Exhibit 99.1
================================================================================
CREDIT AGREEMENT
DATED AS OF DECEMBER 19, 2006
AMONG
VOLT DELTA RESOURCES, LLC,
as Borrower,
THE LENDERS LISTED HEREIN,
as Lenders,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Lead Arranger
================================================================================
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS...................................................................................1
1.1 Certain Defined Terms...........................................................................1
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement.............25
1.3 Other Definitional Provisions and Rules of Construction........................................25
1.4 Exchange Rates; Currency Equivalents...........................................................26
1.5 Agreed Currencies..............................................................................26
1.6 Change of Currency.............................................................................27
SECTION 2. AMOUNTS AND TERMS OF LOANS...................................................................28
2.1 Loans; Making of Loans; the Register; Optional Notes...........................................28
2.2 Interest on the Loans..........................................................................34
2.3 Fees...........................................................................................37
2.4 Repayments, Prepayments and Reductions of Revolving Loan Commitment Amount; General
Provisions Regarding Payments..................................................................37
2.5 Use of Proceeds................................................................................40
2.6 Special Provisions Governing Eurocurrency Rate Loans...........................................41
2.7 Increased Costs; Taxes; Capital Adequacy.......................................................43
2.8 Statement of Lenders; Obligation of Lenders and Issuing Lender to Mitigate.....................48
2.9 Replacement of a Lender........................................................................49
2.10 Increase in Commitments........................................................................49
SECTION 3. LETTERS OF CREDIT............................................................................51
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations Therein..................51
3.2 Letter of Credit Fees..........................................................................52
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit.............................53
3.4 Obligations Absolute...........................................................................56
3.5 Nature of Issuing Lender's Duties..............................................................57
3.6 Applicability of UCP...........................................................................57
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT....................................................57
4.1 Conditions to Closing..........................................................................58
4.2 Conditions to Closing; All Loans...............................................................61
4.3 Conditions to Letters of Credit................................................................61
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES.....................................................62
5.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries..................62
5.2 Authorization of Borrowing, etc................................................................62
5.3 Financial Condition............................................................................63
i
5.4 No Material Adverse Change.....................................................................64
5.5 Title to Properties; Liens; Intellectual Property..............................................64
5.6 Litigation; Adverse Facts......................................................................64
5.7 Payment of Taxes...............................................................................65
5.8 Governmental Regulation........................................................................65
5.9 Securities Activities..........................................................................65
5.10 Employee Benefit Plans.........................................................................65
5.11 Environmental Protection.......................................................................66
5.12 Solvency.......................................................................................66
5.13 Matters Relating to Collateral.................................................................66
5.14 Disclosure.....................................................................................67
5.15 Foreign Assets Control Regulations, etc........................................................67
SECTION 6. AFFIRMATIVE COVENANTS........................................................................68
6.1 Financial Statements and Other Reports.........................................................68
6.2 Existence, etc.................................................................................71
6.3 Payment of Taxes and Claims....................................................................72
6.4 Maintenance of Properties; Insurance...........................................................72
6.5 Inspection Rights; Books and Records...........................................................72
6.6 Compliance with Laws, etc......................................................................73
6.7 Environmental Matters..........................................................................73
6.8 Execution of Guarantee and Collateral Agreement and Personal Property Collateral
Documents After the Closing Date...............................................................74
6.9 Repayment of Existing Intercompany Note........................................................76
SECTION 7. NEGATIVE COVENANTS...........................................................................76
7.1 Indebtedness...................................................................................76
7.2 Liens and Related Matters......................................................................77
7.3 Investments; Acquisitions......................................................................78
7.4 Contingent Obligations.........................................................................80
7.5 Restricted Junior Payments.....................................................................80
7.6 Financial Covenants............................................................................81
7.7 Restriction on Fundamental Changes; Asset Sales................................................81
7.8 Capital Expenditures...........................................................................82
7.9 Transactions with Affiliates...................................................................82
7.10 Sale and Lease-Backs...........................................................................82
7.11 Conduct of Business............................................................................83
7.12 Fiscal Year....................................................................................83
7.13 Deposit Accounts, Securities Accounts and Cash Management Systems..............................83
SECTION 8. EVENTS OF DEFAULT............................................................................83
8.1 Failure to Make Payments When Due..............................................................83
8.2 Default in Other Agreements....................................................................83
8.3 Breach of Certain Covenants....................................................................84
8.4 Breach of Warranty.............................................................................84
8.5 Other Defaults Under Loan Documents............................................................84
ii
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc...........................................84
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.............................................85
8.8 Judgments and Attachments......................................................................85
8.9 Dissolution....................................................................................85
8.10 Employee Benefit Plans.........................................................................85
8.11 Change in Control..............................................................................86
8.12 Invalidity of Loan Documents; Repudiation of Obligations.......................................86
SECTION 9. ADMINISTRATIVE AGENT.........................................................................87
9.1 Appointment....................................................................................87
9.2 Powers and Duties; General Immunity............................................................87
9.3 Independent Investigation by Lenders; No Responsibility For Appraisal of
Creditworthiness...............................................................................89
9.4 Right to Indemnity.............................................................................89
9.5 Resignation of Agents; Successor Administrative Agent and Swing Line Lender....................90
9.6 Collateral Documents and Guaranties............................................................91
9.7 Duties of Other Agents...............................................Error! Bookmark not defined.
9.8 Administrative Agent May File Proofs of Claim..................................................91
SECTION 10. MISCELLANEOUS................................................................................92
10.1 Successors and Assigns; Assignments and Participations in Loans and Letters of Credit..........92
10.2 Expenses.......................................................................................95
10.3 Indemnity......................................................................................96
10.4 Set-Off........................................................................................97
10.5 Ratable Sharing................................................................................97
10.6 Amendments and Waivers.........................................................................98
10.7 Independence of Covenants......................................................................99
10.8 Notices; Effectiveness of Signatures; Posting on Electronic Delivery Systems..................100
10.9 Survival of Representations, Warranties and Agreements........................................102
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative.........................................102
10.11 Marshalling; Payments Set Aside...............................................................102
10.12 Severability..................................................................................102
10.13 Obligations Several; Independent Nature of Lenders' Rights; Damage Waiver.....................103
10.14 Release of Security Interest or Guaranty......................................................103
10.15 Applicable Law................................................................................103
10.16 Construction of Agreement; Nature of Relationship.............................................104
10.17 Consent to Jurisdiction and Service of Process................................................104
10.18 Waiver of Jury Trial..........................................................................105
10.19 Confidentiality...............................................................................105
10.20 Counterparts; Effectiveness...................................................................106
10.21 USA Patriot Act...............................................................................106
iii
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF REQUEST FOR ISSUANCE
IV FORM OF REVOLVING NOTE
V FORM OF SWING LINE NOTE
VI FORM OF COMPLIANCE CERTIFICATE
VII FORM OF ASSIGNMENT AGREEMENT
iv
SCHEDULES
1.1 SIGNIFICANT SUBSIDIARIES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
5.1 SUBSIDIARIES
5.5B INTELLECTUAL PROPERTY
5.6 LITIGATION
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2 CERTAIN EXISTING LIENS
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS
7.5 CALCULATION OF PERMITTED TAX DISTRIBUTIONS
10.8 NOTICE ADDRESSES
v
VOLT DELTA RESOURCES, LLC
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of December 19, 2006 and entered into by
and among VOLT DELTA RESOURCES, LLC, a Nevada limited liability company
("Company"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
(each individually referred to herein as a "Lender" and collectively as
"Lenders"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Xxxxx Fargo"), as
administrative agent for Lenders (in such capacity, "Administrative Agent").
R E C I T A L S
WHEREAS, Lenders, at the request of Company, have agreed to extend certain
credit facilities to Company, the proceeds of which will be used to provide
financing for working capital and other general corporate purposes of Company
and its Subsidiaries:
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Lenders and Administrative
Agent agree as follows:
Section 1. DEFINITIONS
1.1 Certain Defined Terms.
The following terms used in this Agreement shall have the following
meanings:
"Administrative Agent" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5A.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affected Lender" has the meaning assigned to that term in subsection 2.6C.
"Affected Loans" has the meaning assigned to that term in subsection 2.6C.
"Affiliate", as applied to any Person, means any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise; provided, however, that the term "Affiliate" shall
specifically exclude the Administrative Agent and each Lender.
"Agreed Currency" means, subject to Section 1.5 and Section 1.6, (a)
Dollars, (b) Euro, (c) Pounds Sterling and (d) any other Eligible Currency
approved in accordance with Section 1.5.
"Agreement" means this Credit Agreement.
"Applicable Margin" means, from time to time, the following rate per annum
based upon the Total Debt to EBITDA Ratio as set forth below:
-------------------------- --------------------------- -------------------- ---------------------- -------------------
Pricing Total Debt to Eurocurrency Rate Base Rate Commitment
Level EBITDA Ratio Margin Margin Fee
-------------------------- --------------------------- -------------------- ---------------------- -------------------
Pricing Level I >=1.75:1.00 1.5% 0.25% 0.30%
-------------------------- --------------------------- -------------------- ---------------------- -------------------
Pricing Level II >=1.50:1.00 but <1.75:1.00 1.375% 0.125% 0.25%
-------------------------- --------------------------- -------------------- ---------------------- -------------------
Pricing Level III >=1.00:1.00 but <1.50:1.00 1.125% 0% 0.225%
-------------------------- --------------------------- -------------------- ---------------------- -------------------
Pricing Level IV <1.00:1.00 0.875% 0% 0.20%
-------------------------- --------------------------- -------------------- ---------------------- -------------------
The Applicable Margin shall be determined in accordance with the foregoing
table based on Company's Total Debt to EBITDA Ratio as reflected in the
Compliance Certificate delivered with the then most recent financial statements
delivered pursuant to Section 6.1(ii) and (iii). Adjustments, if any, to the
Applicable Margin shall be effective five Business Days after the Administrative
Agent has received the applicable financial statements and the related
Compliance Certificate. If Company fails to deliver its financial statements and
the related Compliance Certificate to the Administrative Agent at the time
required pursuant to this Agreement, then the Applicable Margin shall be the
highest Applicable Margin set forth in the foregoing table until five days after
such financial statements and the related Compliance Certificate are so
delivered. Until adjusted commencing with the delivery of Company's financial
statements with respect to the third Fiscal Quarter of Fiscal Year 2006 and the
related Compliance Certificate, Pricing Level III shall be deemed to exist.
"Approved Fund" means a Fund that is administered or managed by (i) a
Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Asset Sale" means the sale by Company or any of its Subsidiaries to any
Person other than Company or any of its Wholly-Owned Subsidiaries of (i) any of
the stock of any of Company's Subsidiaries, (ii) substantially all of the assets
of any division or line of business of Company or any of its Subsidiaries, or
(iii) any other assets (whether tangible or intangible) of Company or any of its
Subsidiaries.
"Assignment Agreement" means an Assignment and Assumption in substantially
the form of Exhibit VII annexed hereto.
2
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, at any time, the higher of (i) the Prime Rate or (ii)
the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate. Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change.
"Base Rate Margin" means the margin over the Base Rate used in determining
the rate of interest of Base Rate Loans in accordance with the definition of
Applicable Margin.
"Base Rate Loans" means Loans bearing interest at rates determined by
reference to the Base Rate as provided in subsection 2.2A.
"Business Day" means any day excluding Saturday, Sunday and any day which
is a legal holiday under the laws of the State of California or New York or is a
day on which banking institutions located in either such state are authorized or
required by law or other governmental action to close; provided, that:
(a) if such day relates to any interest rate settings as to a Eurocurrency
Rate Loan denominated in Dollars, any fundings, disbursements, settlements and
payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other
dealings in Dollars to be carried out pursuant to this Agreement in respect of
any such Eurocurrency Rate Loan, Business Day means any such day on which
dealings in deposits in Dollars are conducted by and between banks in the London
interbank eurodollar market;
(b) if such day relates to any interest rate settings as to a Eurocurrency
Rate Loan denominated in Euro, any fundings, disbursements, settlements and
payments in Euro in respect of any such Eurocurrency Rate Loan, or any other
dealings in Euro to be carried out pursuant to this Agreement in respect of any
such Eurocurrency Rate Loan, Business Day means any such day which is a TARGET
Day;
(c) if such day relates to any interest rate settings as to a Eurocurrency
Rate Loan denominated in a currency other than Dollars or Euro, Business Day
means any such day on which dealings in deposits in the relevant currency are
conducted by and between banks in the London or other applicable offshore
interbank market for such currency; and
(d) if such day relates to any fundings, disbursements, settlements and
payments in a currency other than Dollars or Euro in respect of a Eurocurrency
Rate Loan denominated in a currency other than Dollars or Euro, or any other
dealings in any currency other than Dollars or Euro to be carried out pursuant
to this Agreement in respect of any such Eurocurrency Rate Loan (other than any
interest rate settings), Business Day means any such day on which banks are open
for foreign exchange business in the principal financial center of the country
of such currency.
