and each L/C Document, collectively, and all other related agreements
and documents to which the Agent or Lenders are party issued or delivered
hereunder or thereunder or pursuant hereto or thereto, in each case as the same
may be amended, modified or supplemented from time to time.
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"LOAN PARTY" means each of the Company and each Subsidiary
Guarantor, and "LOAN PARTIES" means any combination of the foregoing.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U.
"MATERIAL ADVERSE EFFECT" means (i) any material adverse
effect upon the business, assets, liabilities (actual or contingent),
operations, properties or financial condition of the Company and its
Subsidiaries, taken as a whole or (ii) a material impairment of the rights and
benefits of the Lenders under the Loan Documents, taken as a whole.
"MATURITY DATE" means (i) as to Revolving Loans and Swing Line
Loans, the Revolving Termination Date and (ii) as to Term B Loans, the Term
Maturity Date.
"XXXXX'X" means Xxxxx'x Investors Service, Inc., a Delaware
corporation, and its successors or, absent any such successor, such nationally
recognized statistical rating organization as the Company and the Administrative
Agent may select.
"MORTGAGE" means, in the case of owned real property
interests, a mortgage or deed of trust, substantially in the form of, or
otherwise substantially identical in substance to, the provisions of EXHIBIT G-4
hereto, among any Loan Party, the Collateral Agent and one or more trustees, as
the same may be amended, modified or supplemented from time to time.
"MORTGAGE POLICIES" has the meaning specified in SECTION
4.01(I) hereto.
"MORTGAGED PROPERTIES" means the real property interests of
the Company and its Subsidiaries described in SCHEDULE 4.01(I) hereto.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined
in Section 3(37) or 4001(a)(3) of ERISA.
"NET CASH PROCEEDS" means:
(i) with respect to any Asset Disposition
(other than an Asset Disposition permitted under clauses (I)
through (XVII), (XVIII)(B), (XIX), (XX) and (XXII) of SECTION
7.05 or consisting of a lease where one or more Group
Companies is acting as lessor entered into in the ordinary
course of business), Casualty or Condemnation, (A) the gross
amount of all cash proceeds (including cash Insurance Proceeds
and cash Condemnation Awards in the case of any Casualty or
Condemnation, except to the extent and for so long as such
Insurance Proceeds or Condemnation Awards constitute
Reinvestment Funds) actually paid to or actually received by
any Group Company in respect of such Asset Disposition,
Casualty or Condemnation (including any cash proceeds received
as income or other proceeds of any noncash proceeds of any
Asset Disposition, Casualty or Condemnation as and when
received), less (B) the sum of (1) the amount, if any, of all
taxes and customary fees, legal fees, brokerage fees,
commissions, costs and other expenses (other than those
payable to any Group Company or to Affiliates of any Group
Company except for those payable on terms and conditions as
favorable to the applicable Group Company as would be
obtainable by it in a comparable arms'-length transaction with
an independent, unrelated third party) that are incurred in
connection with such Asset Disposition, Casualty or
Condemnation and are payable by any Group Company, but only to
the extent not already deducted in arriving at the amount
referred to in CLAUSE (I)(A) above, (2) appropriate amounts
that must be set aside as a reserve in accordance with GAAP
against any indemnities, liabilities (contingent or otherwise)
associated with such Asset Disposition, Casualty or
Condemnation, (3) if applicable, the amount of any
Indebtedness secured by a Permitted Lien that has been repaid
or refinanced in accordance with its terms with the proceeds
of such Asset Disposition, Casualty or Condemnation; and (4)
any payments to be made by any Group Company as agreed between
such Group Company and the purchaser of any assets subject to
an Asset Disposition, Casualty or Condemnation in connection
therewith; and
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(ii) with respect to any Equity Issuance or
Debt Issuance, the gross amount of cash proceeds paid to or
received by any Group Company in respect of such Equity
Issuance or Debt Issuance as the case may be (including cash
proceeds subsequently as and when received at any time in
respect of such Equity Issuance or Debt Issuance from non-cash
consideration initially received or otherwise), net of
underwriting discounts and commissions or placement fees,
investment banking fees, legal fees, consulting fees,
accounting fees and other customary fees and expenses directly
incurred by any Group Company in connection therewith (other
than those payable to any Group Company or any Affiliate of
any Group Company except for those payable on terms and
conditions as favorable to the applicable Group Company as
would be obtainable by it in a comparable arms'-length
transaction with an independent, unrelated third party).
"NOMINAL SHARES" means (i) for any Subsidiary of the Company
that is not a Domestic Subsidiary, nominal issuances of Equity Interests in an
aggregate amount not to exceed 1.0% of the Equity Interests or Equity
Equivalents of such Subsidiary on a fully-diluted basis and (ii) in any case,
director's qualifying shares, in each case to the extent such issuances are
required by applicable law.
"NON-PROJECT SUBSIDIARY" means at any date a Subsidiary of the
Company which is not a Project Subsidiary.
"NOTE" means a Revolving Note, a Term B Closing Date Note, a
Term B Delayed Draw Note or a Swing Line Note, and "NOTES" means any combination
of the foregoing.
"NOTICE OF BORROWING" means a request by the Company for a
Borrowing, substantially in the form of EXHIBIT A-1 hereto.
"NOTICE OF EXTENSION/CONVERSION" has the meaning specified in
SECTION 2.07.
"OPERATING LEASE" means, as applied to any Person, a lease
(including leases which may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) by such Person as lessee which is not
a Capital Lease.
"ORGANIZATION DOCUMENTS" means, (i) 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); (ii) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement;
and (iii) with respect to any partnership, joint venture, trust or other form of
business entity, the partnership, joint venture or other applicable agreement of
formation or organization and any agreement, instrument, filing or notice with
respect thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"OTHER TAXES" means all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or under any other Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.
-26-
"PAID IN FULL" and "PAYMENT IN FULL" means, with respect to
any Finance Obligation, the occurrence of all of the foregoing: (i) with respect
to such Finance Obligations other than (A) contingent indemnification
obligations, Swap Obligations and Cash Management Obligations not then due and
payable and (B) to the extent covered by clause (ii) below, obligations with
respect to undrawn Letters of Credit, payment in full thereof in cash (or
otherwise to the written satisfaction of the Finance Parties owed such Finance
Obligations), (ii) with respect to any undrawn Letter of Credit, the obligations
under which are included in such Finance Obligations, (A) the cancellation
thereof and payment in full of all resulting Finance Obligations pursuant to
clause (i) above or (B) the receipt of cash collateral (or a backstop letter of
credit in respect thereof on terms acceptable to the applicable L/C Issuer and
the Administrative Agent) in an amount at least equal to 102% of the L/C
Obligations for such Letter of Credit and (iii) if such Finance Obligations
consist of all the Senior Credit Obligations under or in respect of the
Revolving Commitments or the Term B Commitments, termination of all Commitments
and all other obligations of the Lenders in respect of such Commitments under
the Loan Documents.
"PARTICIPANT" has the meaning specified in SECTION 10.06(D).
"PARTICIPATION INTEREST" means a Credit Extension by a Lender
by way of a purchase of a participation interest in Letters of Credit or L/C
Obligations as provided in SECTION 2.05(A) or (E), in Swing Line Loans as
provided in SECTION 2.01(E)(VI) or in any Loans as provided in SECTION 2.13.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any entity succeeding
to any or all of its functions under ERISA.
"PERFECTION CERTIFICATE" means with respect to the Loan
Parties the certificate, substantially in the form of EXHIBIT G-3 to this
Agreement, completed and supplemented with the schedules and attachments
contemplated thereby to the reasonable satisfaction of the Collateral Agent and
duly executed by a Responsible Officer of the Company, as amended and updated
from time to time by an Accession Agreement pursuant to SECTION 6.12.
"PERFORMANCE GUARANTY" means the obligation of any Group
Company that is not a Project Subsidiary to perform the contractual obligations
of a Project Subsidiary to operate or maintain any facility (but not to pay
Indebtedness) or to provide surety for such services.
"PERMIT" means any license, permit, franchise, right or
privilege, certificate of authority or order, or any waiver of the foregoing,
issued or issuable by any Governmental Authority.
"PERMITTED BUSINESS ACQUISITION" means a Business Acquisition;
PROVIDED that:
(i) the Equity Interests or property or
assets acquired in such acquisition relate to a line of
business similar to the business of the Company or any of its
Subsidiaries engaged in on the Closing Date or reasonably
related, ancillary or complementary thereto but do not
constitute or comprise a Project Subsidiary unless the
acquiring Person is a Project Subsidiary;
(ii) the representations and warranties made
by the Loan Parties in each Loan Document shall be true and
correct in all material respects at and as of the date of such
acquisition (as if made on such date after giving effect to
such acquisition), except to the extent such representations
and warranties expressly relate to an earlier date (in which
case such representations and warranties shall be true and
correct in all material respects at and as of such earlier
date);
-27-
(iii) within 30 days after (or such later
date as may be agreed to by the Administrative Agent, in its
sole discretion) the date of the consummation of such Business
Acquisition, each applicable Loan Party and the acquired
entity and its Subsidiaries shall have executed and delivered
to the Administrative Agent or the Collateral Agent, as
applicable, all items in respect of the Equity Interests or
property or assets acquired in such acquisition (and/or the
seller thereof) required to be delivered by SECTION 6.12;
(iv) in the case of an acquisition of the
Equity Interests of another Person, (A) except in the case of
the incorporation of a new Subsidiary, the board of directors
(or other comparable governing body) of such other Person
shall have duly approved such acquisition and (B) the Equity
Interests acquired shall constitute all (other than Nominal
Shares) of the total Equity Interests of the issuer thereof;
(v) no Event of Default shall have occurred
and be continuing immediately before or immediately after
giving effect to such acquisition, and the Company shall have
delivered to the Administrative Agent a Pro-Forma Compliance
Certificate demonstrating that, upon giving effect to such
acquisition on a Pro-Forma Basis, the Company shall be in
compliance with all of the financial covenants specified in
SECTION 7.16(A) and (B) hereof as of the last day of the most
recent period of four consecutive fiscal quarters of the
Company for which financial statements are required to be
delivered pursuant to SECTION 6.01(A) or (B) which precedes or
ends on the date of such acquisition; and
(vi) the aggregate consideration (including
cash, earn-out payments, assumption of indebtedness and
non-cash consideration) for all such acquisitions occurring
after the Closing Date, to the extent not funded from
Cumulative Distributable Cash under SECTION 7.07(IV) or with
the Net Cash Proceeds of one or more Qualifying Equity
Issuances not utilized for any other purpose specified in
CLAUSE (II) of the definition of "QUALIFYING EQUITY ISSUANCE",
shall not exceed $75,000,000 in the aggregate for all such
Business Acquisitions.
"PERMITTED ENCUMBRANCES" means (i) those liens, encumbrances
and other matters affecting title to any Mortgaged Property listed in the
Mortgage Policies in respect thereof and found, on the date of delivery of such
Mortgage Policies to the Collateral Agent in accordance with the terms hereof,
reasonably acceptable by the Collateral Agent, (ii) zoning, building codes, land
use and other similar Laws and municipal ordinances which are not violated in
any material respect by the existing improvements and the present use by the
mortgagor of the Premises (as defined in the respective Mortgage) and (iii) such
other items to which the Collateral Agent may consent (such consent not to be
unreasonably withheld).
"PERMITTED JOINT VENTURE" means a joint venture, in the form
of a corporation, limited liability company, business trust, joint venture,
association, company or partnership, entered into by the Company or any of its
Subsidiaries which (i) is engaged in a line of business related, ancillary or
complementary to those engaged in by the Company and its Subsidiaries, (ii) is
not a Project Subsidiary and (iii) limits the exposure of the Company and its
Subsidiaries for the liabilities thereof to (A) the Investments of the Company
and its Subsidiaries therein permitted under SECTION 7.06(A)(XVII) and (B) any
Indebtedness of any Permitted Joint Venture or any Guaranty Obligations by the
Company or any of its Subsidiaries in respect of such Indebtedness, which
Indebtedness or Guaranty Obligations are permitted at the time under SECTION
7.01.
"PERMITTED LIENS" has the meaning specified in SECTION 7.02.
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"PERMITTED REFINANCING" means, with respect to any Person, any
modification, refinancing, refunding, renewal or extension of any Indebtedness
of such Person; PROVIDED that (i) the principal amount (or accreted value, if
applicable) thereof does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so modified, refinanced, refunded, renewed or
extended except by an amount equal to a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such
modification, refinancing, refunding, renewal or extension and by an amount
equal to any existing commitments unutilized thereunder or as otherwise
permitted pursuant to SECTION 7.01, (ii) if the Indebtedness being modified,
refinanced, refunded, renewed or extended is subordinated in right of payment to
the Senior Credit Obligations, such modification, refinancing, refunding,
renewal or extension is subordinated in right of payment to the Senior Credit
Obligations on terms at least as favorable on the whole to the Lenders as those
contained in the documentation governing the Indebtedness being modified,
refinanced, refunded, renewed or extended, (iii) the terms and conditions
(including, if applicable, as to collateral) of any such modified, refinanced,
refunded, renewed or extended Indebtedness are not on the whole materially less
favorable to the Loan Parties or the Lenders than the terms and conditions of
the Indebtedness being modified, refinanced, refunded, renewed or extended, (iv)
such modification, refinancing, refunding, renewal or extension is incurred by
the Person who is the obligor on the Indebtedness being modified, refinanced,
refunded, renewed or extended, and (v) at the time thereof, no Default shall
have occurred and be continuing.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLAN" means an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code maintained by or contributed to by any Group Company or any
ERISA Affiliate, including a Multiemployer Plan.
"PLATFORM" has the meaning specified in SECTION 6.02(K).
"PLEDGE AGREEMENT" means the Pledge Agreement, substantially
in the form of EXHIBIT G-2 hereto, dated as of the date hereof among the
Company, the Subsidiary Guarantors and the Collateral Agent, as the same may be
amended, modified or supplemented from time to time.
"PLEDGED COLLATERAL" has the meaning specified in the Pledge
Agreement.
"PRE-COMMITMENT INFORMATION" means, taken as an entirety, (i)
information with respect to the Company and its Subsidiaries contained in the
Confidential Information Memorandum dated February 2005 and (ii) the
Registration Statement.
"PREFERRED STOCK" means, as applied to the Equity Interests of
a Person, Equity Interests of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over the Equity Interests of any other class of such
Person.
"PREPAYMENT ACCOUNT" has the meaning specified in SECTION
2.09(B)(VIII).
"PRIMARY EQUITY OFFERING" means the underwritten public
offering by the Company of Equity Interests of the Company on substantially the
terms described in the Registration Statement.
"PRO-FORMA BASIS" means, for purposes of calculating
compliance of any transaction with any provision hereof which refers to a
Pro-Forma Basis, that the transaction in question shall be deemed to have
occurred as of the first day of the most recent period of four consecutive
fiscal quarters of the Company which precedes or ends on the date of such
transaction and with respect to which the Administrative Agent has received the
financial information for the Company and its Consolidated Subsidiaries required
under SECTION 6.01(A) or (b), as applicable, and the Compliance Certificate
required by SECTION 6.02(A) for such period. In connection with any calculation
of the financial covenants set forth in SECTION 7.16 upon giving effect to a
transaction on a "Pro-Forma Basis", (i) any Indebtedness incurred by the Company
or any of its Subsidiaries in connection with such transaction (or any other
transaction which occurred during the relevant four fiscal quarter period) shall
be deemed to have been incurred or repaid as the case may be as of the first day
of the relevant four fiscal-quarter period, (ii) if such Indebtedness has a
floating or formula rate, then the rate of interest for such Indebtedness for
the applicable period for purposes of the calculations contemplated by this
definition shall be determined by utilizing the rate which is or would be in
effect with respect to such Indebtedness as at the relevant date of such
calculations and (iii) income statement items (whether positive or negative)
attributable to all property acquired in such transaction or to the Investment
comprising such transaction, as applicable, shall be included as if such
transaction has occurred as of the first day of the relevant four-fiscal-quarter
period, after giving effect to cost savings reasonably acceptable to the
Administrative Agent, (iv) such other pro-forma adjustments which would be
permitted or required by Regulations S-K and S-X under the Securities Act shall
be taken into account and (v) such other adjustments as may be reasonably agreed
between the Company and the Administrative Agent shall be taken into account.
-29-
"PRO-FORMA COMPLIANCE CERTIFICATE" means a certificate of a
Responsible Officer or chief accounting officer of the Company delivered to the
Administrative Agent in connection with any "transaction" for which a
calculation on a "Pro-Forma Basis is permitted or required hereunder and
containing reasonably detailed calculations demonstrating, upon giving effect to
the applicable transaction on a Pro-Forma Basis, compliance, as applicable, with
the Leverage Ratio, the Interest Coverage Ratio and the Fixed Charge Coverage
Ratio, as applicable, as of the last day of the most recent period of four
consecutive fiscal quarters of the Company which precedes or ends on the date of
the applicable transaction and with respect to which the Administrative Agent
shall have received the consolidated financial information for the Company and
its Consolidated Subsidiaries required under SECTION 6.01(A) or (B), as
applicable, and the Compliance Certificate required by SECTION 6.02(A) for such
period.
"PROJECT NON-RECOURSE DEBT" means Indebtedness of a Project
Subsidiary if: (i) incurred to finance the development, operation or purchase of
a facility or other asset developed, owned or purchased by such Project
Subsidiary in compliance with the terms of its organizational documents; (ii)
none of the Company or any of its Subsidiaries (other than the applicable
Project Subsidiary which is the issuer thereof) (A) provides any credit support
of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness, but excluding the amount of any permitted investment by
the Company or a Subsidiary in such Project Subsidiary), (B) is directly or
indirectly liable as a guarantor of such indebtedness (whether by virtue of a
Guaranty Obligation or otherwise) or would be subject to a claim by any holder
of such indebtedness in a bankruptcy or insolvency proceeding of the Company or
any of its Subsidiaries (other than the applicable Project Subsidiary which is
the issuer thereof) and (C) constitutes the lender; and (iii) no default with
respect thereto would permit upon notice, lapse of time or both the holder of
such indebtedness or any holder of any other indebtedness (other than the Loans
or the Notes) of the Company or any of its Subsidiaries (other than the
applicable Project Subsidiary) to declare a default on such other indebtedness
or cause the payment thereof to be accelerated or payable prior to its stated
maturity.
"PROJECT NON-RECOURSE DEBT SERVICE AMOUNT" means for any
period, the aggregate amount of principal, premium, if any, and Consolidated
Interest Expense paid or payable in such period in respect of Project
Non-Recourse Debt.
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"PROJECT SUBSIDIARY" means a Consolidated Subsidiary of the
Company (i) (A) which has no indebtedness other than Project Non-Recourse Debt,
(B) which holds no indebtedness of, or direct or indirect equity interest in,
the Company of any Subsidiary other than equity interests in another Project
Subsidiary and (C) in which any Investment by the Company or any Subsidiary
constituted a permitted investment at the time made, (ii) which is a direct or
indirect Subsidiary of a Project Subsidiary or (iii) that is in existence as of
the Closing Date and set forth on SCHEDULE 1.01C.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness of the
Company or any of its Subsidiaries incurred for the purpose of financing all or
any part of the purchase price or cost of construction or improvement of
property used in the business of the Company or such Subsidiary.
"QUALIFYING EQUITY ISSUANCE" means any issuance of Equity
Interests by the Company or any receipt by the Company of a capital contribution
if: (i) after giving effect thereto, no Change of Control shall have occurred;
and (ii) the Net Cash Proceeds thereof shall be used (without duplication) (A)
to make Consolidated Capital Expenditures, (B) to make Permitted Business
Acquisitions in excess of the amounts allowed under CLAUSE (VI) of the
definition of "PERMITTED BUSINESS ACQUISITION, (C) to make Investments
contemplated by, but in excess of the amounts allowed under, SECTION
7.06(A)(XVI) or SECTION 7.06(A)(XX), (D) to repay Indebtedness of the Company
and its Subsidiaries and (E) to make Restricted Payments contemplated by SECTION
7.07(IV).
"REAL PROPERTY" means, with respect to any Person, all of the
right, title and interest of such Person in and to land, improvements and
fixtures.
"REFERENCE PERIOD" means, at any date, the period commencing
on the first day of the first full fiscal quarter after the Closing Date and
ending on the last day of the last fiscal quarter for which a Compliance
Certificate pursuant to SECTION 6.02(A) has been delivered by the Company prior
to such date.
"REFINANCED AGREEMENTS" means the Existing Credit Agreement,
the Subordinated Notes and those other instruments, documents and agreements
listed on SCHEDULE 1.01A.
"REFUNDED SWING LINE LOAN" has the meaning specified in
SECTION 2.01(E)(III).
"REGISTER" has the meaning specified in SECTION 10.06(C).
"REGISTRATION STATEMENT" means the Registration Statement on
Form S-1 (File No. 333-122351) filed on January 27, 2005 by the Company with the
SEC in accordance with the Securities Act , as amended, with respect to the
shares of common stock of the Company to be offered in the Primary Equity
Offering and the Secondary Equity Offering.
"REGULATION D, O, T, U OR X" means Regulation D, O, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System as
amended, or any successor regulation.
"REINVESTMENT FUNDS" means, with respect to any Net Cash
Proceeds of Insurance Proceeds or any Condemnation Award in respect of the
single event or series of related events giving rise thereto, that portion of
such funds as shall, according to a certificate of a Responsible Officer of the
Company delivered to the Administrative Agent within 30 days after the
occurrence of the Casualty or Condemnation giving rise thereto, be reinvested or
committed to be reinvested pursuant to a binding contract within 365 days after
the occurrence of the Casualty or Condemnation giving rise thereto in the
repair, restoration or replacement of the properties that were the subject of
such Casualty or Condemnation; PROVIDED that (i) pending such reinvestment, the
entire amount of such proceeds shall be deposited in an account that is subject
to a Depository Bank Agreement and (ii) no Event of Default shall have occurred
and be continuing or, if the Company or one or more of its Subsidiaries shall
have then entered into one or more continuing agreements with a Person not an
Affiliate of any of them for the repair, restoration or replacement of the
properties that were the subject of such Casualty or Condemnation, none of the
Administrative Agent or the Collateral Agent shall have commenced any action or
proceeding to exercise or seek to exercise an right or remedy with respect to
any Collateral (including any action of foreclosure, enforcement, collection or
execution or by and proceeding under any Debtor Relief Law with respect to any
Loan Party).
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"RELATED PARTIES" means, with respect to any Person, such
Person's Affiliates and the partners, directors, officers, employees, agents and
advisors of such Person and of such Person's Affiliates.
"REQUIRED LENDERS" means, at any date of determination,
Lenders whose aggregate Credit Exposure (as hereinafter defined) constitutes
more than 50% of the Credit Exposure of all Lenders at such time; PROVIDED,
HOWEVER, that if any Lender shall be a Defaulting Lender at such time then there
shall be excluded from the determination of Required Lenders such Lender and the
aggregate principal amount of Credit Exposure of such Lender at such time. For
purposes of the preceding sentence, the term "CREDIT EXPOSURE" as applied to
each Lender shall mean (i) at any time prior to the termination of the
Commitments of the applicable Class the sum of (A) the Revolving Commitment
Percentage of such Lender multiplied by the Revolving Committed Amount plus (B)
the Term B Closing Date Commitment Percentage of such Lender multiplied by the
aggregate principal amount of the Term B Closing Date Loans outstanding at such
time plus (C) the Term B Delayed Draw Commitment Percentage of such Lender
multiplied by the aggregate principal amount of the Term B Delayed Draw
Committed Amount, and (ii) at any time after the termination of the Commitments
of the applicable Class, the sum of (A) the principal balance of the outstanding
Loans of such Lender plus (B) such Lender's Participation Interests in all L/C
Obligations and Swing Line Loans.
"REQUIRED REVOLVING LENDERS" means Lenders whose aggregate
Revolving Credit Exposure (as hereinafter defined) constitutes more than 50% of
the Revolving Credit Exposure of all Lenders at such time; PROVIDED, HOWEVER,
that if any Lender shall be a Defaulting Lender at such time then there shall be
excluded from the determination of Required Revolving Lenders such Lender and
the aggregate principal amount of Revolving Credit Exposure of such Lender at
such time. For purposes of the preceding sentence, the term "REVOLVING CREDIT
EXPOSURE" as applied to each Lender shall mean (i) at any time prior to the
termination of the Revolving Commitments, the Revolving Commitment Percentage of
such Lender multiplied by the Revolving Committed Amount, and (ii) at any time
after the termination of the Revolving Commitments, the sum of (A) the principal
balance of the outstanding Revolving Loans of such Lender plus (B) such Lender's
Participation Interests in all L/C Obligations and Swing Line Loans.
"RESPONSIBLE OFFICER" means the chief executive officer,
president, senior vice president, vice president, chief financial officer,
treasurer, assistant treasurer, secretary or assistant secretary of a Loan
Party. Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
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"RESTRICTED PAYMENT" means (i) any dividend or other
distribution (whether in cash, securities or other property), direct or
indirect, on account of any class of Equity Interests or Equity Equivalents of
any Group Company, now or hereafter outstanding, (ii) any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation, termination or similar payment, purchase or other acquisition for
value, direct or indirect, of any class of Equity Interests or Equity
Equivalents of any Group Company, now or hereafter outstanding and (iii) any
payment made to retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire any class of Equity Interests or Equity
Equivalents of any Group Company, now or hereafter outstanding.
"REVOLVING BORROWING" means a Borrowing comprised of Revolving
Loans and identified as such in the Notice of Borrowing with respect thereto.
"REVOLVING COMMITMENT" means, with respect to any Lender, the
commitment of such Lender, in an aggregate principal amount at any time
outstanding of up to such Lender's Revolving Commitment Percentage of the
Revolving Committed Amount, (i) to make Revolving Loans in accordance with the
provisions of SECTION 2.01(A), (ii) to purchase Participation Interests in Swing
Line Loans in accordance with the provisions of SECTION 2.01(E) and (iii) to
purchase Participation Interests in Letters of Credit in accordance with the
provisions of SECTION 2.05(E).
"REVOLVING COMMITMENT FEE" has the meaning specified in
SECTION 2.11(A).
"REVOLVING COMMITMENT PERCENTAGE" means, for each Lender, the
percentage (carried out to the ninth decimal place) identified as its Revolving
Commitment Percentage on SCHEDULE 2.01 hereto, as such percentage may be
modified in connection with any assignment made in accordance with the
provisions of SECTION 10.06(B).
"REVOLVING COMMITTED AMOUNT" means $95,000,000 or such lesser
or greater amount to which the Revolving Committed Amount may be adjusted
pursuant to SECTION 2.10.
"REVOLVING LENDER" means each Lender identified in SCHEDULE
2.01 as having a Revolving Commitment and each Eligible Assignee which acquires
a Revolving Commitment or Revolving Loan pursuant to SECTION 10.06(B) and their
respective successors.
"REVOLVING LOAN" means a Loan made under SECTION 2.01(A).
"REVOLVING NOTE" means a promissory note, substantially in the
form of EXHIBIT B-1 hereto, evidencing the obligation of the Company to repay
outstanding Revolving Loans, as such note may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"REVOLVING OUTSTANDINGS" means at any date the aggregate
outstanding principal amount of all Revolving Loans and Swing Line Loans plus
the aggregate outstanding amount of all L/C Obligations.
"REVOLVING TERMINATION DATE" means the fifth anniversary of
the Closing Date (or, if such day is not a Business Day, the next Business Day)
or such earlier date upon which the Revolving Commitments shall have been
terminated in their entirety in accordance with this Agreement.
"SALE/LEASEBACK TRANSACTION" means, other than any Interim
Purchase Transaction, any direct or indirect arrangement with any Person or to
which any such Person is a party providing for the leasing to the Company or any
of its Subsidiaries of any property, whether owned by the Company or any of its
Subsidiaries as of the Closing Date or later acquired, which has been or is to
be sold or transferred by the Company or any of its Subsidiaries to such Person
or to any other Person from whom funds have been, or are to be, advanced by such
Person on the security of such property.
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"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., a New York corporation, and its successors or, absent any
such successor, such nationally recognized statistical rating organization as
the Company and the Administrative Agent may select.
"SCHEDULED CAPITAL EXPENDITURES" means those Consolidated
Capital Expenditures for the purposes specified and not exceeding the respective
amounts set forth on SCHEDULE 1.01D.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"SECONDARY OFFERING" means the underwritten public offering by
the selling stockholders of Equity Interests of the Company on substantially the
terms described in the Registration Statement
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SECURITY AGREEMENT" means the Security Agreement,
substantially in the form of EXHIBIT G-1 hereto, dated as of the date hereof
among the Company, the Subsidiary Guarantors and the Collateral Agent, as the
same may be amended, modified or supplemented from time to time.
"SENIOR CREDIT OBLIGATIONS" means, with respect to each Loan
Party, without duplication:
(i) in the case of the Company, all
principal of and interest (including, without limitation, any
interest which accrues after the commencement of any
proceeding under any Debtor Relief Law with respect to the
Company, whether or not allowed or allowable as a claim in any
such proceeding) on any Loan or L/C Obligation under, or any
Note issued pursuant to, this Agreement or any other Loan
Document;
(ii) all fees, expenses, indemnification
obligations and other amounts of whatever nature now or
hereafter payable by such Loan Party (including, without
limitation, any amounts which accrue after the commencement of
any proceeding under any Debtor Relief Law with respect to
such Loan Party, whether or not allowed or allowable as a
claim in any such proceeding) pursuant to this Agreement or
any other Loan Document;
(iii) all expenses of the Agents as to which
one or more of the Agents have a right to reimbursement by
such Loan Party under SECTION 10.04(A) of this Agreement or
under any other similar provision of any other Loan Document,
including, without limitation, any and all sums advanced by
the Collateral Agent to preserve the Collateral or preserve
its security interests in the Collateral to the extent
permitted under any Loan Document or applicable Law;
(iv) all amounts paid by any Indemnitee as
to which such Indemnitee has the right to reimbursement by
such Loan Party under SECTION 10.04(B) of this Agreement or
under any other similar provision of any other Loan Document;
and
(v) in the case of each Subsidiary
Guarantor, all amounts now or hereafter payable by such
Subsidiary Guarantor and all other obligations or liabilities
now existing or hereafter arising or incurred (including,
without limitation, any amounts which accrue after the
commencement of any proceeding under any Debtor Relief Law
with respect the Company or such Subsidiary Guarantor, whether
or not allowed or allowable as a claim in any such proceeding)
on the part of such Subsidiary Guarantor pursuant to this
Agreement, the Guaranty or any other Loan Document;
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together in each case with all renewals, modifications, consolidations or
extensions thereof.
"SENIOR CREDIT PARTY" means each Lender (including any
Affiliate in respect of any Cash Management Obligations), each L/C Issuer, the
Administrative Agent, the Collateral Agent and each Indemnitee and their
respective successors and assigns, and "SENIOR CREDIT PARTIES" means any two or
more of them, collectively.
"SOLVENT" means, with respect to any Person as of a particular
date, that on such date (i) such Person is able generally to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the normal course of business, (ii) the value of the assets of such Person
(both at fair value and present fair saleable value) is greater than the total
amount of liabilities (including contingent and unliquidated liabilities) and
(iii) such Person does not have unreasonably small capital. In computing the
amount of contingent or unliquidated liabilities at any time, such liabilities
shall be computed at the amount that, 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 (in each case as
interpreted in accordance with fraudulent conveyance, bankruptcy, insolvency and
similar laws and other applicable Law).
"SPONSOR" means GTCR Xxxxxx Xxxxxx LLC, and its successors,
GTCR Capital Partners, L.P., GTCR Partners VIII, L.P., GTCR Fund VIII, L.P.,
GTCR Fund VIII-B, L.P. and GTCR Xxxxxx Xxxxxx XX, LLC, together with each of
their respective Sponsor Approved Funds.
"SPONSOR APPROVED FUNDS" means with respect to any Person, any
Fund that is administered or managed by (i) such Person, (ii) an Affiliate of
such Person or (iii) an entity that administers or manages such Person.
"SPONSOR GROUP" means the Sponsor and any of its Subsidiaries
or Affiliates other than Affiliates that are operating companies or Controlled
by operating companies.
"SUBORDINATED INDEBTEDNESS" of any Person means all unsecured
Indebtedness (i) the principal of which by its terms is not required to be
repaid, in whole or in part, before the 90 day anniversary of the later of the
Revolving Termination Date or the Term Maturity Date, (ii) is subordinated in
right of payment to such Person's indebtedness, obligations and liabilities to
the Senior Credit Parties under the Loan Documents pursuant to payment and
subordination provisions reasonably satisfactory in form and substance to the
Administrative Agent and (iii) is issued pursuant to credit documents having
covenants, subordination provisions and events of default that are taken as a
whole in no event materially less favorable, including with respect to rights of
acceleration, to such Person than the terms hereof or are otherwise reasonably
satisfactory in form and substance to the Administrative Agent.
"SUBORDINATED NOTES" means $150,000,000 aggregate principal
amount of the Company's 9-1/2% Senior Subordinated Notes due 2009 issued
pursuant to the Indenture dated as of April 17, 2002 between the Company and
Xxxxx Fargo bank, National Association, as Trustee.
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, limited liability company, association or other
business entity of which (i) if a corporation, more than 50% of the total voting
power of stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof, or (ii) if a
partnership, limited liability company, association or business entity other
than a corporation, more than 50% of the partnership or other similar ownership
interests thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have more than 50%
ownership interest in a partnership, limited liability company, association or
other business entity if such Person or Persons shall be allocated more than 50%
of partnership, association or other business entity gains or losses or shall be
or control the managing director, manager or a general partner of such
partnership, association or other business entity. Unless otherwise specified,
all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of the Company.
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"SUBSIDIARY GUARANTOR" means each Subsidiary of the Company on
the Closing Date (other than (i) Project Subsidiaries except to the extent not
prohibited by the terms of the instruments governing any Project Non-Recourse
Debt of such Project Subsidiary, (ii) Foreign Subsidiaries and (iii) those
Subsidiaries having limited or negligible assets as of the Closing Date which
are to be merged into, or liquidated or dissolved and their residual assets
distributed to, one or more Loan Parties within 90 days after the Closing Date
pursuant to the Company's reorganization plan disclosed to the Administrative
Agent prior to the Closing Date) that becomes a party to the Guaranty after the
Closing Date by execution of an Accession Agreement, and "SUBSIDIARY GUARANTORS"
means any two or more of them.
"SWAP AGREEMENT" means (i) 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 (ii) 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 CREDITOR" means any Lender or any Affiliate of any
Lender from time to time party to one or more Swap Agreements permitted
hereunder with a Loan Party (even if any such Lender for any reason ceases after
the execution of such agreement to be a Lender hereunder), and its successors
and assigns, and "SWAP CREDITORS" means any two or more of them, collectively.
"SWAP OBLIGATIONS" of any Person means all obligations
(including, without limitation, any amounts which accrue after the commencement
of any bankruptcy or insolvency proceeding with respect to such Person, whether
or not allowed or allowable as a claim under any proceeding under any Debtor
Relief Law) of such Person in respect of any Swap Agreement, excluding any
amounts which such Person is entitled to set-off against its obligations under
applicable Law.
"SWAP TERMINATION VALUE" means, at any date and in respect of
any one or more Swap Agreements, after taking into account the effect of any
legally enforceable netting agreements relating to such Swap Agreements, (i) for
any date on or after the date such Swap Agreements have been closed out and
termination value(s) determined in accordance therewith, such termination
value(s), and (ii) for any date prior to the date referenced in CLAUSE (I), the
amount(s) determined as the xxxx-to-market value(s) for such Swap Agreements, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Agreements (which may
include any Lender).
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"SWING LINE COMMITMENT" means the agreement of the Swing Line
Lender to make Loans pursuant to SECTION 2.01(E). The Swing Line Commitment is a
part of, and not in addition to, the Revolving Committed Amount.
"SWING LINE COMMITTED AMOUNT" means $10,000,000, as such Swing
Line Committed Amount may be reduced pursuant to SECTION 2.10.
"SWING LINE LENDER" means Bank of America, N.A., in its
capacity as the Swing Line Lender under SECTION 2.01(E), and its successor or
successors in such capacity.
"SWING LINE LOAN" means a Base Rate Loan made by the Swing
Line Lender pursuant to SECTION 2.01(E), and "SWING LINE LOANS" means any two or
more of such Base Rate Loans.
"SWING LINE LOAN REQUEST" has the meaning specified in SECTION
2.02(B).
"SWING LINE NOTE" means a promissory note, substantially in
the form of EXHIBIT B-4 hereto, evidencing the obligation of the Company to
repay outstanding Swing Line Loans, as such note may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"SWING LINE TERMINATION DATE" means the earlier of (i) the
fifth anniversary of the Closing Date (or, if such day is not a Business Day,
the next preceding Business Day) or such earlier date upon which the Revolving
Commitments shall have been terminated in their entirety in accordance with this
Agreement and (ii) the date on which the Swing Line Commitment is terminated in
its entirety in accordance with this Agreement.
"SYNDICATION DATE" means the earlier of (i) the date which is
90 days after the Closing Date and (ii) the date on which the Administrative
Agent determines in its sole discretion (and notifies the Company) that the
primary syndication (and the resulting addition of Lenders pursuant to SECTION
10.06(B)) has been completed.
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of
a Person (incurred (i) for all purposes of this Agreement other than SECTION
8.01(E)(I) and the term Indebtedness as used therein, after the Closing Date or
incurred on or before the Closing Date if not included on SCHEDULE 1.01E or (ii)
for purposes of SECTION 8.01(E)(I) before, on or after the Closing Date) under
(i) a so-called synthetic, off-balance sheet or tax retention lease or (ii) 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).
"TAXES" means all present or future taxes, levies, imposts,
duties, deductions, withholdings, assessments, fees or other charges imposed by
any Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
"TERM B CLOSING DATE BORROWING" means a Borrowing comprised of
Term B Closing Date Loans and identified as such in the Notice of Borrowing with
respect thereto.
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"TERM B CLOSING DATE COMMITMENT" means, with respect to any
Lender, the commitment of such Lender to make a Term B Closing Date Loan on the
Closing Date in a principal amount equal to such Lender's Term B Closing Date
Commitment Percentage of the Term B Closing Date Committed Amount.
"TERM B CLOSING DATE COMMITMENT PERCENTAGE" means, for each
Lender, the percentage (carried out to the ninth decimal place) identified as
its Term B Closing Date Commitment Percentage on SCHEDULE 2.01, as such
percentage may be (i) reduced pursuant to SECTION 2.10(B) and (ii) modified in
connection with any Assignment and Assumption made in accordance with the
provisions of SECTION 10.06(B).
"TERM B CLOSING DATE COMMITTED AMOUNT" means $180,000,000.
"TERM B CLOSING DATE LENDER" means each Lender identified on
SCHEDULE 2.01 as having a Term B Closing Date Commitment and each Eligible
Assignee which acquires a Term B Closing Date Loan pursuant to SECTION 10.06(B)
and their respective successors.
"TERM B CLOSING DATE LOAN" means a Loan made to the Company
under SECTION 2.01(B).
"TERM B CLOSING DATE NOTE" means a promissory note,
substantially in the form of EXHIBIT B-2 hereto, evidencing the obligation of
the Company to repay outstanding Term B Closing Date Loans, as such note may be
amended, modified or supplemented from time to time.
"TERM B DELAYED DRAW BORROWING" means a Borrowing comprised of
Term B Delayed Draw Loans and identified as such in the Notice of Borrowing with
respect thereto.
"TERM B DELAYED DRAW COMMITMENT" means, with respect to any
Lender, (i) the commitment of such Lender to make a Term B Delayed Draw Loans in
an aggregate principal amount not exceeding such Lender's Term B Delayed Draw
Commitment Percentage of the Term B Delayed Draw Committed Amount and (ii) any
commitment of such Lender that is included as part of a Facilities Increase to
make Term B Delayed Draw Loans on any Facilities Increase Date.
"TERM B DELAYED DRAW COMMITMENT FEE" has the meaning specified
in SECTION 2.11(A).
"TERM B DELAYED DRAW COMMITMENT PERCENTAGE" means, for each
Lender, the percentage (carried out to the ninth decimal place) identified as
its Term B Delayed Draw Commitment Percentage on SCHEDULE 2.01, as such
percentage may be (i) adjusted pursuant to SECTION 2.10(B) and (ii) modified in
connection with any assignment made in accordance with the provisions of SECTION
10.06(B).
"TERM B DELAYED DRAW COMMITTED AMOUNT" means $30,000,000.
"TERM B DELAYED DRAW LENDER" means each Lender identified on
SCHEDULE 2.01 as having a Term B Delayed Draw Commitment and each Eligible
Assignee which acquires a Term B Delayed Draw Loan pursuant to SECTION 10.06(B)
and their respective successors.
"TERM B DELAYED DRAW LOAN" means a Loan made under SECTION
2.01(C).
"TERM B DELAYED DRAW NOTE" means a promissory note,
substantially in the form of EXHIBIT B-3 hereto, evidencing the obligation of
the Company to repay outstanding Term B Delayed Draw Loans, as such note may be
amended, modified or supplemented from time to time.
"TERM B DELAYED DRAW TERMINATION DATE" has the meaning
specified in SECTION 2.01(C).
"TERM B COMMITMENT" means, with respect to any Term B Lender,
its Term B Closing Date Commitment or its Term B Delayed Draw Commitment", as
applicable.
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"TERM B LENDER" means a Term B Closing Date Lender or a Term B
Delayed Draw Lender, and "TERM B LENDERS" means any two or more of them,
collectively.
"TERM B LOAN" means a Term B Closing Date Loan or a Term B
Delayed Draw Loan, and "TERM B Loans" means any two or more of them,
collectively.