"Capital Lease", as applied to any Person, means any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is accounted for as a capital lease on the balance sheet of that
Person.
3
"Capital Stock" means the capital stock of or other equity interests in a
Person.
"Change in Control" means: (a) so long as Parent (i) beneficially owns
(within the meaning of Rule 13d-3 under the Exchange Act) more than 50% of the
ordinary voting power of the Capital Stock of Company and (ii) has the power to
exercise, directly or indirectly, a controlling influence over the management
and policies of Company, a Parent Change in Control; and (b) in all other cases,
a Company Change in Control.
"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, treaty or order, (ii) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof by any
Government Authority, (iii) any determination of a court or other Government
Authority or (iv) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Government Authority.
"Closing Date" means the date on which the conditions precedent set forth
in subsection 4.1 have been satisfied.
"Collateral" means, collectively, all of the property and assets in which
Liens are purported to be granted pursuant to the Collateral Documents as
security for the Obligations.
"Collateral Documents" means the Guarantee and Collateral Agreement, the
Control Agreements, any Foreign Pledge Agreements and all other instruments or
documents delivered by any Loan Party pursuant to this Agreement or any of the
other Loan Documents in order to grant to Administrative Agent, on behalf of
Lenders, a Lien on any personal property of that Loan Party as security for the
Obligations.
"Commitments" means the commitments of Lenders to make Loans as set forth
in subsections 2.1A and 3.3.
"Company" has the meaning assigned to that term in the introduction to this
Agreement.
"Company Change in Control" means:
(i) the acquisition by any Person, or two or more Persons acting in
concert, other than the Xxxx Group and any employee benefit plans of Parent
or Company or any of Company's Subsidiaries, and (unless a Parent Change in
Control has occurred) Parent, of beneficial ownership (within the meaning
of Rule 13d-3 under the Exchange Act) of shares of capital stock of Company
constituting in the aggregate: (A) 30% or more of the ordinary voting power
of Company at a time when the Xxxx Group and (unless a Parent Change in
Control has occurred) Parent shall beneficially own (within the meaning of
Rule 13d-3 under the Exchange Act) shares of capital stock of Company
constituting in the aggregate 20% or more of the ordinary voting power of
Company; and (B) 20% or more of the ordinary voting power of Company if
otherwise;
(ii) during any period of 12 consecutive months, a majority of the
members of the board of directors of Company cease to be individuals who
are Continuing Directors (for this purpose, a "Continuing Director" is an
individual (A) who was a member of the board of directors on the first day
of such period, (B) whose election or nomination to the board of directors
was approved by individuals referred to in clause (A) above constituting at
the time of such election or nomination at least a majority of the board of
directors or (C) whose election or nomination to the board of directors was
approved by individuals referred to in clauses (A) and (B) above
constituting at the time of such election or nomination at least a majority
of the board of directors); or
4
(iii) any Person, or two or more Persons acting in concert, other than
the Xxxx Group and any employee benefit plans of Parent or Company or any
of Company's Subsidiaries and (unless a Parent Change in Control has
occurred) Parent, will have acquired by contract or otherwise, or will have
entered into a contract or arrangement that, upon consummation thereof,
will result in its or their acquisition of the power to exercise, directly
or indirectly, a controlling influence over the management or policies of
Company;
provided, however, that if all of the capital stock (howsoever designated)
of Company is owned by a single holding company, references herein to
Company instead shall refer to such holding company, mutatis mutandis.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit VI annexed hereto.
"Computation Date" means (a) the Closing Date and (b) so long as any
outstanding Loan or Letter of Credit is denominated in a Foreign Currency, (i)
the last Business Day of each calendar quarter, (ii) the date of any proposed
Loan or issuance of a Letter of Credit if Administrative Agent shall determine
or Requisite Lenders shall require, (iii) the date of any reduction or
reallocation of Commitments pursuant to subsection 2.4A(ii), and (iv) such
additional dates as Administrative Agent shall determine or Requisite Lenders
shall require.
"Consolidated Capital Expenditures" means, for any period, the sum of the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of Company and its Subsidiaries)
by Company and its Subsidiaries during that period that, in conformity with
GAAP, are included in "additions to property, plant or equipment" or comparable
items reflected in the consolidated statement of cash flows of Company and its
Subsidiaries.
"Consolidated Cash Interest Expense" means, for any period, Consolidated
Interest Expense for such period excluding, however, any interest expense not
payable in cash (including amortization of discount and amortization of debt
issuance costs).
"Consolidated EBIT" means, for any period, Consolidated Net Income, plus
the sum, to the extent deducted in determining Consolidated Net Income, of (a)
the amounts for such period of (i) Consolidated Interest Expense, (ii)
provisions for taxes based on income, and (iii) any extraordinary or
non-recurring losses (and less any extraordinary or non-recurring gains), all of
the foregoing as determined on a consolidated basis for Company and its
Subsidiaries in conformity with GAAP.
5
"Consolidated EBITDA" means, for any period, the sum, without duplication,
of the amounts for such period of (a) Consolidated EBIT, (b) total depreciation
expense, and (c) total amortization expense.
"Consolidated Fixed Charges" means, for any period, the sum (without
duplication) of the amounts for such period of (i) Consolidated Cash Interest
Expense, (ii) mandatory scheduled principal payments in respect of Consolidated
Total Debt and (iii) the aggregate amount of all rents paid or payable during
that period under all real estate leases to which Company or any of its
Subsidiaries is a party as lessee, all of the foregoing as determined on a
consolidated basis for Company and its Subsidiaries in conformity with GAAP.
"Consolidated Interest Expense" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Company and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Company and
its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, and amounts referred to in subsection 2.3 payable to Administrative
Agent and Lenders that are considered interest expense in accordance with GAAP.
"Consolidated Net Income" means, for any period, the net income (or loss)
of Company and its Subsidiaries on a consolidated basis for such period taken as
a single accounting period determined in conformity with GAAP.
"Consolidated Net Worth" means, as of any date of determination, the
members' equity of Company and its Subsidiaries determined on a consolidated
basis as of such date in accordance with GAAP.
"Consolidated Total Debt" means, as of any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Contingent Obligation", as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person (i) with respect to
any Indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof or (ii)
with respect to any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings.
Contingent Obligations shall include (a) the direct or indirect guaranty,
endorsement (otherwise than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the obligation of another, (b) the obligation to make take-or-pay or
similar payments if required regardless of non-performance by any other party or
parties to an agreement, and (c) any liability of such Person for the obligation
of another through any agreement (contingent or otherwise) (1) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise) or
(2) to maintain the solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement described under
subclauses (1) or (2) of this sentence, the primary purpose or intent thereof is
as described in the preceding sentence. The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or otherwise
supported or, if less, the amount to which such Contingent Obligation is
specifically limited.
6
"Contractual Obligation", as applied to any Person, means any provision of
any Security issued by that Person or of any material indenture, mortgage, deed
of trust, contract, undertaking, agreement or other instrument to which that
Person is a party or by which it or any of its properties is bound or to which
it or any of its properties is subject.
"Control Agreement" means an agreement, satisfactory in form and substance
to Administrative Agent and executed by the financial institution or securities
intermediary at which a Deposit Account or a Securities Account, as the case may
be, is maintained, pursuant to which such financial institution or securities
intermediary confirms and acknowledges Administrative Agent's security interest
in such account, and agrees that the financial institution or securities
intermediary, as the case may be, will comply with instructions originated by
Administrative Agent as to disposition of funds in such account upon the
occurrence and during the continuation of an Event of Default, without further
consent by Company or any Subsidiary.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar
agreement or arrangement to which Company or any of its Subsidiaries is a party.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Revolving Loans in the applicable Designated Currency,
participations in Letters of Credit in the applicable Designated Currency or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Designated Currency" means, (a) for Eurocurrency Rate Loans and Letters of
Credit, the Agreed Currency which is designated for such Eurocurrency Rate Loans
and Letters of Credit, (b) for Base Rate Loans, Dollars, and (c) for Swingline
Loans, Dollars.
"Deposit Account" means a demand, time, savings, passbook or similar
account maintained with a Person engaged in the business of banking, including a
savings bank, savings and loan association, credit union or trust company.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Foreign Currency, the equivalent amount thereof in Dollars as
determined by Administrative Agent or Issuing Lender, as the case may be, at
such time on the basis of the Exchange Rate (determined in respect of the most
recent Computation Date) for the purchase of Dollars with such Foreign Currency.
7
"Dollars" and the sign "$" mean the lawful money of the United States of
America.
"Eligible Assignee" means (i) any Lender, any Affiliate of any Lender or
any Approved Fund of any Lender; and (ii) (a) a commercial bank organized under
the laws of the United States or any state thereof; (b) a savings and loan
association or savings bank organized under the laws of the United States or any
state thereof; (c) a commercial bank organized under the laws of any other
country or a political subdivision thereof; provided that (1) such bank is
acting through a branch or agency located in the United States or (2) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (d) any other entity that is an institutional "accredited investor"
(as defined in Regulation D under the Securities Act) that extends credit or
buys loans as one of its businesses, including insurance companies and mutual
funds; provided that neither Company nor any Affiliate of Company shall be an
Eligible Assignee.
"Eligible Currency" means any Foreign Currency provided that: (a) quotes
for loans in such currency are available in the London interbank deposit market,
(b) such currency is freely transferable and convertible into Dollars in the
London foreign exchange market, (c) no approval of a Government Authority in the
country of issue of such currency is required to permit use of such currency by
any applicable Lender or Issuing Lender for making loans or issuing letters of
credit, or honoring drafts presented under letters of credit in such currency,
and (d) there is no restriction or prohibition under any applicable legal
requirements against the use of such currency for such purposes.
"EMU Legislation" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency.
"Employee Benefit Plan" means any "employee benefit plan", as defined in
Section 3(3) of ERISA, which is or was maintained or contributed to by Company,
any of its Subsidiaries or any of their respective ERISA Affiliates.
"Environmental Claim" means any investigation, notice, notice of violation,
claim, action, suit, proceeding, demand, abatement order or other order or
directive (conditional or otherwise), by any Government Authority or any other
Person, arising (i) pursuant to or in connection with any actual or alleged
violation of any Environmental Law, (ii) in connection with any Hazardous
Materials or any actual or alleged Hazardous Materials Activity, or (iii) in
connection with any actual or alleged damage, injury, threat or harm to health,
safety, natural resources or the environment.
8
"Environmental Laws" means any and all current or future statutes,
ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of any Government
Authority relating to (i) environmental matters, including those relating to any
Hazardous Materials Activity, (ii) the generation, use, storage, transportation
or disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health
or welfare, in any manner applicable to Company or any of its Subsidiaries or
any of its properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA Affiliate", as applied to any Person, means (i) any corporation that
is a member of a controlled group of corporations within the meaning of Section
414(b) of the Internal Revenue Code of which that Person is a member; (ii) any
trade or business (whether or not incorporated) that is a member of a group of
trades or businesses under common control within the meaning of Section 414(c)
of the Internal Revenue Code of which that Person is a member; and (iii) any
member of an affiliated service group within the meaning of Section 414(m) or
(o) of the Internal Revenue Code of which that Person, any corporation described
in clause (i) above or any trade or business described in clause (ii) above is a
member. Any former ERISA Affiliate of a Person or any of its Subsidiaries shall
continue to be considered an ERISA Affiliate of such Person or such Subsidiary
within the meaning of this definition with respect to the period such entity was
an ERISA Affiliate of such Person or such Subsidiary and with respect to
liabilities arising after such period for which such Person or such Subsidiary
could be liable under the Internal Revenue Code or ERISA.
"ERISA Event" means (i) a "reportable event" within the meaning of Section
4043 of ERISA and the regulations issued thereunder with respect to any Pension
Plan (excluding those for which the provision for 30-day notice to the PBGC has
been waived by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any Pension
Plan (whether or not waived in accordance with Section 412(d) of the Internal
Revenue Code) or the failure to make by its due date a required installment
under Section 412(m) of the Internal Revenue Code with respect to any Pension
Plan or the failure to make any required contribution to a Multiemployer Plan;
(iii) the provision by the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the withdrawal by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in liability pursuant to Section 4063 or 4064
of ERISA; (v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which might constitute
grounds under ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (vi) the imposition of liability on Company, any
of its Subsidiaries or any of their respective ERISA Affiliates pursuant to
Section 4062(e) or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or
any of their respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan if there would be any liability therefor, or the receipt by Company, any of
its Subsidiaries or any of their respective ERISA Affiliates 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
9
under Section 4041A or 4042 of ERISA; (viii) the assertion of a claim (other
than routine claims for benefits) against any Employee Benefit Plan other than a
Multiemployer Plan or the assets thereof, or against Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in connection with any
Employee Benefit Plan; (ix) receipt from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure of any trust
forming part of any Pension Plan to qualify for exemption from taxation under
Section 501(a) of the Internal Revenue Code where such failure would reasonably
be expected to result in a Material Adverse Effect; or (x) the imposition of a
Lien pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan. With respect to a
Multiemployer Plan or a Pension Plan not maintained or contributed to by Company
or its Subsidiaries, an event described above shall not be an ERISA Event unless
it is reasonably likely to result in material liability to Company and its
Subsidiaries taken as a whole.
"Euro" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"Eurocurrency Rate" means, for any Interest Rate Determination Date with
respect to an Interest Period for a Eurocurrency Rate Loan, the rate per annum
obtained by dividing (i) (A) the rate per annum (rounded upward to the nearest
1/100 of one percent) that appears on the Applicable Telerate British Bankers
Association Interest Settlement Rate page for the Designated Currency (or such
other comparable page as may, in the opinion of Administrative Agent, replace
such page for the purpose of displaying such rate) as the interbank offered rate
for deposits in such Designated Currency with maturities comparable to such
Interest Period as of approximately 11:00 A.M. (London time) on such Interest
Rate Determination Date or (B) if such rate is not available at such time for
any reason, the rate per annum obtained by dividing (i) the arithmetic average
(rounded upward to the nearest 1/100 of one percent) of the offered quotations,
if any, to first class banks in the interbank Eurocurrency market by Xxxxx Fargo
for deposits in the Designated Currency of amounts in Same Day Funds comparable
to the principal amount of the Eurocurrency Rate Loan of Xxxxx Fargo for which
the Eurocurrency Rate is then being determined with maturities comparable to
such Interest Period as of approximately 12:00 Noon (New York time) on such
Interest Rate Determination Date by (ii) a percentage equal to 100% minus the
stated maximum rate of all reserve requirements (including any marginal,
emergency, supplemental, special or other reserves) applicable on such Interest
Rate Determination Date to any member bank of the Federal Reserve System in
respect of "Eurocurrency liabilities" as defined in Regulation D (or any
successor category of liabilities under Regulation D).
"Eurocurrency Rate Loans" means Revolving Loans bearing interest at rates
determined by reference to the Eurocurrency Rate as provided in subsection 2.2A.
"Eurocurrency Rate Margin" means the margin over the Eurocurrency Rate used
in determining the rate of interest of Eurocurrency Rate Loans in accordance
with the definition of Applicable Margin.
"Event of Default" means each of the events set forth in Section 8.
10
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute.
"Exchange Rate" means, on any Business Day, with respect to any calculation
of the Dollar Equivalent with respect to any Foreign Currency on such date or
any calculation of the Foreign Currency Equivalent on such date, the rate at
which such Foreign Currency may be exchanged into Dollars or Dollars may be
exchanged into such Foreign Currency, as set forth on such date on the relevant
FWDS Series Reuters currency page at or about 11:00 a.m. (New York time) on such
date. In the event that such rate does not appear on any such Reuters page, the
"Exchange Rate" with respect to such Foreign Currency shall be determined by
reference to such other publicly available service for displaying exchange rates
as may be agreed upon by Administrative Agent and Company or, in the absence of
such agreement, such "Exchange Rate" shall instead be Administrative Agent's
spot rate of exchange in the interbank market where its currency exchange
operations in respect of such Foreign Currency are then being conducted, at or
about 10:00 A.M. local time at such date for the purchase of such Foreign
Currency with Dollars or the purchase of Dollars with such Foreign Currency, as
the case may be, for delivery two Business Days later; provided that if at the
time of any such determination no such spot rate can reasonably be quoted,
Administrative Agent may use any reasonable method (including obtaining quotes
from three or more market makers for such Foreign Currency) as it deems
appropriate to determine such rate and such determination shall be presumed
correct absent manifest error.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, or any other recipient of any payment to be made by or on account of any
obligation of Company hereunder (i) taxes that are imposed on the overall net
income (however denominated) and franchise taxes imposed in lieu thereof (a) by
the United States, (b) by any other Government Authority under the laws of which
such Lender is organized or has its principal office or maintains its applicable
lending office, or (c) by any Government Authority solely as a result of a
present or former connection between such recipient and the jurisdiction of such
Government Authority (other than any such connection arising solely from such
recipient having executed, delivered or performed its obligations or received a
payment under, or enforced, any of the Loan Documents), (ii) any branch profits
taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which Company is located, and (iii) in the case of a Foreign
Lender (other than an assignee pursuant to a request of Company under subsection
2.9), any withholding tax that (x) is imposed on amounts payable to such Foreign
Lender at the time it becomes a party hereto (or designates a new lending
office), (y) is attributable to such Foreign Lender's failure or inability
(other than as a result of a Change in Law) to comply with its obligations under
subsection 2.7B(iv), 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 Company with respect
to such withholding tax pursuant to subsection 2.7B, or (z) is required to be
deducted under applicable law from any payment hereunder on the basis of the
information provided by such Foreign Lender pursuant to clause (d) of subsection
2.7B(iv).
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by Administrative Agent from three Federal funds brokers
of recognized standing selected by Administrative Agent.
11
"First Priority" means, with respect to any Lien purported to be created in
any Collateral pursuant to any Collateral Document, that (i) such Lien is
perfected and has priority over any other Lien on such Collateral (other than
Permitted Encumbrances and, except with respect to the Capital Stock of any
Subsidiary, other Liens permitted pursuant to subsection 7.2A) and (ii) such
Lien is the only Lien (other than Liens permitted pursuant to subsection 7.2A)
to which such Collateral is subject.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries
composed of 52 or 53 weeks ending on the Sunday closest to October 31 of each
calendar year. For purposes of this Agreement, any particular Fiscal Year shall
be designated by reference to the calendar year in which such Fiscal Year ends.
"Fitch" means Fitch Ratings Ltd.
"Foreign Currency" means a currency other than Dollars.
"Foreign Currency Equivalent" means, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the applicable
Foreign Currency as determined by Administrative Agent or the Issuing Lender, as
the case may be, at such time on the basis of the Exchange Rate (determined in
respect of the most recent Computation Date) for the purchase of such Foreign
Currency with Dollars.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which Company is 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 Pledge Agreement" means each pledge agreement or similar
instrument governed by the laws of a country other than the United States,
executed on the Closing Date or from time to time thereafter in accordance with
subsection 6.8 by Company or any Subsidiary Guarantor that owns Capital Stock of
one or more Foreign Subsidiaries organized in such country, in form and
substance satisfactory to Administrative Agent.
"Foreign Subsidiary" means any Subsidiary of Company that is not organized
or incorporated under the laws of the United States of America, any state
thereof or the District of Columbia.
"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.
12
"Funding and Payment Office" means (i) the office of Administrative Agent
and Swing Line Lender located at 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 or (ii) such other office of Administrative Agent and Swing
Line Lender as may from time to time hereafter be designated as such in a
written notice delivered by Administrative Agent and Swing Line Lender to
Company and each Lender.
"Funding Date" means the date of funding of a Loan.
"GAAP" means, subject to the limitations on the application thereof set
forth in subsection 1.2, generally accepted accounting principles set forth in
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the circumstances as of
the date of determination.
"Governing Body" means the board of directors or other body having the
power to direct or cause the direction of the management and policies of a
Person that is a corporation, partnership, trust or limited liability company.
"Government Authority" means the government of the United States or any
other nation, or any state, regional or local political subdivision or
department thereof, and any other governmental or regulatory agency, authority,
body, commission, central bank, board, bureau, organ, court, instrumentality or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, in each case
whether federal, state, local or foreign (including supra-national bodies such
as the European Union or the European Central Bank).
"Governmental Authorization" means any permit, license, registration,
authorization, plan, directive, accreditation, consent, order or consent decree
of or from, or notice to, any Government Authority.
"Guarantee and Collateral Agreement" means the Guarantee and Collateral
Agreement executed and delivered on the Closing Date.
"Hazardous Materials" means (i) any chemical, material or substance at any
time defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous waste", "acutely
hazardous waste", "radioactive waste", "biohazardous waste", "pollutant", "toxic
pollutant", "contaminant", "restricted hazardous waste", "infectious waste",
"toxic substances", or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the
indoor or outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TCLP toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Laws); (ii) any oil, petroleum, petroleum fraction or
petroleum derived substance; (iii) any drilling fluids, produced waters and
other wastes associated with the exploration, development or production of crude
oil, natural gas or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) any asbestos-containing
materials; (vii) urea formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing polychlorinated biphenyls;
(ix) pesticides; and (x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any Government Authority or which
may or could pose a hazard to the health and safety of the owners, occupants or
any Persons in the vicinity of any facility of Company or any of its
Subsidiaries or to the indoor or outdoor environment.
13
"Hazardous Materials Activity" means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"Indebtedness", as applied to any Person, means (i) indebtedness created,
issued or incurred for borrowed money (whether by loan or the issuance and sale
of debt securities), (ii) that portion of obligations with respect to Capital
Leases that is properly classified as a liability on a balance sheet in
conformity with GAAP, (iii) obligations to pay the deferred purchase or
acquisition price of property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business (excluding any such obligations incurred under
ERISA), (iv) obligations in respect of letters of credit or similar instruments;
and (v) Contingent Obligations of such Person in respect of Indebtedness of the
types described in clauses (i), (ii), (iii) and (iv) of this definition.
"Indemnified Liabilities" has the meaning assigned to that term in
subsection 10.3.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning assigned to that term in subsection 10.3.
"Intellectual Property" means all patents, trademarks, tradenames,
copyrights, technology, software, know-how and processes used in or necessary
for the conduct of the business of Company and its Subsidiaries.
"Interest Payment Date" means (i) with respect to any Base Rate Loan, the
last Business Day of each March, June, September and December of each year,
commencing on the first such date to occur after the Closing Date, and (ii) with
respect to any Eurocurrency Rate Loan, the last day of each Interest Period
applicable to such Loan; provided that in the case of each Interest Period of
longer than three months, "Interest Payment Date" shall also include each date
that is three months, or a multiple thereof, after the commencement of such
Interest Period.
"Interest Period" has the meaning assigned to that term in subsection 2.2B.
"Interest Rate Agreement" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement or
arrangement to which Company or any of its Subsidiaries is a party.
14
"Interest Rate Determination Date", with respect to any Interest Period,
means the second Business Day prior to the first day of such Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter, and any successor statute.
"Investment" means (i) any direct or indirect purchase or other acquisition
by Company or any of its Subsidiaries of, or of a beneficial interest in, any
Securities of any other Person (including any Subsidiary of Company), (ii) any
direct or indirect redemption, retirement, purchase or other acquisition for
value, by any Subsidiary of Company from any Person other than Company or any of
its Subsidiaries, of any equity Securities of such Subsidiary, (iii) any direct
or indirect loan, advance or capital contribution by Company or any of its
Subsidiaries to any other Person, including all indebtedness and accounts
receivable from that other Person that are not current assets or did not arise
from sales to that other Person in the ordinary course of business, or (iv) any
transaction governed by an Interest Rate Agreement or a Currency Agreement. The
amount of any Investment shall be the original cost of such Investment plus the
cost of all additions thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to such
Investment (other than adjustments for the repayment of, or the refund of
capital with respect to, the original or any additional principal amount of any
such Investment).
"IP Collateral" means, collectively, the Intellectual Property that
constitutes Collateral under the Guarantee and Collateral Agreement.