"TERM LOANS" means the Term B Loans and any Loans made
pursuant to a Facilities Increase that are not Revolving Loans.
"TERM MATURITY DATE" means the seventh anniversary of the
Closing Date (or if such day is not a Business Day, the next preceding Business
Day).
"THRESHOLD AMOUNT" means $10,000,000.
"TITLE INSURANCE COMPANY" has the meaning specified in SECTION
4.01(I).
"TRANSACTION" means the Primary Equity Offering, the Credit
Extensions to occur on the Closing Date, the repayment of all Indebtedness and
other obligations under the Refinanced Agreements and the other events
contemplated hereby and thereby to occur on the Closing Date.
"TRANSACTION EXPENSES" means costs and expenses associated
with the Transaction and any costs and expenses incurred after the date hereof
associated with any securities offering, investment or acquisition permitted
hereunder (whether or not such offering, investment or acquisition is
consummated).
"TYPE" has the meaning specified in SECTION 1.07.
"UCP" means the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce.
"UNFUNDED LIABILITIES" means, except as otherwise provided in
SECTION 5.12(A)(I)(B), (i) with respect to each Plan, the amount (if any) by
which the present value of all nonforfeitable benefits under each Plan exceeds
the current value of such Plan's assets allocable to such benefits, all
determined in accordance with the respective most recent valuations for such
Plan using applicable PBGC plan termination actuarial assumptions (the terms
"present value" and "current value" shall have the same meanings specified in
Section 3 of ERISA) and (ii) with respect to each Foreign Pension Plan, the
amount (if any) by which the present value of all nonforfeitable benefits under
each Foreign Pension Plan exceeds the current value of such Foreign Pension
Plan's assets allocable to such benefits, all determined in accordance with the
respective most recent valuations for such Plan using the most recent actuarial
assumptions and methods being used by the Foreign Pension Plan's actuaries for
financial reporting under applicable accounting and reporting standards.
"UNITED STATES" means the United States of America, including
each of the States and the District of Columbia, but excluding its territories
and possessions.
"U.S. PATRIOT ACT" means the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001 (Title III of Pub. L. 107-56 (signed into Law October 26, 2001)), as the
same may be amended, supplemented, modified, replaced or otherwise in effect
from time to time.
"UNREIMBURSED AMOUNT" has the meaning specified in SECTION
2.05(F)(IV).
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"UNUSED REVOLVING COMMITMENT AMOUNT" means, for any period,
the amount by which (i) the then applicable Revolving Committed Amount exceeds
(ii) the daily average sum for such period of (A) the aggregate principal amount
of all outstanding Revolving Loans plus (B) the aggregate amount of all
outstanding L/C Obligations. For the avoidance of doubt, no deduction shall be
made on account of outstanding Swing Line Loans in calculating the Unused
Revolving Commitment Amount.
"VOTING SECURITIES" means Equity Interests of any Person
having ordinary power to vote in the election of members of the board of
directors, managers, trustees or other controlling Persons of such Person
(irrespective of whether, at the time, Equity Interests of any other class or
classes of such Person shall have or might have voting power by reason of the
happening of any contingency).
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing: (i) the sum
of the products obtained by multiplying (A) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (B) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by (ii) the then outstanding principal
amount of such Indebtedness.
"WELFARE PLAN" means a "welfare plan" as such term is defined
in Section 3(1) of ERISA.
"WHOLLY-OWNED SUBSIDIARY" means, with respect to any Person at
any date, any Subsidiary of such Person all of the shares of capital stock or
other ownership interests of which (other than Nominal Shares) are at the time
directly or indirectly owned by such Person.
SECTION 1.02 OTHER INTERPRETATIVE PROVISIONS. With reference
to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "INCLUDE," "INCLUDES" and "INCLUDING" shall be deemed to
be followed by the phrase "without limitation." The word "WILL" shall be
construed to have the same meaning and effect as the word "shall." Unless the
context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person's successors and assigns, (iii) the words
"HEREIN," "HEREOF" and "HEREUNDER," and words of similar import when used in any
Loan Document shall be construed to refer to such Loan Document in its entirety
and not to any particular provision thereof, (iv) all references in a Loan
Document to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any Law shall
include all statutory and regulatory provisions consolidating, amending,
replacing or interpreting such Law and any reference to any law or regulation
shall, unless otherwise specified, refer to such Law or regulation as amended,
modified or supplemented from time to time and (vi) the words "ASSET" and
"PROPERTY" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
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(b) In the computation of periods of time from a specified
date to a later specified date, the word "FROM" means "FROM AND INCLUDING," the
words "TO" and "UNTIL" each mean "TO BUT EXCLUDING" and the word "THROUGH means
"TO AND INCLUDING."
(c) Section headings herein and in the other Loan Documents
are included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
SECTION 1.03 ACCOUNTING TERMS AND DETERMINATIONS. Except as
otherwise expressly provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Lenders hereunder shall be
prepared, in accordance with GAAP; PROVIDED that FASB 133 and 150 shall be
ignored for all purposes of this Agreement. All financial statements delivered
to the Lenders hereunder shall be accompanied by a statement from the Company
that GAAP has not changed since the most recent financial statements delivered
by the Company to the Lenders or if GAAP has changed describing such changes in
detail and explaining how such changes affect the financial statements. All
calculations made for the purposes of determining compliance with this Agreement
shall (except as otherwise expressly provided herein) be made by application of
GAAP applied on a basis consistent (except discretionary changes with which the
independent auditors concur or which are required to resolve non-compliance with
GAAP) with the most recent annual or quarterly financial statements delivered
pursuant to SECTION 6.01 (or, prior to the delivery of the first financial
statements pursuant to SECTION 6.01, consistent with the financial statements
described in SECTION 5.05(A) (but without giving effect to any deviations from
GAAP disclosed therein)); provided, HOWEVER, that (i) if (A) the Company shall
object to determining such compliance on such basis at the time of delivery of
such financial statements due to any change in GAAP or the rules promulgated
with respect thereto or (B) either the Administrative Agent or the Required
Lenders shall so object in writing within 30 days after delivery of such
financial statements (or after the Lenders have been informed of the change in
GAAP affecting such financial statements, if later), then such calculations
shall be made on a basis consistent with the most recent financial statements
delivered by the Company to the Lenders as to which no such objection shall have
been made, and the Company shall provide to the Administrative Agent and the
Lenders financial statements and other documents required under this Agreement
or as reasonably requested hereunder setting forth a reconciliation between
calculations made before and after giving effect to such change in GAAP or (ii)
if requested by the Company, the Administrative Agent or the Required Lenders,
if any change in GAAP or the rules promulgated with respect thereto from those
used in the preparation of the most recent annual or quarterly financial
statements delivered pursuant to SECTION 6.01 (or, prior to the delivery of the
first financial statements pursuant to SECTION 6.01, the financial statements
described in SECTION 5.05(A) (but without giving effect to any deviations from
GAAP disclosed therein) results in a change in any of the financial calculations
required by SECTION 7.16 or otherwise specified in ARTICLE VII (including in
each case all related definitions specified in SECTION 1.01) that would not have
resulted had such accounting change not occurred, the parties hereto agree to
enter into good faith negotiations in order to amend such provisions so as
equitably to reflect such change such that the criteria for evaluation
compliance with such covenants shall be the same after such changes as if such
change had not been made.
SECTION 1.04 ROUNDING. Any financial ratios required to be
maintained by any Group Company pursuant to this Agreement shall be calculated
by dividing the appropriate component by the other component, carrying the
result to one place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the nearest number (with
a rounding-up if there is no nearest number).
SECTION 1.05 TIMES OF DAY. Unless otherwise specified, all
references herein to times of day shall be references to Eastern time (daylight
or standard, as applicable).
SECTION 1.06 LETTER OF CREDIT AMOUNTS. Unless otherwise
specified herein, the amount of a Letter of Credit at any time shall be deemed
to be the stated amount of such Letter of Credit in effect at such time;
PROVIDED, HOWEVER, that with respect to any Letter of Credit that, by its terms
or the terms of any L/C Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit, from and after the stated date of such increase, shall be deemed to be
the stated amount of such Letter of Credit after giving effect to such
applicable increase.
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SECTION 1.07 CLASSES AND TYPES OF BORROWINGS. The term
"BORROWING" denotes the aggregation of Loans of one or more Lenders made to the
Company pursuant to ARTICLE II on the same date, all of which Loans are of the
same Class and Type (subject to ARTICLE III) and, except in the case of Base
Rate Loans, have the same initial Interest Period. Loans hereunder are
distinguished by "Class" and "Type". The "CLASS" of a Loan (or of a Commitment
to make such a Loan or of a Borrowing comprised of such Loans) refers to whether
such Loan is a Revolving Loan, a Term B Closing Date Loan or a Term B Delayed
Draw Loan. The "TYPE" of a Loan refers to whether such Loan is a Eurodollar Loan
or a Base Rate Loan. Identification of a Loan (or a Borrowing) by both Class and
Type (e.g., a "TERM B CLOSING DATE EURODOLLAR LOAN") indicates that such Loan is
a Loan of both such Class and such Type (e.g., both a Term B Closing Date Loan
and a Eurodollar Loan) or that such Borrowing is comprised of such Loans.
ARTICLE II
THE CREDIT FACILITIES
SECTION 2.01 COMMITMENTS TO LEND.
(a) REVOLVING LOANS. Subject to the terms and conditions set
forth herein, each Revolving Lender severally agrees to make Revolving Loans to
the Company pursuant to this SECTION 2.01(A) from time to time during the
Availability Period in amounts such that its Revolving Outstandings shall not
exceed (after giving effect to all Revolving Loans repaid, all reimbursements of
L/C Disbursements made, and all Refunded Swing Line Loans paid concurrently with
the making of any Revolving Loans) its Revolving Commitment; PROVIDED that,
immediately after giving effect to each such Revolving Loan, (i) the aggregate
Revolving Outstandings shall not exceed the Revolving Committed Amount and (ii)
with respect to each Revolving Lender individually, such Lender's outstanding
Revolving Loans plus its (other than the Swing Line Lender's in its capacity as
such) Participation Interests in outstanding Swing Line Loans plus its
Participation Interests in outstanding L/C Obligations shall not exceed such
Lender's Revolving Commitment Percentage of the Revolving Committed Amount. Each
Revolving Borrowing comprised of Eurodollar Loans shall be in an aggregate
principal amount of $500,000 or any larger multiple of $100,000, and each
Revolving Borrowing comprised of Base Rate Loans shall be in an aggregate
principal amount of $500,000 or any larger multiple of $100,000 (except that any
such Borrowing may be in the aggregate amount of the unused Revolving
Commitments and any L/C Borrowing may be in the aggregate amount of any
outstanding Unreimbursed Amounts owed to one or more L/C Issuers as provided in
SECTION 2.05(F)(IV)) and shall be made from the several Revolving Lenders
ratably in proportion to their respective Revolving Commitments. Within the
foregoing limits, the Company may borrow under this SECTION 2.01(A), repay, or,
to the extent permitted by SECTION 2.09, prepay, Revolving Loans and reborrow
under THIS SECTION 2.01(A).
(b) TERM B CLOSING DATE LOANS. Subject to the terms and
conditions set forth herein, each Term B Closing Date Lender severally agrees to
make a Term B Closing Date Loan to the Company on the Closing Date in a
principal amount not exceeding its Term B Closing Date Commitment. The Term B
Closing Date Borrowing shall be made from the several Term B Closing Date
Lenders ratably in proportion to their respective Term B Closing Date
Commitments. The Term B Closing Date Commitments are not revolving in nature,
and amounts repaid or prepaid prior to the Term Maturity Date may not be
reborrowed.
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(c) TERM B DELAYED DRAW LOANS. Subject to the terms and
conditions set forth herein, each Term B Delayed Draw Lender severally agrees to
make a Term B Delayed Draw Loan to the Company on one date as requested by the
Company pursuant to SECTION 2.02 in the period commencing on the Closing Date
and ending on the date numerically corresponding to the Closing Date in the
calendar month which is six months after the Closing Date (the "TERM B DELAYED
DRAW TERMINATION DATE") in a principal amount not exceeding its Term B Delayed
Draw Commitment. The Term B Delayed Draw Borrowing shall be made from the
several Term B Delayed Draw Lenders ratably in proportion to their respective
Term B Delayed Draw Commitments. The Term B Delayed Draw Commitments are not
revolving in nature, and amounts repaid or prepaid prior to the Term Maturity
Date may not be reborrowed.
(d) FACILITIES INCREASE TERM LOANS. Each Term B Lender (or
Affiliate or Approved Fund thereof) or Eligible Assignee having, in its sole
discretion, committed to a Facilities Increase pursuant to SECTION 2.10(A) shall
agree as part of such commitment that, on the Facilities Increase Date for such
Facilities Increase in the aggregate Term B Commitments, on the terms and
subject to the conditions set forth in its commitment therefor or otherwise
agreed to as part of such commitment or set forth in this Agreement as amended
in connection with such Facilities Increase, such Term B Lender (or Affiliate or
Approved Fund thereof) or Eligible Assignee will make a Term B Loan of the
applicable Class to the Company on the Facilities Increase Date for such
Facilities Increase in a principal amount not to exceed such commitment to such
Facilities Increase.
(e) SWING LINE LOANS.
(i) Subject to the terms and conditions set
forth herein, the Swing Line Lender agrees, in reliance upon
the agreements of the other Revolving Lenders set forth in
this SUBSECTION (E), to make a portion of the Revolving
Commitments available to the Company from time to time during
the Availability Period by making Swing Line Loans to the
Company in Dollars (each such loan, a "SWING LINE LOAN" and,
collectively, the "SWING LINE LOANS"); PROVIDED that (A) the
aggregate principal amount of the Swing Line Loans outstanding
at any one time shall not exceed the Swing Line Committed
Amount, (B) with regard to each Lender individually (other
than the Swing Line Lender in its capacity as such), such
Lender's outstanding Revolving Loans plus its Participation
Interests in outstanding Swing Line Loans plus its
Participation Interests in outstanding L/C Obligations shall
not at any time exceed such Lender's Revolving Commitment
Percentage of the Revolving Committed Amount, (C) with regard
to the Revolving Lenders collectively, the sum of the
aggregate principal amount of Swing Line Loans outstanding
plus the aggregate amount of Revolving Loans outstanding plus
the aggregate amount of L/C Obligations outstanding shall not
exceed the Revolving Committed Amount and (D) the Swing Line
Committed Amount shall not exceed the aggregate of the
Revolving Commitments then in effect. Swing Line Loans shall
be made and maintained as Base Rate Loans and may be repaid
and reborrowed in accordance with the provisions hereof prior
to the Swing Line Termination Date. Swing Line Loans may be
made notwithstanding the fact that such Swing Line Loans, when
aggregated with the Swing Line Lender's other Revolving
Outstandings, exceeds its Revolving Commitment. The proceeds
of a Swing Line Borrowing may not be used, in whole or in
part, to refund any prior Swing Line Borrowing.
(ii) The principal amount of all Swing Line
Loans shall be due and payable on the earliest of (A) the
maturity date agreed to by the Swing Line Lender and the
Company with respect to such Swing Line Loan; (B) the Swing
Line Termination Date, (C) the occurrence of any proceeding
with respect to the Company under any Debtor Relief Law or (D)
the acceleration of any Loan or the termination of the
Revolving Commitments pursuant to SECTION 8.02.
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(iii) With respect to any Swing Line Loans
that have not been voluntarily prepaid by the Company or paid
by the Company when due under CLAUSE (II) above, the Swing
Line Lender (by request to the Administrative Agent) or the
Administrative Agent at any time may, on one Business Day's
notice, require each Revolving Lender, including the Swing
Line Lender, and each such Lender hereby agrees, subject to
the provisions of this SECTION 2.01(E), to make a Revolving
Loan (which shall be initially funded as a Base Rate Loan) in
an amount equal to such Lender's Revolving Commitment
Percentage of the amount of the Swing Line Loans (the
"REFUNDED SWING LINE LOANS") outstanding on the date notice is
given.
(iv) In the case of Revolving Loans made by
Lenders other than the Swing Line Lender under CLAUSE (III)
above, each such Revolving Lender shall make the amount of its
Revolving Loan available to the Administrative Agent, in same
day funds, at the Administrative Agent's Office, not later
than 1:00 P.M. on the Business Day next succeeding the date
such notice is given. The proceeds of such Revolving Loans
shall be immediately delivered to the Swing Line Lender (and
not to the Company) and applied to repay the Refunded Swing
Line Loans. On the day such Revolving Loans are made, the
Swing Line Lender's Revolving Commitment Percentage of the
Refunded Swing Line Loans shall be deemed to be paid with the
proceeds of a Revolving Loan made by the Swing Line Lender and
such portion of the Swing Line Loans deemed to be so paid
shall no longer be outstanding as Swing Line Loans and shall
instead be outstanding as Revolving Loans. The Company
authorizes the Administrative Agent and the Swing Line Lender
to charge the Company's account with the Administrative Agent
(up to the amount available in such account) in order to pay
immediately to the Swing Line Lender the amount of such
Refunded Swing Line Loans to the extent amounts received from
the Revolving Lenders, including amounts deemed to be received
from the Swing Line Lender, are not sufficient to repay in
full such Refunded Swing Line Loans. If any portion of any
such amount paid (or deemed to be paid) to the Swing Line
Lender should be recovered by or on behalf of the Company from
the Swing Line Lender in bankruptcy, by assignment for the
benefit of creditors or otherwise, the loss of the amount so
recovered shall be ratably shared among all Revolving Lenders
in the manner contemplated by SECTION 2.13.
(v) A copy of each notice given by the Swing
Line Lender pursuant to this SECTION 2.01(E) shall be promptly
delivered by the Swing Line Lender to the Administrative Agent
and the Company. Upon the making of a Revolving Loan by a
Revolving Lender pursuant to this SECTION 2.01(E), the amount
so funded shall no longer be owed in respect of its
Participation Interest in the related Refunded Swing Line
Loans.
(vi) If as a result of any proceeding under
any Debtor Relief Law, Revolving Loans are not made pursuant
to this SECTION 2.01(E) sufficient to repay any amounts owed
to the Swing Line Lender as a result of a nonpayment of
outstanding Swing Line Loans, each Revolving Lender agrees to
purchase, and shall be deemed to have purchased, a
participation in such outstanding Swing Line Loans in an
amount equal to its Revolving Commitment Percentage of the
unpaid amount together with accrued interest thereon. Upon one
Business Day's notice from the Swing Line Lender, each
Revolving Lender shall deliver to the Swing Line Lender an
amount equal to its respective Participation Interest in such
Swing Line Loans in same day funds at the office of the Swing
Line Lender specified or referred to in SECTION 10.02. In
order to evidence such Participation Interest each Revolving
Lender agrees to enter into a participation agreement at the
request of the Swing Line Lender in form and substance
reasonably satisfactory to all parties. In the event any
Revolving Lender fails to make available to the Swing Line
Lender the amount of such Revolving Lender's Participation
Interest as provided in this SECTION 2.01(E)(VI), the Swing
Line Lender shall be entitled to recover such amount on demand
from such Revolving Lender together with interest at the
customary rate set by the Swing Line Lender for correction of
errors among banks in New York City for one Business Day and
thereafter at the Base Rate plus the then Applicable Margin
for Base Rate Loans.
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(vii) Each Revolving Lender's obligation to
make Revolving Loans pursuant to CLAUSE (IV) above and to
purchase Participation Interests in outstanding Swing Line
Loans pursuant to CLAUSE (VI) above shall be absolute and
unconditional and shall not be affected by any circumstance,
including (without limitation) (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Lender
or any other Person may have against the Swing Line Lender,
the Company or any other Loan Party, (ii) the occurrence or
continuance of a Default or an Event of Default or the
termination or reduction in the amount of the Revolving
Commitments after any such Swing Line Loans were made, (iii)
any adverse change in the condition (financial or otherwise)
of the Company or any other Person, (iv) any breach of this
Agreement or any other Finance Document by the Company or any
other Lender, (v) whether any condition specified in ARTICLE
IV is then satisfied or (vi) any other circumstance, happening
or event whatsoever, whether or ---------- not similar to any
of the forgoing. If such Lender does not pay such amount
forthwith upon the Swing Line Lender's demand therefor, and
until such time as such Lender makes the required payment, the
Swing Line Lender shall be deemed to continue to have
outstanding Swing Line Loans in the amount of such unpaid
Participation Interest for all purposes of the Finance
Documents other than those provisions requiring the other
Lenders to purchase a participation therein. Further, such
Lender shall be deemed to have assigned any and all payments
made of principal and interest on its Loans, and any other
amounts due to it hereunder to the Swing Line Lender to fund
Swing Line Loans in the amount of the Participation Interest
in Swing Line Loans that such Lender failed to purchase
pursuant to this SECTION 2.01(E)(VII) until such amount has
been purchased (as a result of such assignment or otherwise).
SECTION 2.02 NOTICE OF BORROWINGS.
(a) BORROWINGS OTHER THAN SWING LINE LOANS. Except in the case
of Swing Line Loans and L/C Borrowings, the Company shall give the
Administrative Agent a Notice of Borrowing not later than 12:00 P.M. on (i) the
date of the proposed Base Rate Borrowing, which shall be a Business Day and (ii)
the third Business Day before each Eurodollar Borrowing (unless the Company
wishes to request an Interest Period for such Borrowing other than one, two,
three or six months in duration as provided in the definition of "INTEREST
PERIOD", in which case on the fourth Business Day before each such Eurodollar
Borrowing), specifying:
(i) the date of such Borrowing, which shall
be a Business Day;
(ii) the aggregate amount of such Borrowing;
(iii) the Class and initial Type of the
Loans comprising such Borrowing; and
(iv) in the case of a Eurodollar Borrowing,
the duration of the initial Interest Period applicable
thereto, subject to the provisions of the definition of
Interest Period and to SECTION 2.06(A); and
(v) the location (which must be in the
United States) and number of the Company's account to which
funds are to be disbursed, which shall comply with the
requirements of SECTION 2.03.
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If the duration of the initial Interest Period is not specified with respect to
any requested Eurodollar Borrowing, then the Company shall be deemed to have
selected an initial Interest Period of one month, subject to the provisions of
the definition of Interest Period and to SECTION 2.06(A).
(b) SWING LINE BORROWINGS. The Company shall request a Swing
Line Loan by written notice (or telephone notice promptly confirmed in writing)
substantially in the form of EXHIBIT A-4 hereto (a "SWING LINE LOAN Request") to
the Swing Line Lender and the Administrative Agent not later than 3:00 P.M. on
the Business Day of the requested Swing Line Loan. Each such notice shall be
irrevocable and shall specify (i) that a Swing Line Loan is requested, (ii) the
date of the requested Swing Line Loan (which shall be a Business Day) and (iii)
the principal amount of the Swing Line Loan requested. Each Swing Line Loan
shall be made as a Base Rate Loan and, subject to SECTION 2.01(E)(II), shall
have such maturity date as agreed to by the Swing Line Lender and the Company
upon receipt by the Swing Line Lender of the Swing Line Loan Request from the
Company.
(c) L/C BORROWINGS. Each L/C Borrowing shall be made as
specified in SECTION 2.05(F)(IV) without the necessity of a Notice of Borrowing.
SECTION 2.03 NOTICE TO LENDERS; FUNDING OF LOANS.
(a) NOTICE TO LENDERS. If the Company has requested an
Interest Period of other than one, two, three or six months in duration, the
Administrative Agent shall give prompt notice of such request to the Lenders and
determine whether the requested Interest Period is acceptable to all of them.
Not later than 11:00 A.M. on the third Business Day before the requested date of
such a Eurodollar Borrowing, the Administrative Agent shall notify the Company
(which notice may be by telephone) whether or not the requested interest Period
has been consented to by all the Lenders. Upon receipt of a Notice of Borrowing,
the Administrative Agent shall promptly notify each Lender of such Lender's
ratable share (if any) of the Borrowing referred to therein, and such Notice of
Borrowing shall not thereafter be revocable by the Company.
(b) FUNDING OF LOANS.
(i) Not later than 1:00 P.M. on the date of
each Borrowing (other than a Swing Line Borrowing and a L/C
Borrowing), each Lender participating therein shall make
available its share of such Borrowing, in Federal or other
immediately available funds, to the Administrative Agent at
the Administrative Agent's Office. Unless the Administrative
Agent determines that any applicable condition specified in
ARTICLE IV has not been satisfied, the Administrative Agent
shall make the funds so received available to the Company in
like funds as received by the Administrative Agent either by
(i) crediting the account of the Company 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 Company in the applicable Notice of Borrowing or,
if a Borrowing shall not occur on such date because any
condition precedent herein shall not have been met, promptly
return the amounts received from the Lenders in like funds,
without interest.
(ii) Not later than 3:00 P.M. on the date of
each Swing Line Borrowing, the Swing Line Lender shall, unless
the Administrative Agent shall have notified the Swing Line
Lender that any applicable condition specified in ARTICLE IV
has not been satisfied, make available the amount of such
Swing Line Borrowing, in Federal or other immediately
available funds, to the Company at the Swing Line Lender's
address referred to in SECTION 10.02.
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(iii) Not later than 1:00 P.M. on the date
of each L/C Borrowing, each Revolving Lender shall make
available its share of such Borrowing, in Federal or other
immediately available funds, to the Administrative Agent at
the Administrative Agent's Office. Unless the Administrative
Agent determines that any applicable condition specified in
ARTICLE IV has not been satisfied (other than the delivery of
a Notice of Borrowing), the Administrative Agent shall remit
the funds so received to the L/C Issuer which has issued
Letters of Credit having outstanding Unreimbursed Amounts as
contemplated by SECTION 2.05(F)(V).
(c) FUNDING BY THE ADMINISTRATIVE AGENT IN ANTICIPATION OF
AMOUNTS DUE FROM THE LENDERS. Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of any Borrowing that
such Lender will not make available to the Administrative Agent such Lender's
share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available to the Administrative Agent on the date of such
Borrowing in accordance with SUBSECTION (B) of this SECTION 2.03, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Company on such date a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Company severally agree
to pay to the Administrative Agent forthwith on demand such corresponding amount
in immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Company but excluding
the date of payment to the Administrative Agent, at (i) in the case of a payment
to be made by such Lender, the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation and (ii) in the case of a payment to be made by the
Company, the interest rate applicable thereto pursuant to SECTION 2.06. If the
Company and such Lender shall pay such interest to the Administrative Agent for
the same or an overlapping period, the Administrative Agent shall promptly remit
to the Company the amount of such interest paid by the Company for such period.
If such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender's Loan included in
such Borrowing. Any payment by the Company shall be without prejudice to any
claim the Company may have against a Lender that shall have failed to make such
payment to the Administrative Agent. A notice of the Administrative Agent to a
Lender or the Company with respect to any amount owing under this SUBSECTION (C)
shall be conclusive, absent manifest error.
(d) FAILED LOANS. If any Lender shall fail to make any Loan (a
"FAILED LOAN") which such Lender is otherwise obligated hereunder to make to the
Company on the date of Borrowing thereof, and the Administrative Agent shall not
have received notice from the Company or such Lender that any condition
precedent to the making of the Failed Loan has not been satisfied, then, until
such Lender shall have made or be deemed to have made (pursuant to the last
sentence of this SUBSECTION (D)) the Failed Loan in full or the Administrative
Agent shall have received notice from the Company or such Lender that any
condition precedent to the making of the Failed Loan was not satisfied at the
time the Failed Loan was to have been made, whenever the Administrative Agent
shall receive any amount from the Company for the account of such Lender, (i)
the amount so received (up to the amount of such Failed Loan) will, upon receipt
by the Administrative Agent, be deemed to have been paid to the Lender in
satisfaction of the obligation for which paid, without actual disbursement of
such amount to the Lender, (ii) the Lender will be deemed to have made the same
amount available to the Administrative Agent for disbursement as a Loan to the
Company (up to the amount of such Failed Loan) and (iii) the Administrative
Agent will disburse such amount (up to the amount of the Failed Loan) to the
Company or, if the Administrative Agent has previously made such amount
available to the Company on behalf of such Lender pursuant to the provisions
hereof, reimburse itself (up to the amount of the amount made available to the
Company); PROVIDED, HOWEVER, that the Administrative Agent shall have no
obligation to disburse any such amount to the Company or otherwise apply it or
deem it applied as provided herein unless the Administrative Agent shall have
determined in its sole discretion that to so disburse such amount will not
violate any Law, rule, regulation or requirement applicable to the
Administrative Agent. Upon any such disbursement by the Administrative Agent,
such Lender shall be deemed to have made a Base Rate Loan of the same Class as
the Failed Loan to the Company in satisfaction, to the extent thereof, of such
Lender's obligation to make the Failed Loan.
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SECTION 2.04 EVIDENCE OF LOANS.
(a) LENDER AND ADMINISTRATIVE AGENT ACCOUNTS; NOTES. 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 Company 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
Company hereunder to pay any amount owing with respect to the Senior Credit
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 Company shall execute and
deliver to such Lender (through the Administrative Agent) a single Revolving
Note, Term B Closing Date Note or Term B Delayed Draw Note, as applicable, in
each case, substantially in the form of EXHIBIT X-0, X-0 or B-3, as applicable,
payable to the order of such Lender for the account of its Lending Office in an
amount equal to the aggregate unpaid principal amount of such Lender's
Revolving, Term B Closing Date, or Term B Delayed Draw Loans, as applicable,
which shall evidence such Lender's Loans in addition to such accounts or
records. If requested by the Swing Line Lender, the Swing Line Loans shall be
evidenced by a single Swing Line Note, substantially in the form of EXHIBIT B-4,
payable to the order of the Swing Line Lender in an amount equal to the
aggregate unpaid principal amount of the Swing Line Loans. Each Lender having
one or more Notes shall record the date, amount, Class and Type of each Loan
made by it and the date and amount of each payment of principal made by the
Company with respect thereto, and may, if such Lender so elects in connection
with any transfer or enforcement of any Note, endorse on the reverse side or on
the schedule, if any, forming a part thereof appropriate notations to evidence
the foregoing information with respect to each outstanding Loan evidenced
thereby; PROVIDED that the failure of any Lender to make any such recordation or
endorsement or any error in any such recordation or endorsement shall not affect
the obligations of the Company hereunder or under any such Note. Each Lender is
hereby irrevocably authorized by the Company so to endorse each of its Notes and
to attach to and make a part of each of its Notes a continuation of any such
schedule as and when required.
(b) CERTAIN PARTICIPATION INTERESTS. In addition to the
accounts and records referred to in SUBSECTION (A) above, each Lender and the
Administrative Agent shall maintain in accordance with its usual practice
accounts or records evidencing purchases and sales by such Lender of
Participation Interests 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.
SECTION 2.05 LETTERS OF CREDIT.
(a) EXISTING LETTERS OF CREDIT. On the Closing Date, each L/C
Issuer that has issued an Existing Letter of Credit shall be deemed, without
further action by any party hereto, to have sold to each Revolving Lender, and
each such Revolving Lender shall be deemed, without further action by any party
hereto, to have purchased from each such L/C Issuer, without recourse or
warranty, an undivided participation interest in such Existing Letter of Credit
and the related L/C Obligations in the proportion its Revolving Commitment
Percentage bears to the Revolving Committed Amount (although any fronting fee
payable under SECTION 2.11 shall be payable directly to the Administrative Agent
for the accounting of each applicable L/C Issuer, and the Lenders (other than
the applicable L/C Issuer) shall have no right to receive any portion of such
fronting fee) and any security therefore or guaranty pertaining thereto. On and
after the Closing Date, each Existing Letter of Credit shall constitute a Letter
of Credit for all purposes hereof.
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(b) ADDITIONAL LETTERS OF CREDIT. Subject to the terms and
conditions set forth herein, (i) each L/C Issuer agrees, in reliance upon the
agreements of the other Revolving Lenders set forth in this SECTION 2.05, (A)
from time to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue standby Letters of Credit
for the account, and upon the request, of the Company (or jointly for the
account of the Company and any Subsidiary that is not a Project Subsidiary) and
in support of obligations of the Company or one or more of its Subsidiaries
(other than any Project Subsidiary) (including, (x) obligations in respect of
and in lieu of deposits or security guarantees in the ordinary course of
business, (y) to provide support for performance, payment or appeal bonds,
indemnity obligations or other surety, including, without limitation, workers
compensation insurance and (z) for such other general corporate purposes as the
L/C Issuer may agree in its reasonable discretion), and to amend or extend
Letters of Credit previously issued by it, in accordance with SUBSECTION (D)
below, and (B) to honor drawings under its Letters of Credit, and (ii) each
Revolving Lender severally agrees to participate in Letters of Credit issued for
the account of the Company or its Subsidiaries and any drawing thereunder in
accordance with the provisions of SUBSECTION (F) below; PROVIDED that,
immediately after each Letter of Credit is issued, (i) the aggregate amount of
the L/C Obligations shall not exceed the L/C Sublimit, (ii) the Revolving
Outstandings shall not exceed the Revolving Committed Amount and (iii) with
respect to each individual Revolving Lender, the aggregate outstanding principal
amount of the Revolving Lender's Revolving Loans plus its Participation
Interests in outstanding L/C Obligations plus its (other than the Swing Line
Lender's) Participation Interests in outstanding Swing Line Loans shall not
exceed such Revolving Lender's Revolving Commitment Percentage of the Revolving
Committed Amount. Each request by the Company or a Subsidiary for the issuance
or amendment of a Letter of Credit shall be deemed to be a representation by the
Company and such Subsidiary that the issuance or amendment of such Letter of
Credit complies with the conditions set forth in the proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms and conditions
hereof, the Company's ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Company may, during the period specified in
CLAUSE (I)(A) above, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed.
(c) CERTAIN LIMITATIONS ON ISSUANCES OF LETTERS OF CREDIT.
(i) No L/C Issuer shall issue any Letter of
Credit, if (A) subject to SUBSECTION (D) below with respect to
Auto-Extension Letters of Credit, the expiry date of such
requested Letter of Credit would occur more than twelve months
after the date of issuance or last extension, unless the
Required Revolving Lenders have approved such expiry date or
(B) the expiry date of such requested letter of Credit would
occur after the Letter of Credit Expiration Date, unless all
the Lenders have approved such expiry date or (C) such Letter
of Credit is to be used for any purpose other than for its
general corporate purposes unless the Required Revolving
Lenders have consented thereto.
(ii) No L/C Issuer shall be under any
obligation to issue any Additional Letter of Credit if: (A)
any order, judgment or decree of any Governmental Authority
shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Additional Letter of Credit, or any
Law applicable to such L/C Issuer or any request or directive
(whether or not having a force of Law) from any Governmental
Authority with jurisdiction over such L/C Issuer shall
prohibit, or request that such L/C Issuer refrain from, the
issuance of letters of credit generally or such Additional
Letter of Credit in particular or shall impose upon such L/C
Issuer with respect to such Additional Letter of Credit any
restriction, reserve or capital requirement (for which such
L/C Issuer is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon such L/C
Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which such L/C Issuer in
good xxxxx xxxxx material to it; (B) the issuance of such
Additional Letter of Credit shall violate any Laws or one or
more policies of such L/C Issuer; (C) except as otherwise
reasonably agreed by the Administrative Agent and the
applicable L/C Issuer, such Letter of Credit is in an initial
face amount less than $100,000; (D) such Letter of Credit is
to be denominated in a currency other than Dollars; or (E) a
default of any Revolving Lender's obligations to fund under
SUBSECTION (F)(IV) or (VI) below exists or any Revolving
Lender is at such time a Defaulting Lender hereunder, unless
the L/C Issuer has entered into satisfactory arrangements with
the Company or such Revolving Lender to eliminate the L/C
issuer's risk with respect to such Revolving Lender.
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(iii) No L/C issuer shall amend any Letter
of Credit if the L/C Issuer would not be permitted at such
time to issue such Letter of Credit in its amended form under
the terms hereof.
(iv) No L/C issuer shall be under any
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.
(v) Each L/C Issuer shall act on behalf of
the Revolving Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith, and each
L/C issuer shall have all of the benefits and immunities (A)
provided to the Administrative Agent in ARTICLE IX with
respect to any acts taken or omissions suffered by such L/C
issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and the L/C Documents pertaining
to such Letters of Credit as fully as if the term
"Administrative Agent" as used in ARTICLE IX included such L/C
Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to such L/C Issuer.
(d) PROCEDURES FOR ISSUANCE AND AMENDMENT OF LETTERS OF
CREDIT; AUTO-EXTENSION LETTERS OF CREDIT.
(i) Each Letter of Credit shall be issued or
amended, as the case may be, upon the request of the Company
delivered to the applicable L/C Issuer (with a copy to the
Administrative Agent) substantially in the form of EXHIBIT A-3
hereto (a "LETTER OF CREDIT REQUEST"), appropriately completed
and signed by a Responsible Officer of the Company. Such
Letter of Credit Request must be received by the L/C Issuer
and the Administrative Agent not later than 2:00 P.M. at least
two Business Days (or such later date and time as the
Administrative Agent and the L/C issuer may agree in a
particular instance in their sole discretion) prior to the
proposed issuance date or date of amendment, as the case may
be. In the case of a request for an initial issuance of a
Letter of Credit, such Letter of Credit Request shall specify
in form and detail reasonably satisfactory to the L/C Issuer:
(A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount
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 Request 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. If requested by the applicable L/C Issuer, the
Company shall also submit a letter of credit application on
such L/C Issuer's standard form in connection with any request
for the issuance or amendment of a Letter of Credit.
Additionally, the Company shall furnish to the L/C Issuer and
the Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or
amendment, including any L/C Documents, as the L/C Issuer or
the Administrative Agent may require.
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(ii) Promptly after receipt of any Letter of
Credit Request, 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 Request from the Company and, if not, the L/C Issuer
will provide the Administrative Agent with a copy thereof.
Unless the L/C Issuer has received written notice from any
Revolving Lender, the Administrative Agent or any Loan Party,
at least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that
one or more applicable conditions contained in ARTICLE IV
shall not then be satisfied, then, subject to the terms and
conditions thereof, the L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the Company
(or jointly for the account of the Company and the applicable
Subsidiary) 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.
(iii) If the Company so requests in any
applicable Letter of Credit Request, the L/C Issuer may, in
its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an
"AUTO-EXTENSION LETTER OF CREDIT"); PROVIDED that any such
Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month
period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not
later than a day (the "NON-EXTENSION NOTICE DATE") in each
such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the
L/C Issuer, the Company shall not be required to make a
specific request to the L/C Issuer for any such extension.
Once an Auto-Extension Letter of Credit has been issued, the
Revolving Lenders shall be deemed to have authorized (but may
not require) the L/C Issuer to permit the extension of such
Letter of Credit at any time to a date not later than the
Letter of Credit Expiration Date; PROVIDED, HOWEVER, that the
L/C Issuer shall not permit any such extension if (A) the L/C
Issuer has determined that it would not be permitted, or would
have no obligation, at such time to issue such Letter of
Credit in its revised form (as extended) under the terms
hereof (by reason of the provisions of SUBSECTION (C)(I) or
(II) above 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 Non-Extension Notice Date (x)
from the Administrative Agent that the Required Revolving
Lenders have elected not to permit such extension or (y) from
the Administrative Agent, any Revolving Lender or any Loan
Party that one or more of the applicable conditions specified
in SECTION 4.02 is not then satisfied, and in each such case
directing the L/C issuer not to permit such extension.
(iv) If the Company so requests in any
applicable Letter of Credit Request, the L/C Issuer may, in
its sole and absolute discretion, agree to issue a Letter of
Credit that permits the automatic reinstatement of all or a
portion of the stated amount thereof after any drawing
thereunder (each, an "AUTO-REINSTATEMENT LETTER OF CREDIT").
Unless otherwise directed by the L/C Issuer, the Company shall
not be required to make a specific request to the L/C Issuer
to permit such reinstatement. Once an Auto-Reinstatement
Letter of Credit has been issued, except as provided in the
following sentence, the Revolving Lenders shall be deemed to
have authorized (but may not require) the L/C Issuer to
reinstate all or a portion of the stated amount thereof in
accordance with the provisions of such Letter of Credit.
Notwithstanding the foregoing, if such Auto-Reinstatement
Letter of Credit permits the L/C Issuer to decline to
reinstate all or any portion of the stated amount thereof
after a drawing thereunder by giving notice of such
non-reinstatement within a specified number of days after such
drawing (the "NON-REINSTATEMENT DEADLINE"), the L/C issuer
shall not permit such reinstatement if it has received a
notice (which may be by telephone or in writing) on or before
the day that is five Business Days before the
Non-Reinstatement Deadline (A) from the Administrative Agent
that the Required Revolving Lenders have elected not to permit
such reinstatement or (B) from the Administrative Agent, any
Revolving Lender or the Company that one or more of the
applicable conditions specified in Section 4.02 is not then
satisfied (treating such reinstatement as an L/C Credit
Extension for purposes of this clause) and, in each case,
directing the L/C issuer not to permit such reinstatement.
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(v) Promptly after its delivery of any
Letter of Credit or any amendment to a Letter of Credit to an
advising bank with respect thereto or to the beneficiary
thereof, the L/C Issuer will also deliver to the Company and
the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(e) PURCHASE AND SALE OF LETTER OF CREDIT PARTICIPATIONS.
Immediately upon the issuance by an L/C Issuer of an Additional Letter of
Credit, such L/C Issuer shall be deemed, without further action by any party
hereto, to have sold to each Revolving Lender, and each Revolving Lender shall
be deemed, without further action by any party hereto, to have purchased from
such L/C Issuer, without recourse or warranty, an undivided participation
interest in such Letter of Credit and the related L/C Obligations in the
proportion its Revolving Commitment Percentage bears to the Revolving Committed
Amount (although any fronting fee payable under SECTION 2.11 shall be payable
directly to the Administrative Agent for the account of the applicable L/C
Issuer, and the Lenders (other than such L/C Issuer) shall have no right to
receive any portion of any such fronting fee) and any security therefor or
guaranty pertaining thereto. Upon any change in the Revolving Commitments
pursuant to SECTION 10.06, there shall be an automatic adjustment to the
Participation Interests in all outstanding Letters of Credit (including all
Existing Letters of Credit, if any) and all L/C Obligations to reflect the
adjusted Revolving Commitments of the assigning and assignee Lenders or of all
Lenders having Revolving Commitments, as the case may be.