"IP Filing Office" means the United States Patent and Trademark Office, the
United States Copyright Office or any successor or substitute office in which
filings are necessary or, in the opinion of Administrative Agent, desirable in
order to create or perfect Liens on, or evidence the interest of Administrative
Agent and Lenders in, any IP Collateral.
"Issuing Lender", with respect to any Letter of Credit, means Xxxxx Fargo.
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form.
"Lender" and "Lenders" means the Persons identified as "Lenders" and listed
on the signature pages of this Agreement, together with their successors and
permitted assigns pursuant to subsection 10.1, and the term "Lenders" shall
include Swing Line Lender and the Issuing Lender unless the context otherwise
requires.
"Letter of Credit" or "Letters of Credit" means standby or documentary
letters of credit issued or to be issued by the Issuing Lender for the account
of Company pursuant to subsection 3.1.
"Letter of Credit Usage" means, as at any date of determination, the sum of
(i) the maximum aggregate amount which is or at any time thereafter may become
available for drawing under all Letters of Credit then outstanding plus (ii) the
aggregate amount of all drawings under Letters of Credit honored by the Issuing
Lender and not theretofore reimbursed out of the proceeds of Revolving Loans
pursuant to subsection 3.3B or otherwise reimbursed by Company. For all purposes
of this Agreement, 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 the UCP, such Letter of Credit shall be deemed to be
"outstanding" in the amount so remaining available to be drawn.
15
"Licensing Agreement" means any written agreement pursuant to which Company
or one of its Subsidiaries grants to any other Person a non-exclusive right to
use and/or access specified Intellectual Property owned or licensed (as
licensee) by Company or such Subsidiary.
"Lien" means any lien, mortgage, pledge, assignment, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to give
any security interest) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.
"Loan" or "Loans" means one or more of the Loans made by Lenders to Company
pursuant to subsection 2.1A and shall include one or more Revolving Loans and
Swing Line Loans.
"Loan Documents" means this Agreement, the Notes, the Letters of Credit
(and any applications for, or reimbursement agreements or other documents or
certificates executed by Company in favor of the Issuing Lender relating to, the
Letters of Credit) and the Collateral Documents.
"Loan Party" means each of Company and any of Company's Subsidiaries from
time to time executing a Loan Document, and "Loan Parties" means all such
Persons, collectively.
"Margin Stock" has the meaning assigned to that term in Regulation U of the
Board of Governors of the Federal Reserve System as in effect from time to time.
"Material Adverse Effect" means a material adverse effect upon (i) the
business, financial condition, prospects or operations of Company and its
Subsidiaries taken as a whole or (ii) Company's or any Subsidiary Guarantor's
ability to perform its obligations under the Loan Documents, or (iii) the
enforceability of the Obligations.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means any Employee Benefit Plan that is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"Notes" means one or more of the Revolving Notes or the Swing Line Note or
any combination thereof.
"Notice of Borrowing" means a notice substantially in the form of Exhibit I
annexed hereto.
16
"Notice of Conversion/Continuation" means a notice substantially in the
form of Exhibit II annexed hereto.
"Obligations" means all obligations of every nature of Company and the
Subsidiary Guarantors from time to time owed to Administrative Agent, Lenders or
any of them under the Loan Documents, whether for principal, interest,
reimbursement of amounts drawn under Letters of Credit, fees, expenses,
indemnification or otherwise; provided, that for the purposes of each of the
Collateral Documents, "Obligations" shall also include all obligations of every
nature of Company or any of its Subsidiaries owed to any Lender or any Affiliate
of any Lender (in each case even if the respective Lender subsequently ceases to
be a Lender under the Credit Agreement for any purpose) in respect of any
Interest Rate Agreement or Currency Agreement entered into by Company or such
Subsidiary with any such Person.
"Officer" means the president, the chief executive officer, a financial
vice president (other than divisional level), the chief financial officer, the
treasurer, a general partner (if an individual), the managing member (if an
individual) or other individual appointed by the Governing Body or the
Organizational Documents of a corporation, partnership, trust or limited
liability company to serve in a similar capacity as the foregoing.
"Officer's Certificate", as applied to any Person that is a corporation,
partnership, trust or limited liability company, means a certificate executed on
behalf of such Person by one or more Officers of such Person or one or more
Officers of a general partner or a managing member if such general partner or
managing member is a corporation, partnership, trust or limited liability
company.
"Organizational Documents" means the documents (including bylaws, if
applicable) pursuant to which a Person that is a corporation, partnership, trust
or limited liability company is organized.
"Other Taxes" means all present or future stamp or documentary taxes or any
other excise or property taxes, charges, fees, expenses 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.
"Parent" means Volt Information Sciences, Inc., a New York corporation.
"Parent Change in Control" means:
(i) the acquisition by any Person, or two or more Persons acting in
concert, other than the Xxxx Group and any employee benefit plans of Parent
or any of its Subsidiaries, of beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of shares of capital stock of Parent
constituting in the aggregate: (A) 30% or more of the ordinary voting power
of Parent at a time when the Xxxx Group shall beneficially own (within the
meaning of Rule 13d-3 under the Exchange Act) shares of capital stock of
Parent constituting in the aggregate 20% or more of the ordinary voting
power of Parent; and (B) 20% or more of the ordinary voting power of
Parent, if otherwise;
17
(ii) during any period of 12 consecutive months, a majority of the
members of the board of directors of Parent cease to be individuals who are
Continuing Directors (for this purpose, a "Continuing Director" is an
individual (A) who was a member of the board of directors on the first day
of such period, (B) whose election or nomination to the board of directors
was approved by individuals referred to in clause (A) above constituting at
the time of such election or nomination at least a majority of the board of
directors or (C) whose election or nomination to the board of directors was
approved by individuals referred to in clauses (A) and (B) above
constituting at the time of such election or nomination at least a majority
of the board of directors); or
(iii) any Person, or two or more Persons acting in concert, other than
the Xxxx Group and any employee benefit plan of Parent or any of its
Subsidiaries, will have acquired by contract or otherwise, or will have
entered into a contract or arrangement that, upon consummation thereof,
will result in its or their acquisition of the power to exercise, directly
or indirectly, a controlling influence over the management or policies of
Parent.
"Parent Loan" means the loan, made in one or more installments and
evidenced by a certain intercompany note dated December 29, 2005 previously
issued by Company to Parent, which loan had an outstanding balance of
$37,890,235 as of November 30, 2006 and which loan excludes intercompany
balances arising in the ordinary course of business related to either (i) normal
trade payments made on behalf of either party or (ii) general and administrative
expense allocated from the Parent to Company.
"Participant" means a purchaser of a participation in the rights and
obligations under this Agreement pursuant to subsection 10.1C.
"Participating Member State" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
Plan, that is subject to Section 412 of the Internal Revenue Code or Section 302
of ERISA.
"Permitted Encumbrances" means the following types of Liens (excluding any
such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or by ERISA, and any such Lien relating to or imposed in connection
with any Environmental Claim):
(i) Liens for taxes, assessments or governmental charges or claims the
payment of which is not, at the time, required by subsection 6.3;
(ii) Liens of landlords, Liens of collecting banks under the UCC on items
in the course of collection, Liens and rights of set-off of banks,
statutory and common law Liens of carriers, warehousemen, mechanics,
repairmen, workmen and materialmen, and other Liens imposed by law, in each
case incurred in the ordinary course of business (a) for amounts not yet
overdue or (b) for amounts that are overdue and that (in the case of any
such amounts overdue for a period in excess of 5 Business Days) are being
contested in good faith by appropriate proceedings, so long as (1) such
reserves or other appropriate provisions, if any, as shall be required by
GAAP shall have been made for any such contested amounts, and (2) no
foreclosure, sale or similar proceedings have been commenced;
18
(iii) pledges and deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance, and other
types of social security, or to secure the performance of statutory
obligations, bids, leases, government contracts, trade contracts, and other
similar obligations (exclusive of obligations for the payment of borrowed
money), so long as no foreclosure, sale or similar proceedings have been
commenced with respect thereto;
(iv) any attachment or judgment Lien not constituting an Event of Default
under subsection 8.8;
(v) licenses (with respect to intellectual property and other property),
leases or subleases granted to third parties not interfering in any
material respect with the ordinary conduct of the business of Company or
any of its Significant Subsidiaries;
(vi) easements, rights-of-way, restrictions, encroachments, and other minor
defects or irregularities in title, in each case which do not and will not
interfere in any material respect with the ordinary conduct of the business
of Company or any of its Significant Subsidiaries;
(vii) any (a) interest or title of a lessor or sublessor under any lease
not prohibited by this Agreement, (b) Lien or restriction that the interest
or title of such lessor or sublessor may be subject to, or (c)
subordination of the interest of the lessee or sublessee under such lease
to any Lien or restriction referred to in the preceding clause (b), so long
as the holder of such Lien or restriction agrees to recognize the rights of
such lessee or sublessee under such lease;
(viii) Liens arising from precautionary filings of UCC financing statements
relating solely to leases and other transactions not prohibited by this
Agreement;
(ix) Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the
importation of goods;
(x) any zoning or similar law or right reserved to or vested in any
Government Authority to control or regulate the use of any real property;
(xi) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or
similar agreements entered into in the ordinary course of business of
Company and its Subsidiaries; and
19
(xii) Liens created by Licensing Agreements, and escrow and forebearance
arrangements in connection with Intellectual Property of the Company and
its Subsidiaries, in each case to the extent consistent with past
practices.
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, joint ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and Government Authorities.
"Pledged Collateral" means, collectively, the certificated Capital Stock,
promissory notes and other items of collateral as to which a security interest
may be perfected by possession, which are pledged pursuant to the Guarantee and
Collateral Agreement.
"Potential Event of Default" means a condition or event that, after notice
or lapse of time or both, would constitute an Event of Default.
"Prime Rate" means the rate that Xxxxx Fargo at its principal office in San
Francisco announces from time to time as its prime lending rate, as in effect
from time to time. The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer. Xxxxx Fargo
or any other Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
"Proceedings" means any action, suit, proceeding (whether administrative,
judicial or otherwise), governmental investigation or arbitration.
"Pro Rata Share" means (i) with respect to all payments, computations and
other matters relating to the Revolving Loan Commitment or the Revolving Loans
of any Lender or any Letters of Credit issued or participations therein deemed
purchased by any Lender or any assignments of any Swing Line Loans deemed
purchased by any Lender, the percentage obtained by dividing (x) the Revolving
Loan Exposure of that Lender by (y) the aggregate Revolving Loan Exposure of all
Lenders, and (ii) for all other purposes with respect to each Lender, the
percentage obtained by dividing (x) the Revolving Loan Exposure of that Lender
by (y) the aggregate Revolving Loan Exposure of all Lenders, in any such case as
the applicable percentage may be adjusted by assignments permitted pursuant to
subsection 10.1. The initial Pro Rata Share of each Lender for purposes of each
of clauses (i), (ii), and (iii) of the preceding sentence is set forth opposite
the name of that Lender in Schedule 2.1 annexed hereto.
"Qualified Capital Expenditures" means Capital Expenditures incurred by
Company and its Subsidiaries in respect of one or more contracts as to which
there is a reasonable expectation that the related revenue stream would cover
the cost of such Capital Expenditures in the initial term or any reasonably
anticipated renewal term.
"Refunded Swing Line Loans" has the meaning assigned to that term in
subsection 2.1A(ii)(b).
20
"Register" has the meaning assigned to that term in subsection 2.1D.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Reimbursement Date" has the meaning assigned to that term in subsection
3.3B.
"Release" means any release, spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching
or migration of Hazardous Materials into the indoor or outdoor environment
(including the abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Materials), including the movement
of any Hazardous Materials through the air, soil, surface water or groundwater.
"Request for Issuance" means a request substantially in the form of Exhibit
III annexed hereto.
"Requisite Lenders" means two or more Lenders having or holding more than
66?% of the aggregate Revolving Loan Exposure of all Lenders; provided that the
Commitment of, and the portion of the Total Utilization of Revolving Credit
Commitments held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Requisite Lenders.
"Restricted Junior Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of Company
now or hereafter outstanding, except a dividend payable solely in shares of that
class of stock to the holders of that class or an increase in the liquidation
value of shares of that class of stock, (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of 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 shares of any
class of stock of Company now or hereafter outstanding.
"Revolving Loan Commitment" means the commitment of a Lender to make
Revolving Loans to Company pursuant to subsection 2.1A(i), and "Revolving Loan
Commitments" means such commitments of all Lenders in the aggregate.
"Revolving Loan Commitment Amount" means, at any date, the aggregate amount
of the Revolving Loan Commitments of all Lenders.
"Revolving Loan Commitment Termination Date" means December 19, 2009.
"Revolving Loan Exposure", with respect to any Lender, means, as of any
date of determination (i) prior to the termination of the Revolving Loan
Commitments, the amount of that Lender's Revolving Loan Commitment, and (ii)
after the termination of the Revolving Loan Commitments, the sum of (a) the
aggregate outstanding principal amount of the Revolving Loans of that Lender
plus (b) in the event that Lender is the Issuing Lender, the aggregate Letter of
Credit Usage in respect of all Letters of Credit issued by that Lender (in each
case net of any participations purchased by other Lenders in such Letters of
Credit or in any unreimbursed drawings thereunder) plus (c) the aggregate amount
of all participations purchased by that Lender in any outstanding Letters of
Credit or any unreimbursed drawings under any Letters of Credit plus (d) in the
case of Swing Line Lender, the aggregate outstanding principal amount of all
Swing Line Loans (net of any assignments thereof deemed purchased by other
Lenders) plus (e) the aggregate amount of all assignments deemed purchased by
that Lender in any outstanding Swing Line Loans.
21
"Revolving Loans" means the Loans made by Lenders to Company pursuant to
subsection 2.1A(i).
"Revolving Notes" means any promissory notes of Company issued pursuant to
subsection 2.1E to evidence the Revolving Loans of any Lenders, substantially in
the form of Exhibit IV annexed hereto.
"S&P" means Standard & Poor's Ratings Service, a division of The
XxXxxx-Xxxx Companies, Inc.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Foreign Currency, same day or other funds as may be determined by
Administrative Agent or the Issuing Lender, as the case may be, to be customary
in the place of disbursement or payment for the settlement of international
banking transactions in the relevant Foreign Currency.
"Xxxxxxxx-Xxxxx" means the Xxxxxxxx-Xxxxx Act of 2002, as amended from time
to time, and any successor statute.
"Securities" means any stock, shares, partnership interests, voting trust
certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other
evidences of indebtedness, secured or unsecured, convertible, subordinated,
certificated or uncertificated, or otherwise, or in general any instruments
commonly known as "securities" or any certificates of interest, shares or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, and any successor statute.
"Securities Account" means an account to which a financial asset is or may
be credited in accordance with an agreement under which the Person maintaining
the account undertakes to treat the Person for whom the account is maintained as
entitled to exercise the rights that comprise the financial asset.
"Securities Laws" means the Securities Act, the Exchange Act,
Xxxxxxxx-Xxxxx and the applicable accounting and auditing principles, rules,
standards and practices promulgated, approved or incorporated by the Securities
and Exchange Commission or the Public Company Accounting Oversight Board, as
each of the foregoing may be amended and in effect on any applicable date
hereunder.
22
"Xxxx Group" means, collectively, (a) Xxxxxx Xxxx; (b) Xxxxxx Xxxx; (c) the
spouse and descendents (by blood, adoption or marriage) of Xxxxxxx Xxxx or of
any person referenced in (a) or (b); (d) any trust established for the benefit
of any one or more of the persons referenced in (a), (b) or (c) and any trustee
of any such trust; and (e) any estate, and any heir, personal representative, or
executor, of any person referenced in (a), (b) or (c).
"Significant Subsidiary" means, at any date of determination, any
Subsidiary of Company which either (i) has assets at such time in excess of 5%
of the total assets of Company and its Subsidiaries on a consolidated basis or
(ii) has revenue in an amount in excess of 5% of the consolidated revenues of
Company and its Subsidiaries for the trailing four Fiscal Quarter period then
ended, in each case as reflected in the then most recent consolidated financial
statements of Company and its Subsidiaries referenced in Section 4.1D or
delivered in accordance with Section 6.1, as applicable. The Significant
Subsidiaries of Company as of the last day of the third Fiscal Quarter of Fiscal
Year 2006 are listed on Schedule 1.1 annexed hereto.
"Solvent", with respect to any Person, means that as of the date of
determination both (i)(a) the then fair saleable value of the property of such
Person is (1) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (2) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and due considering all financing alternatives, ordinary
operating income and potential asset sales reasonably available to such Person;
(b) such Person's capital is not unreasonably small in relation to its business
or any contemplated or undertaken transaction; and (c) such Person does not
intend to incur, or believe (nor should it reasonably believe) that it will
incur, debts beyond its ability to pay such debts as they become due; and (ii)
such Person is "solvent" within the meaning given that term and similar terms
under applicable laws relating to fraudulent transfers and conveyances. For
purposes of this definition, the amount of any contingent liability at any time
shall be computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"Sterling" and "(pound)" mean the lawful currency of the United Kingdom.
"Subsidiary", with respect to any Person, means any corporation,
partnership, trust, limited liability company, association, joint venture or
other business entity of which more than 50% of the total voting power of shares
of stock or other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the members of the Governing Body
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.
"Subsidiary Guarantor" means any domestic Subsidiary of Company that
executes and delivers a counterpart of the Guarantee and Collateral Agreement on
the Closing Date, or that executes and delivers a counterpart thereof or joinder
thereto from time to time thereafter pursuant to subsection 6.8.
23
"Swap Counterparty" means a Lender or an Affiliate of a Lender that has
entered into an Interest Rate Agreement or a Currency Agreement with Company or
one of its Subsidiaries.
"Swing Line Lender" means Xxxxx Fargo, or any Person serving as a successor
Administrative Agent hereunder, in its capacity as Swing Line Lender hereunder.
"Swing Line Loan Commitment" means the commitment of Swing Line Lender to
make Swing Line Loans to Company pursuant to subsection 2.1A(ii).
"Swing Line Loans" means the Loans made by Swing Line Lender to Company
pursuant to subsection 2.1A(ii).
"Swing Line Note" means any promissory note of Company issued pursuant to
subsection 2.1E to evidence the Swing Line Loans of Swing Line Lender,
substantially in the form of Exhibit V annexed hereto.
"TARGET Day" means any day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer (TARGET) payment system (or, if such payment
system ceases to be operative, such other payment system (if any) determined by
Administrative Agent to be a suitable replacement) is open for the settlement of
payments in Euro.
"Tax" or "Taxes" means any present or future tax, levy, impost, duty, fee,
assessment, deduction, withholding or other charge of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed, including interest, penalties, additions to tax and any
similar liabilities with respect thereto.
"Total Debt to EBITDA Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of (i) Consolidated Total Debt as of such day to (ii)
Consolidated EBITDA for the period of four Fiscal Quarters ending on such day.
"Total Utilization of Revolving Loan Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Revolving Loans plus (ii) the aggregate principal amount of all outstanding
Swing Line Loans plus (iii) the Letter of Credit Usage.
"Type" means, with respect to a Revolving Loan, its character as a Base
Rate Loan or a Eurocurrency Rate Loan.
"UCC" means the Uniform Commercial Code as in effect in any applicable
jurisdiction.
"UCP" is defined in subsection 3.6.
"Unasserted Obligations" means, at any time, Obligations for taxes, costs,
indemnifications, reimbursements, damages and other liabilities (except for (i)
the principal of and interest on, and fees relating to, any Indebtedness and
(ii) contingent reimbursement obligations in respect of amounts that may be
drawn under Letters of Credit) in respect of which no claim or demand for
payment has been made (or, in the case of Obligations for indemnification, no
notice for indemnification has been issued by the Indemnitee) at such time.
24
"Xxxxx Fargo" has the meaning assigned to that term in the introduction to
this Agreement.
"Wholly-Owned Subsidiary" of a Person means (a) any subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned subsidiaries of
such Person, or (b) any partnership, limited liability company, association,
joint venture or similar business organization 100% of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled (other than in the case of Foreign Subsidiaries, director's
qualifying shares and/or other nominal amounts of shares required to be held by
Persons other than the Company and its Subsidiaries under applicable law).
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement.
Except as otherwise expressly provided in this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in
conformity with GAAP. Financial statements and other information required to be
delivered by Company to Lenders pursuant to subsection 6.1 shall be prepared in
accordance with GAAP as in effect at the time of such preparation (and delivered
together with the reconciliation statements provided for in subsection 6.1(v)).
Calculations in connection with the definitions, covenants and other provisions
of this Agreement shall utilize GAAP as in effect on the date of determination,
applied in a manner consistent with that used in preparing the financial
statements referred to in subsection 5.3. If at any time any change in GAAP
would affect the computation of any financial ratio or requirement set forth in
any Loan Document, and Company, Administrative Agent or Requisite Lenders shall
so request, Administrative Agent, Lenders and Company shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of Requisite Lenders),
provided that, until so amended, such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and Company shall
provide to Administrative Agent and Lenders reconciliation statements provided
for in subsection 6.1(v).
1.3 Other Definitional Provisions and Rules of Construction.
A. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
B. References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided. Section and subsection headings in this Agreement, and the table of
contents to this Agreement, are included herein for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose or
be given any substantive effect.
25
C. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
D. Unless otherwise expressly provided herein, references to Organizational
Documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document.
1.4 Exchange Rates; Currency Equivalents.
(a) On each Computation Date, Administrative Agent shall determine the
Exchange Rate as of such Computation Date. The Exchange Rate so determined
shall become effective on the first Business Day after such Computation
Date and shall remain effective through the next succeeding Computation
Date. Except for purposes of financial statements delivered by Company
hereunder or calculating financial covenants hereunder or except as
otherwise provided herein, the applicable amount of any currency (other
than Dollars) for purposes of the Loan Documents shall be such Dollar
Equivalent amount as so determined by Administrative Agent or the Issuing
Lender, as applicable.
(b) Wherever in this Agreement in connection with a borrowing,
conversion, continuation or prepayment of a Eurocurrency Rate Loan or the
issuance, amendment or extension of a Letter of Credit denominated in a
Foreign Currency, an amount, such as a required minimum or multiple amount,
is expressed in Dollars, but such borrowing, Eurocurrency Rate Loan or
Letter of Credit is denominated in a Foreign Currency, such amount shall be
the relevant Foreign Currency Equivalent of such Dollar amount (rounded to
the nearest 100,000 of such Foreign Currency units, with 50,000 of such
unit being rounded upward), as determined by Administrative Agent or the
Issuing Lender, as the case may be.
1.5 Agreed Currencies.
(a) The Company may from time to time request that Eurocurrency Rate
Loans be made in a currency other than those specifically listed in the
definition of "Agreed Currency;" provided that such requested currency is
an Eligible Currency. In the case of any such request with respect to the
making of Eurocurrency Rate Loans, such request shall be subject to the
approval of Administrative Agent and each Lender.
26
(b) Any such request shall be made to Administrative Agent not later
than 11:00 a.m. (New York time), ten Business Days prior to the date of the
desired borrowing (or such other time or date as may be agreed by
Administrative Agent, in its sole discretion). Administrative Agent shall
promptly notify each Lender thereof. Each Lender shall notify
Administrative Agent, not later than 11:00 a.m. (New York time), five
Business Days after receipt of such request whether it consents, in its
sole discretion, to the making of such Eurocurrency Rate Loan in such
requested currency. Any failure by a Lender to respond to such request
within the time period specified in the preceding sentence shall be deemed
to be a refusal by such Lender to permit Eurocurrency Rate Loans to be made
in such requested currency. If Administrative Agent and all the Lenders
consent to making Eurocurrency Rate Loans in such requested currency,
Administrative Agent shall so notify Company and such currency shall
thereupon be deemed for all purposes to be an Agreed Currency hereunder for
purposes of any Eurocurrency Rate Loans. If Administrative Agent shall fail
to obtain consent to any request for an additional currency under this
Section 1.5, Administrative Agent shall promptly so notify Company.
(c) If, after the designation of any currency as an Agreed Currency
(including any Foreign Currency listed in clause (b) - (d) of the
definition of "Agreed Currency"), (i) currency control or other exchange
regulations are imposed in the country in which such currency is issued
with the result that different types of such currency are introduced, (ii)
such currency, in the reasonable determination of Administrative Agent, no
longer qualifies as an "Eligible Currency" or (iii) in the reasonable
determination of Administrative Agent, a Dollar Equivalent of such currency
is not readily calculable, Administrative Agent shall promptly notify the
Lenders and Company, and such currency shall no longer be an Agreed
Currency until such time as Administrative Agent and the Lenders, as
provided herein, agree to reinstate such currency as an Agreed Currency.