(f) 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 applicable L/C Issuer shall notify the Company
and the Administrative Agent thereof and shall determine in
accordance with the terms of such Letter of Credit whether
such drawing should be honored. If the L/C Issuer determines
that any such drawing shall be honored, such L/C Issuer shall
make available to such beneficiary in accordance with the
terms of such Letter of Credit the amount of the drawing and
shall notify the Company and the Administrative Agent as to
the amount to be paid as a result of such drawing and the
payment date (each such date, an "HONOR DATE").
(ii) The Company shall be irrevocably and
unconditionally obligated forthwith to reimburse each L/C
Issuer for any amounts paid by such L/C Issuer upon any
drawing under any Letter of Credit, together with any and all
reasonable charges and expenses which the L/C Issuer may pay
or incur relative to such drawing. Such reimbursement payment
shall be due and payable (i) at or before 11:00 A.M. on the
date the Honor Date if the L/C Issuer notifies the Company of
such drawing at or before 10:00 A.M. on the Honor Date or (ii)
at or before 10:00 A.M. on the next succeeding Business Day if
such notice is given after 10:00 A.M. on the Honor Date;
PROVIDED that no payment otherwise required by this sentence
to be made by the Company at or before 1:00 P.M. on any day
shall be overdue hereunder if arrangements for such payment
satisfactory to the applicable L/C Issuer, in its reasonable
discretion, shall have been made by the Company at or before
1:00 P.M. on such day and such payment is actually made at or
before 3:00 P.M. on such day. In addition, the Company agrees
to pay to the L/C Issuer interest, payable on demand, on any
and all amounts not paid by the Company to the L/C Issuer when
due under this SUBSECTION (F)(II), for each day from and
including the date when such amount becomes due to but
excluding the date such amount is paid in full, whether before
or after judgment, at a rate per annum equal to the Default
Rate. Each reimbursement and other payment to be made by the
Company pursuant to this CLAUSE (II) shall be made to the L/C
Issuer in Federal or other funds immediately available to it
at its address referred to in SECTION 10.02.
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(iii) Subject to the satisfaction of all
applicable conditions set forth in ARTICLE IV, the Company
may, at its option, utilize the Swing Line Commitment or the
Revolving Commitments, or make other arrangements for payment
satisfactory to the L/C Issuer, for the reimbursement of all
L/C Disbursements as required by CLAUSE (II) above.
(iv) With respect to any L/C Disbursements
that have not been reimbursed by the Company when due under
CLAUSES (II) and (III) above (an "UNREIMBURSED AMOUNT"), the
applicable L/C Issuer shall notify the Administrative Agent
and the Administrative Agent shall in turn promptly notify
each Revolving Lender of the Honor Date, the amount of the
Unreimbursed Amount and the amount of such Revolving Lender's
pro-rata share thereof such Revolving Lender's pro-rata share
of such unreimbursed L/C Disbursement (determined by the
proportion its Revolving Commitment Percentage bears to the
aggregate Revolving Committed Amount). In such event, the
Company shall be deemed to have requested a Borrowing (a "L/C
BORROWING") of Revolving Base Rate Loans to be disbursed on
the Honor Date in an aggregate amount equal to the
Unreimbursed Amount, without regard to the minimum and
multiples specified in SECTION 2.01(A), but subject to the
amount of the unutilized portion of the Revolving Commitments
and the conditions set forth in SECTION 4.02 (other than the
delivery of a Notice of Borrowing), and each such Revolving
Lender hereby agrees to make a Revolving Loan (which shall be
initially funded as a Base Rate Loan) in an amount equal to
such Lender's Revolving Commitment Percentage of the
Unreimbursed Amount outstanding on the date notice is given.
Any such notice given by a L/C Issuer or the Administrative
Agent given pursuant to this CLAUSE (IV) 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.
(v) Each Revolving Lender (including any
Revolving Lender acting as L/C Issuer in respect of any
Unreimbursed Amount) shall, upon any notice from the
Administrative Agent pursuant to CLAUSE (IV) above, make the
amount of its Revolving Loan available to the Administrative
Agent, in Dollars in Federal or other immediately available
funds same day funds, at the Administrative Agent's Office,
not later than 1:00 P.M. on the Business Day specified in such
notice, whereupon, subject to CLAUSE (VI) below, each
Revolving Lender that so makes funds available shall be deemed
to have made a Revolving Base Rate Loan to the Company in such
amount. The Administrative Agent shall remit the funds so
received to the applicable L/C Issuer.
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(vi) With respect to any Unreimbursed Amount
that is not fully refinanced by a L/C Borrowing pursuant to
CLAUSES (IV) and (V) above because the conditions set forth in
SECTION 4.02 cannot be satisfied or for any other reason, the
L/C Issuer shall promptly notify the Administrative Agent, and
the Administrative Agent shall promptly notify each Revolving
Lender (other than the relevant L/C Issuer), and each such
Revolving Lender shall promptly and unconditionally pay to the
Administrative Agent, for the account of such L/C Issuer, such
Revolving Lender's pro-rata share of such Unreimbursed Amount
(determined by the proportion its Revolving Commitment
Percentage bears to the aggregate Revolving Committed Amount)
in Dollars in Federal or other immediately available funds.
Such payment from the Revolving Lenders shall be due (i) at or
before 1:00 P.M. on the date the Administrative Agent so
notifies a Revolving Lender, if such notice is given at or
before 10:00 A.M. on such date or (ii) at or before 10:00 A.M.
on the next succeeding Business Day, together with interest on
such amount for each day from and including the date of such
drawing to but excluding the day such payment is due from such
Revolving Lender at the Federal Funds Rate for such day (which
funds the Administrative Agent shall promptly remit to the
applicable L/C Issuer). Each payment by a Revolving Lender to
the Administrative Agent for the account of an L/C Issuer in
respect of an Unreimbursed Amount shall constitute a payment
in respect of its Participation Interest in related Letter of
Credit purchased pursuant to SUBSECTION (E) above. The failure
of any Revolving Lender to make available to the
Administrative Agent for the account of an L/C Issuer its
pro-rata share of any Unreimbursed Amount shall not relieve
any other Revolving Lender of its obligation hereunder to make
available to the Administrative Agent for the account of such
L/C Issuer its pro-rata share of any payment made under any
Letter of Credit on the date required, as specified above, but
no such Lender shall be responsible for the failure of any
other Lender to make available to the Administrative Agent for
the account of the L/C Issuer such other Lender's pro-rata
share of any such payment. Upon payment in full of all amounts
payable by a Lender under this CLAUSE (VI), such Lender shall
be subrogated to the rights of the L/C Issuer against the
Company to the extent of such Lender's pro-rata share of the
related L/C Obligation so paid (including interest accrued
thereon).
(vii) Each Revolving Lender's obligation to
make Revolving Loans pursuant to CLAUSE (IV) above and to make
payments in respect of its Participation Interests in
Unreimbursed Amounts pursuant to CLAUSE (VI) above 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 Company or any other Person for
any reason whatsoever; (B) the occurrence or continuance of a
Default; or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; PROVIDED,
HOWEVER, that each Revolving Lender's obligation to make
Revolving Loans as a part of a L/C Borrowing pursuant to
CLAUSE (IV) above is subject to the conditions set forth in
SECTION 4.02 (other than delivery by the Company of a Notice
of Borrowing). No such making by a Revolving Lender of a
Revolving Loan or a payment by a Revolving Lender of an amount
in respect of its Participation Interest in Unreimbursed
Amounts shall relieve or otherwise impair the obligation of
the Company 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.
(viii) If any Revolving Lender fails to make
available to the Administrative Agent for the account of an
L/C Issuer any amount required to be paid by such Revolving
Lender pursuant to the foregoing provisions of this SUBSECTION
(F) by the time specified therefor, the applicable L/C Issuer
shall be entitled to recover from such Revolving 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 applicable L/C Issuer at a rate
per annum equal to the Federal Funds Rate for such day. Any
payment made by any Lender after 3:00 P.M. on any Business Day
shall be deemed for purposes of the preceding sentence to have
been made on the next succeeding Business Day A certificate of
the applicable L/C Issuer submitted to any Revolving Lender
(through the Administrative Agent) with respect to any amounts
owing under this CLAUSE (VIII) shall be conclusive absent
manifest error.
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(g) REPAYMENT OF FUNDED PARTICIPATIONS IN RESPECT OF DRAWN
LETTERS OF CREDIT.
(i) Whenever the Administrative Agent
receives a payment of an L/C Obligation as to which the
Administrative Agent has received for the account of an L/C
Issuer any payments from the Revolving Lenders pursuant to
SUBSECTION (F) above (whether directly from the Company or
otherwise, including proceeds of cash collateral applied
thereto by the Administrative Agent), the Administrative Agent
shall promptly pay to each Revolving Lender which has paid its
pro-rata share thereof an amount equal to such Lender's
pro-rata share of the amount thereof (appropriately adjusted,
in the case of interest payments, to reflect the period of
time during which the payments from the Revolving Lenders were
received) in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the
Administrative Agent for the account of an L/C issuer pursuant
to CLAUSE (I) above is required to be returned under any of
the circumstances described in SECTION 10.05 (including
pursuant to any settlement entered into by the L/C issuer in
its discretion), each Revolving Lender shall pay to the
Administrative Agent for the account of such L/C Issuer its
pro-rata share thereof (determined by the proportion its
Revolving Commitment Percentage bears to the aggregate
Revolving Committed Amount) on demand of the Administrative
Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Revolving Lender, at
a rate per annum equal to the Federal Funds Rate for such day.
(h) OBLIGATIONS ABSOLUTE. The obligations of the Company under
SECTION 2.05(F)(I) and 2.05(F)(II) above shall be absolute (subject to the right
to bring subsequent claims subject to the limitations set forth in SECTION
2.05(N)(V)), unconditional and shall be performed strictly in accordance with
the terms of this Agreement, ISP and UCP, as applicable, under all circumstances
whatsoever, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability
of such Letter of Credit, this Agreement or any other Loan
Document;
(ii) any amendment or waiver of or any
consent to departure from all or any of the provisions of this
Agreement, any Letter of Credit or any other Loan Document;
(iii) the use which may be made of the
Letter of Credit by, or any acts or omission of, a beneficiary
of a Letter of Credit (or any Person for whom the beneficiary
may be acting);
(iv) the existence of any claim,
counterclaim, set-off, defense or other rights that the
Company or any Subsidiary may have at any time against a
beneficiary or any transferee of a Letter of Credit (or any
Person for whom the beneficiary or transferee may be acting),
any L/C Issuer or any other Person, whether in connection with
this Agreement or any Letter of Credit or any document related
hereto or thereto or any unrelated transaction;
(v) any draft, demand, certificate,
statement or any other document presented under a 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 whatsoever, 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;
-55-
(vi) any payment by the L/C Issuer under a
Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of
such Letter of Credit;
(vii) 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
(viii) any other act or omission to act or
delay of any kind by any L/C Issuer or any other Person or any
other event or circumstance whatsoever that might, but for the
provisions of this SUBSECTION (VIII), constitute a legal or
equitable discharge of the Company's obligations hereunder.
The Company 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 Company's instructions or other
irregularity, the Company will promptly notify the L/C Issuer. The Company 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.
(i) ROLE OF L/C ISSUERS; RELIANCE. Each
Revolving Lender and the Company agree that, in determining
whether to pay under any Letter of Credit, the relevant 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 Issuers, the
Agents or their Related Parties nor any of the respective
correspondents, participants or assignees of the L/C Issuer
shall be liable to any Lender for: (i) any action taken or
omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or
Letter of Credit Request. The Company 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 Company'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 Issuers, the Agents or
any of their Related Parties, nor any of the respective
correspondents, participants or assignees of the L/C Issuer,
shall be liable or responsible for any of the matters
described in CLAUSES (I) through (VIII) of SUBSECTION (H) of
this SECTION 2.05; PROVIDED, HOWEVER, that anything in such
clauses to the contrary notwithstanding, the Company may have
a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Company, to the extent, but only to the extent,
of any direct, as opposed to consequential or exemplary,
damages suffered by the Company which the Company proves were
caused by the L/C Issuer's willful misconduct or gross
negligence or the L/C Issuer's willful failure to pay under
any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit.
In furtherance and not in limitation of the foregoing, the L/C
Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and
the L/C Issuer shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or
in part, which may prove to be invalid or ineffective for any
reason.
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(j) CASH COLLATERAL. If the Company is required pursuant to
the terms of this Agreement or any other Loan Document to Cash Collateralize any
L/C Obligations, the Company shall deposit in an account (which may be the L/C
Cash Collateral Account under the Security Agreement) with the Collateral Agent
an amount in cash equal to 102% of such L/C Obligations. Such deposit shall be
held by the Collateral Agent as collateral for the payment and performance of
the L/C Obligations. The Collateral Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. The
Collateral Agent will, at the request of the Company, invest amounts deposited
in such account in Cash Equivalents; PROVIDED, HOWEVER, that (i) the Collateral
Agent shall not be required to make any investment that, in its sole judgment,
would require or cause the Collateral Agent to be in, or would result in any,
violation of any Law, (ii) such Cash Equivalents shall be subjected to a first
priority perfected security interest in favor of the Collateral Agent and (iii)
if an Event of Default shall have occurred and be continuing, the selection of
such Cash Equivalents shall be in the sole discretion of the Collateral Agent.
The Company shall indemnify the Collateral Agent for any losses relating to such
investments in Cash Equivalents. Other than any interest or profits earned on
such investments, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account for the benefit of the
Company, subject to the provisions contained in this SECTION 2.05(J). Moneys in
such account shall be applied by the Collateral Agent to reimburse the L/C
Issuers immediately for drawings under the applicable Letters of Credit and, if
the maturity of the Loans has been accelerated, to satisfy the L/C Obligations.
If the Company is required to provide an amount of cash collateral hereunder as
a result of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Company within three Business Days after all
Events of Default have been cured or waived. If the Company is required to
provide an amount of cash collateral hereunder pursuant to SECTION 2.08(A) or
2.09(B)(I), such amount (to the extent not applied as aforesaid) shall be
returned to the Company upon demand; PROVIDED that, after giving effect to such
return, (i) the aggregate Revolving Outstandings would not exceed the Revolving
Committed Amount and (ii) no Event of Default shall have occurred and be
continuing. If the Company is required to deposit an amount of cash collateral
hereunder pursuant to SECTION 2.09(B)(II), (III), (IV) or (V) interest or
profits thereon (to the extent not applied as aforesaid) shall be returned to
the Company after the full amount of such deposit has been applied by the
Collateral Agent to reimburse the L/C Issuer for drawings under Letters of
Credit. The Company hereby pledges and assigns to the Collateral Agent, for its
benefit and the benefit of the Finance Parties, the cash collateral account
established hereunder (and all monies and investments held therein) to secure
the Senior Credit Obligations.
(k) APPLICABILITY OF ISP AND UCP. Unless otherwise expressly
agreed by the L/C Issuer and the Company when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of Credit), (i)
the rules of the ISP shall apply to each Letter of Credit, and (ii) the rules of
the Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce at the time of issuance shall
apply to each commercial Letter of Credit.
(l) CONFLICT WITH L/C DOCUMENTS. In the event of any conflict
between this Agreement and any L/C Document, this Agreement shall govern.
(m) LETTERS OF CREDIT ISSUED FOR SUBSIDIARIES. Notwithstanding
that a Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Company shall be
obligated to reimburse the applicable L/C Issuer hereunder for any and all
drawings under such Letter of Credit. The Company hereby acknowledges that the
issuance of Letters of Credit for the account of Subsidiaries inures to the
benefit of the Company, and that the Company's business derives benefits from
the businesses of such Subsidiaries.
(n) INDEMNIFICATION OF L/C ISSUERS.
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(i) In addition to its other obligations
under this Agreement, the Company hereby agrees to protect,
indemnify, pay and save each L/C Issuer harmless from and
against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable
out-of-pocket fees, charges and disbursements of counsel) that
such L/C Issuer may incur or be subject to as a consequence,
direct or indirect, of (A) the issuance of any Letter of
Credit or (B) the failure of such L/C Issuer to honor a
drawing under a Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental
Authority (all such acts or omissions, herein called
"GOVERNMENT ACTS").
(ii) As between the Company and each L/C
Issuer, the Company shall assume all risks of the acts or
omissions of or the misuse of any Letter of Credit by the
beneficiary thereof. The L/C Issuer shall not be responsible
for: (A) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any
party in connection with the application for and issuance of
any Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer
or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (C) failure
of the beneficiary of a Letter of Credit to comply fully with
conditions required in order to draw upon a Letter of Credit;
(D) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex
or otherwise, whether or not they be in cipher; (E) errors in
interpretation of technical terms; (F) any loss or delay in
the transmission or otherwise of any documents required in
order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (G) any consequences arising from causes
beyond the control of the L/C Issuer, including, without
limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the L/C Issuer's
rights or powers hereunder.
(iii) In furtherance and extension and not
in limitation of the specific provisions hereinabove set
forth, any action taken or omitted by an L/C Issuer, under or
in connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put
the L/C Issuer under any resulting liability to the Company or
any other Loan Party. It is the intention of the parties that
this Agreement shall be construed and applied to protect and
indemnify the L/C Issuers against any and all risks involved
in the issuance of any Letter of Credit, all of which risks
are hereby assumed by the Loan Parties, including, without
limitation, any and all risks, whether rightful or wrongful,
of any present or future Government Acts. The L/C Issuers
shall not, in any way, be liable for any failure by the L/C
Issuers or anyone else to pay any drawing under any Letter of
Credit as a result of any Government Acts or any other cause
beyond the control of the L/C Issuers.
(iv) Nothing in this SUBSECTION (N) is
intended to limit the reimbursement obligation of the Company
contained in this SECTION 2.05. The obligations of the Company
under this SUBSECTION (N) shall survive the termination of
this Agreement. No act or omission of any current or prior
beneficiary of a Letter of Credit shall in any way affect or
impair the rights of any L/C Issuer to enforce any right,
power or benefit under this Agreement.
(v) Notwithstanding anything to the contrary
contained in this SUBSECTION (N), the Company shall have no
obligation to indemnify any L/C Issuer in respect of any
liability incurred by the L/C Issuer arising solely out of the
gross negligence or willful misconduct of the L/C Issuer, as
determined by a court of competent jurisdiction. Nothing in
this Agreement shall relieve any L/C Issuer of any liability
to the Company in respect of any action taken by the L/C
Issuer which action constitutes gross negligence, bad faith or
willful misconduct of the L/C Issuer or a violation of, or
failure to comply with, the ISP, the UCP or Uniform Commercial
Code, as applicable, as determined by a court of competent
jurisdiction.
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(o) RESIGNATION OF AN L/C ISSUER. An L/C Issuer may resign at
any time by giving 60 days' notice to the Administrative Agent, the Revolving
Lenders and the Company; PROVIDED, HOWEVER, that any such resignation shall not
affect the rights or obligations of the L/C Issuer with respect to Letters of
Credit issued by it prior to such resignation. Upon any such resignation, the
Company shall (within 60 days after such notice of resignation) either appoint a
successor or terminate the unutilized L/C Commitment of such L/C Issuer;
PROVIDED, HOWEVER, that, if the Company elects to terminate such unutilized L/C
Commitment, the Company may at any time thereafter that the Revolving
Commitments are in effect reinstate such L/C Commitment in connection with the
appointment of another L/C Issuer. Upon the acceptance of any appointment as an
L/C Issuer hereunder by a successor L/C Issuer, such successor shall succeed to
and become vested with all the interests, rights and obligations of the retiring
L/C Issuer and the retiring L/C Issuer shall be discharged from its obligations
to issue Additional Letters of Credit hereunder. The acceptance of any
appointment as L/C Issuer hereunder by a successor L/C Issuer shall be evidenced
by an agreement entered into by such successor, in a form reasonably
satisfactory to the Company and the Administrative Agent, and, from and after
the effective date of such agreement, (i) such successor shall be a party hereto
and have all the rights and obligations of an L/C Issuer under this Agreement
and the other Loan Documents and (ii) references herein and in the other Loan
Documents to the "L/C Issuer" shall be deemed to refer to such successor or to
any previous L/C Issuer, or to such successor and all previous L/C Issuers, as
the context shall require. After the resignation of an L/C Issuer hereunder the
retiring L/C Issuer shall remain a party hereto and shall continue to have all
the rights and obligations of an L/C Issuer under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation, but shall not be required to issue additional Letters of Credit.
(p) REPORTING. Each L/C Issuer will report in writing to the
Administrative Agent (i) on the first Business Day of each week, the aggregate
face amount of Letters of Credit issued by it and outstanding as of the last
Business Day of the preceding week, (ii) on or prior to each Business Day on
which such L/C Issuer expects to issue, amend, renew or extend any Letter of
Credit, the date of such issuance or amendment, and the aggregate face amount of
Letters of Credit to be issued, amended, renewed or extended by it and
outstanding after giving effect to such issuance, amendment, renewal or
extension (and such L/C Issuer shall advise the Administrative Agent on such
Business Day whether such issuance, amendment, renewal or extension occurred and
whether the amount thereof changed), (iii) on each Business Day on which such
L/C Issuer makes any L/C Disbursement, the date and amount of such L/C
Disbursement and (iv) on any Business Day on which the Company fails to
reimburse an L/C Disbursement required to be reimbursed to such L/C Issuer on
such day, the date and amount of such failure.
SECTION 2.06 INTEREST.
(a) RATE OPTIONS APPLICABLE TO LOANS. Each Borrowing made
prior to the Syndication Date shall be comprised of Base Rate Loans or (except
in the case of Swing Line Loans, which shall be made and maintained as Base Rate
Loans, and L/C Borrowings, which shall be made initially as Base Rate Loans)
Eurodollar Loans with a one-month Interest Period (ending on the same date), as
the Company may request pursuant to SECTION 2.02. Each Borrowing made on or
after the Syndication Date shall be comprised of Base Rate Loans or (except in
the case of Swing Line Loans, which shall be made and maintained as Base Rate
Loans) Eurodollar Loans, as the Company may request pursuant to SECTION 2.02.
Borrowings of more than one Type may be outstanding at the same time; PROVIDED,
however, that the Company may not request any Borrowing that, if made, would
result in an aggregate of more than ten separate Groups of Eurodollar Loans
being outstanding hereunder at any one time. For this purpose, Loans having
different Interest Periods, regardless of whether commencing on the same date,
shall be considered separate Groups. 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.
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(b) RATES APPLICABLE TO LOANS. Subject to the provisions of
SUBSECTION (C) below, (i) each Eurodollar Loan of a Class shall bear interest on
the outstanding principal amount thereof for each Interest Period applicable
thereto at a rate per annum equal to the sum of the Adjusted Eurodollar Rate for
such Interest Period plus the then Applicable Margin for such Class, (ii) each
Base Rate Loan of a Class shall bear interest on the outstanding principal
amount thereof for each day from the date such Loan is made as, or converted
into, a Base Rate Loan until it becomes due or is converted into a Loan of any
other Type, at a rate per annum equal to the Base Rate for such day plus the
then Applicable Margin for such Class and (iii) each Swing Line Loan shall bear
interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the then
Applicable Margin for Revolving Loans.
(c) ADDITIONAL INTEREST.
(i) If any amount of principal of any Loan
is not paid when due (without regard to any applicable grace
periods), whether at stated maturity, by acceleration or
otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable
Laws.
(ii) Upon the request of the Required
Lenders, while any Event of Default under Section 8.01(a) or
(f) has occurred and is continuing, the Company shall pay
interest on the principal amount of all then outstanding
Senior Credit Obligations at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.
(iii) Accrued and unpaid interest on past
due amounts (including interest on past due interest) shall be
due and payable upon demand.
(d) INTEREST PAYMENTS. 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.
(e) DETERMINATION AND NOTICE OF INTEREST RATES. The
Administrative Agent shall promptly notify the Company and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Loans upon
determination of such interest rate. At any time when Base Rate Loans are
outstanding, the Administrative Agent shall notify the Company 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. Any notice with
respect to Eurodollar Loans shall, without the necessity of the Administrative
Agent so stating in such notice, be subject to the provisions of the definition
of "Applicable Margin" providing for adjustments in the Applicable Margin
applicable to such Loans after the beginning of the Interest Period applicable
thereto.
SECTION 2.07 EXTENSION AND CONVERSION.
(a) CONTINUATION AND CONVERSION OPTIONS. The Loans included in
each Borrowing shall bear interest initially at the type of rate allowed by
SECTION 2.06 and as specified by the Company in the applicable Notice of
Borrowing. Thereafter, the Company shall have the option, on any Business Day,
to elect to change or continue the type of interest rate borne by each Group of
Loans (subject in each case to the provisions of ARTICLE III and SUBSECTION
2.07(D)), as follows:
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(i) if such Loans are Base Rate Loans, the
Company may elect to convert such Loans to Eurodollar Loans as
of any Business Day; and
(ii) if such Loans are Eurodollar Loans, the
Company may elect to convert such Loans to Base Rate Loans or
elect to continue such Loans as Eurodollar Loans for an
additional Interest Period, subject to SECTION 3.05 in the
case of any such conversion or continuation effective on any
day other than the last day of the then current Interest
Period applicable to such Loans.
Each such election shall be made by delivering a notice, substantially in the
form of EXHIBIT A-2 hereto (a "NOTICE OF EXTENSION/CONVERSION") (which may be by
telephone if promptly confirmed in writing, which notice shall not thereafter be
revocable by the Company, to the Administrative Agent not later than 12:00 Noon
on the third Business Day before the conversion or continuation selected in such
notice is to be effective. A Notice of Extension/Conversion may, if it so
specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; PROVIDED that (i) such portion is allocated ratably
among the Loans comprising such Group and (ii) the portion to which such Notice
of Borrowing applies, and the remaining portion to which it does not apply, are
each $500,000 or any larger multiple of $100,000.
(b) CONTENTS OF NOTICE OF EXTENSION/CONVERSION. Each Notice of
Extension/Conversion shall specify:
(i) the Group of Loans (or portion thereof)
to which such notice applies;
(ii) the date on which the conversion or
continuation selected in such notice is to be effective, which
shall comply with the applicable clause of SUBSECTION 2.07(A)
above;
(iii) if the Loans comprising such Group are
to be converted, the new Type of Loans and, if the Loans being
converted are to be Eurodollar Loans, the duration of the next
succeeding Interest Period applicable thereto; and
(iv) if such Loans are to be continued as
Eurodollar Loans for an additional Interest Period, the
duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of the term "Interest Period". If
no Notice of Extension/Conversion is timely received prior to the end of an
Interest Period for any Group of Eurodollar Loans, the Company shall be deemed
to have elected that such Group be converted to Base Rate Loans as of the last
day of such Interest Period.
(c) NOTIFICATION TO LENDERS. Upon receipt of a Notice of
Extension/Conversion from the Company pursuant to SUBSECTION 2.07(A) above, the
Administrative Agent shall promptly notify each Lender of the contents thereof.
(d) LIMITATION ON CONVERSION/CONTINUATION OPTIONS. The Company
shall not be entitled to elect to convert any Loans to, or continue any Loans
for an additional Interest Period as, Eurodollar Loans if the aggregate
principal amount of any Group of Eurodollar Loans created or continued as a
result of such election would be less than $500,000. If an Event of Default
shall have occurred and be continuing when the Company delivers notice of such
election to the Administrative Agent the Company shall not be entitled to elect
to convert any Eurodollar Loans to, or continue any Eurodollar Loans for an
additional Interest Period as, Eurodollar Loans having an Interest Period in
excess of one month.
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SECTION 2.08 MATURITY OF LOANS.
(a) MATURITY OF REVOLVING LOANS. The Revolving Loans shall
mature on the Revolving Termination Date, and any Revolving Loans, Swing Line
Loans and L/C Obligations then outstanding (together with accrued interest
thereon and fees in respect thereof) shall be due and payable on such date.
(b) MATURITY OF TERM B LOANS. The Term B Loans shall mature on
the Term Maturity Date, and any Term B Loans then outstanding (together with
accrued interest thereon) shall be due and payable on such date.
SECTION 2.09 PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS. The Company shall have the right
voluntarily to prepay Revolving Loans and Term Loans in whole or in part from
time to time, subject to SECTION 3.05 but otherwise without premium or penalty;
PROVIDED, HOWEVER, that (i) each partial prepayment of Revolving Loans and Term
Loans shall be in a minimum principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof, in the case of Eurodollar Loans, and $500,000 or a
whole multiple of $100,000 in excess thereof, in the case of Base Rate Loans and
(ii) the Company shall have given prior written or telecopy notice (or telephone
notice promptly confirmed by written or telecopy notice) to the Administrative
Agent, in the case of any Revolving Loan which is a Base Rate Loan by 11:00 A.M.
on the date of prepayment and, in the case of any other Loan, by 11:00 A.M., at
least three Business Days prior to the date of prepayment. Each notice of
prepayment shall specify the prepayment date, the principal amount to be
prepaid, whether the Loan to be prepaid is a Revolving Loan, Term B Closing Date
Loan or Term B Delayed Draw Loan, whether the Loan to be prepaid is a Eurodollar
Loan or a Base Rate Loan and, in the case of a Eurodollar Loan, the Interest
Period of such Loan. The Administrative Agent will promptly notify each Lender
of its receipt of each such notice, and of the amount of such Lender's pro-rata
share, if any, thereof. If such notice is given by the Company, the Company
shall make such prepayment and the payment amount specified in such notice shall
be due and payable as specified therein. Subject to the foregoing, amounts
prepaid under this SECTION 2.09(A) shall be applied as the Company may elect;
PROVIDED that if the Company fails to specify the application of a voluntary
prepayment, then such prepayment shall be applied first to Revolving Loans, then
to Swing Line Loans, then ratably to the Term B Closing Date Loans and the Term
B Delayed Draw Loans, in each case first to Base Rate Loans and then to
Eurodollar Loans in direct order of Interest Period. All prepayments of
Eurodollar Loans under this SECTION 2.09(A) shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment, together
with any additional amounts required pursuant to SECTION 3.05.
The Company may, upon notice to the Swing Line Lender (with a
copy to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing line Loans in whole or in part without premium or penalty; PROVIDED
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 P.M. on the date of the prepayment, and
(ii) any such prepayment shall be in a minimum principal amount of $100,000.
Each such notice shall specify the date and amount of such prepayment. If such
notice is given by the Company, the Company shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein.
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(b) MANDATORY PREPAYMENTS.
(i) REVOLVING COMMITTED AMOUNT. If on any
date the aggregate Revolving Outstandings exceed the Revolving
Committed Amount, the Company shall repay, and there shall
become due and payable (together with accrued interest
thereon), on such date an aggregate principal amount of Swing
Line Loans equal to such excess. If the outstanding Swing Line
Loans have been repaid in full, the Company shall prepay, and
there shall become due and payable (together with accrued
interest thereon), Revolving Loans in such amounts as are
necessary so that, after giving effect to the repayment of the
Swing Line Loans and the repayment of Revolving Loans, the
aggregate Revolving Outstandings do not exceed the Revolving
Committed Amount. If the outstanding Revolving Loans and Swing
Line Loans have been repaid in full, the Company shall Cash
Collateralize L/C Obligations so that, after giving effect to
the repayment of Swing Line Loans and Revolving Loans and the
Cash Collateralization of L/C Obligations pursuant to this
SUBSECTION (I), the aggregate Revolving Outstandings does not
exceed the Revolving Committed Amount. In determining the
aggregate Revolving Outstandings for purposes of this
Agreement, L/C Obligations shall be reduced to the extent that
they are Cash Collateralized as contemplated by this
SUBSECTION (I). Each prepayment of Revolving Loans required
pursuant to this SUBSECTION (I) shall be applied ratably among
outstanding Revolving Loans based on the respective amounts of
principal then outstanding. Each Cash Collateralization of L/C
Obligations required by this SUBSECTION (I) shall be applied
ratably among L/C Obligations based on the respective amounts
thereof then outstanding.
(ii) ASSET DISPOSITIONS, CASUALTIES AND
CONDEMNATIONS, ETC. Within five Business Days after receipt by
any Group Company of Net Cash Proceeds from any Asset
Disposition (other than any Asset Disposition permitted under
CLAUSES (I) through (XVII), (XVIII)(B), (XIX), (XX) and (XXII)
of SECTION 7.05), Casualty or Condemnation, the Company shall
prepay the Loans and/or Cash Collateralize or pay the L/C
Obligations in an aggregate amount equal to 100% of the Net
Cash Proceeds of such Asset Disposition, Casualty or
Condemnation; PROVIDED, that no such prepayment caused by the
receipt of Net Cash Proceeds from any Asset Disposition,
Casualty or Condemnation shall be required to the extent that
the sum of such Net Cash Proceeds and all other Net Cash
Proceeds from Asset Dispositions, Casualty or Condemnations
occurring after the Closing Date and during any fiscal year
does not exceed $5,000,000 (it being understood that a
prepayment shall only be required of such excess).
(iii) DEBT ISSUANCES. Within five Business
Days after receipt by any Group Company of Net Cash Proceeds
from any Debt Issuance (other than any Debt Issuance permitted
pursuant to SECTION 7.01 of this Agreement), the Company shall
prepay the Loans and/or Cash Collateralize the L/C Obligations
in an aggregate amount equal to 100% of the Net Cash Proceeds
of such Debt Issuance.
(iv) PAYMENTS IN RESPECT OF CERTAIN ANNUAL
INCREASES IN CUMULATIVE DISTRIBUTABLE CASH. Within 120 days
after the end of each fiscal year of the Company (commencing
with the fiscal year ending December 31, 2006), the Company
shall prepay the Loans and/or Cash Collateralize or pay the
L/C Obligations in an amount equal to the Applicable
Prepayment Percentage of any increase in the amount of
Adjusted Cumulative Distributable Cash for the Reference
Period ending on the last day of such fiscal year over the
amount of Adjusted Cumulative Distributable Cash on the last
day of the fiscal year next preceding such fiscal year (it
being understood that the determination of the amount referred
to in CLAUSE (I) of the definition of "Cumulative
Distributable Cash" in SECTION 1.01 shall not be deemed to be
an increase in, or part of, Cumulative Distributable Cash for
purposes hereof). As used in this CLAUSE (IV), the term
"ADJUSTED CUMULATIVE DISTRIBUTABLE CASH" means, for any
Reference Period, Cumulative Distributable Cash for such
Reference Period as adjusted (i) by adding the decrease, if
any, in Consolidated Adjusted Working Capital from the first
day to the last day of such period, or (ii) by deducting the
increase, if any, in Consolidated Adjusted Working Capital
from the first day to the last day of such period.
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(v) PAYMENTS IN RESPECT OF SUBORDINATED
INDEBTEDNESS. Immediately upon receipt by the Administrative
Agent or any Lender of any amount so payable pursuant to the
subordination provision of any Indebtedness of the Company or
any of its Subsidiaries that is subordinate to the Senior
Credit Obligations, all proceeds thereof shall be applied as
set forth in CLAUSE (VI)(B) below.
(vi) APPLICATION OF MANDATORY PREPAYMENTS.
All amounts required to be paid pursuant to this SECTION
2.09(B) shall be applied as follows:
(A) with respect to all
amounts paid pursuant to SECTION 2.09(B)(I),
first to Revolving Loans, second to Swing
Line Loans and third to Cash Collateralize
L/C Obligations; and
(B) with respect to all
amounts paid pursuant to SECTION
2.09(B)(II), (III), (IV), or (V) (1) first,
pro-rata to the Term Loans and (2) second,
to (x) to Swing Line Loans (but without a
corresponding reduction in the Revolving
Committed Amount or the Swing Line Committed
Amount), (y) then to Revolving Loans (but
without a corresponding reduction in the
Revolving Committed Amount), and (z) then to
Cash Collateralize L/C Obligations.
(vii) ORDER OF APPLICATIONS. All amounts
allocated to Revolving Outstandings as provided in this
SECTION 2.09(B) shall be applied, first, to Swing Line Loans,
second, after all Swing Line Loans have been repaid, to
Revolving Loans, and third, after all Revolving Loans have
been repaid, to Cash Collateralize or pay the L/C Obligations;
PROVIDED that any balance of such amounts remaining after all
L/C Obligations have been Cash Collateralized shall be applied
pro-rata to the Term Loans. Within the parameters of the
applications set forth above, prepayments shall be applied
first to Base Rate Loans and then, subject to SUBSECTION
(VIII) below, to Eurodollar Loans in direct order of Interest
Period maturities. All prepayments of Eurodollar Loans under
this SECTION 2.09(B) shall be subject to SECTION 3.05. All
prepayments under this SECTION 2.09(B) shall be accompanied by
accrued interest on the principal amount being prepaid to the
date of payment.
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(viii) PREPAYMENT ACCOUNTS. Amounts to be
applied as provided in SUBSECTION (VI) above to the prepayment
of Loans of any Class shall be applied first to reduce
outstanding Base Rate Loans of such Class. Any amounts
remaining after each such application shall, at the option of
the Company, be applied to prepay Eurodollar Loans of such
Class immediately and/or shall be deposited in a separate
Prepayment Account (as defined below) for the Loans of such
Class. The Administrative Agent shall apply any cash deposited
in the Prepayment Account for any Class of Loans, upon
withdrawal by the Collateral Agent, to prepay Eurodollar Loans
of such Class on the last day of their respective Interest
Periods (or, at the direction of the Company, on any earlier
date) until all outstanding Loans of such Class have been
prepaid or until all the allocable cash on deposit in the
Prepayment Account for such Class has been exhausted. For
purposes of this Agreement, the term "PREPAYMENT ACCOUNT" for
any Class of Loans shall mean an account (which may include
the Prepayment Account established under the Security
Agreement) established by the Company with the Collateral
Agent and over which the Collateral Agent shall have exclusive
dominion and control, including the exclusive right of
withdrawal for application in accordance with this SUBSECTION
(VIII). The Collateral Agent will, at the request of the
Company, invest amounts on deposit in the Prepayment Account
for any Class of Loans in Cash Equivalents that mature prior
to the last day of the applicable Interest Periods of the
Eurodollar Loans of such Class to be prepaid; PROVIDED,
HOWEVER, that (i) the Collateral Agent shall not be required
to make any investment that, in its sole judgment, would
require or cause the Collateral Agent to be in, or would
result in any, violation of any Law, (ii) such Cash
Equivalents shall be subjected to a first priority perfected
security interest in favor of the Collateral Agent and (iii)
if any Event of Default shall have occurred and be continuing,
the selection of such Cash Equivalents shall be in the sole
discretion of the Collateral Agent. The Company shall
indemnify the Collateral Agent for any losses relating to such
investments in Cash Equivalents so that the amount available
to prepay Eurodollar Loans on the last day of the applicable
Interest Periods is not less than the amount that would have
been available had no investments been made pursuant thereto.
Other than any interest or profits earned on such investments,
the Prepayment Accounts shall not bear interest. Interest or
profits, if any, on the investments in any Prepayment Account
shall accumulate in such Prepayment Account until all
outstanding Loans of any applicable Class with respect to
which amounts have been deposited in the Prepayment Accounts
have been prepaid in full, at which time so much thereof as is
not required to make payment of the Senior Credit Obligations
which have become due and payable (whether by scheduled
maturity, acceleration or otherwise) shall be withdrawn by the
Collateral Agent on the next Business Day following the day on
which the Collateral Agent considers the funds deposited
therein to be collected funds and disbursed to the Company or
its order. If the maturity of the Loans has been accelerated
pursuant to SECTION 8.02, the Administrative Agent may, in its
sole discretion, cause the Collateral Agent to withdraw
amounts on deposit in the Prepayment Account for any Class of
Loans and apply such funds to satisfy any of the Senior Credit
Obligations related to such Class of Loans.
(c) NOTICE. The Company shall give to the Administrative Agent
and the Lenders at least three Business Days' prior written or telecopy notice
of each and every event or occurrence requiring a prepayment under SECTION
2.09(B)(II) or (III) including the amount of Net Cash Proceeds expected to be
received therefrom and the expected schedule for receiving such proceeds.
SECTION 2.10 ADJUSTMENT OF COMMITMENTS.
(a) OPTIONAL INCREASE OF REVOLVING AND TERM B COMMITMENTS.
(i) The Company shall have the right to give
the Administrative Agent, after the Closing Date, a Facilities
Increase Notice to request an increase (each a "FACILITIES
INCREASE") in the aggregate Revolving Credit Commitments or
the disbursement of additional Term B Loans in excess of the
Term B Loans previously disbursed, in a principal amount not
to exceed $75,000,000 in the aggregate for all such requests
or pursuant to a new tranche of term loans; PROVIDED, HOWEVER,
that (A) no Facilities Increase in the Revolving Credit
Commitments shall be effective later than one year prior to
the Revolving Termination Date, (B) no Facilities Increase in
the Term B Commitments or that is a new tranche of term loans
shall be effective later than three years prior to the Term
Maturity Date, (C) no Facilities Increase shall be effective
earlier than 10 days after the delivery of the Facilities
Increase Notice to the Administrative Agent in respect of such
Facilities Increase and (D) no more than three Facilities
Increases shall be made.
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(ii) The Administrative Agent shall promptly
notify each Lender of the proposed Facilities Increase and of
the proposed terms and conditions therefor agreed between the
Company and the Administrative Agent. Each such Lender (and
each of their Affiliates and Approved Funds) may, in its sole
discretion, commit to participate in such Facilities Increase
by forwarding its commitment to the Administrative Agent
therefor in form and substance satisfactory to the
Administrative Agent within 10 days of receipt of such notice.