1.6 Change of Currency.
(a) Each obligation of Company to make a payment denominated in the
national currency unit of any member state of the European Union that
adopts the Euro as its lawful currency after the date hereof shall be
redenominated into Euro at the time of such adoption (in accordance with
the EMU Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in
respect of that currency shall be inconsistent with any convention or
practice in the London interbank market for the basis of accrual of
interest in respect of the Euro, such expressed basis shall be replaced by
such convention or practice with effect from the date on which such member
state adopts the Euro as its lawful currency; provided that if any
borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with respect to
such borrowing, at the end of the then current Interest Period.
27
(b) Each provision of this Agreement shall be subject to such
reasonable changes of construction as Administrative Agent may from time to
time specify to be appropriate to reflect the adoption of the Euro by any
member state of the European Union and any relevant market conventions or
practices relating to the Euro.
(c) Each provision of this Agreement also shall be subject to such
reasonable changes of construction as Administrative Agent may from time to
time specify to be appropriate to reflect a change in currency of any other
country other than the United States and any relevant market conventions or
practices relating to the change in currency.
Section 2 AMOUNTS AND TERMS OF LOANS
2.1 Loans; Making of Loans; the Register; Optional Notes.
A. Loans. Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Company herein set forth,
each Lender hereby severally agrees to make Revolving Loans as described in
subsection 2.1A(i) and Swing Line Lender hereby agrees to make the Swing Line
Loans as described in subsection 2.1A(ii).
(i) Revolving Loans. Each Lender severally agrees, subject to the
limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, to make revolving
loans (each such loan a "Revolving Loan") to Company in the applicable
Designated Currency requested by Company from time to time during the
period from the Closing Date to but excluding the Revolving Loan Commitment
Termination Date in an aggregate amount not exceeding its Pro Rata Share of
the aggregate amount of the Revolving Loan Commitments to be used in
accordance with the terms of this Agreement. Notwithstanding the foregoing,
each party hereto agrees that Company shall not request a Revolving Loan,
and no Lender shall make a Revolving Loan to Company, prior to January 5,
2007. The original amount of each Lender's Revolving Loan Commitment is set
forth opposite its name on Schedule 2.1 annexed hereto and the original
Revolving Loan Commitment Amount is $70,000,000; provided that the amount
of the Revolving Loan Commitment of each Lender shall be adjusted to give
effect to any assignment of such Revolving Loan Commitment pursuant to
subsection 10.1B and shall be reduced from time to time by the amount of
any reductions thereto made pursuant to subsection 2.4. Each Lender's
Revolving Loan Commitment shall expire on the Revolving Loan Commitment
Termination Date and Company hereby agrees that all Revolving Loans and all
other Obligations of Company shall be paid in full no later than that date.
Amounts borrowed under this subsection 2.1A(i) may be repaid and reborrowed
to but excluding the Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary notwithstanding, the
Revolving Loans and the Revolving Loan Commitments shall be subject to the
limitation that in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitment Amount then in
effect.
28
(ii) Swing Line Loans.
(a) General Provisions. Swing Line Lender hereby agrees, subject to the
limitations set forth in the last paragraph of subsection 2.1A(ii) and set forth
below with respect to the maximum amount of Swing Line Loans permitted to be
outstanding from time to time, to make a portion of the Revolving Loan
Commitments available to Company from time to time during the period from the
Closing Date to but excluding the Revolving Loan Commitment Termination Date by
making Swing Line Loans to Company in Dollars in an aggregate amount not
exceeding the amount of the Swing Line Loan Commitment to be used for the
purposes identified in subsection 2.5A, notwithstanding the fact that such Swing
Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans
and Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in
effect, may exceed Swing Line Lender's Revolving Loan Commitment.
Notwithstanding the foregoing, each party hereto agrees that Company shall not
request a Swing Line Loan, and no Swing Line Lender shall make a Swing Line Loan
to Company, prior to January 5, 2007. The original amount of the Swing Line Loan
Commitment is $10,000,000; provided that any reduction of the Revolving Loan
Commitment Amount made pursuant to subsection 2.4 that reduces the Revolving
Loan Commitment Amount to an amount less than the then current amount of the
Swing Line Loan Commitment shall result in an automatic corresponding reduction
of the amount of the Swing Line Loan Commitment to the amount of the Revolving
Loan Commitment Amount, as so reduced, without any further action on the part of
Company, Administrative Agent or Swing Line Lender. The Swing Line Loan
Commitment shall expire on the Revolving Loan Commitment Termination Date and
all Swing Line Loans and all other amounts owed hereunder with respect to the
Swing Line Loans shall be paid in full no later than that date.
(b) Swing Line Loan Prepayment with Proceeds of Revolving Loans. With
respect to any Swing Line Loans that have not been voluntarily prepaid by
Company pursuant to subsection 2.4A(i), Swing Line Lender may, at any time in
its sole and absolute discretion but not less frequently than once every ten
(10) Business Days, deliver to Administrative Agent (with a copy to Company), no
later than 1:00 p.m. (New York time) on the first Business Day in advance of the
proposed Funding Date, a notice requesting Lenders to make Revolving Loans that
are Base Rate Loans on such Funding Date in an amount equal to the amount of
such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date
such notice is given. Company hereby authorizes the giving of any such notice
and the making of any such Revolving Loans. Anything contained in this Agreement
to the contrary notwithstanding, (1) the proceeds of such Revolving Loans made
by Lenders other than Swing Line Lender shall be immediately delivered by
Administrative Agent to Swing Line Lender (and not to Company) and applied to
repay a corresponding portion of the Refunded Swing Line Loans and (2) on the
day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the
Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a
Revolving Loan made by 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 no longer be due under the Swing Line Note, if any, of Swing Line
Lender but shall instead constitute part of Swing Line Lender's outstanding
Revolving Loans and shall be due under the Revolving Note, if any, of Swing Line
Lender. If any portion of any such amount paid (or deemed to be paid) to Swing
Line Lender should be recovered by or on behalf of Company from Swing Line
Lender in any bankruptcy proceeding, in any assignment for the benefit of
creditors or otherwise, the loss of the amount so recovered shall be ratably
shared among all Lenders in the manner contemplated by subsection 10.5.
29
(c) Swing Line Loan Assignments. On the Funding Date of each Swing Line
Loan, each Lender shall be deemed to, and hereby agrees to, purchase an
assignment of such Swing Line Loan in an amount equal to its Pro Rata Share. If
for any reason (1) Revolving Loans are not made upon the request of Swing Line
Lender as provided in the immediately preceding paragraph in an amount
sufficient to repay any amounts owed to Swing Line Lender in respect of such
Swing Line Loan or (2) the Revolving Loan Commitments are terminated at a time
when such Swing Line Loan is outstanding, upon notice from Swing Line Lender as
provided below, each Lender shall fund the purchase of such assignment in an
amount equal to its Pro Rata Share (calculated, in the case of the foregoing
clause (2), immediately prior to such termination of the Revolving Loan
Commitments) of the unpaid amount of such Swing Line Loan together with accrued
interest thereon. Upon one Business Day's notice from Swing Line Lender, each
Lender shall deliver to Swing Line Lender such amount in Same Day Funds at the
Funding and Payment Office. In order to further evidence such assignment (and
without prejudice to the effectiveness of the assignment provisions set forth
above), each Lender agrees to enter into an Assignment Agreement at the request
of Swing Line Lender in form and substance reasonably satisfactory to Swing Line
Lender. In the event any Lender fails to make available to Swing Line Lender any
amount as provided in this paragraph, Swing Line Lender shall be entitled to
recover such amount on demand from such Lender together with interest thereon at
the rate customarily used by Swing Line Lender for the correction of errors
among banks for three Business Days and thereafter at the Base Rate. In the
event Swing Line Lender receives a payment of any amount with respect to which
other Lenders have funded the purchase of assignments as provided in this
paragraph, Swing Line Lender shall promptly distribute to each such other Lender
its Pro Rata Share of such payment.
(d) Lenders' Obligations. Anything contained herein to the contrary
notwithstanding, each Lender's obligation to make Revolving Loans for the
purpose of repaying any Refunded Swing Line Loans pursuant to subsection
2.1A(ii)(b) and each Lender's obligation to purchase an assignment of any unpaid
Swing Line Loans pursuant to the immediately preceding paragraph shall be
absolute and unconditional and shall not be affected by any circumstance,
including (1) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against Swing Line Lender, Company or any other
Person for any reason whatsoever; (2) the occurrence or continuation of an Event
of Default or a Potential Event of Default; (3) any adverse change in the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of Company or any of its Subsidiaries; (4) any breach of this
Agreement or any other Loan Document by any party thereto; or (5) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing; provided that such obligations of each Lender are subject to the
condition that (x) Swing Line Lender believed in good faith that all conditions
under Section 4 to the making of the applicable Refunded Swing Line Loans or
other unpaid Swing Line Loans, as the case may be, were satisfied at the time
such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (y) the
satisfaction of any such condition not satisfied had been waived in accordance
with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or
other unpaid Swing Line Loans were made.
30
B. Borrowing Mechanics. Revolving Loans made on any Funding Date (other
than Revolving Loans made pursuant to a request by Swing Line Lender pursuant to
subsection 2.1A(ii) or Revolving Loans made pursuant to subsection 3.3B) (A)
that are Base Rate Loans shall be in an aggregate minimum amount of $1,000,000
and multiples of $500,000 in excess of that amount and (B) that are Eurocurrency
Rate Loans shall be in an aggregate minimum amount of $2,000,000 and multiples
of $500,000 in excess of that amount. Swingline Loans made on any Funding Date
shall be in an aggregate minimum amount of $500,000 and multiples of $100,000 in
excess of that amount. Whenever Company desires that Lenders make Revolving
Loans it shall deliver to Administrative Agent a duly executed Notice of
Borrowing no later than 1:00 p.m. (New York time) (i) at least four Business
Days in advance of the proposed Funding Date (in the case of a Eurocurrency Rate
Loan denominated in a Foreign Currency), (ii) at least three Business Days in
advance of the proposed Funding Date (in the case of a Eurocurrency Rate Loan
demonstrated in Dollars) and (iii) at least one Business Day in advance of the
proposed Funding Date (in the case of a Base Rate Loan). Whenever Company
desires that Swing Line Lender make a Swing Line Loan, it shall deliver to
Administrative Agent a duly executed Notice of Borrowing no later than 1:00 p.m.
(New York time) on the proposed Funding Date. Revolving Loans may be continued
as or converted into Base Rate Loans and Eurocurrency Rate Loans in the manner
provided in subsection 2.2D. In lieu of delivering a Notice of Borrowing,
Company may give Administrative Agent telephonic notice by the required time of
any proposed borrowing under this subsection 2.1B; provided that such notice
shall be promptly confirmed in writing by delivery of a duly executed Notice of
Borrowing to Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any liability to
Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by an Officer or
other person authorized to borrow on behalf of Company or for otherwise acting
in good faith under this subsection 2.1B or under subsection 2.2D, and upon
funding of Loans by Lenders, and upon conversion or continuation of the
applicable basis for determining the interest rate with respect to any Loans
pursuant to subsection 2.2D, in each case in accordance with this Agreement,
pursuant to any such telephonic notice Company shall have effected Loans or a
conversion or continuation, as the case may be, hereunder.
31
Company shall notify Administrative Agent prior to the funding of any Loans
in the event that an event has occurred and is continuing or would result from
the consummation of the borrowing that would constitute an Event of Default or a
Potential Event of Default, and the acceptance by Company of the proceeds of any
Loans shall constitute a re-certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to certify in the
applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Borrowing for, or a Notice of Conversion/Continuation for conversion to, or
continuation of, a Eurocurrency Rate Loan (or telephonic notice in lieu thereof)
shall be irrevocable on and after the related Interest Rate Determination Date,
and Company shall be bound to make a borrowing or to effect a conversion or
continuation in accordance therewith.
C. Disbursement of Funds. All Revolving Loans shall be made by Lenders
simultaneously and proportionately to their respective Pro Rata Shares, it being
understood that neither Administrative Agent nor any Lender shall be responsible
for any default by any other Lender in that other Lender's obligation to make a
Revolving Loan requested hereunder nor shall the amount of the Commitment of any
Lender to make the particular Type of Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender's obligation
to make a Revolving Loan requested hereunder. Promptly after receipt by
Administrative Agent of a Notice of Borrowing pursuant to subsection 2.1A (or
telephonic notice in lieu thereof), Administrative Agent shall notify each
Lender for that Type of Loan or Swing Line Lender, as the case may be, of the
proposed borrowing. Each Lender (other than Swing Line Lender) shall make the
amount of its Revolving Loan available to Administrative Agent in Same Day Funds
in the applicable Designated Currency requested by the Company not later than
1:00 P.M. (New York time) on the applicable Funding Date, and Swing Line Lender
shall make the amount of its Swing Line Loan available to Administrative Agent
in Same Day Funds in Dollars not later than 4:00 P.M. (New York time) on the
applicable Funding Date, in each case at the Funding and Payment Office. Except
as provided in subsection 2.1A(ii) and subsection 3.3B with respect to Revolving
Loans used to repay Refunded Swing Line Loans or to reimburse the Issuing Lender
for the amount of a drawing under a Letter of Credit issued by it, upon
satisfaction or waiver of the conditions precedent specified in subsections 4.1
and 4.2, Administrative Agent shall make the proceeds of such Revolving Loans
advanced to it as set forth above available to Company on the applicable Funding
Date by causing the proceeds of all such Revolving Loans received by
Administrative Agent from Lenders to be credited to the account of Company at
the Funding and Payment Office.
Unless Administrative Agent shall have been notified by any Lender prior to
a Funding Date that such Lender does not intend to make available to
Administrative Agent the amount of such Lender's Revolving Loan requested on
such Funding Date in the applicable currency, Administrative Agent may assume
that such Lender has made such amount available to Administrative Agent on such
Funding Date in the applicable currency and Administrative Agent may, in its
sole discretion, but shall not be obligated to, make available to Company a
corresponding amount on such Funding Date. If such corresponding amount in the
applicable currency is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount in the applicable currency on demand from such Lender
together with interest thereon, for each day from such Funding Date until the
date such amount is paid to Administrative Agent, at the customary rate set by
Administrative Agent for the correction of errors among banks for three Business
Days and thereafter at the Base Rate. If such Lender does not pay such
corresponding amount in the applicable currency forthwith upon Administrative
Agent's demand therefor, Administrative Agent shall promptly notify Company and
Company shall immediately pay such corresponding amount to Administrative Agent
in the applicable currency together with interest thereon, for each day from
such Funding Date until the date such amount is paid to Administrative Agent, at
the rate payable under this Agreement for Base Rate Loans. Nothing in this
subsection 2.1C shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Company may
have against any Lender as a result of any default by such Lender hereunder.
32
D. The Register. Administrative Agent, acting for these purposes solely as
an agent of Company (it being acknowledged that Administrative Agent, in such
capacity, and its officers, directors, employees, agent and affiliates shall
constitute Indemnitees under subsection 10.3), shall maintain (and make
available for inspection by Company and by each Lender, but only as to
information regarding the Loans made by such Lender, upon reasonable prior
notice at reasonable times) at its address referred to in Schedule 10.8 a
register for the recordation of, and shall record, the names and addresses of
Lenders and the respective amounts of the Revolving Loan Commitment, Swing Line
Loan Commitment, Revolving Loans and Swing Line Loans of each Lender from time
to time (the "Register"). Company, Administrative Agent and Lenders shall deem
and treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Loans listed therein for all
purposes hereof; all amounts owed with respect to any Commitment or Loan shall
be owed to the Lender listed in the Register as the owner thereof; and any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans. Each Lender shall record
on its internal records the amount of its Loans and Commitments and each payment
in respect hereof, and any such recordation shall be conclusive and binding on
Company, absent manifest error, subject to the entries in the Register, which
shall, absent manifest error, govern in the event of any inconsistency with any
Lender's records. Failure to make any recordation in the Register or in any
Lender's records, or any error in such recordation, shall not affect any Loans
or Commitments or any Obligations in respect of any Loans.
E. Optional Notes. If so requested by any Lender by written notice to
Company (with a copy to Administrative Agent) at least two Business Days prior
to the Closing Date or at any time thereafter, Company shall execute and deliver
to such Lender (and/or, if applicable and if so specified in such notice, to any
Person who is an assignee of such Lender pursuant to subsection 10.1) on the
Closing Date (or, if such notice is delivered after the Closing Date, promptly
after Company's receipt of such notice) a promissory note or promissory notes to
evidence such Lender's Revolving Loans or Swing Line Loans, substantially in the
form of Exhibit IV or Exhibit V annexed hereto, respectively, with appropriate
insertions.
33
2.2 Interest on the Loans.
A. Rate of Interest. Subject to the provisions of subsections 2.6 and 2.7,
each Revolving Loan shall bear interest on the unpaid principal amount thereof
from the date made through maturity (whether by acceleration or otherwise) at a
rate determined by reference to the Base Rate or the Eurocurrency Rate. Subject
to the provisions of subsection 2.7, each Swing Line Loan shall bear interest on
the unpaid principal amount thereof from the date made through maturity (whether
by acceleration or otherwise) at a rate determined by reference to the Base
Rate. The applicable basis for determining the rate of interest with respect to
any Revolving Loan shall be selected by Company initially at the time a Notice
of Borrowing is given with respect to such Loan pursuant to subsection 2.1B, and
the basis for determining the interest rate with respect to any Revolving Loan
may be changed from time to time pursuant to subsection 2.2D. If on any day a
Revolving Loan is outstanding with respect to which notice has not been
delivered to Administrative Agent in accordance with the terms of this Agreement
specifying the applicable basis for determining the rate of interest, then for
that day that Loan shall bear interest determined by reference to the Base Rate.
(i) Subject to the provisions of subsections 2.2E, 2.2G and 2.7, the
Revolving Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate plus the Base
Rate Margin; or
(b) if a Eurocurrency Rate Loan, then at the sum of the Eurocurrency
Rate plus the Eurocurrency Rate Margin.
(ii) Subject to the provisions of subsections 2.2E, 2.2G and 2.7, the Swing
Line Loans shall bear interest through maturity at the Base Rate plus the Base
Rate Margin.
B. Interest Periods. In connection with each Eurocurrency Rate Loan,
Company may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"Interest Period") to be applicable to such Loan, which Interest Period shall
be, at Company's option, the period commencing on the date such Eurocurrency
Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by
Company in its Notice of Borrowing; provided that:
(i) the initial Interest Period for any Eurocurrency Rate Loan shall
commence on the Funding Date in respect of such Loan, in the case of a Loan
initially made as a Eurocurrency Rate Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a Eurocurrency Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable
to a Eurocurrency Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
34
(iii) if an Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall,
subject to clause (v) of this subsection 2.2B, end on the last Business Day
of a calendar month;
(v) no Interest Period with respect to any portion of the Revolving
Loans shall extend beyond the Revolving Loan Commitment Termination Date;
(vi) there shall be no more than eight (8) Interest Periods
outstanding at any time, and no more than four (4) of such Interest Periods
may relate to Loans denominated in Foreign Currencies;
(vii) no Interest Period may consist of Loans denominated in different
currencies; and
(viii) in the event Company fails to specify an Interest Period for
any Eurocurrency Rate Loan in the applicable Notice of Borrowing or Notice
of Conversion/Continuation, Company shall be deemed to have selected an
Interest Period of one month.
C. Interest Payments. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); provided that, in the event any Swing Line Loans or any Revolving
Loans that are Base Rate Loans are prepaid pursuant to subsection 2.4A(i),
interest accrued on such Loans through the date of such prepayment shall be
payable on the next succeeding Interest Payment Date applicable to Base Rate
Loans (or, if earlier, at final maturity).
D. Conversion or Continuation. Subject to the provisions of subsection 2.6,
Company shall have the option (i) to convert at any time all or any part of its
outstanding Revolving Loans equal to $2,000,000 and multiples of $500,000 in
excess of that amount from Loans bearing interest at a rate determined by
reference to one basis to Loans bearing interest at a rate determined by
reference to an alternative basis or (ii) upon the expiration of any Interest
Period applicable to a Eurocurrency Rate Loan, to continue all or any portion of
such Loan equal to $2,000,000 and multiples of $500,000 in excess of that amount
as a Eurocurrency Rate Loan; provided, however, that a Eurocurrency Rate Loan
may only be converted into a Base Rate Loan on the expiration date of an
Interest Period applicable thereto. In the case of a Eurocurrency Rate Loan
denominated in a Foreign Currency, the same minimum amount and multiples in
excess of that amount shall be applicable as those in effect at the original
funding of those Loans being converted or continued.
35
Company shall deliver a duly executed Notice of Conversion/Continuation to
Administrative Agent no later than (i) 1:00 P.M. (New York time) at least one
Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan), (ii) at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurocurrency Rate Loan denominated in Dollars), and (iii) at
least four Business Days in advance of the proposed conversion/continuation Date
(in the case of a conversion to or a continuation of, a Eurocurrency Rate Loan
denominated in a Foreign Currency). In lieu of delivering a Notice of
Conversion/Continuation, Company may give Administrative Agent telephonic notice
by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
writing by delivery of a duly executed Notice of Conversion/Continuation to
Administrative Agent on or before the proposed conversion/continuation date.
Administrative Agent shall notify each Lender of any Loan subject to a Notice of
Conversion/Continuation. E. Default Rate. Upon the occurrence and during the
continuation of any Event of Default, the outstanding principal amount of all
Loans and, to the extent permitted by applicable law, any interest payments
thereon not paid when due and any fees and other amounts then due and payable
hereunder, shall thereafter bear interest (including post-petition interest in
any proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable upon demand by Administrative Agent at a rate that is 2% per annum in
excess of the interest rate otherwise payable under this Agreement with respect
to the applicable Loans (or, in the case of any such fees and other amounts, at
a rate which is 2% per annum in excess of the interest rate otherwise payable
under this Agreement for Base Rate Loans); provided that, in the case of
Eurocurrency Rate Loans, upon the expiration of the Interest Period in effect at
the time any such increase in interest rate is effective such Eurocurrency Rate
Loans shall thereupon become Base Rate Loans and shall thereafter bear interest
payable upon demand at a rate which is 2% per annum in excess of the interest
rate otherwise payable under this Agreement for Base Rate Loans. Payment or
acceptance of the increased rates of interest provided for in this subsection
2.2E is not a permitted alternative to timely payment and shall not constitute a
waiver of any Event of Default or otherwise prejudice or limit any rights or
remedies of Administrative Agent or any Lender.
F. Computation of Interest. Interest on the Loans shall be computed on the
basis of a 365-day year (or a 366-day year in case of a leap year) with respect
to Base Rate Loans bearing interest based on the Prime Rate and Eurocurrency
Rate Loans denominated in Sterling and otherwise a 360-day year, in each case
for the actual number of days elapsed in the period during which it accrues. In
computing interest on any Loan, the date of the making of such Loan or the first
day of an Interest Period applicable to such Loan or, with respect to a Base
Rate Loan being converted from a Eurocurrency Rate Loan, the date of conversion
of such Eurocurrency Rate Loan to such Base Rate Loan, as the case may be, shall
be included, and the date of payment of such Loan or the expiration date of an
Interest Period applicable to such Loan or, with respect to a Base Rate Loan
being converted to a Eurocurrency Rate Loan, the date of conversion of such Base
Rate Loan to such Eurocurrency Rate Loan, as the case may be, shall be excluded;
provided that if a Loan is repaid on the same day on which it is made, one day's
interest shall be paid on that Loan.
36
G. Maximum Rate. Notwithstanding the foregoing provisions of this
subsection 2.2, in no event shall the rate of interest payable by Company with
respect to any Loan exceed the maximum rate of interest permitted to be charged
under applicable law.
2.3 Fees.
A. Commitment Fee. Company shall pay to Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share, a commitment fee
equal to the Applicable Margin times the average daily unused amount of the
Revolving Loan Commitment Amount (calculated without giving effect to any
outstanding Swing Line Loans). The commitment fee shall accrue at all times from
the Closing Date to the Revolving Loan Commitment Termination Date, including at
any time during which one or more of the conditions in subsection 4.2 is not
met, and shall be due and payable in arrears on and to (but excluding) the last
Business Day of each March, June, September and December of each year and on the
Revolving Loan Commitment Termination Date. The commitment fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable
Margin during any quarter, the average daily unused amount shall be computed and
multiplied by the Applicable Margin separately for each period during such
quarter that such Applicable Margin was in effect.