The Administrative Agent shall allocate, in its sole
discretion but in amounts not to exceed for each such Lender
the commitment received from such Lender, Affiliate or
Approved Fund, the Commitments to be made as part of the
Facilities Increase to the Lenders from which it has received
such written commitments. If the Administrative Agent does not
receive sufficient commitments from existing Lenders or their
Affiliates or Approved Funds, it may, after consultation with
the Company, allocate to Eligible Assignees any excess of the
proposed amount of such Facilities Increase agreed with the
Company over the aggregate amounts of the commitments received
from existing Lenders.
(iii) Each Facilities Increase shall become
effective on a date agreed by the Company and the
Administrative Agent (each a "FACILITIES INCREASE DATE"),
which shall be in any case on or after the date of
satisfaction of the conditions precedent set forth in SECTION
4.03 and following notice to the Lenders and the Company of
such effectiveness. Once a Facilities Increase becomes
effective, the Administrative Agent shall record in the
Register all applicable additional information in respect of
such Facilities Increase.
(iv) On the Facilities Increase Date for any
Facilities Increase in the Revolving Credit Commitments, each
Lender participating in such Facilities Increase shall
purchase from each existing Revolving Lender having Revolving
Loans outstanding on such Facilities Increase Date, without
recourse or warranty, an undivided participation interest in
such outstanding Revolving Loans in the proportion its
Revolving Commitment Percentage bears to the Revolving
Committed Amount (after giving effect to such Facilities
Increase) so as to ensure that, on the Facilities Increase
Date after giving effect to such Facilities Increase, each
Revolving Lender is owed no more than its proportionate share
of the Revolving Loans outstanding on such Facilities Increase
Date.
(v) From and after the Facilities Increase
Date, the term "LENDERS", as used herein, shall include all
Eligible Assignees which become Lenders pursuant to this
SECTION 2.10(A).
This SUBSECTION (A) shall supercede any provisions of SECTION 2.12 or 10.01 to
the contrary.
(b) OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS
(PRO-RATA). The Company may from time to time permanently reduce or terminate
the Revolving Committed Amount in whole or in part (in minimum aggregate amounts
of $2,000,000 or any whole multiple of $500,000 in excess thereof (or, if less,
the full remaining amount of the then applicable Revolving Committed Amount))
upon five Business Days' prior written or telecopy notice to the Administrative
Agent; PROVIDED, HOWEVER, that no such termination or reduction shall be made
which would cause the Revolving Outstandings to exceed the Revolving Committed
Amount as so reduced, unless, concurrently with such termination or reduction,
the Revolving Loans are repaid (and, after the Revolving Loans have been paid in
full, the Swing Line Loans are repaid and, after the Swing Line Loans have been
paid in full, the L/C Obligations are Cash Collateralized) to the extent
necessary to eliminate such excess. The Administrative Agent shall promptly
notify each affected Lender of the receipt by the Administrative Agent of any
notice from the Company pursuant to this SECTION 2.10(B). Any partial reduction
of the Revolving Committed Amount pursuant to this SECTION 2.10(B) shall be
applied to the Revolving Commitments of the Lenders pro-rata based upon their
respective Revolving Commitment Percentages. The Company shall pay to the
Administrative Agent for the account of the Lenders in accordance with the terms
of SECTION 2.11, on the date of each termination or reduction of the Revolving
Committed Amount, any fees accrued through the date of such termination or
reduction on the amount of the Revolving Committed Amount so terminated or
reduced.
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(c) TERMINATION. The Revolving Commitments of the Lenders and
the L/C Commitments of the L/C Issuers shall terminate automatically on the
Revolving Termination Date. The Swing Line Commitment of the Swing Line Lender
shall terminate automatically on the Swing Line Termination Date. The Term B
Closing Date Commitments of the Lenders shall terminate automatically
immediately after the making of the Term Loans on the Closing Date. The Term B
Delayed Draw Commitments of the Lenders shall terminate automatically on the
Term B Delayed Draw Termination Date.
(d) GENERAL. The Company shall pay to the Administrative Agent
for the account of the Lenders in accordance with the terms of SECTION 2.11, on
the date of each termination or reduction of the Revolving Committed Amount, the
Revolving Commitment Fee accrued through the date of such termination or
reduction on the amount of the Revolving Committed Amount so terminated or
reduced.
SECTION 2.11 FEES.
(a) COMMITMENT FEES. The Company shall pay to the
Administrative Agent for the account of each Revolving Lender a fee (the
"REVOLVING COMMITMENT FEE") on such Lender's Revolving Commitment Percentage of
the daily Unused Revolving Committed Amount, computed at a per annum rate for
each day at a rate equal to the then applicable rate per annum set forth under
the caption "Applicable Margin for Revolving Commitment Fees" in the table in
the definition of "Applicable Margin" in SECTION 1.01. The Company shall pay to
the Administrative Agent for the account of each Term B Delayed Draw Lender a
fee (the "TERM B DELAYED DRAW COMMITMENT FEE" and, together with the Revolving
Commitment Fee, the "COMMITMENT FEES") equal to 0.75% per annum on such Lender's
Term B Delayed Draw Commitment Percentage of the unfunded Term B Delayed Draw
Committed Amount. The Commitment Fees shall commence to accrue on the Closing
Date and shall be due and payable in arrears on the last Business Day of each
March, June, September and December (and any date that the Revolving Committed
Amount is reduced as provided in SECTION 2.10(B) or the Term B Delayed Draw
Commitment Amount is reduced and the Revolving Termination Date and the Term B
Delayed Draw Termination Date) for the quarter or portion thereof ending on each
such date, beginning with the first of such dates to occur after the Closing
Date.
(b) LETTER OF CREDIT FEES.
(i) LETTER OF CREDIT ISSUANCE FEE. The
Company shall pay to the Administrative Agent for the account
of each Revolving Lender a fee (the "LETTER OF CREDIT FEE") on
such Lender's Revolving Commitment Percentage of the average
daily maximum amount available to be drawn under each such
Letter of Credit (whether or not such maximum amount is then
in effect under such Letter of Credit) computed at a per annum
rate for each day from the date of issuance to the date of
expiration equal to the Applicable Margin for Letter of Credit
Fees in effect from time to time. The Letter of Credit Fee
will be computed on a quarterly basis in arrears and shall be
due and payable on the first Business Day after the end of
each fiscal quarter, commencing with the first of such dates
to occur after the date of issuance of such Letter of Credit,
and on the Letter of Credit Expiration Date and thereafter on
demand.
(ii) FRONTING FEES. The Company shall pay
directly to each L/C Issuer for its own account a fronting fee
in the amount equal to 1/8 of 1% per annum (or such lesser
amount agreed to with such L/C Issuer) on the daily maximum
amount available to be drawn thereunder (whether or not such
maximum amount is then in effect under such Letter of Credit).
Such fronting fee shall be computed on a quarterly basis in
arrears and without duplication of any similar fronting fee
which may then be in effect or which have previously been paid
with respect to any Existing Letter of Credit and shall be due
and payable on the first Business Day after the end of each
fiscal quarter, commencing with the first such date after the
issuance of such Letter of Credit, and on the Letter of Credit
Expiration Date and thereafter on demand.
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(iii) L/C ISSUER FEES. In addition to the
Letter of Credit Fee payable pursuant to CLAUSE (I) above and
any fronting fees payable pursuant to CLAUSE (II) above, the
Company promises to pay to the L/C Issuer for its own account
without sharing by the other Lenders the letter of credit
fronting and negotiation fees agreed to by the Company and the
L/C Issuer from time to time and the customary charges from
time to time of the L/C Issuer with respect to the issuance
(but excluding the issuance of any Existing Letter of Credit),
amendment, transfer, administration, cancellation and
conversion of, and drawings under, such Letters of Credit
(collectively, the "L/C ISSUER FEES"). L/C Issuer Fees are due
when earned and payable on demand and are nonrefundable.
(iv) COMPUTATION OF CERTAIN FEES AFTER
DEFAULT. Upon the occurrence and during the continuance of an
Event of Default and after the imposition of the Default Rate
pursuant to SECTION 2.06(C)(II), the Letter of Credit Fee
payable under SUBSECTION (I) above shall be computed at a rate
per annum equal to the Default Rate.
(c) OTHER FEES. The Company shall pay to the Joint Lead
Arrangers 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.
The Company shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
SECTION 2.12 PRO-RATA TREATMENT. Except to the extent
otherwise provided herein:
(a) LOANS. Each Borrowing, each payment or prepayment of
principal of or interest on any Loan, each payment of fees (other than the L/C
Issuer Fees retained by an L/C Issuer for its own account and the administrative
fees retained by the Agents for their own account), each reduction of the
Revolving Committed Amount and each conversion or continuation of any Loan,
shall be allocated pro-rata among the relevant Lenders in accordance with the
respective Revolving Commitment Percentages, Term B Closing Date Commitment
Percentages and Term B Delayed Draw Commitment Percentages, as applicable, of
such Lenders (or, if the Commitments of such Lenders have expired or been
terminated, in accordance with the respective principal amounts of the
outstanding Loans of the applicable Class and Participation Interests of such
Lenders); PROVIDED that, in the event any amount paid to any Lender pursuant to
this SUBSECTION (A) is rescinded or must otherwise be returned by the
Administrative Agent, each Lender shall, upon the request of the Administrative
Agent, repay to the Administrative Agent the amount so paid to such Lender, with
interest for the period commencing on the date such payment is returned by the
Administrative Agent until the date the Administrative Agent receives such
repayment at a rate per annum equal to the greater of the Federal Funds Rate and
a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(b) LETTERS OF CREDIT. Each payment of L/C Obligations shall
be allocated to each Revolving Lender pro-rata in accordance with its Revolving
Commitment Percentage; PROVIDED that, if any Revolving Lender shall have failed
to pay its applicable pro-rata share of any L/C Disbursement as required under
SECTION 2.05(F)(IV) or (VI), then any amount to which such Revolving Lender
would otherwise be entitled pursuant to this SUBSECTION (B) shall instead be
payable to the L/C Issuer.
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SECTION 2.13 SHARING OF PAYMENTS BY LENDERS. If any Lender
shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the Loans made by
it, or of its Participation Interests in L/C Obligations or in Swing Line Loans
held by it resulting in such Lender's receiving payment of a proportion of the
aggregate amount of such Loans or such Participation Interests and accrued
interest thereon greater than its pro-rata share thereof as provided herein,
then the Lender receiving such greater proportion shall (i) notify the
Administrative Agent of such fact, and (ii) purchase (for cash at face value)
participations in the Loans and subparticipations in the Participation Interests
in L/C Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans and other amounts
owing thereon; PROVIDED that:
(i) if any such participations or
subparticipations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations
or subparticipations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall
not be construed to apply to (A) any payment made by the
Company pursuant to and in accordance with the express terms
of this Agreement or (B) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation
in any of its Loans or subparticipations in Participation
Interests in L/C Obligations or Swing Line Loans to any
assignee or participant, other than to the Company or any
Subsidiary thereof (as to which the provisions of this Section
shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable Law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
SECTION 2.14 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S
CLAWBACK.
(a) PAYMENTS BY THE COMPANY. All payments to be made by the
Company shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff. Each payment of principal of and interest on
Loans, L/C Obligations and fees hereunder (other than fees payable directly to
the L/C Issuers) shall be paid not later than 3:00 P.M. on the date when due, in
Federal or other funds immediately available to the Administrative Agent at the
account designated by it by notice to the Company. Payments received after 3:00
P.M. shall be deemed to have been received on the next Business Day, and any
applicable interest or fee shall continue to accrue. The Administrative Agent
may in its sole discretion, distribute such payments to the applicable Lenders
on the date of receipt thereof, if such payment is received prior to 3:00 P.M.;
otherwise the Administrative Agent may, in its sole discretion, distribute such
payment to the applicable Lenders on the date of receipt thereof or on the
immediately succeeding Business Day. Whenever any payment hereunder shall be due
on a day which is not a Business Day, the date for payment thereof shall be
extended to the next succeeding Business Day (and such extension of time shall
be reflected in computing interest or fees, as the case may be), unless (in the
case of Eurodollar Loans) such Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Business
Day. If the date for any payment of principal is extended by operation of Law or
otherwise, interest thereon shall be payable for such extended time.
(b) PAYMENTS BY COMPANY; PRESUMPTION BY THE ADMINISTRATIVE
AGENT. Unless the Administrative Agent shall have received notice (which may be
by telephone if promptly confirmed in writing) from the Company prior to the
date on which any payment is due to the Lenders or any L/C Issuer hereunder that
the Company will not make such payment, the Administrative Agent may assume that
the Company has made such payment on such date in accordance herewith, and may,
in reliance upon such assumption, distribute to the Lenders or the L/C issuers,
as the case may be, the amount due. In such event, if the Company has not in
fact made such payment, then each of the Lenders or the L/C issuers, as the case
may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or L/C issuer, in immediately
available funds with interest thereon, for each day from and including the date
such amount is distributed to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation. A notice of the Administrative Agent to any Lender
with respect to any amount owing under this SUBSECTION (B) shall be conclusive,
absent manifest error.
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(c) FAILURE TO SATISFY CONDITIONS PRECEDENT. If any Lender
makes available to the Administrative Agent funds for any Loan to be made by
such Lender as provided in the foregoing provisions of this ARTICLE II, and such
funds are not made available to the Company by the Administrative Agent because
the conditions to the applicable Credit Extension set forth in ARTICLE IV are
not satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender without interest.
(d) OBLIGATIONS OF LENDERS SEVERAL. The obligations of the
Lenders hereunder to make Loans and to purchase Participation Interests in
Letters of Credit and Swing Line Loans are several and not joint. The failure of
any Lender to make a Loan required to be made by it as part of any Borrowing
hereunder or to fund a Participation Interest shall not relieve any other Lender
of its obligation, if any, hereunder to make any Loan on the date of such
Borrowing or fund any such Participation Interest, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be made by
such other Lender on such date of Borrowing or fund its Participation Interest.
(e) FUNDING SOURCE. Nothing herein shall be deemed to obligate
any Lender to obtain the funds for any Loan in any particular place or manner or
to constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
(f) COMPUTATIONS. 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 Loan is
made (or converted or continued), 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 (or continued or
converted) shall, subject to SUBSECTION (A) above, bear interest for one day.
Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
SECTION 3.01 TAXES.
(a) PAYMENTS FREE OF TAXES. Any and all payments by or on
account of any obligation of the Company hereunder or under any other Loan
Document shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes or Other Taxes, PROVIDED that if the Company shall be
required by applicable Law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Company
shall make such deductions and (iii) the Company shall timely pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable Law.
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(b) PAYMENT OF OTHER TAXES BY THE COMPANY. Without limiting
the provisions of SUBSECTION (A) above, the Company shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable Law.
(c) INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify the Administrative Agent, each Lender and the L/C Issuer, within 10
days after demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority; PROVIDED
that if the Company reasonably believes that such taxes were not correctly or
legally asserted, the Administrative Agent or such Lender, as the case may be,
will use reasonable efforts to cooperate with the Company to obtain a refund of
such taxes so long as such efforts would not, in the sole determination of the
Administrative Agent or such Lender, as the case may be, result in any
additional costs, expenses or risks or be otherwise disadvantageous to it. A
certificate as to the amount of such payment or liability delivered to the
Company by a Lender or the L/C Issuer (with a copy to the Administrative Agent),
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
L/C Issuer, shall be conclusive absent manifest error.
(d) EVIDENCE OF PAYMENTS. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by the Company to a Governmental
Authority, the Company shall deliver to the Administrative Agent the original or
a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) STATUS OF LENDERS. Any Foreign Lender that is entitled to
an exemption from or reduction of withholding tax under the Law of the
jurisdiction in which the Company is resident for tax purposes, or any treaty to
which such jurisdiction is a party, with respect to payments hereunder or under
any other Loan Document shall deliver to the Company (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Company or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable Law as will permit
such payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if requested by the Company or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable Law or reasonably requested by the Company or the Administrative
Agent as will enable the Company or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information
reporting requirements.
Without limiting the generality of the foregoing, in the event
that the Company is resident for tax purposes in the United States, any Foreign
Lender shall deliver to the Company and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on
which such Foreign Lender becomes a Lender under this Agreement (and from time
to time thereafter upon the request of the Company or the Administrative Agent,
but only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
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(i) duly completed copies of Internal
Revenue Service Form W-8BEN claiming eligibility for benefits
of an income tax treaty to which the United States is a party;
(ii) duly completed copies of Internal
Revenue Service Form W-8ECI;
(iii) in the case of a Foreign Lender
claiming the benefits of the exemption for portfolio interest
under section 881(c) of the Code, (A) a certificate to the
effect that such Foreign Lender is not (x) a "bank" within the
meaning of section 881(c)(3)(A) of the Code, (y) a "10 percent
shareholder" of the Company within the meaning of section
881(c)(3)(B) of the Code, or (z) a "controlled foreign
corporation" described in section 881(c)(3)(C) of the Code and
(B) duly completed copies of Internal Revenue Service Form
W-8BEN, or
(iv) any other form prescribed by applicable
Law as a basis for claiming exemption from or a reduction in
United States Federal withholding tax duly completed together
with such supplementary documentation as may be prescribed by
applicable law to permit the Company to determine the
withholding or deduction required to be made.
(f) INABILITY OF LENDER TO SUBMIT FORMS. If any Foreign Lender
determines, as a result of any change in applicable law, regulation or treaty,
or in any official application or interpretation thereof, that it is unable to
submit to the Company or the Administrative Agent any form or certificate that
such Foreign Lender is obligated to submit pursuant to subsection (e) of this
SECTION 3.01 or that such Foreign Lender is required to withdraw or cancel any
such form or certificate previously submitted or any such form or certificate
otherwise becomes ineffective or inaccurate, such Foreign Lender shall promptly
notify the Company and the Administrative Agent of such fact and the Foreign
Lender shall to that extent not obligated to provide any such form or
certificate and will be entitled to withdraw or cancel any affected form or
certificate, as applicable.
(g) If any Foreign Lender is entitled to a reduction in (and
not complete exemption from) the applicable withholding tax, the Company and the
Administrative Agent may withhold from any interest payment to such Foreign
Lender an amount equivalent to the applicable withholding tax after taking into
account such reduction. If any of the forms or other documentation required
under subsection (e) above are not delivered to the Administrative Agent as
therein required (as modified by subsection (f)), then the Company and the
Administrative Agent may withhold from any interest payment to such Foreign
Lender not providing such forms or other documentation an amount equivalent to
the applicable withholding tax.
(h) TREATMENT OF CERTAIN REFUNDS. If the Administrative Agent,
any Lender or any L/C Issuer determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Company or with respect to which the Company has paid
additional amounts pursuant to this Section, it shall pay to the Company an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional paid, by the Company under this Section with respect to the Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Administrative Agent, such Lender or such L/C Issuer, as the case may be,
and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), PROVIDED that the Company, upon the
request of the Administrative Agent, such Lender or such L/C Issuer, agrees to
repay the amount paid over to the Company (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent, such Lender or such L/C Issuer in the event the Administrative Agent,
such Lender or such L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the
Administrative Agent, any Lender or any L/C Issuer to make available its tax
returns (or any other information relating to its taxes that it deems
confidential) to the Company or any other Person.
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SECTION 3.02 ILLEGALITY. If, on or after the date of this
Agreement, the adoption of any applicable Law, or any change in any applicable
Law, or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Lending Office) with any request or directive (whether or not having the force
of Law) of any such authority, central bank or comparable agency shall make it
unlawful or impossible for any Lender (or its Lending Office) to make, maintain
or fund any of its Eurodollar Loans and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall forthwith give notice
thereof to the other Lenders and the Company, whereupon, until such Lender
notifies the Company and the Administrative Agent that the circumstances giving
rise to such suspension no longer exist, the obligation of such Lender to make
Eurodollar Loans, or to convert outstanding Loans into Eurodollar Loans, shall
be suspended. If such notice is given, each Eurodollar Loan of such Lender then
outstanding shall be converted to a Base Rate Loan either (i) on the last day of
the then current Interest Period applicable to such Eurodollar Loan, if such
Lender may lawfully continue to maintain and fund such Loan to such day or (ii)
immediately, if such Lender shall determine that it may not lawfully continue to
maintain and fund such Loan to such day.
SECTION 3.03 INABILITY TO DETERMINE RATES. If on or prior to
the first day of any Interest Period for any Eurodollar Loan:
(i) the Administrative Agent determines
(which determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the applicable
Eurodollar Rate for such Interest Period; or
(ii) Lenders having 50% or more of the
aggregate amount of the Commitments advise the Administrative
Agent that the Eurodollar Rate as determined by the
Administrative Agent will not adequately and fairly reflect
the cost to such Lenders of funding their Eurodollar Loans for
such Interest Period;
the Administrative Agent shall forthwith give notice thereof to the Company and
the Lenders, whereupon, until the Administrative Agent notifies the Company that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Lenders to make Eurodollar Loans, or to continue or convert
outstanding Loans as or into Eurodollar Loans, shall be suspended and (ii) each
outstanding Eurodollar Loan shall be converted into a Base Rate Loan on the last
day of the then current Interest Period applicable thereto. Unless the Company
notifies the Administrative Agent prior to 12:00 pm on the Business Day of the
date of any Eurodollar Borrowing for which a Notice of Borrowing has previously
been given that it elects not to borrow on such date, such Borrowing shall
instead be made as a Base Rate Borrowing in the same aggregate amount as the
requested Borrowing and shall bear interest for each day from and including the
first day to but excluding the last day of the Interest Period applicable
thereto at the rate applicable to Revolving Base Rate Loans for such day.
SECTION 3.04 INCREASED COSTS AND REDUCED RETURN; CAPITAL
ADEQUACY.
(a) INCREASED COSTS GENERALLY. If any Change in Law shall:
(i) impose, modify or deem applicable any
reserve, special deposit, compulsory loan, insurance charge or
similar requirement against assets held by, deposits with or
for the account of, or credit extended or participated in by,
any Lender (or its Lending Office) (except any reserve
requirement which is reflected in the determination of the
Adjusted Eurodollar Rate hereunder);
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(ii) subject any Lender (or its Lending
Office) or L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any
Participation Interest in a Letter of Credit or any Eurodollar
Loan made by it, or change the basis of taxation of payments
to such Lender or L/C Issuer in respect thereof (except for
Indemnified Taxes or Other Taxes covered by SECTION 3.01 and
the imposition of, or any change in the rate of, any Excluded
Tax payable by such Lender of the L/C Issuer);
(iii) impose on any Lender (or its Lending
Office) or L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit
or Participation Interest therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender (or its Lending Office) of making or maintaining any Eurodollar Loan (or
of maintaining its obligation to make any such Loan), or to increase the cost to
such Lender or any L/C Issuer of participating in, issuing or maintaining any
Letter of Credit (or of maintaining its obligation to participate in or to issue
any Letter of Credit), or to reduce the amount of any sum received or receivable
by such Lender or L/C Issuer hereunder (whether of principal, interest or any
other amount) then, upon request of such Lender or L/C Issuer, the Company will
pay to such Lender or L/C Issuer, as the case may be, such additional amount or
amounts as will compensate such Lender or L/C Issuer, as the case may be, for
such additional costs incurred or reduction suffered.
(b) CAPITAL REQUIREMENTS. If any Lender or L/C Issuer
determines that any Change in Law affecting such Lender or L/C Issuer or any
Lending Office of such Lender or such Lender's or L/C Issuer's holding company,
if any, regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender's or such L/C Issuer's capital or on the
capital of such Lender's or such L/C Issuer's holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made
by, or Participation Interests in Letters of Credit held by, such Lender, or the
Letters of Credit issued by such L/C Issuer, to a level below that which such
Lender or L/C Issuer or such Lender's or L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
L/C Issuer's policies and the policies of such Lender's or L/C Issuer's holding
company with respect to capital adequacy), then from time to time the Company
will pay to such Lender or L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or L/C Issuer or such Lender's
or L/C Issuer's holding company for any such reduction suffered.
(c) CERTIFICATES FOR REIMBURSEMENT. A certificate of a Lender
or L/C Issuer setting forth the amount necessary to compensate such Lender or
L/C Issuer or its holding company, as the case may be, as specified in
SUBSECTION (A) or (B) of this Section and delivered to the Company shall be
conclusive absent manifest error. The Company shall pay such Lender or L/C
Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) DELAYS IN REQUESTS. Failure or delay on the part of any Lender or L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section
shall not constitute a waiver of such Lender's or L/C Issuer's right to demand
such compensation, PROVIDED that the Company shall not be required to compensate
a Lender or L/C Issuer pursuant to the foregoing provisions of this Section for
any increased costs incurred or reductions suffered more than three months prior
to the date that such Lender or L/C Issuer, as the case may be, notifies the
Company of the Change in Law giving rise to such increased costs or reductions
and of such Lender's or L/C Issuer's intention to claim compensation therefor
(except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the nine-month period referred to above shall be
extended to include the period of retroactive effect thereof).
SECTION 3.05 COMPENSATION FOR LOSSES. Promptly upon demand of
any Lender (with a copy to the Administrative Agent) from time to time, the
Company shall promptly compensate such Lender for and hold such Lender harmless
from any loss, cost or expense incurred by it as a result of:
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(i) 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);
(ii) any failure by the Company (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
Company; or
(iii) any assignment of a Eurodollar Rate
Loan on a day other than the last day of the Interest Period
therefore as a result of a request by the Company pursuant to
SECTION 10.13;
excluding any loss of anticipated profits but including any loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain
such Loan or from fees payable to terminate the deposits from which such funds
were obtained. The Company shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing. A certificate (with
reasonable supporting detail) of any Lender setting forth any amount or amounts
which such Lender is entitled to receive pursuant to this SECTION 3.05 shall be
delivered to the Company and shall be conclusive absent manifest error; PROVIDED
that the Company shall not be required to compensate such Lender pursuant to
this Section for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender notifies the Company in writing of the
increased costs or reductions and of such Lender's intention to claim
compensation thereof; PROVIDED, FURTHER that, if the change in law giving rise
to such increased costs or reductions is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
For purposes of calculating amounts payable by the Company 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.
SECTION 3.06 BASE RATE LOANS SUBSTITUTED FOR AFFECTED
EURODOLLAR LOANS. If (i) the obligation of any Lender to make, or to continue or
convert outstanding Loans as or to, Eurodollar Loans has been suspended pursuant
to SECTION 3.02 or (ii) any Lender has demanded compensation under SECTION 3.01
or 3.04 with respect to its Eurodollar Loans, and in any such case the Company
shall, by at least five Business Days' prior notice to such Lender through the
Administrative Agent, have elected that the provisions of this SECTION 3.06
shall apply to such Lender, then, unless and until such Lender notifies the
Company that the circumstances giving rise to such suspension or demand for
compensation no longer exist, all Loans which would otherwise be made by such
Lender as (or continued as or converted to) Eurodollar Loans shall instead be
Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Eurodollar Loans of the other Lenders). If
such Lender notifies the Company that the circumstances giving rise to such
suspension or demand for compensation no longer exist, the principal amount of
each such Base Rate Loan shall be converted into a Eurodollar Loan on the first
day of the next succeeding Interest Period applicable to the related Eurodollar
Loans of the other Lenders.
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SECTION 3.07 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) DESIGNATION OF A DIFFERENT LENDING OFFICE. If any Lender
requests compensation under SECTION 3.04, or the Company is required to pay any
additional amount to any lender or any Governmental Authority for the account of
any Lender pursuant to SECTION 3.01, or if any Lender gives a notice pursuant to
SECTION 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to SECTION 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to SECTION 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Company hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) REPLACEMENT OF LENDERS. If any Lender requests
compensation under SECTION 3.04, or if the Company is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to SECTION 3.01, the Company may replace such Lender in
accordance with SECTION 10.13.
SECTION 3.08 SURVIVAL. All of the Company's obligations under
this ARTICLE III shall survive termination of the Commitments and repayment of
all other Senior Credit Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
SECTION 4.01 CONDITIONS TO INITIAL CREDIT EXTENSION. The
obligation of each L/C issuer and each Lender to make its initial Credit
Extension hereunder is subject to the satisfaction or waiver of the following
conditions precedent:
(a) EXECUTED LOAN DOCUMENTS. Receipt by the Administrative
Agent of duly executed counterparts from each party thereto of: (i) this
Agreement; (ii) the Notes; (iii) the Guaranty; (iv) the Collateral Documents and
(v) all other Loan Documents, each in form and substance reasonably satisfactory
to each of the Lenders.
(b) LEGAL MATTERS. All legal matters incident to this
Agreement and the borrowings hereunder shall be reasonably satisfactory to the
Administrative Agent and to Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx, LLP, counsel
for the Administrative Agent.
(c) ORGANIZATION DOCUMENTS. After giving effect to the
transactions contemplated hereby, the Administrative Agent shall have received:
(i) a copy of the Organization Documents, including all amendments thereto, of
each Loan Party, certified as of a recent date by the Secretary of State or
other applicable Governmental Authority of its respective jurisdiction of
organization, and a certificate as to the good standing (or comparable status)
of each Loan Party from such Secretary of State, as of a recent date; (ii) a
certificate as to the good standing (or comparable status) of each Loan Party,
as of a recent date, from the Secretary of State or other applicable authority
of its respective jurisdiction of organization and from each other state in
which such Loan Party is qualified or is required to be qualified to do business
except those states wherein the failure to be qualified to do business would not
reasonably be expected to have a Material Adverse Effect; (iii) a certificate of
the Secretary or Assistant Secretary of each Loan Party dated the Closing Date
and certifying (A) that the Organization Documents of such Loan Party have not
been amended since the date of the last amendment thereto shown on the
certificate of good standing from its jurisdiction of organization furnished
pursuant to CLAUSE (II) above; (B) that attached thereto is a true and complete
copy of the agreement of limited partnership, operating agreement or by-laws of
such Loan Party, as applicable, as in effect on the Closing Date and at all
times since a date prior to the date of the resolutions described in CLAUSE (C)
below, (C) that attached thereto is a true and complete copy of resolutions duly
adopted by the board of directors or other governing body of such Loan Party
authorizing the execution, delivery and performance of the Loan Documents to
which it is to be a party and, in the case of the Company, the borrowings
hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect; and (D) as to the incumbency and
specimen signature of each officer executing any Loan Document; and (iv) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to
CLAUSE (III) above.
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(d) OFFICER'S CERTIFICATES. The Administrative Agent shall
have received (i) a certificate, dated the Closing Date and signed by a
Responsible Officer of the Company, confirming compliance with the conditions
precedent set forth in PARAGRAPHS (B) and (C) of SECTION 4.02 and (ii) a
certificate, dated the Closing Date and signed by a Responsible Officer of each
other Loan Party, confirming compliance with the condition precedent set forth
in PARAGRAPH (B) of SECTION 4.02.
(e) OPINIONS OF COUNSEL. On the Closing Date, the
Administrative Agent shall have received:
(i) a favorable written opinion of Xxxxxxxx
& Xxxxx LLP, special counsel to the Loan Parties, addressed to
the Administrative Agent, the Collateral Agent and each
Lender, dated the Closing Date, in the form reasonably
satisfactory to the Administrative Agent; and
(ii) from special local counsel to the
Company and the other Loan Parties (which counsel shall be
reasonably satisfactory to the Administrative Agent) for each
jurisdiction in which a Mortgaged Property is located, an
opinion addressed to the Agents and each Lender, dated the
Closing Date, substantially in the form of EXHIBIT E hereto,
with respect to the enforceability of the form of Mortgage and
sufficiency of the form of UCC-1 financing statements or
similar notices to be recorded or filed in such jurisdiction,
if applicable, and such other matters as the Administrative
Agent or the Required Lenders may reasonably request.
(f) CONSUMMATION OF THE PRIMARY EQUITY OFFERING; MINIMUM
UNRESTRICTED CASH. The Primary Equity Offering shall have been (or shall
concurrently be) consummated in accordance with applicable Law resulting in cash
proceeds to the Company (before underwriting discounts and commissions and
related expenses) of not less than $35,000,000. Immediately following the
consummation of the Transaction on the Closing Date, the amount of excess cash
and Cash Equivalents of the Company resulting from the sources and uses as set
forth in the funds flow memorandum (a copy of which shall be delivered to the
Administrative Agent) shall not be less than $6,750,000.
(g) REFINANCING OF CERTAIN EXISTING INDEBTEDNESS; OTHER
INDEBTEDNESS. On the Closing Date, the commitments under all Refinanced
Agreements shall have been terminated, all loans outstanding thereunder shall
have been or simultaneously shall be repaid in full (other than contingent
indemnification obligations not yet due and payable), together with accrued
interest thereon (including, without limitation, any prepayment premium), all
Letters of Credit issued thereunder shall have been terminated, cash
collateralized, backstopped through the issuance of Letters of Credit hereunder
or shall have become Letters of Credit hereunder and all other amounts due and
payable pursuant to each Refinanced Agreement shall have been repaid in full,
and the Administrative Agent shall have received evidence in form, scope and
substance reasonably satisfactory to it that the matters set forth in this
SUBSECTION (G) have been or will be contemporaneously satisfied at such time. In
addition, on the Closing Date, the creditors under each Refinanced Agreement
shall have terminated and released all applicable Liens on the capital stock of
and assets owned by the Company and its Subsidiaries, and the Administrative
Agent shall have received all such releases (or copies thereof) as may have been
requested by the Administrative Agent, which releases shall be in form and
substance reasonably satisfactory to the Administrative Agent.
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(h) PERFECTION OF PERSONAL PROPERTY SECURITY INTERESTS AND
PLEDGES; SEARCH REPORTS. On or prior to the Closing Date, the Collateral Agent
shall have received:
(i) the Perfection Certificate from each
Loan Party;
(ii) appropriate financing statements (Form
UCC-1 or such other financing statements or similar notices as
shall be required by local Law) authenticated and authorized
for filing under the Uniform Commercial Code or other
applicable local law of each jurisdiction in which the filing
of a financing statement or giving of notice may be required,
or reasonably requested by the Collateral Agent, to perfect
the security interests intended to be created by the
Collateral Documents;
(iii) copies of reports from CT Corporation
or another independent search service reasonably satisfactory
to the Collateral Agent listing all effective financing
statements, notices of tax, PBGC or judgment liens or similar
notices that name the Company or any other Loan Party as
debtor or seller that are filed in the jurisdictions referred
to in CLAUSE (II) above or in any other jurisdiction having
files which must be searched in order to determine fully the
existence of the Uniform Commercial Code security interests,
notices of the filing of federal tax Liens (filed pursuant to
Section 6323 of the Code), Liens of the PBGC (filed pursuant
to Section 4068 of ERISA) or judgment Liens on any Collateral,
together with copies of such financing statements, notices of
tax, PBGC or judgment Liens or similar notices (none of which
shall cover the Collateral except to the extent evidencing
Permitted Liens or for which the Collateral Agent shall have
received termination statements (Form UCC-3 or such other
termination statements as shall be required by local Law)
authenticated and authorized for filing);
(iv) searches of ownership of intellectual
property in the appropriate governmental offices and such
patent, trademark and/or copyright filings as may be requested
by the Collateral Agent to the extent necessary or reasonably
advisable to perfect the Collateral Agent's security interest
in intellectual property Collateral;
(v) all of the Pledged Collateral, which
Pledged Collateral shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments
of transfer or assignment in blank, with signatures
appropriately guaranteed, accompanied in each case by any
required transfer tax stamps, all in form and substance
reasonably satisfactory to the Collateral Agent; and
(vi) evidence of the completion of all other
filings and recordings of or with respect to the Collateral
Documents and of all other actions as may be necessary or, in
the opinion of the Collateral Agent, desirable to perfect the
security interests intended to be created by the Collateral
Documents.
(i) REAL PROPERTY COLLATERAL. The Collateral Agent shall have
received (in form and substance satisfactory to the Collateral Agent):
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(i) fully executed and notarized mortgages,
deeds of trust or deeds to secure debt (each a "MORTGAGE" and,
collectively, the "MORTGAGES") encumbering the fee interest of
the Loan Parties in each real property asset owned by a Loan
Party set forth on SCHEDULE 4.01(I) (each a "MORTGAGED
PROPERTY" and, collectively, the "MORTGAGED PROPERTIES"),
together with such UCC-1 financing statements or similar
notices as the Collateral Agent shall reasonably deem
appropriate with respect to each such Mortgaged Property;
(ii) ALTA or other appropriate form
mortgagee title insurance policies (the "MORTGAGE POLICIES")
issued by a title insurance company satisfactory to the
Collateral Agent (the "TITLE INSURANCE COMPANY"), in an amount
reasonably satisfactory to the Collateral Agent with respect
to each Mortgaged Property, which amount shall not exceed the
fair market value for each such Mortgaged Property, assuring
the Collateral Agent that the applicable Mortgages create
valid and enforceable first priority mortgage liens on the
respective Mortgaged Property, free and clear of all defects
and encumbrances except Permitted Encumbrances, which Mortgage
Policies shall contain such endorsements as shall be
reasonably satisfactory to the Collateral Agent and for any
other matters that the Collateral Agent may reasonably
request, and providing affirmative insurance and such
reinsurance as the Collateral Agent may reasonably request,
all of the foregoing in form and substance reasonably
satisfactory to the Collateral Agent;
(iii) maps or plats of an as-built survey of
the sites of the Mortgaged Properties certified to the
Collateral Agent and the Title Insurance Company in a manner
reasonably satisfactory to them, dated a date reasonably
satisfactory to the Collateral Agent and the Title Insurance
Company by an independent professional licensed land surveyor
reasonably satisfactory to the Collateral Agent and the Title
Insurance Company, which maps or plats and the surveys on
which they are based shall be sufficient to delete any
standard printed survey exception contained in the applicable
Mortgage Policy and be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly
established and adopted by the American Land Title Association
and the American Congress on Surveying and Mapping in 1999,
and, without limiting the generality of the foregoing, there
shall be surveyed and shown on such maps, plats or surveys the
following: (A) the locations on such sites of all the
buildings, structures and other improvements and the
established building setback lines; (B) the lines of streets
abutting the sites and width thereof; (C) all access and other
easements appurtenant to the sites necessary to use the sites;
(D) all roadways, paths, driveways, easements, encroachments
and overhanging projections and similar encumbrances affecting
the site, whether recorded, apparent from a physical
inspection of the sites or otherwise known to the surveyor;
(E) any encroachments on any adjoining property by the
building structures and improvements on the sites; and (F) if
the site is described as being on a filed map, a legend
relating the survey to said map;
(iv) if requested by the Collateral Agent,
copies of all recorded documents listed as exceptions to title
or otherwise referred to in the mortgaged properties;
(v) certification from a registered engineer
or land surveyor in a form reasonably satisfactory to the
Collateral Agent or other evidence acceptable to the
Collateral Agent that none of the improvements on the
Mortgaged Properties are located within any area designated by
the Director of the Federal Emergency Management Agency as a
"special flood hazard" area or if any improvements on the
Mortgaged Properties are located within a "special flood
hazard" area, evidence of a flood insurance policy (if such
insurance is required by applicable Law) from a company and in
an amount satisfactory to the Collateral Agent for the
applicable portion of the premises, naming the Collateral
Agent, for the benefit of the Lenders, as mortgagee; and
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(vi) evidence reasonably satisfactory to the
Collateral Agent that each of the Mortgaged Properties, and
the uses of the Mortgaged Properties, are in compliance in all
material respects with all applicable Laws.
(j) EVIDENCE OF INSURANCE. Receipt by the Collateral Agent of
copies of insurance policies or certificates of insurance of the Loan Parties
and their Subsidiaries evidencing liability and casualty insurance meeting the
requirements set forth in the Loan Documents, including, but not limited to,
naming the Collateral Agent as additional insured or loss payee, as applicable,
on behalf of the Lenders.
(k) CONSENTS AND APPROVALS. On the Closing Date, all necessary
governmental (domestic or foreign), regulatory and material third party
approvals (including, without limitation, with respect to license agreements
relating to intellectual property) in connection with the transactions
contemplated hereby and otherwise referred to herein or therein shall have been
obtained and remain in full force and effect, and all applicable waiting and
appeal periods shall have expired, in each case without any action being taken
by any competent authority which have or could have a reasonable likelihood of
restraining, preventing or imposing materially burdensome conditions on such
transactions or impose, in the reasonable judgment of the Administrative Agent,
materially burdensome conditions upon the consummation of such transactions.
(l) SOLVENCY CERTIFICATE. On or prior to the Closing Date, the
Company shall have delivered or caused to be delivered to the Administrative
Agent a solvency certificate from a Responsible Officer or chief accounting
officer of the Company, substantially in the form of EXHIBIT L hereto, setting
forth the conclusions that, after giving effect to the Transaction and the
consummation of all financings contemplated herein, the Loan Parties (on a
consolidated basis) are solvent, together with copies of any solvency or
appraisal report, if any, prepared by any third party in connection with any
aspect of the Transaction.
(m) FINANCIAL INFORMATION. The Joint Lead Arrangers shall have
received: (i) pro-forma financial statements as to the Company and its
Consolidated Subsidiaries giving effect to the transactions contemplated hereby
to occur on or prior to the Closing Date, which in each case, shall be
reasonably satisfactory in form and substance to the Joint Lead Arrangers, (ii)
forecasts prepared by management of the Company, each in form reasonably
satisfactory to the Joint Lead Arrangers, of balance sheets, income statements
and cash flow statements on a quarterly basis for the first year following the
Closing Date and on an annual basis for each of the following five years; (iii)
evidence satisfactory to the Joint Lead Arrangers that (A) the Consolidated
EBITDA of the Company and its Consolidated Subsidiaries for the twelve-month
period ending as of March 31, 2005 was not less than $62,000,000 and (B) the
pro-forma Leverage Ratio of the Company and its Consolidated Subsidiaries as of
March 31, 2005 (which pro forma ratio shall be calculated reflecting the
transactions contemplated to occur on or prior to the Closing Date on a
Pro-Forma Basis (assuming a full draw of the Term B Delayed Draw Loans as of the
Closing Date)) was not greater than 3.70 to 1.0; and (iv) written certifications
that would have been required as of the preceding fiscal quarter from the chief
executive officer and chief financial officer of the Company that would be
required by Section 906 and Section 302 of the Xxxxxxxx-Xxxxx Act of 2002.
(n) MATERIAL ADVERSE EFFECT. The Joint Lead Arrangers shall be
satisfied that the representations contained in the Commitment Letter dated
January 25, 2005 among the Company and the Joint Lead Arrangers with respect to
the Information and the Projections (as defined therein) shall be correct in all
material respects on the Closing Date. In addition: (i) there shall have been no
change, occurrence or development since December 31, 2004 and no action, suit,
investigation or proceeding shall be pending or, to the knowledge of any of the
Company or any of its Subsidiaries, threatened that in any case, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; (ii) there shall be no action, suit, investigation or
proceeding pending or, to the knowledge of any of the Loan Parties, threatened
that seeks to restrain or enjoin the Transaction; and (iii) none of the Joint
Lead Arrangers shall have become aware after the date hereof of any information
or any event, occurrence or development (including with respect to the
Pre-Commitment Information), in each case relating to the Loan Parties or the
Transaction, that, in the good faith judgment of the Joint Lead Arrangers, is
inconsistent in a material and adverse manner with any information disclosed to
them prior to February 25, 2005 and which could reasonably be expected to have a
Material Adverse Effect
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(o) RATINGS. The Loans shall have received debt ratings from
each of Xxxxx'x and S&P. (p) PAYMENT OF FEES. All costs, fees and expenses due
to the Administrative Agent, the Collateral Agent and the Lenders on or before
the Closing Date shall have been paid.
(q) COUNSEL FEES. The Company shall have paid directly to
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel to the Administrative
Agent, all fees, charges and disbursements of counsel to the Administrative
Agent to the extent invoiced prior to or on the Closing Date, plus to the extent
submitted in writing to the Company prior to or on the Closing Date such
additional amounts of fees, charges and disbursements as shall constitute its
reasonable written estimate of such fees, charges and disbursements incurred or
to be incurred by it prior to or on the Closing Date (PROVIDED that such
estimate shall not thereafter preclude a final settling of accounts between the
Companies and such counsel).
(r) REVOLVING USAGE. After giving effect to all Credit
Extensions occurring on the Closing Date, (i) the aggregate unpaid principal
amount of the Revolving Loans on the Closing Date shall not exceed $10,000,000
(except to the extent necessary to cover any shortfall in the aggregate
principal amount of Term B Closing Date Loans as a result of any issuance
thereof with original issue discount) and (ii) the aggregate face amount of all
Existing Letters of Credit and additional Letters of Credit issued on the
Closing Date shall not exceed $40,000,000.
(s) OFAC/ANTI-TERRORISM COMPLIANCE CERTIFICATE. The
Administrative Agent shall have received a certificate substantially in the form
of EXHIBIT K hereto, dated the Closing Date and signed by a Responsible Officer
of the Company, certifying as to the matters set forth in EXHIBIT K.
The documents referred to in this SECTION 4.01 shall be
delivered to the Administrative Agent no later than the Closing Date. The
certificates and opinions referred to in this SECTION 4.01 shall be dated the
Closing Date.
Without limiting the generality of the provisions of SECTION
9.04, for purposes of determining compliance with the conditions specified in
this SECTION 4.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, or waived 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.
Promptly after the Closing Date occurs, the Administrative
Agent shall notify the Company and the Lenders of the Closing Date, and such
notice shall be conclusive and binding on all parties hereto. If the Closing
Date does not occur before 5:00 P.M. on June 30, 2005, the Commitments shall
terminate at the close of business on such date.
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SECTION 4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The
obligation of any Lender to make a Loan on the occasion of any Borrowing, and
the obligation of any L/C Issuer to issue (or renew or extend the term of) any
Letter of Credit, is subject to the satisfaction or waiver of the following
conditions:
(a) NOTICE. The Company shall have delivered (i) in the case
of any Revolving Loan or Term B Delayed Draw Loan, to the Administrative Agent,
an appropriate Notice of Borrowing, duly executed and completed, by the time
specified in, and otherwise as permitted by, SECTION 2.02, (ii) in the case of
any Letter of Credit, to the L/C Issuer, an appropriate Letter of Credit Request
duly executed and completed in accordance with the provisions of SECTION 2.05,
and (iii) in the case of any Swing Line Loan, to the Swing Line Lender, a Swing
Line Loan Request, duly executed and completed, by the time specified in SECTION
2.02.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Loan Parties in any Loan Document are true and correct in
all material respects at and as if made as of such date except to the extent
they expressly relate to an earlier date.
(c) NO DEFAULT. No Default or Event of Default shall exist or
be continuing either prior to or after giving effect thereto.
The delivery of each Notice of Borrowing, Swing Line Loan
Request and each request for a Letter of Credit shall constitute a
representation and warranty by the Loan Parties of the correctness of the
matters specified in SUBSECTIONS (B), and (C) above.
SECTION 4.03 CONDITIONS PRECEDENT TO FACILITIES INCREASE. No
Facilities Increase shall become effective prior to the satisfaction or waiver
of all of the following conditions precedent:
(a) CERTAIN DOCUMENTS. The Administrative Agent shall have
received on or prior to the Facilities Increase Date for such Facilities
Increase each of the following, each dated such Facilities Increase Date unless
otherwise indicated or agreed to by the Administrative Agent and each in form
and substance reasonably satisfactory to the Administrative Agent:
(i) written commitments duly executed by
existing Lenders (or their Affiliates or Approved Funds) or
Eligible Assignees in an aggregate amount equal to the amount
of the proposed Facilities Increase (as agreed between the
Company and the Administrative Agent but in any case not to
exceed, in the aggregate for all such Facilities Increases,
the maximum amount set forth in SECTION 2.10(A)) and, in the
case of each such Eligible Assignee or Affiliate or Approved
Fund that is not an existing Lender, an Assignment and
Assumption in form and substance reasonably satisfactory to
the Administrative Agent and duly executed by the Company, the
Administrative Agent and such Affiliate, Approved Fund or
Eligible Assignee;
(ii) an amendment to this Agreement
(including to SCHEDULE 2.01), effective as of the Facilities
Increase Date and executed by the Company and the
Administrative Agent, to the extent necessary to implement
terms and conditions of the Facilities Increase (including
interest rates, fees and scheduled repayment dates and
maturity), as agreed by the Company and the Administrative
Agent but, which, in any case, except for interest, fees,
scheduled repayment dates and maturity, shall not be applied
materially differently to the Facilities Increase than to the
Revolving Loans and Term B Loans outstanding immediately prior
to the Facilities Increase;
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(iii) certified copies of resolutions of the
Board of Directors of each Loan Party approving the execution,
delivery and performance of the corresponding amendments to
this Agreement, if any; and
(iv) a favorable opinion of counsel for the
Loan Parties, to the extent requested by the Administrative
Agent if an amendment is required pursuant to SECTION
4.03(A)(II) addressed to the Administrative Agent and the
Lenders and in form and substance and from counsel reasonably
satisfactory to the Administrative Agent.
(b) FEE AND EXPENSES PAID. There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent and the
Lenders (including any Person becoming a Lender as part of such Facilities
Increase on such Facilities Increase Date), as applicable, all fees and expenses
(including reasonable out-of-pocket fees, charges and disbursements of counsel)
invoiced with reasonable supporting documentation that are due and payable on or
before the Facilities Increase Date (including all fees described in the Fee
Letters).
(c) CONDITIONS TO EACH LOAN AND LETTER OF CREDIT. (i) The
conditions precedent set forth in SECTION 4.02 shall have been satisfied both
before and after giving effect to such Facilities Increase, (ii) such Facilities
Increase shall be made on the terms and conditions set forth in SECTION 2.10(A)
and (iii) the Company shall be in compliance with SECTION 7.16(A) and (B) on
such Facilities Increase Date for the most recently ended fiscal quarter for
which financial statements are required to be delivered pursuant to SECTION
6.01(A) or (B) on a Pro-Forma Basis both before and after giving effect to such
Facilities Increase.
(d) LEVERAGE RATIO. At the time of such Facilities Increase,
and after giving effect thereto on a Pro-Forma Basis, the Leverage Ratio does
not exceed 3.75 to 1.0.
(e) YIELD MAINTENANCE. (i) The "all-in yield" of such
Facilities Increase for the Term B Commitments or Revolving Credit Commitments
shall not exceed such all-in yield (on a "marked-to-market" basis) for the Term
B Loans or Revolving Credit Loans outstanding on the Facilities Increase Date
(after giving effect to any increase in the Applicable Margin applicable to the
existing Term B Loans and Revolving Credit Loans becoming effective on the
Facilities Increase Date) and (ii) as of such Facilities Increase Date, the
Weighted Average Life to Maturity of such Facilities Increase for the Term B
Loans shall not be shorter than the remaining Weighted Average Life to Maturity
for the Term B Loans outstanding immediately prior to such Facilities Increase.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative
Agent and the Lenders that on and as of the Closing Date and after giving effect
to the Transactions and the making of the Loans and the other financial
accommodations on the Closing Date and on and as of each date as required by
SECTIONS 4.02 or 4.03:
SECTION 5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE
WITH LAWS. Each Group Company (i) is duly organized or formed, validly existing
and in good standing under the Laws of the jurisdiction of its incorporation or
organization, (ii) has all requisite corporate or other organizational power and
authority and all requisite governmental licenses, authorizations, consents and
approvals to (A) own its assets and carry on its business and (B) execute,
deliver and perform its obligations under the Loan Documents to which it is a
party, (iii) 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 (iv)
is in compliance with all Laws; except in any case referred to in CLAUSE
(II)(A), (III) or (iv), to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.
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SECTION 5.02 AUTHORIZATION; NO CONTRAVENTION. The execution,
delivery and performance by each Loan Party of each Loan Document to which such
Person is party have been duly authorized by all necessary corporate,
partnership, limited liability company or other organizational action, and do
not and will not (i) contravene the terms of any of such Person's Organization
Documents, (ii) conflict with or result in any breach or contravention of, or
the creation of any Lien (other than Permitted Liens) under, any Contractual
Obligation to which such Person is a party or any order, injunction, writ or
decree of any Governmental Authority or any arbitral award to which such Person
or its property is subject except in any case that such conflict, breach or
contravention would not reasonably be expected individually or in the aggregate
to have a Material Adverse Effect or (iii) violate any Law, except in any case
for such violations could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
SECTION 5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS.
Except for filings necessary to perfect the Liens in favor of the Collateral
Agent in the Collateral and to release Liens in respect of the Refinanced
Agreements and other consents, authorizations, notices, approvals and exemptions
that have been obtained prior to or as of the Closing Date or as are scheduled
on SCHEDULE 5.03 hereto, no material 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 to which it
is a party.
SECTION 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 (i) as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and (ii) that rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability (regardless of whether enforcement is sought by
proceedings in equity or at law).
SECTION 5.05 FINANCIAL CONDITION; NO MATERIAL ADVERSE EFFECT.
(a) AUDITED FINANCIAL STATEMENTS. 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 in all material respects the financial condition of the Company and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or
contingent, of the Company and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.
(b) MATERIAL ADVERSE CHANGE. 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.
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(c) PRO-FORMA FINANCIAL STATEMENTS. The consolidated balance
sheet of the Company and its Consolidated Subsidiaries as of December 31, 2004,
prepared on a Pro-Forma Basis giving effect to the consummation of the
Transactions, has heretofore been furnished to each Lender as part of the
Pre-Commitment Information. Such Pro-Forma balance sheet has been prepared in
good faith by the Company, based on the assumptions used to prepare the
pro-forma financial information contained in the Pre-Commitment Information
(which assumptions are believed by the Company on the date hereof and on the
Closing Date to be reasonable and fair in light of current conditions and facts
then known to the Company), is based on the best information available to the
Company as of the date of delivery thereof, accurately reflects all material
adjustments required to be made to give effect to the Transactions and presents
fairly in all material respects on a Pro-Forma basis the estimated consolidated
financial position of the Company and its Consolidated Subsidiaries as of
December 31, 2004 assuming that the Transaction had actually occurred on that
date.
(d) PROJECTIONS. The projections prepared as part of, and
included in, the Pre-Commitment Information (which include projected balance
sheets and income and cash flow statements on a quarterly basis for the period
from the Closing Date through December 31, 2005 and on an annual basis for each
of the following five fiscal years) have been prepared on a basis consistent
with the financial statements referred to in SUBSECTION (A) above and are based
on good faith estimates and assumptions made by management of the Company. On
the Closing Date, such management believes that such projections are reasonable
and attainable, it being recognized by the Lenders, however, that projections as
to future events are not to be viewed as facts and that actual results during
the period or periods covered by such projections may differ from the projected
results and that such differences may be material.
(e) POST-CLOSING FINANCIAL STATEMENTS. The financial
statements delivered to the Lenders pursuant to SECTION 6.01(A) and (B), if any,
(i) have been prepared in accordance with GAAP (except as may otherwise be
permitted under SECTION 6.01(A) and (B)) and (ii) present fairly (on the basis
disclosed in the footnotes to such financial statements, if any) in all material
respects the consolidated and consolidating financial condition, results of
operations and cash flows of the Company and its Consolidated Subsidiaries as of
the respective dates thereof and for the respective periods covered thereby.
(f) NO UNDISCLOSED LIABILITIES. Except as reflected in the
financial statements described in SUBSECTION (A) and (B) above, items disclosed
on SCHEDULE 5.05 or SCHEDULE 7.01 hereof and the Indebtedness incurred under
this Agreement, there were as of the Closing Date (and after giving effect to
any Loans made and Letters of Credit issued on such date), no material
liabilities or obligations (excluding current obligations incurred in the
ordinary course of business) with respect to any Group Company of any nature
whatsoever (whether absolute, accrued, contingent or otherwise and whether or
not due and including obligations or liabilities for taxes, long-term leases and
unusual forward or other long-term commitments).
SECTION 5.06 LITIGATION. Except as specifically disclosed in
SCHEDULE 5.06, there are no actions, suits, investigations or legal, equitable,
arbitration or administrative proceedings pending or, to the knowledge of any
Loan Party, threatened against or affecting any Group Company in which there is
a reasonable possibility of an adverse decision that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect.
SECTION 5.07 NO DEFAULT. No Group Company is in default under
or with respect to any Contractual Obligation that could 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.
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SECTION 5.08 OWNERSHIP OF PROPERTY; LIENS. Each Group Company
has good and marketable title to, or valid leasehold interests or license in,
all its material properties and assets, except for Permitted Liens and minor
defects in title that do not interfere with its ability to conduct its business
as currently conducted.
SECTION 5.09 ENVIRONMENTAL COMPLIANCE. No Group Company has
failed to comply with any Environmental Law or to obtain, maintain, or comply
with any permit, license or other approval required under any Environmental Law
or is subject to any Environmental Liability in any case which, individually or
collectively, could reasonably be expected to result in a Material Adverse
Effect or has received written notice of any claim with respect to any
Environmental Liability the subject of which notice could reasonably be expected
to have a material Adverse Effect, and no Group Company knows of any basis for
any Environmental Liability against any Group Company that could reasonably be
expected to have a Material Adverse Effect.
SECTION 5.10 INSURANCE. The properties of each Group Company
are insured with financially sound and reputable insurance companies not
Affiliates of the Company, in such amounts (after giving effect to any
self-insurance compatible with the following standards), with such deductibles
and covering such risks as are prudent in the reasonable business judgment of
the Company's officers.
SECTION 5.11 TAXES. Each Group Company has filed, or caused to
be filed, all material federal, state, local and foreign tax returns required to
be filed and paid (i) all amounts of taxes shown thereon to be due (including
interest and penalties) and (ii) all other material taxes, fees, assessments and
other governmental charges (including mortgage recording taxes, documentary
stamp taxes and intangible taxes) owing by it, except for such taxes (A) which
are not yet delinquent, (B) that are being contested in good faith and by proper
proceedings diligently pursued, and against which adequate reserves are being
maintained in accordance with GAAP or (C) unless the failure to make any such
payment could give rise to an immediate right to foreclose on a Lien securing
such amounts (unless proceedings thereto conclusively operate to stay such
foreclosure). No Loan Party knows of any pending investigation of such party by
any taxing authority or proposed tax assessments against any Group Company that
would, if made, have a Material Adverse Effect.
SECTION 5.12 ERISA; FOREIGN PENSION PLANS; EMPLOYEE BENEFIT
ARRANGEMENTS. Except as disclosed in SCHEDULE 5.12:
(a) ERISA.
(i) There are no Unfunded Liabilities in
excess of the Threshold Amount (A) with respect to any member
of the Group Companies and (B) except as would not reasonably
be expected to have a Material Adverse Effect, with respect to
any ERISA Affiliate; PROVIDED that for purposes of this
SECTION 5.12(A)(I)(B) only, Unfunded Liabilities shall mean
the amount (if any) by which the projected benefit obligation
exceeds the value of the plan's assets as of its last
valuation date using the actuarial assumptions and methods
being used by the plans' actuaries for making such
determination
(ii) Each Plan, other than a Multiemployer
Plan, complies in all respects with the applicable
requirements of ERISA and the Code, and each Group Company
complies in all respects with the applicable requirements of
ERISA and the Code with respect to all Multiemployer Plans to
which it contributes, except to the extent that the failure to
comply therewith would not reasonably be expected to have a
Material Adverse Effect.
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(iii) Except as would not reasonably be
expected to have a Material Adverse Effect with respect to
clauses (iv) and (viii) of the definition of ERISA Event, no
ERISA Event has occurred or, subject to the passage of time,
is reasonably expected to occur with respect to any Plan
maintained by any member of the Group Companies and, except to
the extent that such ERISA Event would not reasonably be
expected to have a Material Adverse Effect, no ERISA Event has
occurred or, subject to the passage of time, is reasonably
expected to occur with respect to any Plan maintained by an
ERISA Affiliate.
(iv) No Group Company: (A) is or has been
within the last six years a party to any Multiemployer Plan;
or (B) has completely or partially withdrawn from any
Multiemployer Plan.
(v) If any Group Company or any ERISA
Affiliate were to incur a complete withdrawal (as described in
Section 4203 of ERISA) from any Multiemployer Plan as of the
Closing Date, the aggregate withdrawal liability, as
determined under Section 4201 of ERISA, with respect to all
such Multiemployer Plans would not exceed the Threshold
Amount.
(vi) The execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereunder will not involve any transaction that
is subject to the prohibitions of Section 406 of ERISA or in
connection with which taxes could be imposed pursuant to
Section 4975(c)(1)(A)-(D) of the Code, for which an exemption
under ERISA does not apply, except as would not reasonably be
expected to result in a material liability.
(vii) No Group Company has any contingent
liability with respect to any post-retirement benefit under a
Welfare Plan that could reasonably be expected to have a
Material Adverse Effect.
(b) FOREIGN PENSION PLANS. Each Foreign Pension Plan has been
maintained in material compliance with its terms and with the requirements of
any and all applicable Laws, statutes, rules, regulations and orders and has
been maintained, where required, in good standing with applicable regulatory
authorities except to the extent that the failure to comply therewith would not
reasonably be expected to have a Material Adverse Effect. No Group Company has
incurred any obligation in an amount that would reasonably be expected to have a
Material Adverse Effect in connection with the termination of or withdrawal from
any Foreign Pension Plan.
(c) EMPLOYEE BENEFIT ARRANGEMENTS.
(i) All liabilities under the Employee
Benefit Arrangements are (A) funded to at least the minimum
level required by Law or, if higher, to the level required by
the terms governing the Employee Benefit Arrangements, (B)
insured with a reputable insurance company, (C) provided for
or recognized in the financial statements most recently
delivered to the Administrative Agent pursuant to SECTION 6.01
hereof or (D) estimated in the formal notes to the financial
statements most recently delivered to the Administrative Agent
pursuant to SECTION 6.01 hereof, where such failure to fund,
insure provide for, recognize or estimate the liabilities
arising under such arrangements could reasonably be expected
to have a Material Adverse Effect.
(ii) There are no circumstances which may
give rise to a liability in relation to the Employee Benefit
Arrangements which are not funded, insured, provided for,
recognized or estimated in the manner described in CLAUSE (I)
above and which could reasonably be expected to have a
Material Adverse Effect.
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(iii) Each Group Company is in compliance
with all applicable Laws, trust documentation and contracts
relating to the Employee Benefit Arrangements, except as would
not be expected to have a Material Adverse Effect.
SECTION 5.13 SUBSIDIARIES; EQUITY INTERESTS. SCHEDULE 5.13
sets forth a complete and accurate list as of the Closing Date of all
Subsidiaries of the Company. SCHEDULE 5.13 sets forth as of the Closing Date the
jurisdiction of formation of each such Subsidiary, whether each such Subsidiary
is a Subsidiary Guarantor, whether such Subsidiary is a Project Subsidiary, the
number of authorized shares of each class of Equity Interests of each such
Subsidiary, the number of outstanding shares of each class of Equity Interests,
the number and percentage of outstanding shares of each class of Equity
Interests of each such Subsidiary owned (directly or indirectly) by any Person
and the number and effect, if exercised, of all Equity Equivalents of each such
Subsidiary. All the outstanding Equity Interests of each Subsidiary of the
Company are validly issued, fully paid and non-assessable and were not issued in
violation of the preemptive rights of any shareholder and, as of the Closing
Date, are owned by the Company, directly or indirectly, free and clear of all
Liens (other than Permitted Liens and those arising under the Collateral
Documents). Other than as set forth on SCHEDULE 5.13, as of the Closing Date, no
such Subsidiary has outstanding any Equity Equivalents nor does any such Person
have outstanding any rights to subscribe for or to purchase or any options for
the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its Equity Interests.
SECTION 5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT;
PUBLIC UTILITY HOLDING COMPANY ACT.
(a) None of the Company and its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying "margin stock" within the
meaning of Regulation U. No part of the Letters of Credit or proceeds of the
Loans will be used, directly or indirectly, for the purpose of purchasing or
carrying any "margin stock" within the meaning of Regulation U. If requested by
any Lender or the Administrative Agent, the Company will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in Regulation U. No
indebtedness being reduced or retired out of the proceeds of the Loans was or
will be incurred for the purpose of purchasing or carrying any margin stock
within the meaning of Regulation U or any "margin security" within the meaning
of Regulation T. "Margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the Company
and its Consolidated Subsidiaries. None of the transactions contemplated by this
Agreement (including the direct or indirect use of the proceeds of the Loans)
will violate or result in a violation of the Securities Act, the Exchange Act or
Regulation T, U or X.
(b) None of the Group Companies is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940, each as amended. In addition, none of the Group
Companies is (i) an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, (ii) controlled by such a
company, or (iii) a "holding company", a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary" of a
"holding company", within the meaning of the Public Utility Holding Company Act
of 1934, as amended.
SECTION 5.15 DISCLOSURE. No written information or written
data concerning the Company and its Subsidiaries (excluding financial
projections, budgets, estimates, general market data and other forward looking
information) made by any Loan Party in any Loan Document or furnished to the
Administrative Agent or any Lender by or on behalf of any Loan Party in
connection with any Loan Document, when taken as a whole, contains any untrue
statement of a material fact or omits any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not materially misleading in light of the circumstances under which such
statements were made and as of the date furnished; PROVIDED that (i) to the
extent any such statement, information or report therein was based upon or
constitutes a forecast, projection or other forward looking statement, the
Company represents only that it acted in good faith and utilized assumptions
believed by it to be reasonable at the time made (it being understood and agreed
that projections as to future events are not to be viewed as facts or guaranties
of future performance, that actual results during the period or periods covered
by such projections may differ from the projects results and that such
differences may be material and that the Loan Parties make no representation
that such representations will in fact be realized) and (ii) as to statements,
information and reports specified as having been supplied by third parties,
other than Affiliates of the Company or any of its Subsidiaries, the Company
represents only that it is not aware of any material misstatement or omission
therein.
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SECTION 5.16 COMPLIANCE WITH LAW. Each Group Company is in
compliance with all requirements of Law (including Environmental Laws)
applicable to it or to its properties, except for any such failure to comply
which could not reasonably be expected to cause a Material Adverse Effect. To
the knowledge of the Loan Parties, none of the Group Companies or any of their
respective material properties or assets is subject to or in default with
respect to any judgment, writ, injunction, decree or order of any court or other
Governmental Authority which, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. As of the Closing Date,
except as disclosed in SCHEDULE 5.16, none of the Group Companies has received
any written communication from any Governmental Authority that alleges that any
of the Group Companies is not in compliance in any material respect with any
Law, except for allegations that have been satisfactorily resolved and are no
longer outstanding or which, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.17 INTELLECTUAL PROPERTY. Except as set forth on
SCHEDULE 5.17, the Company and its Subsidiaries own, or possess the right to
use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other rights that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person except for those conflicts which could not
reasonably be expected to have a Material Adverse Effect. To the best knowledge
of the Company, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by the Company or any Subsidiary infringes in any material respect
upon any rights held by any other Person.
SECTION 5.18 PURPOSE OF LOANS AND LETTERS OF CREDIT. The
proceeds of the Term B Closing Date Loans and any Revolving Loans made on the
Closing Date will be used solely to effect the to refinance other existing
Indebtedness of the Company and its Subsidiaries and to pay fees and expenses
incurred in connection with the transactions contemplated hereby. The proceeds
of any Term B Delayed Draw Loans will be used solely to finance Consolidated
Capital Expenditures and related expenses. The proceeds of the Revolving Loans,
Swing Line Loans and any Term B Loans comprising part of a Facilities Increase
made after the Closing Date will be used solely to provide for the working
capital requirements of the Company and its Subsidiaries and for the general
corporate purposes of the Company and its Subsidiaries, including Permitted
Business Acquisitions and to finance Consolidated Capital Expenditures and
Restricted Payments permitted by SECTION 7.07. The Letters of Credit will be
used only for lawful general corporate purposes, including, for (i) deposits or
security guarantees in the ordinary course of business, (ii) to provide support
for performance, payment and surety bonds issued by surety companies to support
contracts entered into by the Company and its Subsidiaries in the ordinary
course of business, including, without limitation, workers compensation
insurance and other indemnity obligations and (iii) such other obligations as
the L/C Issuer may agree.
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SECTION 5.19 SOLVENCY. After consummation of the Transactions
and the consummation of all financings related thereto, the Loan Parties (on a
consolidated basis) are Solvent.
SECTION 5.20 COLLATERAL DOCUMENTS.
(a) ARTICLE 9 COLLATERAL. Each of the Security Agreement and
the Pledge Agreement is effective to create in favor of the Collateral Agent,
for the ratable benefit of the Finance Parties, a legal, valid and enforceable
security interest in the Collateral described therein and, when financing
statements in appropriate form are filed in the offices specified on SCHEDULE
4.01 to the Security Agreement and the Pledged Collateral is delivered to the
Collateral Agent, each of the Security Agreement and the Pledge Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the grantors thereunder in such of the Collateral in which a
security interest can be perfected under Article 9 of the Uniform Commercial
Code, in each case prior and superior in right to any other Person, other than
with respect to Permitted Liens.
(b) INTELLECTUAL PROPERTY. When financing statements in the
appropriate form are filed in the offices specified on SCHEDULE 4.01 to the
Security Agreement, the Assignment of Patents and Trademarks, substantially in
the form of Exhibit A to the Security Agreement, is filed in the United States
Patent and Trademark Office and the Assignment of Copyrights, substantially in
the form of Exhibit B to the Security Agreement, is filed in the United States
Copyright Office, the Security Agreement shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the grantors
thereunder in the United States patents, trademarks, copyrights, licenses and
other intellectual property rights covered in such Assignments, in each case
prior and superior in right to any other Person (it being understood that
subsequent recordings in the United States Patent and Trademark Office and the
United States Copyright Office may be necessary to perfect a lien on registered
trademarks, trademark applications and copyrights acquired by the Loan Parties
after the Closing Date).
(c) REAL PROPERTY MORTGAGES. The Mortgages are effective to
create in favor of the Collateral Agent, for the ratable benefit of the Finance
Parties, a legal, valid and enforceable Lien on all of the right, title and
interest of the Loan Parties in and to the Mortgaged Properties thereunder and
the proceeds thereof, and when the Mortgages are filed in the offices specified
on SCHEDULE 5.20(C), the Mortgages shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties in
such Mortgaged Properties and the proceeds thereof, in each case prior in right
to any other Person, other than with respect to Permitted Liens.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Company agrees that, until all Senior Credit Obligations
(in each case other than contingent indemnification obligations) have been paid
in full:
SECTION 6.01 FINANCIAL STATEMENTS. The Company will furnish,
or cause to be furnished, to the Administrative Agent for further distribution
to each of the Lenders:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available, and in
any event within 120 days after the end of each fiscal year of the Company
(commencing with the fiscal year ending December 31, 2005), a consolidated and
consolidating balance sheet of the Company and its Consolidated Subsidiaries, as
of the end of such fiscal year, and the related consolidated and consolidating
statement of operations and stockholders' equity and consolidated statement of
cash flows for such fiscal year, setting forth in comparative form consolidated
and consolidating figures for the preceding fiscal year, all such financial
statements to be in reasonable form and detail and (in the case of such
consolidated financial statements) audited by independent certified public
accountants of recognized national standing or which are reasonably acceptable
to the Administrative Agent and accompanied by an opinion of such accountants
(which shall not be qualified or limited in any material respect) to the effect
that such consolidated financial statements have been prepared in accordance
with GAAP and present fairly in all material respects the consolidated financial
position and consolidated results of operations and cash flows of the Company
and its Consolidated Subsidiaries in accordance with GAAP consistently applied
(except for changes with which such accountants concur).
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(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available after
the end of each of the first three fiscal quarters of the Company (commencing
with the fiscal quarter ended June 30, 2005) and, in circumstances where (i) the
financial information required to be delivered pursuant to clause (a) above is
not available and (ii) a dividend is to be paid by the Company pursuant to
SECTION 7.07(III), then as soon as available after the end of the fourth fiscal
quarter of the Company, and in any event within 45 days after the end of each of
the first three fiscal quarters in each fiscal year of the Company, a
consolidated and consolidating balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such fiscal quarter, together with related
consolidated and consolidating statement of operations and stockholders' equity
and consolidated statement of cash flows for such fiscal quarter and the then
elapsed portion of such fiscal year, setting forth in comparative form
consolidated and consolidating figures for the corresponding periods of the
preceding fiscal year, and accompanied by a certificate of a Responsible Officer
of the Company to the effect that such quarterly financial statements have been
prepared in accordance with GAAP and present fairly in all material respects the
consolidated financial position and consolidated results of operations and cash
flows of the Company and its Consolidated Subsidiaries in accordance with GAAP
consistently applied, subject to changes resulting from normal year-end audit
adjustments and the absence of footnotes required by GAAP.
As to any information contained in materials furnished
pursuant to SECTION 6.02(D), the Company shall not be separately required to
furnish such information under SECTION 6.01(A) or (B), but the foregoing shall
not be in derogation of the obligation of the Company to furnish the information
and materials described in SECTION 6.01(A) or (B) at the times specified
therein.
SECTION 6.02 CERTIFICATES; OTHER INFORMATION. The Company will
furnish, or cause to be furnished, to the Administrative Agent for further
distribution to each of the Lenders:
(a) COMPLIANCE CERTIFICATE. At the time of delivery of the
financial statements provided for in SECTIONS 6.01(A) and 6.01(B) above, a
Compliance Certificate signed by a Responsible Officer of the Company (i)
demonstrating compliance with the financial covenants contained in SECTION 7.16
by calculation thereof as of the end of the fiscal period covered by such
financial statements, (ii) stating that no Event of Default exists, or if any
Event of Default does exist, specifying the nature and extent thereof and what
action the Company proposes to take with respect thereto and (iii) stating
whether, since the date of the most recent financial statements delivered
hereunder, there has been any material change in the GAAP applied in the
preparation of the financial statements of the Company and its Consolidated
Subsidiaries, and, if so, describing such change. At the time such certificate
is required to be delivered, the Company shall promptly deliver to the
Administrative Agent, at the Administrative Agent's Office, information
regarding any change in the Leverage Ratio that would change the then existing
Applicable Margin.
(b) AUDITOR'S REPORTS. Promptly upon receipt thereof, a copy
of any detailed audit reports, management letters or recommendations submitted
to the board of directors (or the audit committee of the board of directors) of
any Group Company by independent accountants in connection with the accounts or
books of any Group Company, or any audit of any of them.
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(c) SEC REPORTS. 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 Company, and copies of all annual,
regular, periodic and special reports and registration statements which any
Group Company 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) ANNUAL BUSINESS PLAN AND BUDGETS. At least 45 days after
the end of each fiscal year of the Company, beginning with the fiscal year
ending December 31, 2005 (i.e., for the year ending December 31, 2006), an
annual business plan and budget of the Company and its Consolidated Subsidiaries
containing, among other things, projected financial statements for the next
fiscal year.
(e) EMPLOYEE BENEFIT REPORTS. Promptly after the same are
available, the most recently prepared actuarial reports in relation to the Plans
and Employee Benefit Arrangements for the time being operated by Group
Companies, and within 30 days of the same becoming available, the most recently
prepared actuarial reports in relation to the Foreign Pension Plans, which are
prepared in order to comply with the then current statutory or auditing
requirements within the relevant jurisdiction other than with respect to Foreign
Pension Plans where the aggregate Unfunded Liabilities of such Foreign Pension
Plans are less than $1,000,000. If requested by the Administrative Agent, the
Company will promptly instruct an actuary to prepare such actuarial reports and
deliver those to the Administrative Agent, if the Administrative Agent has
reasonable grounds for believing that any relevant statutory or auditing
requirement within the relevant jurisdiction is not being complied with and
would result in a Material Adverse Effect. Promptly upon request, the Company
shall also furnish the Administrative Agent and the Lenders with such additional
information concerning any Plan, Foreign Pension Plan or Employee Benefit
Arrangement as may be reasonably requested, including, but not limited to, with
respect to any Plans, copies of each annual report/return (Form 5500 series), as
well as all schedules and attachments thereto required to be filed with the
Department of Labor pursuant to ERISA and the Code, respectively, for each "plan
year" (within the meaning of Section 3(39) of ERISA).
(f) ENVIRONMENTAL REPORTS. Promptly after any Group Company
learning of any of the following, written notice of each of the following:
(i) that any Group Company is or may be
liable to any Person as a result of a release or threatened
release that could reasonably be expected to subject such Loan
Party or such Subsidiary to Environmental Liabilities
exceeding the Threshold Amount;
(ii) the receipt by any Group Company of
notification that any real or personal property of such Group
Company is or is reasonably likely to be subject to any Lien
securing any Environmental Liability;
(iii) the receipt by any Group Company of
any notice of violation of or potential liability under, or
knowledge by such Group Company that there exists a condition
that could reasonably be expected to result in a violation of
or liability under, any Environmental Law, except for
violations and liabilities the consequence of which, in the
aggregate, would not be reasonably likely to subject the
Company and its Consolidated Subsidiaries collectively to
Environmental Liabilities exceeding the Threshold Amount;
(iv) the commencement of any judicial or
administrative proceeding or investigation alleging a
violation of or liability under any Environmental Law, that,
in the aggregate, if adversely determined, would have a
reasonable likelihood of subjecting the Company and its
Consolidated Subsidiaries collectively to Environmental
Liabilities exceeding the Threshold Amount;
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(v) any proposed acquisition of stock,
assets or real estate, any proposed leasing of property or any
other action by any Group Company other than those the
consequences of which, in the aggregate, do not have a
reasonable likelihood of subjecting the Company and its
Consolidated Subsidiaries collectively to Environmental
Liabilities exceeding the Threshold Amount;
(vi) any proposed action by any Group
Company or any proposed change in Environmental Laws that, in
the aggregate, have a reasonable likelihood of requiring any
Group Company to obtain additional environmental, health or
safety Permits or make additional capital improvements to
obtain compliance with Environmental Laws that, in the
aggregate, would have cost $1,000,000 or more or that shall
subject the Company and it Consolidated Subsidiaries to
additional Environmental Liabilities exceeding the Threshold
Amount; and
(vii) upon written request by any Lender
through the Administrative Agent, a report providing an update
of the status of any environmental, health or safety
compliance, hazard or liability issue identified in any notice
or report delivered pursuant to this Agreement.
(g) ADDITIONAL PATENTS, TRADEMARKS AND COPYRIGHTS. At the time
of delivery of the financial statements and reports provided for in SECTION
6.01(A), a report signed by the financial officer of the Company setting forth
(i) a list of registration numbers for all patents, trademark registrations,
service xxxx registrations, registered tradenames and copyright registrations
awarded to the Company or any Domestic Subsidiary since the last day of the
immediately preceding fiscal year of the Company and (ii) a list of all patent
applications, trademark applications, service xxxx applications, trade name
applications and copyright applications submitted by the Company or any Domestic
Subsidiary since the last day of the immediately preceding fiscal year and the
status of each such application, all in such form as shall be reasonably
satisfactory to the Administrative Agent.
(h) DOMESTICATION IN OTHER JURISDICTION. Not less than 30 days
after any change in the jurisdiction of organization of any Loan Party, a copy
of all documents and certificates intended to be filed or otherwise executed to
effect such change.
(i) PROJECT NON-RECOURSE DEBT INSTRUMENTS. Within 30 days of
the date on which any Indebtedness is incurred by a Project Subsidiary in
reliance on the exception provided in SECTION 7.01(XV) for Project Non-Recourse
Debt, the Company will furnish the Administrative Agent with copies of the
agreements, documents and other instruments governing such Indebtedness,
together with a certificate of a Responsible Officer to the effect that such
Indebtedness constitutes Project Non-Recourse Debt and that the issuer thereof
is a Project Subsidiary.
(j) OTHER INFORMATION. With reasonable promptness upon request
therefor, such other information regarding the business, properties or financial
condition of any Group Company as the Administrative Agent or any Senior Credit
Party may reasonably request, which may include such information as any Senior
Credit Party may reasonably determine is necessary or advisable to enable it
either (i) to comply with the policies and procedures adopted by it and its
Affiliates to comply with the Bank Secrecy Act, the U.S. Patriot Act and all
applicable regulations thereunder or (ii) to respond to requests for information
concerning the Company and its Subsidiaries from any governmental,
self-regulatory organization or financial institution in connection with its
anti-money laundering and anti-terrorism regulatory requirements or its
compliance procedures under the U.S. Patriot Act, including in each case
information concerning the Company's direct and indirect shareholders and its
use of the proceeds of the Credit Extensions hereunder.
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(k) LABELING AND TREATMENT OF CERTAIN INFORMATION. The Company
hereby acknowledges that (i) the Administrative Agent and/or the Joint Lead
Arrangers will make available to the Lenders and the L/C Issuers materials
and/or information provided by or on behalf of the Company hereunder
(collectively, "GROUP COMPANY MATERIALS") by posting the Group Company Materials
on IntraLinks or another similar electronic system (the "PLATFORM") and (ii)
certain of the Lenders and L/C Issuers may be "public-side" Lenders (i.e.,
Lenders that do not wish to receive material non-public information with respect
to the Group Companies or their securities) (each, a "PUBLIC LENDER"). The
Company hereby agrees that: (i) all Group Company Materials that are to be made
available to Public Lenders shall be clearly and conspicuously marked "PUBLIC"
which, at a minimum, shall mean that the word "PUBLIC" shall appear prominently
on the first page thereof; (ii) by marking Group Company Materials "PUBLIC," the
Company shall be deemed to have authorized the Administrative Agent, the Joint
Lead Arrangers, the L/C Issuers and the Lenders to treat such Group Company
Materials as not containing any material non-public information with respect to
the Group Companies or their securities for purposes of United States federal
and state securities laws, it being understood that certain of such Group
Company Materials may be subject to confidentiality requirements of SECTION
10.07 hereof; (iii) all Group Company Materials marked "PUBLIC" are permitted to
be made available through a portion of the Platform designated "Public
Investor," and (iv) the Administrative Agent and the Joint Lead Arrangers shall
be entitled to treat any Group Company Materials that are not marked "PUBLIC" as
being suitable only for posting on a portion of the Platform not designated
"Public Investor". Notwithstanding the foregoing, the Company shall be under no
obligation to xxxx any Group Company Materials "PUBLIC."
Documents required to be delivered pursuant to SECTION 6.01(A)
or (B) or SECTION 6.02(C) (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered electronically and if
so delivered, shall be deemed to have been delivered on the date (i) on which
the Company posts such documents, or provides a link thereto on the Company's
website on the Internet at the website address listed on SCHEDULE 10.02; or (ii)
on which such documents are posted on the Company's behalf on an Internet or
Intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); PROVIDED that the Company shall notify (which may be by
facsimile or electronic mail) the Administrative Agent of the posting of any
such documents. Notwithstanding anything contained herein, in every instance the
Company shall be required to provide paper copies of the Compliance Certificates
required by SECTION 6.02(A) to the Administrative Agent. Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by the
Company with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.
SECTION 6.03 NOTICES. The Company will promptly notify the
Administrative Agent:
(i) of the occurrence of any Default or
Event of Default;
(ii) of (A) breach or non-performance of, or
any default under, any material Contractual Obligation of the
Company or any of its Subsidiaries, (B) any dispute,
litigation, investigation, proceeding or suspension between
the Company or any of its Subsidiaries and any Governmental
Authority, (C) the commencement of, or any material adverse
development in, any litigation or proceeding affecting the
Company or any of its Subsidiaries, including pursuant to any
applicable Environmental Law, (D) any litigation,
investigation or proceeding affecting any Loan Party and (E)
and any other matter, event or circumstance, in each case of
subclauses (A) through (E) to the extent that the same could
reasonably be expected to result in a Material Adverse Effect;
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(iii) of the occurrence of any ERISA Event
and of: (A) any event or condition that constitutes, or is
reasonably likely to lead to, an ERISA Event; or (B) any
change in the funding status of any Plan or Foreign Pension
Plan that would reasonably be expected to have a Material
Adverse Effect, together with a description of any such event
or condition or a copy of any such notice and a statement by a
Responsible Officer of the Company briefly setting forth the
details regarding such event, condition or notice and the
action, if any, which has been or is being taken or is
proposed to be taken by the Company or one or more other Loan
Parties with respect thereto; or (C) any event or condition
that constitutes, or is reasonably likely to lead to, an event
described in SECTION 8.01(H)(III)-(VIII);
(iv) the occurrence of any default or event
of default in respect of any Project Non-Recourse Debt; and
(v) of any material change in accounting
policies or financial reporting practice by the Company or any
of its Subsidiaries.
Each notice pursuant to this SECTION 6.03 shall be accompanied
by a statement of a Responsible Officer of the Company setting forth details of
the occurrence referred to therein and stating what action the Company has taken
and proposes to take with respect thereto. Each notice pursuant to SECTION
6.03(A) shall describe with particularity any and all provisions of this
Agreement or the other Loan Documents that have been breached.
SECTION 6.04 PAYMENT OF OBLIGATIONS. Each of the Group
Companies will pay and discharge (i) all material taxes, assessments and other
governmental charges or levies imposed upon it, or upon its income or profits,
or upon any of its properties, before they shall become more than 90 days
delinquent and (ii) all lawful claims (including claims for labor, materials and
supplies) which, if unpaid, might give rise to a Lien (other than a Permitted
Lien) upon any of its properties; PROVIDED, HOWEVER, that no Group Company shall
be required to pay any such tax, assessment, charge, levy, claim or Indebtedness
(A) which is being contested in good faith by appropriate proceedings and as to
which adequate reserves have been established in accordance with GAAP or (B) the
failure to make any such payment could not reasonably be expected to have a
Material Adverse Effect.
SECTION 6.05 PRESERVATION OF EXISTENCE ETC. Except as a result
of or in connection with a dissolution, merger or disposition of a Subsidiary of
the Company permitted under SECTION 7.04 or SECTION 7.05, each Group Company
will: (i) preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization; (ii) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except in the case of CLAUSE (I) or (II) to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (iii) 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.
SECTION 6.06 MAINTENANCE OF PROPERTIES. Each Group Company
will: (i) 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 Casualty and Condemnation excepted; and
(ii) 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.
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SECTION 6.07 MAINTENANCE OF INSURANCE; CERTAIN PROCEEDS.
(a) INSURANCE POLICIES. Each of the Group Companies will 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 risk and liabilities and
with such deductibles or self-insurance retentions as are prudent in the good
faith judgment of the officers of the Company. The Collateral Agent shall be
named as loss payees or mortgagees, as its interest may appear, with respect to
all such property and casualty policies and additional insured with respect to
all business interruption or liability policies (other than worker's
compensation, director and officer liability or other policies in which such
endorsements are not customary), and each provider of any such insurance shall
agree, by endorsement upon the policy or policies issued by it or by independent
instruments furnished to the Collateral Agent, that if the insurance carrier
shall have received written notice from the Collateral Agent of the occurrence
and continuance of an Event of Default, the insurance carrier shall pay all
proceeds otherwise payable to the Company or one or more of its Subsidiaries
under such policies directly to the Collateral Agent and that it will give the
Collateral Agent 10 days' prior written notice before any such policy or
policies shall be altered or canceled, and that no act or default of any Group
Company or any other Person shall affect the rights of the Collateral Agent or
the Lenders under such policy or policies.
(b) LOSS EVENTS. In case of any Casualty or Condemnation with
respect to any property of any Group Company or any part thereof having a fair
market value in excess of the Threshold Amount, the Company shall promptly give
written notice thereof to the Administrative Agent generally describing the
nature and extent of such damage, destruction or taking. In such case, the
Company shall, or shall cause such Group Company to, promptly repair, restore or
replace the property of such Person (or part thereof) which was subject to such
Casualty or Condemnation, at such Person's cost and expense, whether or not the
Insurance Proceeds or Condemnation Award, if any, received on account of such
event shall be sufficient for that purpose; PROVIDED, HOWEVER, that such
property need not be repaired, restored or replaced to the extent the failure to
make such repair, restoration or replacement (i)(A) is desirable to the proper
conduct of the business of such Person in the ordinary course and otherwise in
the best interest of such Person and (B) would not materially impair the rights
and benefits of the Collateral Agent or the Finance Parties under the Collateral
Documents or any other Loan Document or (ii) the failure to repair, restore or
replace the property is attributable to the application of the Insurance
Proceeds from such Casualty or the Condemnation Award from such Condemnation to
payment of the Senior Credit Obligations in accordance with the following
provisions of this SECTION 6.07(B). If Company or any of its Subsidiaries shall
receive any Insurance Proceeds from a Casualty or Condemnation Award from a
Condemnation Award exceeding the Threshold Amount in respect of the single event
or series of related events giving rise thereto, such Person will, if required
pursuant to SECTION 2.09(B)(II), promptly pay over such proceeds to the
Administrative Agent, for payment of the Senior Credit Obligations in accordance
with SECTION 2.09(B)(II) and (VI) or, if such funds constitute Reinvestment
Funds, deposit such funds in an account that is subject to a Depository Bank
Agreement.
SECTION 6.08 COMPLIANCE WITH LAWS. Each of the Group Companies
will comply with all requirements of Law applicable to it and its properties to
the extent that noncompliance with any such requirement of Law would reasonably
be expected to have a Material Adverse Effect. Without limiting the generality
of the foregoing, each of the Group Companies will do each of the following as
it relates to any Plan maintained by, or Multiemployer Plan contributed to by,
each of the Group Companies, Foreign Pension Plan or Employee Benefit
Arrangement: (i) maintain each Plan (other than a Multiemployer Plan), Foreign
Pension Plan and Employee Benefit Arrangement in compliance in all material
respects with the applicable provisions of ERISA, the Code or other Federal,
state or foreign Law; (ii) cause each Plan (other than a Multiemployer Plan)
that is qualified under Section 401(a) of the Code to maintain such
qualifications; (iii) make all required contributions to any Plan subject to
Section 412 of the Code and make all required contributions to Multiemployer
Plans; (iv) ensure that there are no Unfunded Liabilities in excess of the
Threshold Amount unless the aggregate amount of such Unfunded Liabilities is
reduced below the Threshold Amount within a 30-day period; (v) except for the
obligations set forth on SCHEDULE 5.12, not become a party to any Multiemployer
Plan; (vi) make all contributions (including any special payments to amortize
any Unfunded Liabilities) required to be made in accordance with all applicable
laws and the terms of each Foreign Pension Plan in a timely manner; (vii) ensure
that all material liabilities under all Employee Benefit Arrangements are either
(A) funded to at least the minimum level required by law or, if higher, to the
level required by the terms governing the Employee Benefit Arrangements; (B)
insured with a reputable insurance company; or (C) provided for or recognized in
the financial statements most recently delivered to the Administrative Agent
under SECTION 6.01(A) or (B); and (viii) ensure that the material contributions
or premium payments to or in respect of all Employee Benefit Arrangements are
and continue to be promptly paid at no less than the rates required under the
rules of such arrangements and in accordance with the most recent actuarial
advice received in relation to the Employee Benefit Arrangement and generally in
accordance with applicable Law; and (ix) shall use its reasonable efforts to
cause each of its ERISA Affiliates to do each of the items listed in CLAUSES (I)
through (IV) above as it relates to Plans and Multiemployer Plans maintained by
or contributed to by its ERISA Affiliates such that there shall be no liability
to a Group Company by virtue of such ERISA Affiliate's acts or failure to act.
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SECTION 6.09 BOOKS AND RECORDS; LENDER MEETING. Each of the
Group Companies will keep books and records of its transactions that are
complete and accurate in all material respects in accordance with GAAP
(including the establishment and maintenance of appropriate reserves).
SECTION 6.10 INSPECTION RIGHTS. Each of the Loan Parties will
permit the Administrative Agent or any representative thereof upon reasonable
prior notice (but not more frequently than once per year unless an Event of
Default shall have occurred and be continuing) to inspect the properties and
operations of such Loan Party, and permit, at any reasonable time during normal
business hours and with reasonable notice (but not more frequently than once per
year or at any time without notice if an Event of Default exists), the
Administrative Agent or any representative thereof to visit any or all of its
offices, to discuss its financial matters with its officers and its independent
auditors (and such Loan Party hereby authorizes such independent auditors to
discuss such financial matters with the Administrative Agent or any
representative thereof provided that a representative of such or any other Loan
Party has been given the opportunity to be present), and during such visit to
examine (and, at the expense of such Loan Party, photocopy extracts from) any of
its books or other corporate records.
SECTION 6.11 USE OF PROCEEDS. The Company will use the
proceeds of the Loans and will use the Letters of Credit solely for the purposes
set forth in SECTION 5.18.
SECTION 6.12 ADDITIONAL LOAN PARTIES; ADDITIONAL SECURITY.
(a) ADDITIONAL SUBSIDIARY GUARANTORS. The Company will take,
and will cause each of its Subsidiaries (other than (i) Project Subsidiaries
except to the extent not prohibited by the terms of the instruments governing
any Project Non-Recourse Debt of such Project Subsidiary, (ii) Foreign
Subsidiaries except to the extent provided in SUBSECTION (D) below and (iii)
those Subsidiaries having limited or negligible assets as of the Closing Date
which are to be merged into, or liquidated or dissolved and their residual
assets distributed to, one or more Loan Parties within 90 days after the Closing
Date pursuant to the Company's reorganization plan disclosed to the
Administrative Agent prior to the Closing Date) to take, such actions from time
to time as shall be necessary to ensure that all Subsidiaries of the Company
(other than such Project Subsidiaries, Foreign Subsidiaries and other
Subsidiaries) are Subsidiary Guarantors. Without limiting the generality of the
foregoing, if any Group Company shall form or acquire any new Subsidiary, the
Company, as soon as practicable and in any event within 30 days after such
formation or acquisition, will provide the Collateral Agent with notice of such
formation or acquisition setting forth in reasonable detail a description of all
of the assets of such new Subsidiary and will cause such new Subsidiary (other
than any such Project Subsidiary or such Foreign Subsidiary) to:
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(i) within 30 days after such formation or
acquisition, execute an Accession Agreement pursuant to which
such new Subsidiary shall agree to become a "Guarantor" under
the Subsidiary Guaranty, an "Obligor" under the Security
Agreement and an "Obligor" under the Pledge Agreement and/or
an obligor under such other Collateral Documents as may be
applicable to such new Subsidiary; and
(ii) deliver such proof of organizational
authority, incumbency of officers, opinions of counsel and
other documents as is consistent with those delivered by each
Loan Party pursuant to SECTION 4.01 on the Closing Date or as
the Administrative Agent or the Collateral Agent shall have
reasonably requested.
(b) ADDITIONAL SECURITY. The Company will cause, and will
cause each of its Subsidiaries (other than (i) Project Subsidiaries except to
the extent not prohibited by the terms of the instruments governing any Project
Non-Recourse Debt of such Project Subsidiary, (ii) Foreign Subsidiaries except
to the extent provided in SUBSECTION (D) below and (iii) those Subsidiaries
having negligible assets as of the Closing Date which are to be merged into, or
liquidated or dissolved and their residual assets distributed to, one or more
other Loan Parties within 90 days after the Closing Date pursuant to the
Company's reorganization plan disclosed to the Administrative Agent prior to the
Closing Date) to cause, all of its owned Real Properties with a fair market
value in excess of $1,000,000 hereafter acquired and all or substantially all
personal property located in the United States to be subject at all times to
perfected and, in the case of owned Real Property, title insured Liens in favor
of the Collateral Agent pursuant to the Collateral Documents or such other
security agreements, pledge agreements, mortgages or similar collateral
documents as the Collateral Agent shall request in its sole reasonable
discretion (collectively, the "ADDITIONAL COLLATERAL DOCUMENTS"). With respect
to any owned Real Property having a fair market value in excess of $1,000,000
acquired by any Loan Party subsequent to the Closing Date, such Person will
cause to be delivered to the Collateral Agent with respect to such Real Property
documents, instruments and other items of the types consistent with those
required by SECTION 4.01, all in form and substance reasonably satisfactory to
the Collateral Agent. In furtherance of the foregoing terms of this SECTION
6.12, the Company agrees to promptly provide the Administrative Agent with
written notice of the acquisition by the Company or any of its Subsidiaries
(other than Project Subsidiaries or Foreign Subsidiaries) of any owned Real
Property having a market value greater than $1,000,000, setting forth in each
case in reasonable detail the location and a description of the asset(s) so
acquired. Without limiting the generality of the foregoing, the Company will
cause, and will cause each of its Subsidiaries that is or becomes a Subsidiary
Guarantor to cause, 100% of the Equity Interests of each of their respective
direct and indirect Domestic Subsidiaries that are not Subsidiaries of Foreign
Subsidiaries (or (x) 65% of such Equity Interests, if such Subsidiary is a
direct Foreign Subsidiary, except as provided in SUBSECTION (D) below, or (y) to
the extent not prohibited by the terms of any Organization Document or other
agreement governing a Permitted Joint Venture, such percentage as is equal to
their respective ratable ownership of all Equity Interests in Permitted Joint
Ventures and non-Wholly-Owned Subsidiaries) to be subject at all times to a
first priority, perfected Lien in favor of the Collateral Agent, subject only to
Permitted Liens described in SECTION 7.02(III) or (V).
If, subsequent to the Closing Date, a Loan Party shall acquire
any patents, trademark registrations, service xxxx registrations, registered
trade names, copyright registrations or any applications related to the
foregoing, securities, instruments, chattel paper or other personal property
required to be delivered to the Collateral Agent as Collateral hereunder or
under any of the Collateral Documents, the Company shall promptly (and in any
event within ten Business Days after any Responsible Officer of any Loan Party
acquires knowledge of the same) notify the Collateral Agent of the same. Each of
the Loan Parties shall adhere to the covenants regarding the location of
personal property as set forth in the Collateral Documents.
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All such security interests and mortgages shall be granted
pursuant to documentation consistent with the Collateral Documents executed at
Closing and otherwise reasonably satisfactory in form and substance to the
Collateral Agent and shall constitute valid and enforceable perfected security
interests and mortgages superior to and prior to the rights of all third Persons
and subject to no other Liens except for Permitted Liens. The Additional
Collateral Documents or instruments related thereto shall have been duly
recorded or filed in such manner and in such places as are required by law to
establish, perfect, preserve and protect the Liens in favor of the Collateral
Agent required to be granted pursuant to the Additional Collateral Documents,
and all taxes, fees and other charges payable in connection therewith shall have
been paid in full. The Company shall cause to be delivered to the Collateral
Agent such opinions of counsel, title insurance and other related documents as
may be reasonably requested by the Collateral Agent to assure itself that this
SECTION 6.12(B) has been complied with.
(c) REAL PROPERTY APPRAISALS. If the Collateral Agent or the
Required Lenders determine that they are required by Law or regulation to have
appraisals prepared in respect of the Real Property of any Group Company
constituting Collateral, the Company shall provide to the Collateral Agent
appraisals which satisfy the applicable requirements set forth in 12 C.F.R.,
Part 34 - Subpart C or any successor or similar statute, rule, regulation,
guideline or order, and which shall be in scope, form and substance, and from
appraisers, reasonably satisfactory to the Required Lenders and shall be
accompanied by a certification of the appraisal firm providing such appraisals
that the appraisals comply with such requirements.
(d) SECURITY FROM FOREIGN SUBSIDIARIES. If, following a change
that is reasonably determined to be material by the Administrative Agent in the
relevant Sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, the Company does
not within 90 days after delivery of a request from the Required Lenders deliver
a certificate of a Responsible Officer, with respect to any Foreign Subsidiary
of the Company which has not already had all of the Equity Interests issued by
it pledged pursuant to the Pledge Agreement that (i) a pledge (A) of 65.0% or
more of the total combined voting power of all classes of capital stock of such
Foreign Subsidiary entitled to vote, and (B) of any promissory note issued by
such Foreign Subsidiary to the Company or any of its Domestic Subsidiaries, (ii)
the entering into by such Foreign Subsidiary of a guaranty in form and substance
substantially identical to the Subsidiary Guaranty, (iii) the entering into by
such Foreign Subsidiary of a security agreement in form and substance
substantially identical to the Security Agreement, and (iv) the entering into by
such Foreign Subsidiary of a pledge agreement substantially identical to the
Pledge Agreement, in any such case would cause the undistributed earnings of
such Foreign Subsidiary as determined for United States federal income tax
purposes to be treated as a deemed dividend to such Foreign Subsidiary's United
States parent (or other domestic Affiliate) for United States federal income tax
purposes under Code Section 956 or any similar provision of federal, state or
local law, then, (A) in the case of a failure to deliver the evidence described
in CLAUSE (I) above, that portion of such Foreign Subsidiary's outstanding
capital stock or any promissory notes so issued by such Foreign Subsidiary, in
each case not theretofore pledged pursuant to the Pledge Agreement, shall be
pledged to the Collateral Agent for the benefit of the Finance Parties pursuant
to the Pledge Agreement (or another pledge agreement in substantially identical
form, if needed); (B) in the case of a failure to deliver the evidence described
in CLAUSE (II) above, such Foreign Subsidiary shall execute and deliver the
Subsidiary Guaranty (or another guaranty in substantially identical form, if
needed), guaranteeing the Finance Obligations; (C) in the case of a failure to
deliver the evidence described in CLAUSE (III) above, such Foreign Subsidiary
shall execute and deliver the Security Agreement (or another security agreement
in substantially identical form, if needed), granting to the Collateral Agent,
for the benefit of the Finance Parties, a security interest in all of such
Foreign Subsidiary's assets and securing the Finance Obligations; and (D) in the
case of a failure to deliver the evidence described in CLAUSE (IV) above, such
Foreign Subsidiary shall execute and deliver the Pledge Agreement (or another
pledge agreement in substantially identical form, if needed), pledging to the
Collateral Agent, for the benefit of the Finance Parties, all of the capital
stock and promissory notes owned by such Foreign Subsidiary, in each case to the
extent that entering into the Guaranty, Security Agreement or Pledge Agreement
is permitted by the Laws of the respective foreign jurisdiction and with all
documents delivered pursuant to this SECTION 6.12(D) to be in form, scope and
substance reasonably satisfactory to the Collateral Agent and the Required
Lenders.
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(e) COMPLETION OF ACTIONS. The Company agrees that each action
required by this SECTION 6.12 shall be completed as soon as possible, but in no
event later than 90 days after such action is either requested to be taken by
the Collateral Agent or required to be taken by the Company or any of its
Subsidiaries pursuant to the terms of this SECTION 6.12.
SECTION 6.13 INTEREST RATE PROTECTION AGREEMENTS. Within nine
months after the Closing Date, the Company will enter into and thereafter
maintain in full force and effect interest rate swaps, rate caps, collars or
other similar agreements or arrangements designed to hedge the position of the
Company with respect to interest rates at rates and on terms reasonably
satisfactory to the Administrative Agent, taking into account the market
conditions, to provide protection against interest rates on Funded Indebtedness
bearing floating interest rates for a period expiring no earlier than 24 months
after the date of execution and delivery of such agreements with respect to a
notional amount of Funded Indebtedness of the Company and its Subsidiaries such
that, after giving effect thereto, at least 40% of the Funded Indebtedness of
the Company and its Subsidiaries bears fixed interest rates. The Company will
promptly deliver evidence of the execution and delivery of such agreements to
the Administrative Agent.
SECTION 6.14 PROJECT SUBSIDIARIES. The Company will cause, and
will cause each of its Subsidiaries to cause, each of its Subsidiaries which is
a Project Subsidiary to: (i) except as permitted by SECTION 7.09(VIII), maintain
books, financial records and bank accounts that are separate and distinct from
the books, financial records and bank accounts of any other person or entity;
(ii) observe appropriate corporate, limited liability company or partnership, as
applicable, procedures and formalities; (iii) except as required by SECTION
6.01, maintain separate annual financial statements prepared in accordance with
GAAP, consistently applied, showing its assets and liabilities separate and
distinct from those of any other person or entity; (iv) not guarantee or become
obligated for the Indebtedness or other obligations of any other Person other
than of another Project Subsidiary or one or more Subsidiaries of such Project
Subsidiary; (v) not hold out its credit as being available to satisfy the
Indebtedness or other obligations of any other Person other than another Project
Subsidiary or one or more Subsidiaries of such Project Subsidiary except to the
extent required or permitted by and pursuant to this Agreement; (vi) hold itself
out as an entity separate and distinct from any other Person (including its
Affiliates) (except that nothing herein shall prohibit the filing of a
consolidated tax return for all Group Companies or the entry by any Group
Company into one or more tax sharing agreements with other Group Companies);
(vii) use reasonable efforts to correct any known misunderstanding regarding its
separate identity; (viii) except as permitted by SECTION 7.09(VIII), SECTION
7.06(A)(I) and SECTION 7.06(A)(XVI), not make any loans to the Company or any
Subsidiary of the Company that is not a Project Subsidiary or buy or hold any
Indebtedness issued by the Company or any Subsidiary of the Company that is not
a Project Subsidiary other than one or more Subsidiaries of such Project
Subsidiary; (ix) conduct its own business in its own name; (x) hold all of its
assets in its own name; (xi) maintain an arm's-length relationship with its
Affiliates and enter into transactions with Affiliates only on a commercially
reasonable basis and as permitted by SECTION 7.09 pursuant to written
documentation (other than to the extent of Performance Guaranties by the Company
or its Subsidiaries); (xii) not identify itself as a division or department of
any other entity, except for tax purposes; (xiii) conduct transactions between
the Project Subsidiary and third parties only in the name of the Project
Subsidiary and as an entity separate and independent from its Affiliates (other
than to the extent of Performance Guaranties by the Company or its Subsidiaries
and as contemplated by SECTION 7.09(VIII)); (xiv) allocate fairly and reasonably
any overhead for shared office space; (xv) use separate stationary, invoices and
checks; (xvi) cause representatives, employees and agents of the Project
Subsidiary to hold themselves out to third parties as being representatives,
employees or agents, as the case may be, of the Project Subsidiary to the extent
acting for such Project Subsidiary; (xvii) not acquire or assume the obligations
of its Affiliates other than another Project Subsidiary or one or more
Subsidiaries of such Project Subsidiary; and (xviii) not pay from its own funds
the Indebtedness or other obligations of any kind incurred by an Affiliate other
than another Project Subsidiary or one or more Subsidiaries of such Project
Subsidiary.
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ARTICLE VII
NEGATIVE COVENANTS
The Company agrees that, until all Senior Credit Obligations
(in each case other than contingent indemnification obligations) have been paid
in full:
SECTION 7.01 LIMITATION ON INDEBTEDNESS. None of the Group Companies will incur,
create, assume or permit to exist any Indebtedness or Swap Obligations except:
(i) Indebtedness of the Company and its
Subsidiaries outstanding on the Closing Date and disclosed on
SCHEDULE 7.01 (collectively, the "EXISTING INDEBTEDNESS");
(ii) Indebtedness of the Loan Parties under
this Agreement and the other Loan Documents and Indebtedness
of the Group Companies under the other Finance Documents;
(iii) Purchase Money Indebtedness and
Attributable Indebtedness in respect of Capital Leases and
Synthetic Lease Obligations and of the Company and its
Subsidiaries incurred after the Closing Date to finance
Capital Expenditures; PROVIDED that (1) the aggregate amount
of all such Indebtedness does not exceed $40,000,000 at any
time outstanding and (2) no Lien securing such Indebtedness
shall extend to or cover any property or asset of any Group
Company other than the asset so financed;
(iv) Indebtedness of the Company or its
Subsidiaries secured by Liens permitted by CLAUSES (XVII),
(XVIII) and (XIX) of SECTION 7.02 and any other Indebtedness
of a Person whose Equity Interests or assets are acquired in a
Permitted Business Acquisition which is acquired or assumed by
the Company or a Subsidiary of the Company in such Permitted
Business Acquisition and any Permitted Refinancing thereof;
PROVIDED that (A) such Indebtedness was not incurred in
connection with, or in anticipation of, the events described
in such clauses or such Permitted Business Acquisition, and
(B) such Indebtedness (other than pre-existing Attributable
Indebtedness and Purchase Money Indebtedness) does not
constitute indebtedness for borrowed money;
(v) any Permitted Refinancing of
Indebtedness permitted under CLAUSES (I), (III) or (IV) above;
(vi) unsecured Subordinated Indebtedness of
the Company or any of its Subsidiaries that is issued to a
seller of assets or Person acquired in a Permitted Business
Acquisition and any Permitted Refinancing thereof if,
immediately prior to and immediately after giving effect
thereto, (A) no Event of Default shall exist or result
therefrom and (B) Company and its Subsidiaries will be in
compliance on a Pro-Forma Basis with the financial covenants
set forth in SECTION 7.16(A) and (B);
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(vii) (A) contingent liabilities in respect
of any indemnification, adjustment of purchase price,
earn-out, non-compete, consulting, deferred compensation and
similar obligations of the Company and its Subsidiaries
incurred in connection with Permitted Business Acquisitions,
Permitted Joint Ventures and Asset Dispositions and (B)
Indebtedness incurred by the Company or its Subsidiaries in a
Permitted Business Acquisition or Asset Disposition under
agreements providing for earn-outs or the adjustment of the
purchase price or similar adjustments;
(viii) Swap Obligations of the Company or
any Subsidiary under Swap Agreements to the extent entered
into after the Closing Date in compliance with SECTION 6.13 or
to manage interest rate, foreign currency exchange rate and
commodity pricing risks and not for speculative purposes;
(ix) Indebtedness owed to any Person
providing property, casualty or liability insurance to the
Company or any Subsidiary of the Company, so long as such
Indebtedness shall not be in excess of the amount of the
unpaid cost of, and shall be incurred only to defer the cost
of, such insurance for the annual period in which such
Indebtedness is incurred and such Indebtedness shall be
outstanding only during such year;
(x) Indebtedness consisting of (1) Guaranty
Obligations incurred (A) by the Company in respect of
Indebtedness, leases or other ordinary course obligations
permitted to be incurred by, or obligations in respect of
Permitted Business Acquisitions or Permitted Joint Ventures
of, Wholly-Owned Domestic Subsidiaries of the Company, (B) by
Domestic Subsidiaries of the Company of Indebtedness, leases
or other ordinary course obligations permitted to be incurred
by, or obligations in respect of Permitted Business
Acquisitions or Permitted Joint Ventures of, the Company or
Wholly-Owned Domestic Subsidiaries of the Company, (C) by
Foreign Subsidiaries of the Company of Indebtedness, leases or
other ordinary course obligations permitted to be incurred by,
or obligations in respect of Permitted Business Acquisitions
or Permitted Joint Ventures of, Wholly-Owned Foreign
Subsidiaries of the Company and (D) by the Company or any
Subsidiary of the Company of Indebtedness, leases or other
ordinary course obligations permitted to be incurred by,
Foreign Subsidiaries; PROVIDED that (x) no Guaranty Obligation
permitted under this CLAUSE (X) may be in respect of
Indebtedness, leases or other obligations of any Project
Subsidiary except to the extent a Guaranty Obligation is
incurred by a Project Subsidiary in respect of the
Indebtedness, leases or other obligations of one or more of
its Subsidiaries and (y) the aggregate amount of Guaranty
Obligations referred to in this clause (D), together with all
Investments by the Company and its Wholly-Owned Domestic
Subsidiaries permitted under SECTION 7.06(A)(XII), will not
exceed $5,000,000 at any one time outstanding and (2)
Performance Guaranties not constituting Guaranty Obligations
incurred by the Company or a Subsidiary consistent with past
practice in connection with contracts entered into by a
Subsidiary in the ordinary course of business.
(xi) inter-company Indebtedness owing to the
Company or a Subsidiary of the Company to the extent permitted
by SECTION 7.06(A)(XI) or (XII);
(xii) Indebtedness of Foreign Subsidiaries
incurred on or after the Closing Date to finance working
capital requirements and general corporate purposes and
Permitted Refinancings thereof (determined without regard to
CLAUSE (II) of the definition thereof) in an aggregate
principal amount which, when taken together with the then
outstanding principal amount of all Indebtedness of Foreign
Subsidiaries referred to in CLAUSE (I) above, does not exceed
the sum of (A) the aggregate principal amount of all
Indebtedness of Foreign Subsidiaries outstanding on the
Closing Date and disclosed on SCHEDULE 7.01 plus (B)
$10,000,000 (or its equivalent in one or more applicable
foreign currencies);
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(xiii) (A) Indebtedness of the Company and
its Subsidiaries arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
drawn against insufficient funds in the ordinary course of
business; PROVIDED that (1) such Indebtedness (other than
credit or purchase cards) is extinguished within five Business
Days after receipt of notice of its incurrence and (2) such
Indebtedness in respect of credit or purchase cards in
extinguished within 60 days from its incurrence, and (B)
contingent indemnification obligations of the Company and its
Subsidiaries to financial institutions, in each case to the
extent in the ordinary course of business and on terms and
conditions which are within the general parameters customary
in the banking industry, entered into to obtain cash
management services or deposit account overdraft protection
services (in amount similar to those offered for comparable
services in the financial industry) or other services in
connection with the management or opening of deposit accounts
or incurred as a result of endorsement of negotiable
instruments for deposit or collection purposes;
(xiv) unsecured Indebtedness of the Company
and its Subsidiaries (other than loans or advances that would
be in violation of Section 402 of the Xxxxxxxx-Xxxxx Act)
owing to any then existing or former director, officer or
employee of the Company or its Subsidiaries or their
respective assigns, estates, heirs or their current or former
spouses for the repurchase, redemption or other acquisition or
retirement for value of any Equity Interest or Equity
Equivalent of the Company or its Subsidiaries held by them in
an aggregate principal amount at any time outstanding not to
exceed $2,500,000;
(xv) Project Non-Recourse Debt of one or
more Project Subsidiaries;
(xvi) unsecured senior notes, senior
subordinated notes, senior floating rate notes, senior
discount notes or other securities of the Company having
terms, yield, guarantees, covenants, default and subordination
provisions and other terms as are customary for "high yield"
securities issued for cash in a registered public offering or
in a private placement for resale pursuant to Rule 144A under
the Securities Act or otherwise; PROVIDED that (A) any such
Indebtedness must constitute unsecured Subordinated
Indebtedness, - (B) no Default or Event of Default shall have
occurred and be continuing immediately before and immediately
after giving effect to the incurrence thereof and (C) the
Company shall have delivered to the Administrative Agent a
certificate demonstrating that, upon giving effect on a
Pro-Forma Basis to the incurrence of such Indebtedness and to
the concurrent prepayment of the Loans, the Loan Parties shall
be in compliance with the financial covenants set forth in
SECTION 7.16;
(xvii) Sale/Leaseback Transactions permitted
by SECTION 7.13;
(xviii) accretion or amortization of
original issue discount and accretion of interest paid in
kind, in each case in respect of Indebtedness otherwise
permitted by this SECTION 7.01;
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(xix) contingent obligations under or in
respect of surety bonds, appeal bonds, performance and
return-of-money bonds and other similar obligations incurred
in the ordinary course of business in connection with bids,
projects, leases and similar commercial contracts; and
(xx) Indebtedness of the Company and its
Subsidiaries not otherwise permitted by this SECTION 7.01
incurred after the Closing Date in an aggregate principal
amount not to exceed $10,000,000 at any time outstanding;
PROVIDED that (A) the documentation with respect to such
Indebtedness shall not contain covenants or default provisions
relating to Company or any Subsidiary of Company that are more
restrictive than the covenants and default provisions
contained in the Loan Documents and (B) no Default or Event of
Default shall have occurred and be continuing immediately
before and immediately after giving effect to such incurrence.
SECTION 7.02 RESTRICTION ON LIENS. None of the Group Companies
will create, incur, assume or permit to exist any Lien on any property or assets
(including Equity Interests or other securities of any Person, including any
Subsidiary of the Company) now owned or hereafter acquired by it or on any
income or rights in respect of any thereof, or sign or file or authorize the
filing under the Uniform Commercial Code of any jurisdiction of a financing
statement that names any Group Company as debtor, or sign any security agreement
authorizing any secured party thereunder to file such a financing statement,
except Liens described in any of the following clauses (collectively, "PERMITTED
LIENS"):
(i) Liens existing on the Closing Date and
listed on SCHEDULE 7.02 hereto and any modifications,
replacements, renewals or extensions thereof; PROVIDED that
(A) the Lien does not extend to any additional property other
than (x) after-acquired property that is affixed or
incorporated into the property covered by such Lien or
financed by Indebtedness permitted under SECTION 7.01 and (y)
proceeds and products thereof and (B) the renewal, extension
or modification of the obligations secured or benefited by
such Liens is permitted by SECTION 7.01;
(ii) Liens created by the Collateral
Documents;
(iii) Liens for taxes, assessments or
governmental charges or levies not more than 30 days over due
or which may be paid without penalty or that are being
contested in good faith and by appropriate proceedings for
which adequate reserves (in the good faith judgment of the
management of the Company) have been established in accordance
with GAAP;
(iv) Liens imposed by Law securing the
charges, claims, demands or levies of landlords, carriers,
suppliers, warehousemen, materialmen, workmen, mechanics,
carriers and other like Liens imposed by Law (including
without limitation under Article 2 of the UCC) which were
incurred in the ordinary course of business and which (A) are
for amounts not more than 30 days overdue or which may be paid
without penalty or (B) which are being contested in good faith
by appropriate proceedings for which adequate reserves (in the
good faith judgment of the management of the Company) have
been established in accordance with GAAP;
(v) Liens (other than any Liens imposed by
ERISA or pursuant to any Environmental Law) not securing
Indebtedness or Swap Obligations incurred or deposits made in
the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social
security and other similar obligations incurred in the
ordinary course of business;
(vi) Liens securing obligations in respect
of surety bonds (other than appeal bonds), statutory
obligations to Governmental Authorities, tenders, sales,
contracts (other than for borrowed money), bids, leases,
government contracts, Performance Guaranties not constituting
Guaranty Obligations, performance and return-of-money bonds
and other similar obligations incurred in the ordinary course
of business for sums not more than 90 days overdue or being
contested in good faith by appropriate proceedings and for
which the Company and its Subsidiaries maintain adequate
reserves in accordance with GAAP; PROVIDED that the --------
aggregate amount of the obligations or other liabilities
secured by such Liens, together with the aggregate amount of
outstanding deposits permitted under SECTION 7.06(A)(IX), do
not exceed $10,000,000 at any time;
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(vii) Liens upon specific items or inventory
or other goods and proceeds of the Company or any of its
Subsidiaries securing such Person's obligations in respect of
bankers' acceptances or documentary letters of credit issued
or created for the account of such Person to facilitate the
shipment or storage of such inventory or other goods;
(viii) pledges or deposits of cash and Cash
Equivalents securing deductibles, self-insurance, co-payment,
co-insurance, retentions or similar obligations to providers
of insurance in the ordinary course of business;
(ix) Liens on (A) incurred premiums,
dividends and rebates and other identifiable proceeds
therefrom which may become payable under insurance policies
and loss payments which reduce the incurred premiums on such
insurance policies and (B) rights which may arise under State
insurance guarantee funds relating to any such insurance
policy, in each case securing Indebtedness permitted to be
incurred pursuant to SECTION 7.01(IX);
(x) Liens arising solely by virtue of any
statutory or common Law provision relating to banker's liens,
rights of set-off or similar rights, in each case incurred in
the ordinary course of business;
(xi) licenses, leases or subleases granted
to third Persons or to the Company or its Subsidiaries by the
Company and its Subsidiaries in the ordinary course of
business not interfering in any material respect with the
business of any Group Company and not otherwise prohibited by
SECTION 7.05(XIV);
(xii) zoning restrictions, building codes,
land use and other similar Laws and municipal ordinances,
easements, rights of way, licenses, reservations, covenants,
conditions, waivers, restrictions on the use of property or
other minor encumbrances or irregularities of title not
securing Indebtedness or Swap Obligations which do not,
individually or in the aggregate, materially impair the use of
any property in the operation or business of the Company or
any of its Subsidiaries or the value of such property for the
purpose of such business;
(xiii) Liens arising from precautionary
Uniform Commercial Code financing statements regarding, and
any interest or title of a licensor, lessor or sublessor
under, Operating Leases permitted by this Agreement;
(xiv) Liens in favor of licensors, lessors,
sublessors, lessees or sublessees securing Operating Leases or
other obligations not constituting Indebtedness;
(xv) Liens arising from judgments, decrees
or attachments (or securing of appeal bonds with respect
thereto) in circumstances not constituting an Event of Default
under SECTION 8.01;
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(xvi) Liens securing Indebtedness permitted
to be incurred under SECTION 7.01(I), (III), (IV) and (V);
(xvii) any Lien existing on any asset of any
Person at the time such Person becomes a Subsidiary of the
Company and not created in contemplation of such event;
(xviii) any Lien on any asset (other than on
the Equity Interests of one or more Subsidiaries) of any
Person existing at the time such Person is merged or
consolidated with or into the Company or a Subsidiary of the
Company and not created in contemplation of such event;
(xix) any Lien existing on any asset (other
than on the Equity Interests of one or more Subsidiaries)
prior to the acquisition thereof by the Company or a
Subsidiary of the Company and not created in contemplation of
such acquisition;
(xx) Liens solely on any xxxx xxxxxxx money
deposits made by the Company or any of its Subsidiaries in
connection with any letter of intent or purchase agreement
with respect to a Permitted Business Acquisition or a
Permitted Joint Venture;
(xxi) Liens on cash and Cash Equivalents
securing Swap Obligations owing to one or more Persons who are
not Swap Creditors; PROVIDED that the aggregate amount of all
cash and Cash Equivalents subject to such Liens may at no time
exceed $2,000,000;
(xxii) Liens on any assets or Equity
Interests of a Foreign Subsidiary of the Company securing
Indebtedness of such Foreign Subsidiary incurred pursuant to
SECTION 7.01(XII);
(xxiii) Liens securing Sale/Leaseback
Transactions permitted under SECTION 7.13;
(xxiv) Liens on assets of one or more
Project Subsidiaries securing Project Non-Recourse Debt
permitted by SECTION 7.01(XV);
(xxv) Liens that might be deemed to exist on
assets subject to a repurchase agreement constituting a Cash
Equivalent permitted hereunder, if such Liens are deemed to
exist solely because of the existence of such repurchase
agreement; and
(xxvi) other Liens securing Indebtedness
permitted under SECTION 7.01 if the aggregate amount of the
obligations or liabilities secured thereby does not exceed
$10,000,000 at any time.
SECTION 7.03 NATURE OF BUSINESS. The Company will not, nor
will it permit any Subsidiary to, engage in any line of business other than the
lines of business conducted by the Company and its Subsidiaries on the date
hereof and any business reasonably related, incidental or ancillary thereto.
SECTION 7.04 CONSOLIDATION, MERGER AND DISSOLUTION. Except in
connection with an Asset Disposition permitted by the terms of SECTION 7.05,
none of the Group Companies will enter into any transaction of merger or
consolidation or liquidate, wind up or dissolve itself or its affairs (or suffer
any liquidations or dissolutions); PROVIDED that:
(i) any Domestic Subsidiary of the Company
which is not a Project Subsidiary may be acquired by, merge
with and into, or be voluntarily dissolved or liquidated into,
the Company, so long as the Company is the surviving
corporation of such merger, dissolution or liquidation;
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(ii) any Domestic Subsidiary of the Company
which is not a Project Subsidiary may be acquired by, merge
with and into, or be voluntarily dissolved or liquidated into,
any other Domestic Subsidiary of the Company, so long as in
the case of any such merger, dissolution or liquidation
involving one or more Subsidiary Guarantors, a Subsidiary
Guarantor is the surviving corporation of such merger,
dissolution or liquidation;
(iii) any Foreign Subsidiary of the Company
which is not a Project Subsidiary may be merged with and into,
or be voluntarily dissolved or liquidated into, the Company or
any Subsidiary of the Company, so long as in the case of any
such merger, dissolution or liquidation involving one or more
Subsidiary Guarantor, the Company or such Subsidiary
Guarantor, as the case may be, is the surviving corporation of
any such merger, dissolution or liquidation;
(iv) the Company or any Subsidiary of the
Company which is not a Project Subsidiary may merge with any
Person which is not a Project Subsidiary in connection with a
Permitted Business Acquisition if (A) in the case of any such
merger involving the Company, the Company shall be the
continuing or surviving corporation in such merger and (B) in
the case of any such merger involving a Subsidiary Guarantor,
such Subsidiary Guarantor shall be the continuing or surviving
corporation in such merger or the continuing or surviving
corporation in such merger shall, simultaneously with the
consummation of such merger, become a Subsidiary Guarantor
having all the responsibilities and obligations of the
Subsidiary Guarantor so merged;
(v) any Subsidiary of the Company which is
not a Project Subsidiary may merge with any Person in
connection with a Permitted Joint Venture if in the case of
any such merger involving a Subsidiary Guarantor, such
Subsidiary Guarantor shall be the continuing or surviving
corporation in such merger or the continuing or surviving
corporation in such merger shall, simultaneously with the
consummation of such merger, become a Subsidiary Guarantor
having all the responsibilities and obligations of the
Subsidiary Guarantor so merged;
(vi) a Project Subsidiary may be acquired by
or merged with another Project Subsidiary and the Equity
Interests of one or more Project Subsidiaries may be acquired
by any Group Company; and
(vii) a Foreign Subsidiary may be acquired
by or merged with another Foreign Subsidiary.
In the case of any merger or consolidation permitted by this SECTION 7.04 of any
Subsidiary of the Company which is not a Loan Party into a Loan Party, the Loan
Parties shall cause to be executed and delivered such documents, instruments and
certificates as the Administrative Agent may reasonably request so as to cause
the Loan Parties to be in compliance with the terms of SECTION 6.12 after giving
effect to such transaction. Notwithstanding anything to the contrary contained
above in this SECTION 7.04, no action shall be permitted which results in a
Change of Control.
SECTION 7.05 ASSET DISPOSITIONS. None of the Group Companies
will make any Asset Disposition; PROVIDED that:
(i) any Group Company may sell inventory in
the ordinary course of business;
(ii) any Group Company may make any Asset
Disposition to the Company or any Wholly-Owned Domestic
Subsidiary which is not a Project Subsidiary;
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(iii) the Company and its Subsidiaries may
liquidate or sell Cash Equivalents and Foreign Cash
Equivalents;
(iv) the Company or any of its Subsidiaries
may dispose of machinery or equipment which will be replaced
or upgraded with machinery or equipment used or useful in the
ordinary course of business of and owned by such Person;
(v) the Company or any of its Subsidiaries
may dispose of obsolete, worn-out or surplus tangible assets
in the ordinary course of business;
(vi) any Subsidiary of the Company which is
not a Project Subsidiary may sell, lease or otherwise transfer
all or substantially all or any part of its assets (including
any such transaction effected by way of merger or
consolidation) to the Company or any Subsidiary Guarantor;
(vii) any Subsidiary that is not a
Subsidiary Guarantor may sell, lease or otherwise transfer all
or any part of its assets (including any such transaction
effected by way of merger or consolidation) to any other
Subsidiary that is not a Subsidiary Guarantor;
(viii) the Company or any Subsidiary of the
Company may issue Equity Interests in the Company or such
Subsidiary to qualify directors where required by applicable
Law or to satisfy other requirements of applicable Law with
respect to the ownership of Equity Interests in Foreign
Subsidiaries or Nominal Shares for tax considerations;
(ix) any Group Company may transfer assets
as a part of the consideration for Investments in Permitted
Joint Ventures;
(x) the Company and its Subsidiaries may
transfer trade fixtures to Foreign Subsidiaries which are not
Project Subsidiaries and to non-Wholly-Owned Domestic
Subsidiaries which are not Project Subsidiaries having an
aggregate fair market value not exceeding $2,000,000 in any
fiscal year;
(xi) Asset Dispositions effected by
transactions permitted under SECTION 7.04 shall be permitted;
(xii) any Group Company may lease, as lessor
or sublessor, or license, as licensor or sublicensor, real or
personal property in the ordinary course of business if not
otherwise prohibited by CLAUSE (XIV) below;
(xiii) any Group Company may write-off,
discount, sell or otherwise dispose of defaulted or past due
receivables and similar obligations in the ordinary course of
business and not as part of an accounts receivable financing
transaction;
(xiv) any Group Company may, in the ordinary
course of business, license and sublicense Intellectual
Property;
(xv) any Project Subsidiary may make Asset
Dispositions to any Group Company;
(xvi) any Foreign Subsidiary may make Asset
Dispositions to any Group Company;
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(xvii) any Group Company may dispose of
non-core assets acquired in Permitted Business Acquisitions;
(xviii) any Group Company may enter into any
(A) Sale/Leaseback Transaction not prohibited by SECTION 7.01
or SECTION 7.13 and (B) any Interim Purchase Transaction;
(xix) any Group Company may make Asset
Dispositions to any other Group Company or Permitted Joint
Venture which is not a Subsidiary Guarantor where such Asset
Disposition constitutes an Investment permitted by SECTION
7.06(A);
(xx) any Group Company which is not a
Subsidiary Guarantor may make Asset Dispositions to any Loan
Party;
(xxi) any Group Company may dispose of (A)
core assets acquired in Permitted Business Acquisitions and
(B) the equity or assets comprising an Investment in one or
more Permitted Business Acquisitions or Permitted Joint
Ventures;
(xxii) any Group Company may make Asset
Dispositions to Subsidiaries of the Companies that are not
Loan Parties for cash consideration not less than the then
fair market value of the assets subject to such Asset
Disposition (as determined in good faith by the Board of
Directors of the Group Company making such Asset Disposition)
if such Asset Disposition is otherwise in the ordinary course
of its business and on terms and conditions as favorable to it
as would be obtainable by it in a comparable arms'-length
transaction with an independent, unrelated third party; and
(xxiii) any Group Company may make any other
Asset Disposition other than to a Project Subsidiary; PROVIDED
that (A) at least 75% of the consideration therefor is cash or
Cash Equivalents; (B) such transaction does not involve the
sale or other disposition of a minority Equity Interest in any
Group Company; (C) the aggregate fair market value of all
assets sold or otherwise disposed of by the Group Companies in
all such transactions in reliance on this CLAUSE (XXIII) shall
not exceed $10,000,000 in any fiscal year of the Company; and
(D) no Default or Event of Default shall have occurred and be
continuing immediately before or immediately after giving
effect to such transaction.
Upon consummation of an Asset Disposition permitted under this SECTION 7.05, the
Lien created thereon under the Collateral Documents (but not the Lien on any
proceeds thereof) shall be automatically released, and the Administrative Agent
shall (or shall cause the Collateral Agent to) (to the extent applicable)
deliver to the Company, upon the Company's request and at the Company's expense,
such documentation as is reasonably necessary to evidence the release of the
Collateral Agent's security interests, if any, in the assets being disposed of,
including amendments or terminations of Uniform Commercial Code Financing
Statements, if any, the return of stock certificates, if any, and the release of
any Subsidiary being disposed of in its entirety from all of its obligations, if
any, under the Loan Documents.
SECTION 7.06 INVESTMENTS.
(a) INVESTMENTS. None of the Group Companies will hold, make
or acquire, any Investment in any Person, except the following:
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(i) Investments existing on the date hereof
disclosed on SCHEDULE 7.06 hereto and Investments existing on
the date hereof in Persons which are Subsidiaries on the date
hereof;
(ii) the Company or any Domestic Subsidiary
of the Company may invest in cash (including cash held in
deposit accounts) and Cash Equivalents;
(iii) Foreign Subsidiaries of the Company
may invest in cash (including cash held in deposit accounts),
Cash Equivalents or Foreign Cash Equivalents;
(iv) the Company and each Subsidiary of the
Company may acquire and hold receivables, accounts, notes
receivable, chattel paper, payment intangibles and prepaid
accounts owing to them, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance
with customary trade terms;
(v) the Company and each Subsidiary of the
Company may acquire and own Investments (including
Indebtedness obligations) received in connection with the
settlement of accounts in the ordinary course or in connection
with the bankruptcy or reorganization of suppliers and
customers or in settlement of delinquent obligations of, and
other disputes with, customers and suppliers arising in the
ordinary course of business;
(vi) loans and advances by the Company and
its Subsidiaries to employees of the Company and its
Subsidiaries for moving and travel and other similar expenses,
in each case in the ordinary course of business, in an
aggregate principal amount not to exceed $2,000,000 at any
time outstanding;
(vii) loans and advances to employees of the
Group Companies in the ordinary course of business (other than
loans or advances that would be in violation of Section 402 of
the Xxxxxxxx-Xxxxx Act) in an aggregate principal amount not
to exceed $2,000,000 at any one time;
(viii) the Company or any Subsidiary may
make deposits in the ordinary course of business consistent
with past practices to secure the performance of operating
leases and payment of utility contracts;
(ix) the Company or any Subsidiary may make
good faith deposits in the ordinary course of business in
connection with Permitted Business Acquisitions or obligations
in respect of surety bonds (other than appeal bonds),
statutory obligations to Governmental Authorities, tenders,
sales, contracts (other than for borrowed money), bids,
leases, government contracts, Performance Guaranties not
constituting Guaranty Obligations, performance and
return-of-money bonds and other similar obligations incurred
in the ordinary course of business for sums not more than 90
days overdue or being contested in good faith by appropriate
proceedings and for which the Company and its Subsidiaries
maintain adequate reserves in accordance with GAAP; PROVIDED
that the aggregate amount of all outstanding deposits made
pursuant to this CLAUSE (IX), together with the aggregate
amount of the obligations and other liabilities secured by
Liens permitted under SECTION 7.02(VI), shall not at any time
exceed $10,000,000;
(x) loans by the Company to officers and
employees of the Company the proceeds of which are used to
purchase the Company's Equity Interests or Equity Equivalents;
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(xi) the Company may make Investments in any
of its Wholly-Owned Domestic Subsidiaries which is not a
Project Subsidiary and any Subsidiary of the Company which is
not a Project Subsidiary may make Investments in the Company
or any Wholly-Owned Domestic Subsidiary of the Company which
is not a Project Subsidiary; PROVIDED that (A) each item of
intercompany Indebtedness shall be evidenced by a promissory
note (which, from and after the date which is 90 days after
the Closing Date, shall be substantially in the form of
EXHIBIT H hereto, except for those promissory notes existing
on the Closing Date which are issued by Subsidiaries
designated on SCHEDULE 5.13 hereof to be dissolved or
reorganized within twelve months following the Closing Date),
(B) each promissory note evidencing intercompany loans and
advances made by a Foreign Subsidiary or a non-Wholly-Owned
Domestic Subsidiary to the Company or a Wholly-Owned Domestic
Subsidiary of the Company shall, from and after the date which
is 90 days after the Closing Date, contain the subordination
provisions set forth in EXHIBIT I hereto and (C) each
promissory note evidencing intercompany loans and advances
(other than promissory notes held by Foreign Subsidiaries,
except to the extent provided in SECTION 6.12(D)) shall be
pledged to the Collateral Agent pursuant to the Pledge
Agreement;
(xii) the Company and its Subsidiaries which
are not Project Subsidiaries may make Investments in any
Foreign Subsidiary or any non-Wholly-Owned Domestic Subsidiary
of the Company (A) in the case of Investments by the Company
or any Wholly-Owned Domestic Subsidiary of the Company, in an
aggregate amount together with all Guaranty Obligations
permitted under SECTION 7.01(X)(D) (determined without regard
to any write-downs or write-offs of any such Investments
constituting Indebtedness) at any one time outstanding not
exceeding $5,000,000 and (B) to the extent such Investments
arise from the sale of inventory in the ordinary course of
business by the Company or such Subsidiary to such Foreign
Subsidiary or non-Wholly-Owned Domestic Subsidiary for resale
by such Foreign Subsidiary or non-Wholly-Owned Domestic
Subsidiary (including any such Investments resulting from the
extension of the payment terms with respect to such sales);
PROVIDED that (A) each item of intercompany Indebtedness shall
be evidenced by a promissory note (which, from and after the
date which is 90 days after the Closing Date, shall be
substantially in the form of EXHIBIT H hereto, except for
those promissory notes existing on the Closing Date which are
issued by Subsidiaries designated on SCHEDULE 5.13 hereof to
be dissolved or reorganized within twelve months following the
Closing Date) and (B) each promissory note evidencing
intercompany loans and advances (other than promissory notes
(x) issued by Foreign Subsidiaries of the Company to the
Company or any of its Domestic Subsidiaries or (y) held by
Foreign Subsidiaries of the Company, in each case except to
the extent provided in SECTION 6.12(D)) shall be pledged to
the Collateral Agent pursuant to the Pledge Agreement;
(xiii) Guaranty Obligations permitted by
SECTION 7.01(X);
(xiv) Investments arising out of the receipt
by the Company or any of its Subsidiaries of non-cash
consideration for the sale of assets permitted under SECTION
7.05;
(xv) the Company and its Subsidiaries may
make Investments constituting Permitted Business Acquisitions;
(xvi) after the Closing Date, the Company
and its Subsidiaries which are not Project Subsidiaries may
make Investments in Project Subsidiaries (including by way of
designating a Subsidiary which is not a Project Subsidiary as
a Project Subsidiary) in an aggregate amount (determined
without regard to any write-downs or write-offs of any such
Investments constituting Indebtedness but excluding any
portion thereof funded with proceeds of a Qualifying Equity
Issuance not otherwise utilized for any purpose specified in
CLAUSE (II) of the definition of "Qualifying Equity Issuance")
at any time outstanding not exceeding $20,000,000;
(xvii) the Company and its Subsidiaries
which are not Project Subsidiaries may make Investments in
Permitted Joint Ventures in an aggregate amount (determined
without regard to any write-downs or write-offs of any such
Investments constituting Indebtedness) at any one time
outstanding not exceeding $10,000,000;
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(xviii) Project Subsidiaries may make
Investments in other Project Subsidiaries;
(xix) Performance Guaranties not
constituting Guaranty Obligations incurred by the Company or a
Subsidiary consistent with past practice in connection with
contracts entered into by a Subsidiary in the ordinary course
of business; and
(xx) the Company and its Subsidiaries may
make other Investments not otherwise permitted by this SECTION
7.06 (determined without regard to any write-downs or
write-offs of any such Investments constituting Indebtedness
but excluding any portion thereof funded with proceeds of a
Qualifying Equity Issuance not otherwise utilized for any
purpose specified in CLAUSE (II) of the definition of
"Qualifying Equity Issuance") the amount of which is deducted
from Available Cash for the Reference Period in which made
pursuant to clause (iv)(H) of the definition of Available
Cash;
PROVIDED that no Group Company may make or own any Investment in Margin Stock in
violation of Regulations T, U or X of the Board of Governors of the Federal
Reserve System.
(b) LIMITATION ON THE CREATION OF SUBSIDIARIES. No Group
Company will establish, create or acquire after the Closing Date any Subsidiary;
PROVIDED that the Company and its Subsidiaries shall be permitted to establish,
create or acquire Subsidiaries so long as (i)) the Investment resulting from
such establishment, creation or acquisition is permitted pursuant to SECTION
7.06(A) above, (ii) the capital stock or other equity interests of such new
Subsidiary (other than (A) Project Subsidiaries, except to the extent not
prohibited by the terms of the instruments governing any Project Non-Recourse
Debt of such Project Subsidiary, and (B) Foreign Subsidiaries, except to the
extent otherwise required pursuant to SECTION 6.12(D)) is pledged pursuant to,
and to the extent required by, the Pledge Agreement and the certificates
representing such interests, together with transfer powers duly executed in
blank, are delivered to the Collateral Agent, (iii) such new Subsidiary (other
than (A) Project Subsidiaries, except to the extent not prohibited by the terms
of the instruments governing any Project Non-Recourse Debt of such Project
Subsidiary, and (B) Foreign Subsidiaries, except to the extent otherwise
required pursuant to SECTION 6.12(D)) executes the Accession Agreement to the
extent required by SECTION 6.12(B), and (iv) such new Subsidiary, to the extent
requested by the Administrative Agent, takes all other actions required pursuant
to SECTION 6.12.
SECTION 7.07 RESTRICTED PAYMENTS, ETC. The Company will not,
nor will it permit any Subsidiary to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment or incur any obligation
(contingent or otherwise) to do so, except:
(i) the Company may declare and pay
dividends or make distributions with respect to its capital
stock solely in additional shares of its common stock;
(ii) the Subsidiaries of the Company may
declare and pay dividends ratably with respect to their
capital stock;
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(iii) so long as no Default shall have
occurred and be continuing, the Company may pay current
dividends on its capital stock, repurchase its capital stock
and make other Restricted Payments in an amount not exceeding
Cumulative Distributable Cash of the Company and its
Subsidiaries calculated as of the date of such Restricted
Payment; PROVIDED that, after June 30, 2005, no Restricted
Payment shall be made under this CLAUSE (III) prior to the
date five days after the Company shall have delivered to the
Administrative Officer a certificate signed on its behalf by a
Responsible Officer stating that the amount of such Restricted
Payment to be made pursuant to this CLAUSE (III) and
demonstrating that the sum of (A) Cumulative Distributable
Cash through the most recent fiscal quarter as of which the
financial statements under SECTION 6.01 (which may be
unaudited if the financial statements required under SECTION
6.01(A) are not available) and a Compliance Certificate
required to be delivered with such financial statements have
been delivered to the Lenders MINUS (B) the amount of such
Restricted Payment, is greater than zero; and
(iv) so long as no Default shall have
occurred and be continuing, the Company may pay current
dividends on its capital stock, repurchase capital stock and
make other Restricted Payments up to but not exceeding the
Available Equity Issuance Amount as of the date of such
Restricted Payment, PROVIDED; that at the time of any
Restricted Payment under this CLAUSE (IV), the Company shall
deliver a certificate signed on its behalf by a Responsible
Officer stating the amount of the Restricted Payment being
made pursuant to this CLAUSE (IV) and setting forth a
calculation of the Available Equity Issuance Amount
immediately before and immediately after such Restricted
Payment.
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SECTION 7.08 PREPAYMENTS OF INDEBTEDNESS, ETC.
(a) AMENDMENTS OF INDEBTEDNESS AGREEMENTS. None of the Group
Companies will, or will permit any of their respective Subsidiaries to, after
the issuance thereof, amend, waive or modify (or permit the amendment, waiver or
modification of) any of the material terms, agreements, covenants or conditions
of or applicable to any Subordinated Indebtedness issued by such Group Company
if such amendment, waiver or modification would add or change any material
terms, agreements, covenants or conditions in any manner materially adverse to
any Group Company, or shorten the final maturity or average life to maturity or
require any payment to be made sooner than originally scheduled or increase the
interest rate applicable thereto or change any material subordination provision
thereof in a manner that would be materially adverse to the interests of the
Lenders under the Loan Documents.
(b) PROHIBITION AGAINST CERTAIN PAYMENTS OF PRINCIPAL AND
INTEREST OF OTHER INDEBTEDNESS. Upon the occurrence of, and during the
continuation of, an Event of Default, none of the Group Companies will (i)
directly or indirectly, redeem, purchase, prepay, retire, defease or otherwise
acquire for value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Subordinated Indebtedness, or set aside any funds for
such purpose, whether such redemption, purchase, prepayment, retirement or
acquisition is made at the option of the maker or at the option of the holder
thereof, and whether or not any such redemption, purchase, prepayment,
retirement or acquisition is required under the terms and conditions applicable
to such Indebtedness or (ii) release, cancel, compromise or forgive in whole or
in part any Indebtedness evidenced by any Intercompany Note.
SECTION 7.09 TRANSACTIONS WITH AFFILIATES. None of the Group
Companies will engage in any transaction or series of transactions with any
Affiliate, other than:
(i) transactions permitted by SECTION 7.05;
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(ii) transactions expressly permitted by
SECTION 7.01, SECTION 7.04, SECTION 7.05, SECTION 7.06 or
SECTION 7.07;
(iii) normal compensation, indemnities and
reimbursement of reasonable expenses of officers and
directors, including stock incentive and option plans and
agreements relating thereto;
(iv) other transactions with officers,
directors, the Sponsor and its Affiliates in existence on the
Closing Date to the extent disclosed in SCHEDULE 7.09;
(v) any transaction entered into among the
Company and its Domestic Subsidiaries which are not Project
Subsidiaries or among such Domestic Subsidiaries which are not
Project Subsidiaries;
(vi) transactions entered into among Project
Subsidiaries;
(vii) transactions entered into among
Foreign Subsidiaries;
(viii) a centralized cash management system
among Group Companies in the ordinary course of business
consistent with past practice if the transactions and flows of
funds related to the use of the centralized cash management
system between and among the Company and its Subsidiaries
(Project Subsidiaries or Non-Project Subsidiaries) are
recorded and identifiable on a net cash basis with offsetting
entries on the applicable Company or Subsidiary books and
records; and
(ix) other transactions which are engaged in
by the Company or any of its Subsidiaries in the ordinary
course of its business on terms and conditions as favorable to
such Person as would be obtainable by it in a comparable
arms'-length transaction with an independent, unrelated third
party.
SECTION 7.10 FISCAL YEAR; ORGANIZATIONAL AND OTHER DOCUMENTS.
None of the Group Companies will (i) change its fiscal year or (ii) enter into
any amendment, modification or waiver to its articles or certificate of
incorporation, bylaws (or analogous organizational documents) or any agreement
entered into by it with respect to its Equity Interests, in each case as in
effect on the Closing Date except for changes that do not materially and
adversely affect the rights and privileges of the Lenders. The Company will
cause the Group Companies to promptly provide the Agent with copies of all
amendments to the foregoing documents and instruments as in effect as of the
Closing Date.
SECTION 7.11 RESTRICTIONS WITH RESPECT TO INTERCORPORATE
TRANSFERS. None of the Group Companies will create or otherwise cause or permit
to exist any encumbrance or restriction which prohibits or otherwise restricts
(i) the ability of any such Subsidiary to (A) make Restricted Payments or pay
any Indebtedness owed to the Company or any Subsidiary of the Company, (B) pay
Indebtedness or other obligations owed to any Loan Party, (C) make loans or
advances to the Company or any Subsidiary of the Company, (D) transfer any of
its properties or assets to the Company or any Subsidiary of the Company or (E)
act as a Subsidiary Guarantor and pledge its assets pursuant to the Loan
Documents or any renewals, refinancings, exchanges, refundings or extensions
thereof or (ii) the ability of the Company or any Subsidiary of the Company to
create, incur, assume or permit to exist any Lien upon its property or assets
whether now owned or hereafter acquired to secure the Finance Obligations,
except in each case for prohibitions or restrictions existing under or by reason
of:
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(i) this Agreement and the other Loan
Documents;
(ii) applicable Law;
(iii) restrictions in effect on the date of
this Agreement contained in the agreements governing the
Existing Indebtedness and in any agreements governing
Permitted Refinancing thereof if such restrictions are no more
restrictive than those contained in the agreements governing
the Indebtedness being renewed, extended or refinanced;
(iv) customary non-assignment provisions
with respect to leases or licensing agreements entered into by
the Company or any of its Subsidiaries, in each case entered
into in the ordinary course of business;
(v) any restriction or encumbrance with
respect to any asset of the Company or any of its Subsidiaries
or a Subsidiary of the Company imposed pursuant to an
agreement which has been entered into for the sale or
disposition of such assets or all or substantially all of the
capital stock or assets of such Subsidiary, so long as such
sale or disposition is permitted under this Agreement;
(vi) customary provisions in joint venture
agreements and other similar agreements entered into in the
ordinary course of business in connection with Permitted Joint
Ventures;
(vii) restrictions applicable solely to one
or more Project Subsidiaries contained in agreements governing
Project Non-Recourse Debt; and
(viii) Liens permitted under SECTION 7.02
and any documents or instruments governing the terms of any
Indebtedness or other obligations secured by any such Liens;
PROVIDED that such prohibitions or restrictions apply only to
the assets subject to such Liens.
SECTION 7.12 LIMITATIONS ON CERTAIN ACTIVITIES. The Company
will not, nor will it permit any Subsidiary to, engage in any line of business
other than the lines of business conducted by the Company and its Subsidiaries
on the date hereof and any business reasonably related, incidental or ancillary
thereto.
SECTION 7.13 SALE AND LEASEBACK TRANSACTIONS. None of the
Group Companies will directly or indirectly become or remain liable as lessee or
as guarantor or other surety with respect to any lease (whether an Operating
Lease or a Capital Lease) of any property (whether real, personal or mixed),
whether now owned or hereafter acquired, except pursuant to an Interim Purchase
Transaction, (i) which such Group Company has sold or transferred or is to sell
or transfer to any other Person which is not a Group Company or (ii) which such
Group Company intends to use for substantially the same purpose as any other
property which has been sold or is to be sold or transferred by such Group
Company to another Person which is not a Group Company in connection with such
lease; PROVIDED, HOWEVER, that the Group Companies may enter into such
transactions with respect to personal property, in an aggregate amount of up to
$5,000,000 in sales proceeds during the term of this Agreement, if (i) after
giving effect on a Pro-Forma Basis to any such transaction the Company shall be
in compliance with all other provisions of this Agreement, including SECTION
7.01 and SECTION 7.02, (ii) the gross cash proceeds of any such transaction are
at least equal to the fair market value of such property (as determined by the
Board of Directors, whose determination shall be conclusive if made in good
faith) and (iii) the Net Cash Proceeds are forwarded to the Administrative Agent
as set forth in SECTION 2.09(B)(II) to the extent required therein.
SECTION 7.14 ADDITIONAL NEGATIVE PLEDGES. None of the Group
Companies will enter into, assume or become subject to any agreement prohibiting
or otherwise restricting the creation or assumption of any Lien upon its
properties or assets, whether now owned or hereafter acquired, or requiring the
grant of any security for an obligation if security is given for some other
obligation, except (i) pursuant to this Agreement and the other Loan Documents,
(ii) pursuant to any document or instrument governing Capital Lease Obligations
or Purchase Money Indebtedness incurred pursuant to SECTION 7.01(III) if any
such restriction contained therein relates only to the asset or assets acquired
in connection therewith, (iii) pursuant to any document or instrument solely
applicable to a Project Subsidiary governing Project Non-Recourse Debt, (iv)
pursuant to an agreement which has been entered into by the Company or any of
its Subsidiaries for the sale or disposition of any assets of the Company or
such Subsidiary or of any Subsidiary of the Company if such restriction
contained therein relates only to the Subsidiary or its assets which is the
subject of the sale provided for therein, (v) pursuant to a joint venture or
other similar agreement entered into in the ordinary course of business in
connection with Permitted Joint Ventures so long as any such restriction
contained therein relates only to the assets of, or the interest of the Company
and its Subsidiaries in, such Permitted Joint Venture, (vi) customary provisions
restricting the assignment of rights under contracts entered into in the
ordinary course of business, consistent with past practice and pertinent to
excluded contracts and excluded equipment, (vii) customary restrictions on cash
or other deposits or net worth imposed by customers or contracts entered into in
the ordinary course and (viii) any restrictions governing Existing Indebtedness
and Permitted Refinancings.
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SECTION 7.15 IMPAIRMENT OF SECURITY INTERESTS. None of the Group Companies will
(i) intentionally take or omit to take any requested action which action or
omission might or would materially impair the security interests in favor of the
Collateral Agent with respect to the Collateral or (ii) grant to any Person
(other than the Collateral Agent pursuant to the Collateral Documents) any
interest whatsoever in the Collateral, except for Permitted Liens.
SECTION 7.16 FINANCIAL COVENANTS. (a) LEVERAGE RATIO. The
Leverage Ratio on the last day of each fiscal quarter ended during any period
set forth below will not be greater than the ratio set forth below opposite such
fiscal quarter:
=======================================================================
FISCAL QUARTER ENDED RATIO
-----------------------------------------------------------------------
6/30/05 through 12/31/06 4.50 to 1.0
-----------------------------------------------------------------------
3/31/07 through 9/30/07 4.25 to 1.0
-----------------------------------------------------------------------
12/31/07 and thereafter 4.00 to 1.0
=======================================================================
(b) INTEREST COVERAGE RATIO. The Interest Coverage Ratio on
the last day of each fiscal quarter, commencing with the fiscal quarter ending
June 30, 2005, in each case for the period of four consecutive fiscal quarters
of the Company then ending and taken as a single accounting period, will not be
less than 3.50 to 1.0.
(c) FIXED CHARGE COVERAGE RATIO. The Fixed Charge Coverage
Ratio on the last day of each fiscal quarter ending during any period set forth
below, in each case for the period of four consecutive fiscal quarters of the
Company then ending and taken as a single accounting period, will not be less
than the ratio set forth below opposite such fiscal quarter:
========================================================================
FISCAL QUARTER ENDED RATIO
------------------------------------------------------------------------
6/30/05 through 12/31/06 1.65 to 1.0
------------------------------------------------------------------------
3/31/07 and thereafter 2.00 to 1.0
========================================================================
SECTION 7.17 NO OTHER "DESIGNATED SENIOR DEBT". The Company
will not, nor will it permit any Subsidiary to, designate, or permit the
designation of, any Indebtedness (other than under this Agreement and the other
Finance Documents) as "Designated Senior Indebtedness" or any other similar term
for the purpose of the definition of the same or the subordination provisions
contained in any indenture or other agreement governing any Subordinated
Indebtedness permitted under SECTION 7.01.
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ARTICLE VIII
DEFAULTS
SECTION 8.01 EVENTS OF DEFAULT. An Event of Default shall exist upon the
occurrence of any of the following specified events or conditions (each an
"EVENT OF DEFAULT"):
(a) PAYMENT. Any Loan Party shall:
(i) default in the payment when due (whether
by scheduled maturity, acceleration or otherwise) of any
principal of any of the Loans or of any L/C Disbursement; or
(ii) default, and such default shall
continue for five or more Business Days, in the payment when
due of any interest on the Loans, or of any fees or other
amounts owing hereunder, under any of the other Loan Documents
or in connection herewith.
(b) REPRESENTATIONS. Any representation or warranty made or
deemed to be made by any Loan Party herein, or in any of the other Loan
Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material respect
on the date as of which it was made or deemed to have been made.
(c) COVENANTS. Any Loan Party shall:
(i) default in the due performance or
observance of any term, covenant or agreement contained in
SECTIONS 6.10, 6.11, 6.12, 6.13, or ARTICLE VII;
(ii) default in the due performance or
observance by it of any term, covenant or agreement contained
in ARTICLE VI (other than those referred to in SUBSECTION (A)
or (C)(I) of this SECTION 8.01) and such default shall
continue unremedied for a period of twenty (20) Business Days
after the earlier of a Responsible Officer of a Loan Party
becoming aware of such default or notice thereof given by the
Administrative Agent; or
(iii) default in the due performance or
observance by it of any term, covenant or agreement (other
than those referred to in SUBSECTION (A) or (C)(I) or (II) of
this SECTION 8.01) contained in this Agreement and such
default shall continue unremedied for a period of 30 days
after the earlier of an executive officer of a Loan Party
becoming aware of such default or notice thereof given by the
Administrative Agent.
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(d) OTHER LOAN DOCUMENTS. (i) Any Loan Party shall default in
the due performance or observance of any term, covenant or agreement in any of
the other Loan Documents the consequence of which is to adversely affect the
ability of the Loan Parties to perform their material obligations under the Loan
Documents taken as a whole and such default shall continue unremedied for a
period of 30 days after the earlier of an executive officer of a Loan Party
becoming aware of such default or notice thereof given by the Administrative
Agent, (ii) except pursuant to the terms thereof, any Loan Document shall fail
in any material respect to be in full force and effect or any Loan Party shall
so assert or (iii) except pursuant to the terms thereof, any Loan Document shall
fail in any material respect to give the Administrative Agent, the Collateral
Agent and/or the Lenders the security interests, liens, rights, powers and
privileges purported to be created thereby.
(e) CROSS-DEFAULT.
(i) any Group Company other than a Project
Subsidiary (A) fails to make payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand
or otherwise), regardless of amount, in respect of any
Indebtedness or Guaranty Obligation (other than in respect of
(x) Indebtedness outstanding under the Loan Documents, (y)
Swap Agreements and (z) Project Non-Recourse Debt) 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, (B) fails to perform or observe any
other condition or covenant, or any other event shall occur or
condition shall exist, under any agreement or instrument
relating to any such Indebtedness or Guaranty Obligation, in
the case of each of CLAUSES (A) and (B) if the effect of such
failure, event or condition is to cause, or to permit, with or
without the giving of notice or lapse of all applicable grace
periods or both, the holder or holders or beneficiary or
beneficiaries of such Indebtedness or Guaranty Obligation (or
a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, such Indebtedness to
be declared to be due and payable prior to its stated
maturity, or such Guaranty Obligation to become payable, or
cash collateral in respect thereof to be demanded or (C) shall
be required by the terms of such Indebtedness or Guaranty
Obligation to offer to prepay or repurchase such Indebtedness
or the primary Indebtedness underlying such Guaranty
Obligation (or any portion thereof) prior to the stated
maturity thereof;
(ii) any Group Company other than a Project
Subsidiary fails to pay, within 30 days after the date such
obligation arises, any reimbursement, indemnification or
similar obligation in an aggregate amount exceeding the
Threshold Amount relating to any performance or surety bond or
completion guarantee as to which the issuing or providing
party or parties have made payment under the documentation
relating thereto (except only to the extent that the existence
of any such default is being contested by such Group Company
in good faith and by appropriate proceedings and appropriate
reserves have been made in respect of such default); or
(iii) there occurs under any Swap Agreement
or Swap Obligation an Early Termination Date (as defined in
such Swap Agreement) resulting from (A) any event of default
under such Swap Agreement as to which any Group Company is the
Defaulting Party (as defined in such Swap Agreement) or (B)
any Termination Event (as so defined) as to which any Group
Company is an Affected Party (as so defined), and, in either
event, the Swap Termination Value owed by a Group Company as a
result thereof is greater than the Threshold Amount and such
Group Company fails to pay when due after applicable grace
periods.
(f) INSOLVENCY EVENTS. (i) Any Group Company other than a
Project Subsidiary shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any Debtor Relief Law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to authorize
any of the foregoing or (ii) an involuntary case or other proceeding shall be
commenced against any Group Company other than a Project Subsidiary seeking
liquidation, reorganization or other relief with respect to it or its debts
under any Debtor Relief Law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such involuntary
case or other proceeding shall remain undismissed and unstayed for a period of
60 days, or any order for relief shall be entered against any Group Company
other than a Project Subsidiary under the federal bankruptcy laws as now or
hereafter in effect.
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(g) JUDGMENTS. One or more judgments, orders, decrees or
arbitration awards is entered against any Group Company involving in the
aggregate a liability (to the extent not covered by independent third-party
insurance or an indemnity from a credit-worthy third party as to which the
insurer or indemnitor, as applicable, does not dispute coverage), as to any
single or related series of transactions, incidents or conditions, in excess of
the Threshold Amount, and the same shall not have been discharged, vacated or
stayed pending appeal within 30 days after the entry thereof.
(h) ERISA. (i) An ERISA Event occurs which has resulted or
could reasonably be expected to result in liability of any Group Company or any
ERISA Affiliate in an aggregate amount in excess of the Threshold Amount, (ii)
there shall exist an amount of Unfunded Liabilities, individually or in the
aggregate, for all Plans and Foreign Pension Plans (excluding for purposes of
such computation any Plans and Foreign Pension Plans with respect to which
assets exceed benefit liabilities), in an aggregate amount in excess of the
Threshold Amount, (iii) any Foreign Pension Plan is not in substantial
compliance with all applicable pension benefits and tax laws, (iv) any
contribution required to be made in accordance with any applicable law or the
terms of any Foreign Pension Plan has not been made; (v) any event has occurred
or condition exists with respect to any Foreign Pension Plan that has resulted
or could result in any Foreign Pension Plan being ordered or required to be
wound up in whole or in part pursuant to any applicable laws or having any
applicable registration revoked or refused for the purposes of any applicable
pension benefits or tax laws or being placed under the administration of the
relevant pension benefits regulatory authority or being required to pay any
taxes or penalties under applicable pension benefits and tax laws; (vi) an order
has been made or notice has been given pursuant to any applicable pension
benefits and tax laws in respect of any Foreign Pension Plan requiring any
person to take or refrain from taking any action in respect thereof or that
there has been a contravention of any such applicable laws; (vii) an event has
occurred or a condition exists that has resulted or could result in any Group
Company being required to pay, repay or refund any amount other than
contributions required to be made or expenses required to be paid in the
ordinary course) to or on account of any Foreign Pension Plan or a current or
former member thereof; or (viii) an event has occurred or a condition exists
that has resulted or could result in a payment being made out of a guarantee
fund established under the applicable pension benefits laws in respect of a
Foreign Pension Plan; and which, with respect to all the events and obligations
described in the preceding CLAUSES (III) through (VIII) of this SECTION 8.01(H),
would reasonably be expected to have a Material Adverse Effect.
(i) GUARANTIES. Any Guaranty given by any Loan Parties or any
provision thereof shall, except pursuant to the terms thereof, cease to be in
full force and effect, or any Guarantor thereunder or any Person acting by or on
behalf of such guarantor shall deny or disaffirm such Guarantor's obligations
under such Guaranty.
(j) IMPAIRMENT OF COLLATERAL. Any security interest purported
to be created by any Collateral Document shall cease to be, or shall be asserted
by any Group Company not to be, a valid, perfected, Lien (except as otherwise
expressly provided in such Collateral Document) in the securities, assets or
properties covered thereby, other than in respect of assets and properties
which, individually and in the aggregate, are not material to the Group
Companies taken as a whole or in respect of which the failure of the security
interests in respect thereof to be valid, perfected first priority security
interests will not in the reasonable judgment of the Collateral Agent have a
Material Adverse Effect on the rights and benefits of the Lenders under the Loan
Documents taken as a whole.
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(k) OWNERSHIP. A Change of Control shall occur.
SECTION 8.02 ACCELERATION; REMEDIES. Upon the occurrence of
and during the continuation of an Event of Default, and at any time thereafter
unless and until such Event of Default has been cured by the Company or waived
in writing by the Required Lenders (or the Lenders as may be required pursuant
to SECTION 10.01), the Administrative Agent (or the Collateral Agent, as
applicable) shall, upon the request and direction of the Required Lenders, by
written notice to the Company, take any of the following actions without
prejudice to the rights of the Agents or any Lender to enforce its claims
against the Loan Parties except as otherwise specifically provided for herein:
(a) TERMINATION OF COMMITMENTS. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) ACCELERATION OF LOANS. Declare the unpaid principal of and
any accrued interest in respect of all Loans, any reimbursement obligations
arising from drawings under Letters of Credit and any and all other indebtedness
or obligations of any and every kind (other than contingent indemnification
obligations) owing by a Loan Party to any of the Lenders hereunder to be due
whereupon the same shall be immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Loan Parties.
(c) CASH COLLATERAL. Direct the Company to pay (and the
Company agrees that upon receipt of such notice, or upon the occurrence of an
Event of Default under SECTION 8.01(F), it will immediately pay) to the
Collateral Agent additional cash, to be held by the Collateral Agent, for the
benefit of the Lenders, in a cash collateral account as additional security for
the L/C Obligations in respect of subsequent drawings under all then outstanding
Letters of Credit in an amount equal to 102% of the maximum aggregate amount
which may be drawn under all Letters of Credits then outstanding.
(d) ENFORCEMENT OF RIGHTS. Enforce any and all rights and
interests created and existing under the Loan Documents, including, without
limitation, all rights and remedies existing under the Collateral Documents, all
rights and remedies against a Guarantor and all rights of set-off.
(e) ENFORCEMENT RIGHTS VESTED SOLELY IN ADMINISTRATIVE AGENT
AND COLLATERAL AGENT. The Lenders agree that this Agreement may be enforced only
by the action of the Administrative Agent, acting upon the instructions of the
Required Lenders, and, with respect to the Collateral, the Collateral Agent, and
that no other Finance Party shall have any right individually to seek to enforce
any Loan Document or to realize upon the security to be granted hereby.
Notwithstanding the foregoing, if an Event of Default
specified in SECTION 8.01(F) shall occur, then the Commitments shall
automatically terminate, all Loans, all reimbursement obligations under Letters
of Credit, all accrued interest in respect thereof and all accrued and unpaid
fees and other indebtedness or obligations owing to the Lenders hereunder and
under the other Loan Documents shall immediately become due and payable and the
obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid
shall automatically become effective, in each case without the giving of any
notice or other action by the Administrative Agent or the Lenders, which notice
or other action is expressly waived by the Loan Parties.
SECTION 8.03 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
(a) PRIORITY OF DISTRIBUTIONS. The Company hereby irrevocably
waives the right to direct the application of any and all payments in respect of
its Finance Obligations and any proceeds of Collateral after the occurrence and
during the continuance of an Event of Default and agrees that, notwithstanding
the provisions of SECTIONS 2.09(B) and 2.14, after the occurrence and during the
continuance of an Event of Default, all amounts collected or received by the
Administrative Agent, the Collateral Agent or any Finance Party on account of
amounts then due and outstanding under any of the Loan Documents or any Swap
Agreement or in respect of the Collateral shall be paid over or delivered in
respect of its Finance Obligations as follows:
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FIRST, to pay interest on and then principal of any
portion of the Loans that the Administrative Agent may have advanced on
behalf of any Lender for which the Administrative Agent has not then
been reimbursed by such Lender or the Company;
SECOND, to pay interest on and then principal of
any Swing Line Loan;
THIRD, to the payment of all reasonable out-of-pocket
costs and expenses (including reasonable attorneys' fees) of the
Administrative Agent or the Collateral Agent in connection with
enforcing the rights of the Finance Parties under the Finance
Documents, including all expenses of sale or other realization of or in
respect of the Collateral, including reasonable compensation to the
agents and counsel for the Collateral Agent, and all expenses,
liabilities and advances incurred or made by the Collateral Agent in
connection therewith, and any other obligations owing to the Collateral
Agent in respect of sums advanced by the Collateral Agent to preserve
the Collateral or to preserve its security interest in the Collateral;
FOURTH, to the payment of all reasonable
out-of-pocket costs and expenses (including reasonable attorneys' fees)
of (i) each of the Lenders (including any L/C Issuer in its capacity as
such) in connection with enforcing its rights under the Loan Documents
or otherwise with respect to the Senior Credit Obligations owing to
such Lender and (ii) each Swap Creditor in connection with enforcing
any of its rights under the Swap Agreements or otherwise with respect
to the Swap Obligations owing to such Swap Creditor;
FIFTH, to the payment of all of the Senior Credit
Obligations consisting of accrued fees and interest;
SIXTH, except as set forth in CLAUSES FIRST through
FIFTH above, to the payment of the outstanding Senior Credit
Obligations and Swap Obligations owing to any Finance Party, Pro-Rata,
as set forth below, with (i) an amount equal to the Senior Credit
Obligations being paid to the Collateral Agent (in the case of Senior
Credit Obligations owing to the Collateral Agent) or to the
Administrative Agent (in the case of all other Senior Credit
Obligations) for the account of the Lenders or any Agent, with the
Collateral Agent, each Lender and the Agents receiving an amount equal
to its outstanding Senior Credit Obligations, or, if the proceeds are
insufficient to pay in full all Senior Credit Obligations, its Pro-Rata
Share of the amount remaining to be distributed, and (ii) an amount
equal to the Swap Obligations being paid to the trustee, paying agent
or other similar representative (each a "REPRESENTATIVE") for the Swap
Creditors, with each Swap Creditor receiving an amount equal to the
outstanding Swap Obligations owed to it by the Loan Parties or, if the
proceeds are insufficient to pay in full all such Swap Obligations, its
Pro-Rata Share of the amount remaining to be distributed;
SEVENTH, to the payment of the surplus, if any, to
whomever may be lawfully entitled to receive such surplus.
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In carrying out the foregoing, (i) amounts received shall be
applied in the numerical order provided until exhausted prior to application to
the next succeeding category; (ii) each of the Finance Parties shall receive an
amount equal to its Pro-Rata Share of amounts available to be applied pursuant
to CLAUSES "FOURTH", "FIFTH" and "SIXTH" above; and (iii) to the extent that any
amounts available for distribution pursuant to CLAUSE "SIXTH" above are
attributable to the issued but undrawn amount of outstanding Letters of Credit,
such amounts shall be held by the Collateral Agent in a cash collateral account
and applied (x) first, to reimburse the L/C Issuer from time to time for any
drawings under such Letters of Credit and (y) then, following the expiration of
all Letters of Credit, to all other obligations of the types described in
CLAUSES "SIXTH" above in the manner provided in this SECTION 8.03.
(b) PRO-RATA TREATMENT. For purposes of this SECTION 8.03,
"PRO-RATA SHARE" means, when calculating a Finance Party's portion of any
distribution or amount, that amount (expressed as a percentage) equal to a
fraction the numerator of which is the then unpaid amount of such Finance
Party's Senior Credit Obligations or Swap Obligations, as the case may be, and
the denominator of which is the then outstanding amount of all Senior Credit
Obligations or Swap Obligations, as the case may be. When payments to the
Finance Parties are based upon their respective Pro-Rata Shares, the amounts
received by such Finance Parties hereunder shall be applied (for purposes of
making determinations under this SECTION 8.03 only) (i) first, to their Senior
Credit Obligations and (ii) second, to their Swap Obligations. If any payment to
any Finance Party of its Pro-Rata Share of any distribution would result in
overpayment to such Finance Party, such excess amount shall instead be
distributed in respect of the unpaid Senior Credit Obligations or Swap
Obligations, as the case may be, of the other Finance Parties, with each Finance
Party whose Senior Credit Obligations or Swap Obligations, as the case may be,
have not been paid in full to receive an amount equal to such excess amount
multiplied by a fraction the numerator of which is the unpaid Senior Credit
Obligations, Swap Obligations or Secondary Obligations, as the case may be, of
such Finance Party and the denominator of which is the unpaid Senior Credit
Obligations or Swap Obligations, as the case may be, of all Finance Parties
entitled to such distribution.
(c) DISTRIBUTIONS WITH RESPECT TO LETTERS OF CREDIT. Each of
the Finance Parties agrees and acknowledges that if (after all outstanding Loans
and Reimbursement Obligations with respect to Letters of Credit have been paid
in full) the Lenders are to receive a distribution on account of undrawn amounts
with respect to Letters of Credit issued (or deemed issued) under the Credit
Agreement, such amounts shall be deposited in the L/C Cash Collateral Account as
cash security for the repayment of Senior Credit Obligations owing to the
Lenders as such. Upon termination of all outstanding Letters of Credit, all of
such cash security shall be applied to the remaining Senior Credit Obligations
of the Lenders. If there remains any excess cash security, such excess cash
shall be withdrawn by the Collateral Agent from the L/C Cash Collateral Account
and distributed in accordance with SECTION 8.03(A) hereof.
(d) DISTRIBUTIONS OF FUNDS ON DEPOSIT IN A PREPAYMENT ACCOUNT.
Notwithstanding the foregoing provisions of this SECTION 8.03, amounts on
deposit in a Prepayment Account for any Class of Loans shall be applied upon the
occurrence of any Event of Default, first, to pay Loans of such Class and,
second, after all the Loans of such Class have been paid in full, to the other
Senior Credit Obligations in the manner provided in this SECTION 8.03.
(e) RELIANCE BY COLLATERAL AGENT. For purposes of applying
payments received in accordance with this SECTION 8.03, the Collateral Agent
shall be entitled to rely upon (i) the Administrative Agent under the Credit
Agreement and (ii) the Representative, if any, for the Swap Creditors for a
determination (which the Administrative Agent, each Representative for any Swap
Creditor and the Finance Parties agree (or shall agree) to provide upon request
of the Collateral Agent) of the outstanding Senior Credit Obligations and Swap
Obligations owed to the Agents, the Lenders or the Swap Creditors, as the case
may be. Unless it has actual knowledge (including by way of written notice from
a Swap Creditor or any Representatives thereof) to the contrary, the Collateral
Agent, in acting hereunder, shall be entitled to assume that no Swap Agreements
are in existence.
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ARTICLE IX
AGENCY PROVISIONS
SECTION 9.01 APPOINTMENT AND AUTHORITY. Each of the Lenders
and each L/C Issuer hereby irrevocably appoints Bank of America to act on its
behalf as the Administrative Agent hereunder and under the other Loan Documents
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the benefit of
the Administrative Agent, the Lenders and the L/C Issuers, and neither the
Company nor any other Loan Party shall have rights as a third party beneficiary
of any of such provisions. SECTION 9.02 RIGHTS AS A LENDER. The Person serving
as the Administrative Agent hereunder shall have the same rights and powers in
its capacity as a Lender as any other Lender and may exercise the same as though
it were not the Administrative Agent and the term "LENDER" or "LENDERS" shall,
unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Company or any
Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefore to the
Lenders.
SECTION 9.03 EXCULPATORY PROVISIONS. The Administrative Agent
shall not have any duties or obligations except those expressly set forth herein
and in the other Loan Documents. Without limiting the generality of the
foregoing, the Administrative Agent:
(i) shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has
occurred and is continuing;
(ii) shall not have any duty to take any
discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated
hereby or by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing by the
Required Lenders (or such other number of percentage of the
Lenders as shall be expressly provided for herein or in the
other Loan Documents), PROVIDED that the Administrative Agent
shall not be required to take any action that, in its opinion
of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or
applicable Law; and
(iii) shall not, except as expressly set
forth herein and in the other Loan Documents, have any duty to
disclose, and shall not be liable for the failure to disclose,
any information relating to the Company or any of its
Affiliates that is communicated to or obtained by the Person
serving as the Administrative Agent or any of its Affiliates
in any capacity.
The Administrative Agent shall not be liable for any action
taken or not taken by it (i) with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in SECTIONS 10.01 and 8.02) or
(ii) in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until notice describing such Default is given to the Administrative Agent by
the Company, a Lender or a L/C Issuer.
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The Administrative Agent shall not be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein or therein or the occurrence of any Default, (iv)
the validity, enforceability, effectiveness or genuineness of this Agreement,
any other Loan Document or any other agreement, instrument or document or (v)
the satisfaction of any condition set forth in ARTICLE IV or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
SECTION 9.04 RELIANCE BY ADMINISTRATIVE AGENT. The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or a L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or L/C Issuer unless the Administrative
Agent shall have received notice to the contrary from such Lender or L/C Issuer
prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the
Company), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
SECTION 9.05 DELEGATION OF DUTIES. The Administrative Agent
may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent and
any such sub-agent may perform any and all of its duties and exercise its rights
and powers by or through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
SECTION 9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuers and the Company. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuers, appoint a
successor Administrative Agent meeting the qualifications set forth above;
PROVIDED that if the Administrative Agent shall notify the Company and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (i) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents (except that in the
case of any collateral security held by the Administrative Agent on behalf of
the Lenders or the L/C Issuers under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such
time as a successor Administrative Agent is appointed) and (ii) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and L/C Issuer
directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The fees payable by the Company to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Company and such successor.
After the retiring Administrative Agents' resignation hereunder and under the
other Loan Documents, the provisions of this Article and SECTION 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
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Any resignation by Bank of America as Administrative Agent
pursuant to this Section shall also constitute its resignation as an L/C Issuer
and as the Swing Lien Lender. Upon the acceptance of a successor's appointment
as Administrative Agent hereunder, (i) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of Bank of
America as a retiring L/C Issuer and as the Swing Line Lender, (ii) Bank of
America, as a retiring L/C Issuer and as the Swing Line Lender, shall be
discharged from all of its duties and obligations in such capacities hereunder
or under the other Loan Documents and (iii) a successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any, issued by
Bank of America outstanding at the time of such succession or make other
arrangements satisfactory to Bank of America as a retiring L/C issuer to
effectively assume the obligations of Bank of America as issuer of such Letters
of Credit.
SECTION 9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER
LENDERS. Each Lender and L/C Issuer acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
SECTION 9.08 NO OTHER DUTIES, ETC. Anything herein to the
contrary notwithstanding , none of the Agents or the Joint Lead Arrangers listed
on the cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, a Lender or a L/C Issuer hereunder.
SECTION 9.09 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 Company)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(i) 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 Senior
Credit 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 2.09 and 10.04) allowed in such judicial
proceeding; and
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(ii) 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
affecting the Senior Credit 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.
SECTION 9.10 COLLATERAL AND GUARANTY MATTERS. The Lenders
irrevocably authorize the Administrative Agent, at its option and in its
discretion:
(i) to release any Lien on any property
granted to or held by the Administrative Agent under any
Finance Document (A) upon termination of the Commitments and
payment in full of all Finance Obligations (other than
contingent indemnification obligations and, but only to the
extent not then due and payable, Swap Obligations and Cash
Management Obligations) and the expiration or termination of
all Letters of Credit, (B) that is sold or to be sold as part
of or in connection with any sale permitted hereunder or under
any other Finance Document, or (C) subject to SECTION 10.01,
if approved, authorized or ratified in writing by the Required
Lenders;
(ii) to subordinate any Lien on any property
granted to or held by the Administrative Agent or either
Collateral Agent under any Loan Document to the holder of any
Lien on such property that is permitted by SECTION 7.02(XVI)
and (XXIII); and
(iii) 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 or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this SECTION
9.10.
SECTION 9.11 RELATED OBLIGATIONS. The benefit of the Loan
Documents and of the provisions of this Agreement relating to the Collateral
shall extend to and be available in respect of any Cash Management Obligations
and to any Swap Obligations permitted hereunder from time to time owing to one
or more Swap Creditors (collectively, "RELATED OBLIGATIONS") solely on the
condition and understanding, as among the Collateral Agent and all Finance
Parties, that (i) the Related Obligations shall be entitled to the benefit of
the Loan Documents and the Collateral to the extent expressly set forth in this
Agreement and the other Loan Documents and to such extent the Administrative
Agent and the Collateral Agent shall hold, and have the right and power to act
with respect to, the Guaranty and the Collateral on behalf of and as agent for
the holders of the Related Obligations, but the Administrative Agent and the
Collateral Agent are otherwise acting solely as agent for the Lenders and the
L/C Issuers and shall have no fiduciary duty, duty of loyalty, duty of care,
duty of disclosure or other obligation whatsoever to any holder of Related
Obligations, (ii) all matters, acts and omissions relating in any manner to the
Guaranty, the Collateral, or the omission, creation, perfection, priority,
abandonment or release of any Lien, shall be governed solely by the provisions
of this Agreement and the other Loan Documents and no separate Lien, right,
power or remedy shall arise or exist in favor of any Finance Party under any
separate instrument or agreement or in respect of any Related Obligation, (iii)
each Finance Party shall be bound by all actions taken or omitted, in accordance
with the provisions of this Agreement and the other Loan Documents, by the
Administrative Agent, the Collateral Agent and the Required Lenders, as
applicable, each of whom shall be entitled to act at its sole discretion and
exclusively in its own interest given its own Commitments and its own interest
in the Loans, L/C Obligations and other Senior Credit Obligations to it arising
under this Agreement or the other Loan Documents, without any duty or liability
to any Swap Creditor or holder of Cash Management Obligations or as to any
Related Obligation and without regard to whether any Related Obligation remains
outstanding or is deprived of the benefit of the Collateral or becomes unsecured
or is otherwise affected or put in jeopardy thereby, (iv) no holder of Related
Obligations and no other Finance Party (except the Lenders to the extent set
forth in this Agreement) shall have any right to be notified of, or to direct,
require or be heard with respect to, any action taken or omitted in respect of
the Collateral or under this Agreement or the Loan Documents and (v) no holder
of any Related Obligation shall exercise any right of setoff, banker's lien or
similar right except to the extent provided in SECTION 10.08 and then only to
the extent such right is exercised in compliance with SECTION 2.13.
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SECTION 9.12 AGENTS' FEES; JOINT LEAD ARRANGERS FEES. The
Company shall pay to the Administrative Agent for its own account, to the
Collateral Agent for its own account and to Banc of America Securities LLC and
Xxxxxx Brothers Inc., in their capacities as Joint Lead Arrangers, for their own
accounts, fees in the amounts and at the times previously agreed upon between
the Company and the Administrative Agent, the Collateral Agent and such Joint
Lead Arrangers, respectively, in each case with respect to this Agreement, the
other Loan Documents and the transactions contemplated hereby and thereby.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 AMENDMENTS, ETC.
(a) AMENDMENTS GENERALLY. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and (i) in the case of any such waiver or consent,
signed by the Required Lenders (or by the Administrative Agent with the consent
of the Required Lenders), (ii) in the case of any amendment necessary to
implement the terms of a Facilities Increase in accordance with the terms of
SECTION 2.10(A) hereof, by the Company and the Administrative Agent and (iii) in
the case of any other amendment, by the Required Lenders (or by the
Administrative Agent with the consent of the Required Lenders) and the Company,
and each such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; PROVIDED that the Administrative
Agent and the Company may, with the consent of the other, amend, modify or
supplement this Agreement and any other Loan Document to cure any ambiguity,
typographical error, defect or inconsistency if such amendment, modification or
supplement does not adversely affect the rights of any Agent, any Lender or any
L/C Issuer.
(b) AMENDMENTS AND WAIVERS PERTINENT TO AFFECTED LENDERS.
Notwithstanding PARAGRAPH (A) above and in addition to any other consent that
may be required thereunder, no amendment, waiver or consent shall:
(i) extend or increase the Commitment of any
Lender without the written consent of such Lender;
(ii) 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;
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(iii) reduce the principal of, or the rate
of interest specified herein on, any Loan or unreimbursed L/C
Disbursement, or (subject to SUBSECTION (C) below) 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 (A) to amend the
definition of "Default Rate" or to waive any obligation of the
Company to pay interest or Letter of Credit Fees at the
Default Rate or (B) 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 any unreimbursed L/C Disbursement or to reduce any fee
payable hereunder;
(iv) 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;
(v) change any provision of this Section or
the definition of "Required Lenders" or "Required Revolving
Lenders" or any other provision hereof specifying the
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 which is a Lender of the applicable Class so specified,
in each case other than as part of a Facilities Increase for
which the conditions specified in SECTION 4.03 are satisfied;
(vi) release the Company or substantially
all of the other Loan Parties from its or their obligations
under the Loan Documents without the written consent of the
Required Lenders (PROVIDED that the Administrative Agent may,
without the consent of any Lender, release any Guarantor (or
all or substantially all of the assets of a Guarantor) that is
sold or transferred in compliance with SECTION 7.05);
(vii) release all or substantially all of
the Collateral securing the Senior Credit Obligations
hereunder without the written consent of each Lender (PROVIDED
that the Collateral Agent may, without consent from any other
Lender, release any Collateral that is sold or transferred by
a Loan Party in compliance with SECTION 7.05 or released in
compliance with SECTION 9.01(B)); and
(viii) affect the rights or duties of any
L/C Issuer under this Agreement or any Letter of Credit
Request relating to any Letter of Credit issued or to be
issued by it, without the prior written consent of such L/C
Issuer; affect the rights or duties of the Swing Line Lender
under this Agreement, without the prior written consent of the
Swing Line Lender; (iii) affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan
Document, without the prior written consent of the
Administrative Agent.
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(c) FEE LETTER AMENDMENT; DEFAULTING LENDERS. Notwithstanding
anything to the contrary herein, (i) the Fee Letter may be amended, or rights
and privileges thereunder waived, in a writing executed only by the parties
thereto and (ii) 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.
Each Lender and each holder of a Note shall be bound by any
waiver, amendment or modification authorized by this SECTION 10.01 regardless of
whether its Note shall have been marked to make reference therein, and any
consent by any Lender or holder of a Note pursuant to this SECTION 10.01 shall
bind any Person subsequently acquiring a Note from it, whether or not such Note
shall have been so marked.
SECTION 10.02 NOTICES; EFFECTIVENESS; ELECTRONIC
COMMUNICATION.
(a) NOTICES GENERALLY. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in SUBSECTION (B) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Company, the Administrative
Agent, a L/C Issuer or the Swing Line Lender, to the address,
telecopier number, electronic mail address or telephone number
specified for such Person on SCHEDULE 10.02; and
(ii) if to any other Lender, to the address,
telecopier number, electronic mail address or telephone number
specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in SUBSECTION (B) below, shall be effective as provided in such
SUBSECTION (B).
(b) ELECTRONIC COMMUNICATIONS. Notices and other
communications to the Lenders and the L/C Issuers hereunder may be delivered or
furnished by electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent, PROVIDED
that the foregoing shall not apply to notices to any Lender or L/C Issuer
pursuant to ARTICLE II if such Lender or L/C Issuer, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Company
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
PROVIDED that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall be deemed
received upon the sender's receipt of an acknowledgement from the intended
recipient (such as by the "return receipt requested" function, as available,
return e-mail or other written acknowledgement), PROVIDED that if such notice or
other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent at the
opening of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail address
as described in the foregoing CLAUSE (I) of notification that such notice or
communication is available and identifying the website address therefor.
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(c) THE PLATFORM. THE PLATFORM IS PROVIDED "AS IS" AND "AS
AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE GROUP COMPANY MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE GROUP COMPANY
MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE GROUP COMPANY MATERIALS OR THE PLATFORM.
In no event shall the Administrative Agent or any of its Related Parties
(collectively, "AGENT PARTIES") have any liability to the Borrower, any Lender,
any L/C Issuer or any other Person for losses, claims, damages, liabilities or
expenses of any kind (whether in tort, contract or otherwise) arising out of any
Loan Party's or the Administrative Agent's transmission of Group Company
Materials through the Internet, except to the extent that such losses, claims,
damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final an nonappealable judgment to have resulted from the
gross negligence, bad faith or willful misconduct of such Agent Party; provided,
HOWEVER, that in no event shall any Agent Party have any liability to the
Borrower, any Lender, any L/C Issuer or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or actual
damages).
(d) CHANGE OF ADDRESS, ETC. Each of the Company, its
Subsidiaries, the Administrative Agent, each L/C Issuer and the Swing Line
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Company, the Administrative
Agent, the L/C Issuers and the Swing Line Lender. In addition, each Lender
agrees to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices
and other communications may be sent and (ii) accurate wire instructions for
such Lender.
(e) RELIANCE BY ADMINISTRATIVE AGENT, L/C ISSUERS AND LENDERS.
The Administrative Agent and the Lenders shall be entitled to rely and act upon
any notices (including telephonic notices) purportedly given by or on behalf of
the Company or any other Loan Party 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 Company shall
indemnify the Administrative Agent, each L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of the Company. 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.
SECTION 10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by
any Lender or L/C issuer or by 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.
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SECTION 10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) COSTS AND EXPENSES. The Company agrees to pay (i) all
reasonable out-of-pocket documented and invoiced expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent), in connection with
the syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof, (ii) all reasonable documented and invoiced
out-of-pocket expenses incurred by any L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred
by the Administrative Agent, any Lender and any L/C Issuer (including the fees,
charges and disbursements of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP,
counsel for the Administrative Agent, any Lender and the L/C Issuer), in
connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under
this Section, or (B) in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit; PROVIDED that the Company shall not be required to reimburse the legal
fees and expenses of more than one outside counsel (in addition to any special
counsel and up to one local counsel in each applicable local jurisdiction) for
all Persons indemnified under this SUBSECTION (A); PROVIDED, FURTHER, that the
Company shall not be required to pay the fees and expenses of third party
advisors to the Administrative Agent, any Lender or the L/C Issuer (which shall
not include counsel otherwise authorized hereunder) without the prior written
consent of the Company (such consent not to be unreasonably withheld or
delayed); PROVIDED, FURTHER that, so long as no Event of Default has occurred
and is continuing, the fees, charges and disbursements incurred by counsel for
the Administrative Agent in connection with the administration of, or any
amendments, modifications or waivers to, the Loan Documents shall not exceed
$5,000 in any given month without the prior written consent of the Company and
no amounts in excess of $5,000 per month shall be payable by the Company if no
such prior written consent has been obtained.
(b) INDEMNIFICATION. The Company shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender each L/C Issuer,
and each Related Party of any of the foregoing Persons (each such Person being
called an "INDEMNITEE") against, and hold each Indemnitee harmless from, any and
all (subject to clause (d) below) losses, claims, damages, liabilities and
related expenses (including the fees, charges and disbursements of any counsel
for any Indemnitee and one financial advisor for all Indemnitees), incurred by
any Indemnitee or asserted against any Indemnitee by any third party or by the
Company or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or thereby
or, in the case of the Administrative Agent (and any sub-agent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Company or any of its
Subsidiaries, or any Environmental Liability related in any way to the Company
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding brought by a third party or by the Company or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto,
in all cases, whether or not caused by or arising, in whole or in part, out of
the comparative, contributory or sole negligence of the Indemnitee; PROVIDED
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment (x) to have resulted from the gross negligence, bad faith or willful
misconduct of such Indemnitee or (y) result from a claim brought by the Company
or any other Loan Party against an Indemnitee or such Indemnitee's Related
Parties for breach of such Indemnitee's obligations hereunder or under any other
Finance Document; PROVIDED, FURTHER, that the Company shall not be required to
reimburse the legal fees and expenses of more than one outside counsel (in
addition to up to one local counsel in each applicable local jurisdiction) for
all Indemnitees unless, in the written opinion of outside counsel reasonably
satisfactory to the Company and the Administrative Agent, representation of all
such Indemnitees would be inappropriate due to the existence of an actual or
potential conflict of interest.
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(c) REIMBURSEMENT BY LENDERS. To the extent that the Company
for any reason fail indefeasibly to pay any amount required under SUBSECTION (A)
or (B) of this Section to be paid by it or them to the Administrative Agent (or
any sub-agent thereof), any L/C Issuer or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), each LC Issuer or such Related Party, as the case may be,
such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent (or any such sub-agent) or the L/C
Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) or L/C
Issuer in connection with such capacity. The obligations of the Lenders under
this SUBSECTION (C) are subject to the provisions of SECTION 2.14(D).
(d) WAIVER OF CONSEQUENTIAL DAMAGES. To the fullest extent
permitted by applicable Law, the Company shall not assert, and hereby waives,
any claim against any Indemnitee, and each of the Lenders agrees not to assert
or permit any of their respective Subsidiaries to assert any claim against the
Company or any of its Subsidiaries or any of their respective directors,
officers, employees, attorneys, agents or advisors, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred to in
SUBSECTION (B) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.
(e) PAYMENTS. All amounts due under this Section shall be
payable not later than ten Business Days after demand therefor.
(f) SURVIVAL. The agreements in this Section shall survive the
resignation of the Administrative Agent, any L/C Issuer, the replacement of any
Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all the other Senior Credit Obligations.
SECTION 10.05 PAYMENTS SET ASIDE. To the extent that any
payment by or on behalf of the Company or any other Loan Party 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
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repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (i) 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 (ii) 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. The obligations of the Lenders and the L/C Issuers under CLAUSE (II) of
the preceding sentence shall survive the payment in full of the Senior Credit
Obligations and the termination of this Agreement.
SECTION 10.06 SUCCESSORS AND ASSIGNS.
(a) SUCCESSORS AND ASSIGNS GENERALLY. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that
neither the Company nor any other Loan Party may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an 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 or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of SUBSECTION (F) 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 Related
Parties of each of the Administrative Agent, the L/C issuers and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) ASSIGNMENTS BY LENDERS. Any Lender may at any time assign
to one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans (including for purposes of this subsection (b), any Participation
Interests in Letters of Credit and Swing Line Loans) at the time owing to it);
PROVIDED, HOWEVER, that:
(i) except in the case of an assignment of
the entire remaining amount of the assignment Lender's
Commitment and the Loans of the applicable Class owing to it
or in the case of an assignment to a Lender or an Affiliate of
a Lender or an Approved Fund with respect to a Lender, (A) the
aggregate amount of the Revolving Commitment (which for this
purposes includes Revolving Loans outstanding thereunder) or,
if the Revolving Commitments are not then in effect, the
principal outstanding balance of the Revolving Loans of the
assigning Lender subject to each such assignment, determined
as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or,
if "Trade Date" is specified in the Assignment and Assumption,
as of the Trade Date, shall not be less than $5,000,000 unless
each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Company otherwise
consents (each such consent not to be unreasonably withheld or
delayed), (B) (x) so long as any Term B Delayed Draw
Commitment is in effect and there are no Term B Delayed Draw
Loans outstanding, such Term B Delayed Draw Commitment may be
assigned in whole or in part without regard to any minimum
amount or (y) if the Term B Delayed Draw Commitments are not
then in effect, the principal outstanding balance of the Term
B Delayed Draw Loans of the of the assigning Lender subject to
each such assignment, determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if "Trade Date" is specified in
the Assignment and Assumption, as of the Trade Date, shall not
be less than $1,000,000 unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is
continuing, the Company otherwise consents (each such consent
not to be unreasonably withheld or delayed) and (C) the
aggregate amount of any Term B Closing Date Loans of an
assigning Lender subject to each such assignments, 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 $1,000,000 unless
each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Company otherwise
consents (each such consent not to be unreasonably withheld or
delayed); PROVIDED, HOWEVER, that concurrent assignments to
members of an Assignee Group and concurrent assignments from
members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group)
will be treated as a single assignment for purposes of
determining whether such minimum amount has been met
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(ii) each partial assignment shall be made
as an assignment of a proportionate part of all the assigning
Lenders' 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 and, in the case of any
assignment of a Revolving Commitment, the L/C Issuers and the
Swing Line Lender, unless the proposed assignee is itself a
Lender (whether or not the proposed assignee would otherwise
qualify as an Eligible Assignee);
(iv) the Eligible Assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent and
Administrative Questionnaire, and the parties to each
assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing
and recordation fee (the "ASSIGNMENT FEE") of $2,500;
PROVIDED, however, that in the event of two or more concurrent
assignments to members of the same Assignee Group (which may
be effected by a suballocation of an assigned amount among
members of such Assignee Group) or two or more concurrent
assignments by members of the same Assignee Group to a single
Eligible Assignee (or to an Eligible Assignee and members of
its Assignee Group), the Assignment Fee will be $2,500 plus
the amount set forth below:
TRANSACTION ASSIGNMENT FEE
First four concurrent assignments or suballocations to -0-
members of an Assignee Group (or from members of an
Assignee Group, as applicable)
Each additional concurrent assignment or suballocation $500
to a member of such Assignee Group (or from a member of
an Assignee Group, as applicable)
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 10.17
with respect to facts and circumstances occurring prior to the effective date of
such assignment). Upon request, the Company (at its expense) shall execute and
deliver a Note or Notes 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.
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(c) REGISTER. The Administrative Agent, acting solely for this
purpose as an agent of the Company, 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 Company, 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 each of the Company and the L/C Issuers at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or other substantive
change to the Loan Documents is pending, any Lender wishing to consult with
other Lenders in connection therewith may request and receive from the
Administrative Agent a copy of the Register.
(d) PARTICIPATIONS. Any Lender may at any time, without the
consent of, or notice to, the Company or the Administrative Agent, sell
participations to any Person (other than a natural person or the Company or any
of the Company'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 Commitments of any Class 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 Company, the Administrative Agent, the Lenders and the L/C Issuers
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 affects such Participant. Subject to SUBSECTION
(E) of this Section, the Company agrees that each Participant shall be entitled
to the benefits and subject to the requirements 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 10.08
as though it were a Lender, PROVIDED such Participant agrees to be subject to
SECTION 2.13 as though it were a Lender.
(e) LIMITATION UPON PARTICIPANT RIGHTS. A Participant shall
not be entitled to receive any greater payment under SECTION 3.01 or 3.04 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Company'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 Company is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Company, to comply with SECTION 3.01(E) as though it were a Lender.
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(f) CERTAIN PLEDGES. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement (including under its Note, if any) to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank; PROVIDED that no such pledge or assignment shall release such
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(g) ELECTRONIC EXECUTION OF ASSIGNMENTS. The words
"execution," "signed," "signature," and words of like import in any Assignment
and Assumption shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based record keeping system, as the case may be, to the extent and as
provided for in any applicable Law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act or any other similar state laws based on the Uniform Electronic
Transactions Act.
(h) CERTAIN ASSIGNMENTS BY BANK OF AMERICA. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America
assigns all of its Revolving Commitment and Revolving Loans pursuant to
SUBSECTION (b) above, Bank of America may, (i) upon 30 days' notice to the
Company and the Lenders, resign as a L/C Issuer and/or (ii) upon 30 days' notice
to the Company, resign as Swing Line Lender. In the event of any such
resignation as a L/C Issuer or Swing Line Lender, the Company shall be entitled
to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; PROVIDED, HOWEVER, that no failure by the Company to appoint any such
successor shall affect the resignation of Bank of America as L/C Issuer or Swing
Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it
shall retain all the rights, powers, privileges and duties of a L/C Issuer
hereunder with respect to all Letters of Credit issued by it outstanding as of
the effective date of its resignation as a L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Revolving Lenders to
make Base Rate Loans or purchase Participation Interests in Letters of Credit
and L/C Obligations pursuant to SECTION 2.05 (E)). 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 Revolving Lenders to make Base Rate Loans or Purchase Participation
Interests in outstanding Swing Line Loans pursuant to SECTION 2.01(D)(VI). Upon
the appointment of a successor L/C Issuer and/or Swing Line Lender, (i) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the
case may be, and (ii) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to Bank of America
effectively to assume the obligations of Bank of America with respect to such
Letters of Credit.
SECTION 10.07 TREATMENT OF CERTAIN INFORMATION;
CONFIDENTIALITY. Each of the Administrative Agent, the Lenders and the L/C
Issuers agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (i) to its Affiliates and to it
and its Affiliates' respective partners, directors, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (ii) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (in which case the Administrative Agent or such Lender or L/C Issuer, as
applicable, shall use reasonable efforts to notify the Company prior to such
disclosure, in any case including any self-regulatory authority, such as the
National Association of Insurance Commissioners); (iii) to the extent required
by applicable Laws or regulations or by any subpoena or similar legal process;
(iv) to any other party hereto; (v) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (vi) subject to an agreement containing
provisions substantially the same as those of this Section, to (A) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement, (B) any pledgee referred to in
SECTION 10.06(F) or (C) any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to the Company and its
obligations, (vii) with the consent of the Company or (viii) to the extent such
Information (A) becomes publicly available other than as a result of a breach of
this Section or (B) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Company.
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For purposes of this Section, "INFORMATION" means all
information received from the Company or any of its Subsidiaries relating to the
Company or any Subsidiary or any of their respective businesses, other than any
such information that is available to the Administrative Agent or any Lender or
L/C Issuer on a nonconfidential basis prior to disclosure by the Company or any
Subsidiary. 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 the foregoing, any Agent and
any Lender may place advertisements in financial and other newspapers and
periodicals or on a home page or similar place for dissemination of information
on the Internet or worldwide web as it may choose, and circulate similar
promotional materials, after the closing of the transactions contemplated by
this Agreement in the form of a "tombstone" or otherwise describing the names of
the Loan Parties, or any of them, and the amount, type and closing date of such
transactions, all at their sole expense.
Each of the Administrative Agent, the Lenders and the L/C
Issuers acknowledges that (i) the Information may include material non-public
information concerning the Borrower or one or more Subsidiaries, (ii) it has
developed compliance procedures regarding the use of material non-public
information and (iii) it will handle such material non-public information in
accordance with applicable Laws, including Federal and state securities Laws.
SECTION 10.08 RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Lender and each L/C Issuer is hereby
authorized at any time and from time to time, after obtaining the prior written
consent of the Administrative Agent, to the fullest extent permitted by
applicable Law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held and
other obligations (in whatever currency) at any time owing by such Lender, L/C
Issuer to or for the credit or the account of the Company or any other Loan
Party against any and all of the obligations of the Company or such Loan Party
now or hereafter existing under this Agreement or any other Loan Document to
such Lender or the L/C Issuer, to the extent then due and owing, irrespective of
whether or not such Lender or the L/C Issuer shall have made any demand under
this Agreement or any other Loan Document or are owed to a branch or office of
such Lender or the L/C Issuer different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender, the L/C
Issuer and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender,
the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C
Issuer agrees to notify the Company and the Administrative Agent promptly after
any such setoff and application, PROVIDED that the failure to give such notice
shall not affect the validity of such setoff and application.
SECTION 10.09 INTEREST RATE LIMITATION. Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the "MAXIMUM RATE"). If the
Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the Company.
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, (i) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (ii) exclude
voluntary prepayments and the effects thereof and (iii) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Senior Credit Obligations hereunder.
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SECTION 10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement. This Agreement
and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective on the Closing Date concurrently
with the satisfaction (or waiver) of the conditions set forth in SECTION 4.01
and 4.02.
SECTION 10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
any Agent or any Lender or on their behalf and notwithstanding that the Agent or
any Lender may have had notice or knowledge of any Default or Event of Default
at the time of any Credit Extension, and shall continue in full force and effect
until the Senior Credit Obligations (other than contingent indemnification
obligations) have been paid in full.
SECTION 10.12 SEVERABILITY. If any provision of this Agreement
or the other Loan Documents is held to be illegal, invalid or unenforceable, (i)
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 (ii) 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.
SECTION 10.13 REPLACEMENT OF LENDERS. If (i) any Lender
requests compensation under SECTION 3.04, (ii) the Company is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to SECTION 3.01, (iii) the obligation of any
Lender to make Eurodollar Loans has been suspended pursuant to SECTION 3.02,
(iii) any Lender is a Defaulting Lender or (iv) any Lender has failed to consent
to a proposed amendment, waiver, discharge or termination which pursuant to the
terms of SECTION 10.01 or any other provision of any Loan Document requires the
consent of all of the Lenders of a Class or Classes and with respect to which
the Required Lenders of such Class or Classes shall have granted their consent,
the Company shall have the right, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, (i) to remove such Lender by
terminating such Lender's Commitment in full or (ii) to replace such Lender by
causing such Lender to assign and delegate, without recourse (in accordance with
and subject to the restrictions contained in, and consents required by, SECTION
10.06), all of its interests, rights and obligations under this Agreement and
the other Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment);
PROVIDED that: (i) the Company shall have paid to the Administrative Agent the
assignment fee specified in SECTION 10.06(B);
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(ii) such Lender shall have received payment
of an amount equal to the outstanding principal amount of its
Loans and Participation Interests in Unreimbursed Amounts
arising under drawn Letters of Credit, accrued interest
thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents (including any
amounts under SECTION 3.05) from the assignee (to the extent
of such outstanding principal and accrued interest and fees)
or the Company (in the case of all other amounts);
(iii) in the case of any assignment
resulting from a claim for compensation under SECTION 3.04 or
payments required to be made pursuant to SECTION 3.01, such
assignment will result in a reduction in such compensation or
payments thereafter;
(iv) such assignment does not conflict with
applicable Laws; and
(v) (A) if the Company elects to exercise
such right with respect to any Lender pursuant to CLAUSE (I),
(II) or (III) above, it shall be obligated to remove or
replace, as the case may be, all Lenders that have similar
requests then outstanding for compensation pursuant to SECTION
3.04 or 3.01 or whose obligation to make Eurodollar Loans has
been similarly suspended and (B) in the case of any
replacement of Lenders under the circumstances described in
CLAUSE (IV) above, the applicable amendment, waiver, discharge
or termination that the Company has requested shall become
effective upon giving effect to such replacement (and any
related Assignment and Assumptions required to be effected in
connection therewith in accordance with this SECTION 10.13).
A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Company to require such assignment
and delegation cease to apply.
SECTION 10.14 GOVERNING LAW; JURISDICTION ETC.
(a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN LETTERS OF CREDIT AND OTHER THAN AS EXPRESSLY SET FORTH IN SUCH
OTHER LOAN DOCUMENTS) AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION,
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). EACH
LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS
OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500
AND, AS TO MATTERS NOT GOVERNED BY SUCH UNIFORM CUSTOMS, THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
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(b) SUBMISSION TO JURISDICTION. THE COMPANY AND EACH OTHER
LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY,
TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING
IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT
OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT
THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST THE COMPANY OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE COMPANY AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS
TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW
SECTION 10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND I (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.16 USA PATRIOT ACT NOTICE; LENDERS' COMPLIANCE
CERTIFICATION.
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(a) NOTICE TO BORROWER. Each Lender and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the Company
that pursuant to the requirements of the US Patriot Act it may be required to
obtain, verify and record information that identifies the Company, which
information includes the name and address of each Loan Party and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify each such Loan Party in accordance with the Act.
(b) LENDERS' CERTIFICATION. Each Lender or assignee or
participant of a Lender that is not incorporated under the Laws of the United
States or a State thereof (and is not excepted from the certification
requirement contained in Section 313 of the U.S. Patriot Act and the applicable
regulations because it is both (i) an Affiliate of a depository institution or
foreign bank that maintains a physical presence in the United States or foreign
country and (ii) subject to supervision by a banking regulatory authority
regulating such affiliated depository institution or foreign bank) shall deliver
to the Administrative Agent the certification or, if applicable,
recertification, certifying that such Lender is not a "shell" and certifying to
other matters as required by Section 313 of the U.S. Patriot Act and the
applicable regulations thereunder: (i) within 10 days after the Closing Date or,
if later, the date such Lender, assignee or participant of a Lender becomes a
Lender, assignee or participant of a Lender hereunder and (ii) at such other
times as are required under the U.S. Patriot Act.
SECTION 10.17 JUDGMENT CURRENCY.
(a) The obligations of the Loan Parties hereunder and under
the other Loan Documents to make payments in a specified currency (the
"OBLIGATION CURRENCY") shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any currency
other than the Obligation Currency, except to the extent that such tender or
recovery results in the effective receipt by a Finance Party of the full amount
of the Obligation Currency expressed to be payable to it under this Agreement or
another Loan Document. If, for the purpose of obtaining or enforcing judgment
against any Loan Party in any court or in any jurisdiction, it becomes necessary
to convert into or from any currency other than the Obligation Currency (such
other currency being hereinafter referred to as the "JUDGMENT CURRENCY") an
amount due in the Obligation Currency, the conversion shall be made, at the rate
of exchange (as quoted by the Administrative Agent or if the Administrative
Agent does not quote a rate of exchange on such currency, by a known dealer in
such currency designated by the Administrative Agent) determined, in each case,
as of the Business Day immediately preceding the date on which the judgment is
given (such Business Day being hereinafter referred to as the "JUDGMENT CURRENCY
CONVERSION Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, the Company covenants and agrees to pay, or cause to be paid, or
remit, or cause to be remitted, such additional amounts, if any (but in any
event not a lesser amount), as may be necessary to ensure that the amount paid
in the Judgment Currency, when converted at the rate of exchange prevailing on
the date of payment, will produce the amount of the Obligation Currency which
could have been purchased with the amount of Judgment Currency stipulated in the
judgment or judicial award at the rate of exchange prevailing on the Judgment
Currency Conversion Date.
(c) For purposes of determining any rate of exchange or
currency equivalent for this SECTION 10.17, such amounts shall include any
premium and costs payable in connection with the purchase of the Obligation
Currency.
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SECTION 10.18 CONFLICT. To the extent that there is a conflict
or inconsistency between any provision hereof, on the one hand, and any
provision of any other Loan Document, on the other hand, this Agreement shall
control.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
SYNAGRO TECHNOLOGIES, INC.
By: _________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
Individually
By: _________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as L/C Issuer
By: _________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as Swing Line Lender
By: _________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as Administrative Agent
By: _________________________________
Name:
Title:
S-2
XXXXXX COMMERCIAL PAPER INC.,
Individually
By: _________________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent
By: _________________________________
Name:
Title:
S-3
CANADIAN IMPERIAL BANK OF COMMERCE
By: _________________________________
Name:
Title:
CIBC WORLD MARKETS CORP.,
as Documentation Agent
By: _________________________________
Name:
Title:
S-4
SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS OF
APRIL 29, 2005 AMONG SYNAGRO TECHNOLOGIES, INC., EACH
LENDER FROM TIME TO TIME PARTY HERETO, BANK OF AMERICA,
N.A., AS ADMINISTRATIVE AGENT, SWING LINE LENDER AND
L/C ISSUER, XXXXXX COMMERCIAL PAPER INC., AS
SYNDICATION AGENT, AND CIBC WORLD MARKETS CORP., AS
DOCUMENTATION AGENT
NAME OF INSTITUTION:
---------------------------------
By: _________________________________
Name:
Title:
S-5