B. Other Fees. Company agrees to pay to Administrative Agent such fees in
the amounts and at the times separately agreed upon between Company and
Administrative Agent.
2.4 Repayments, Prepayments and Reductions of Revolving Loan Commitment
Amount; General Provisions Regarding Payments.
A. Prepayments and Reductions in Revolving Loan Commitment Amount.
(i) Voluntary Prepayments. Company may, upon written or telephonic
notice to Administrative Agent on or prior to 12:00 noon (New York time) on
the date of prepayment, which notice, if telephonic, shall be promptly
confirmed in writing, at any time and from time to time prepay, without
premium or penalty, any Swing Line Loan on any Business Day in whole or in
part in an aggregate minimum amount of $500,000 and multiples of $100,000
in excess of that amount. Company may, upon not less than one Business
Day's prior written or telephonic notice, in the case of Base Rate Loans,
and three Business Days' prior written or telephonic notice, in the case of
Eurocurrency Rate Loans, in each case given to Administrative Agent by
12:00 noon (New York time) on the date required and, if given by telephone,
promptly confirmed in writing to Administrative Agent, who will promptly
notify each Lender whose Loans are to be prepaid of such prepayment, at any
time and from time to time prepay, without premium or penalty, any
Revolving Loans on any Business Day in whole or in part in an aggregate
minimum amount of $2,000,000 and multiples of $500,000 in excess of that
amount. In the case of a Eurocurrency Rate Loan denominated in a Foreign
Currency, the same minimum amount and multiples in excess of that amount
shall be applicable as those in effect at the original funding of those
Loans being repaid. Notice of prepayment having been given as aforesaid,
the principal amount of the Loans specified in such notice shall become due
and payable on the prepayment date specified therein. Any such voluntary
prepayment shall be applied as specified in subsection 2.4A(iv) and, in the
case of Eurocurrency Rate Loans, shall be subject to subsection 2.6D.
37
(ii) Voluntary Reductions of Revolving Loan Commitments. Company may,
upon not less than three Business Days' prior written or telephonic notice
confirmed in writing to Administrative Agent, or upon such lesser number of
days' prior written or telephonic notice, as determined by Administrative
Agent in its sole discretion, at any time and from time to time, terminate
in whole or permanently reduce in part, without premium or penalty, the
Revolving Loan Commitment Amount in an amount up to the amount by which the
Revolving Loan Commitment Amount exceeds the Total Utilization of Revolving
Loan Commitments at the time of such proposed termination or reduction;
provided that any such partial reduction of the Revolving Loan Commitment
Amount shall be in an aggregate minimum amount of $5,000,000 and multiples
of $1,000,000 in excess of that amount. Company's notice to Administrative
Agent (who will promptly notify each Lender of such notice) shall designate
the date (which shall be a Business Day) of such termination or reduction
and the amount of any partial reduction, and such termination or reduction
shall be effective on the date specified in Company's notice and shall
reduce the amount of the Revolving Loan Commitment of each Lender
proportionately to its Pro Rata Share. Any such voluntary reduction of the
Revolving Loan Commitment Amount shall be applied as specified in
subsection 2.4A(iv).
(iii) Mandatory Prepayments Due to Reductions of Revolving Loan
Commitment Amount and Currency Fluctuations.
(a) Company shall from time to time prepay first the Swing Line Loans
and second the Revolving Loans (and, after prepaying all Loans, cash
collateralize any outstanding Letters of Credit by depositing the requisite
amount with the Issuing Lender) to the extent necessary so that the Total
Utilization of Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitment Amount then in effect. At such time as the Total
Utilization of Revolving Loan Commitments shall be equal to or less than
the Revolving Loan Commitment Amount if no Event of Default has occurred
and is continuing, to the extent any cash collateral was provided by
Company and has not been applied to any Obligations, such amount shall be
released to Company.
(b) If on any Computation Date the Administrative Agent determines
that the Total Utilization of the Revolving Loan Commitment exceeds the
Revolving Loan Commitment Amount due to a change in applicable rates of
exchange between Dollars and any applicable currency then (i) the
Administrative Agent shall promptly notify Company and (ii) Company shall
promptly (subject to the notice requirements of subsection 2.4A(i)) prepay
Loans (and, after prepaying all Loans, cash collateralize any outstanding
Letters of Credit by depositing the requisite amount with the Issuing
Lender) in an amount so that the Total Utilization of Revolving Loan
Commitments is equal to or less than the Revolving Loan Commitment Amount.
38
(iv) Application of Prepayments.
(a) Application of Voluntary Prepayments. Any voluntary prepayments
pursuant to subsection 2.4A(i) shall be applied as specified by Company in
the applicable notice of prepayment; provided that in the event Company
fails to specify the Loans to which any such prepayment shall be applied,
such prepayment shall be applied first to repay outstanding Swing Line
Loans to the full extent thereof, and second to repay outstanding Revolving
Loans to the full extent thereof.
(b) Application of Mandatory Prepayments. Any mandatory reduction of
the Revolving Loan Commitment Amount pursuant to this subsection 2.4A shall
be in proportion to each Lender's Pro Rata Share.
(c) Application of Prepayments to Base Rate Loans and Eurocurrency
Rate Loans. Considering Revolving Loans being prepaid separately, any
prepayment thereof shall be applied first to Base Rate Loans to the full
extent thereof before application to Eurocurrency Rate Loans, in each case
in a manner that minimizes the amount of any payments required to be made
by Company pursuant to subsection 2.6D.
B. General Provisions Regarding Payments.
(i) Manner and Time of Payment. Except as otherwise expressly provided
herein and except with respect to principal of any interest on Loans denominated
in a Foreign Currency, all payments by Company of principal, interest, fees and
other Obligations shall be made in Dollars in Same Day Funds, without defense,
setoff or counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 1:00 P.M. (New York time) on the date due at
the Funding and Payment Office for the account of Lenders; funds received by
Administrative Agent after that time on such due date shall be deemed to have
been paid by Company on the next succeeding Business Day. Except as otherwise
expressly provided herein, all payments by Company hereunder with respect to
principal and interest on Loans denominated in a Foreign Currency and
Obligations in respect of Letters of Credit denominated in a Foreign Currency
shall be made to Administrative Agent, as set forth above, in such Foreign
Currency and in Same Day Funds. If, for any reason, Company is prohibited by any
legal requirement from making any required payment hereunder in a Foreign
Currency, Company shall make such payment in Dollars in the Dollar Equivalent of
the Foreign Currency payment amount.
(ii) Application of Payments to Principal and Interest. All payments in
respect of the principal amount of any Loan shall include payment of accrued
interest on the principal amount being repaid or prepaid, and, except as
provided in subsection 2.2C, all such payments shall be applied to the payment
of interest before application to principal.
39
(iii) Apportionment of Payments. Aggregate payments of principal and
interest shall be apportioned among all outstanding Loans to which such payments
relate, in each case proportionately to Lenders' respective Pro Rata Shares.
Administrative Agent shall promptly distribute to each Lender, at the account
specified in the payment instructions delivered to Administrative Agent by such
Lender, its Pro Rata Share of all such payments received by Administrative Agent
and fees of such Lender, if any, when received by Administrative Agent pursuant
to subsections 2.3 and 3.2. Notwithstanding the foregoing provisions of this
subsection 2.4B(iii), if, pursuant to the provisions of subsection 2.6C, any
Notice of Conversion/Continuation is withdrawn as to any Affected Lender or if
any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurocurrency Rate Loans, Administrative Agent shall give effect thereto in
apportioning interest payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made hereunder
shall be stated to be due on a day that is not a Business Day, such payment
shall be made on the next succeeding Business Day and such extension of time
shall be included in the computation of the payment of interest hereunder or of
the commitment fees hereunder, as the case may be.
C. Payments after Event of Default. Upon the occurrence and during the
continuation of an Event of Default, if requested by Requisite Lenders, or upon
acceleration of the Obligations pursuant to Section 8, all payments received by
Administrative Agent, whether from Company or otherwise shall be applied in full
or in part by Administrative Agent, in each case in the following order of
priority:
(i) to the payment of all costs and expenses of such sale, collection
or other realization, all other expenses, liabilities and advances made or
incurred by Administrative Agent in connection therewith, and all amounts
for which Administrative Agent is entitled to compensation (including the
fees described in subsection 2.3C), reimbursement and indemnification under
any Loan Document and all advances made by Administrative Agent thereunder
for the account of Company, and to the payment of all costs and expenses
paid or incurred by Administrative Agent in connection with the Loan
Documents, all in accordance with subsections 9.4, 10.2 and 10.3 and the
other terms of this Agreement and the Loan Documents;
(ii) thereafter, to the payment of all other Obligations and
obligations of Company under any Interest Rate Agreement or Currency
Agreement between Company and a Swap Counterparty for the ratable benefit
of the holders thereof; and
(iii) thereafter, to the payment to or upon the order of Company or to
whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
2.5 Use of Proceeds.
A. Loans. The proceeds of any Loans may be applied by Company for repayment
of the Parent Loan and for working capital or any other general corporate
purposes.
B. Margin Regulations. No portion of the proceeds of any borrowing under
this Agreement shall be used by Company or any of its Subsidiaries in any manner
that might cause the borrowing or the application of such proceeds to violate
Regulation U, Regulation T or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board or to violate the
Exchange Act, in each case as in effect on the date or dates of such borrowing
and such use of proceeds.
40
2.6 Special Provisions Governing Eurocurrency Rate Loans.
Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall govern with respect to Eurocurrency Rate Loans as to
the matters covered:
A. Determination of Applicable Interest Rate. On each Interest Rate
Determination Date, Administrative Agent shall determine in accordance with the
terms of this Agreement (which determination shall, absent manifest error, be
conclusive and binding upon all parties) the interest rate that shall apply to
the Eurocurrency Rate Loans for which an interest rate is then being determined
for the applicable Interest Period and shall promptly give notice thereof (in
writing or by telephone confirmed in writing) to Company and each applicable
Lender.
B. Inability to Determine Applicable Interest Rate. In the event that
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date that by reason of circumstances affecting the interbank
Eurocurrency market adequate and fair means do not exist for ascertaining the
interest rate applicable to such Loans on the basis provided for in the
definition of Eurocurrency Rate, Administrative Agent shall on such date give
notice (by telefacsimile or by telephone confirmed in writing) to Company and
each Lender of such determination, whereupon (i) no Loans may be made as, or
converted to, Eurocurrency Rate Loans until such time as Administrative Agent
notifies Company and Lenders that the circumstances giving rise to such notice
no longer exist and (ii) any Notice of Borrowing or Notice of
Conversion/Continuation given by Company with respect to the Loans in respect of
which such determination was made shall be deemed to be for a Base Rate Loan.
C. Illegality or Impracticability of Eurocurrency Rate Loans. In the event
that on any date any Lender shall have determined (which determination shall be
conclusive and binding upon all parties hereto but shall be made only after
consultation with Company and Administrative Agent) that the making, maintaining
or continuation of its Eurocurrency Rate Loans (i) has become unlawful as a
result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful)
or (ii) has become impracticable, or would cause such Lender material hardship,
as a result of contingencies occurring after the date of this Agreement which
materially and adversely affect the interbank Eurocurrency market or the
position of such Lender in that market, then, and in any such event, such Lender
shall be an "Affected Lender" and it shall on that day give notice (by
telefacsimile or by telephone confirmed in writing) to Company and
Administrative Agent of such determination. Administrative Agent shall promptly
notify each other Lender of the receipt of such notice. Thereafter (a) the
obligation of the Affected Lender to make Loans as, or to convert Loans to,
Eurocurrency Rate Loans shall be suspended until such notice shall be withdrawn
41
by the Affected Lender, (b) to the extent such determination by the Affected
Lender relates to a Eurocurrency Rate Loan then being requested by Company
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation, the
Affected Lender shall make such Loan as (or convert such Loan to, as the case
may be) a Base Rate Loan, (c) the Affected Lender's obligation to maintain its
outstanding Eurocurrency Rate Loans (the "Affected Loans") shall be terminated
at the earlier to occur of the expiration of the Interest Period then in effect
with respect to the Affected Loans or when required by law, and (d) the Affected
Loans shall automatically convert into Base Rate Loans on the date of such
termination. Notwithstanding the foregoing, to the extent a determination by an
Affected Lender as described above relates to a Eurocurrency Rate Loan then
being requested by Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, Company shall have the option, subject to the
provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by telefacsimile or
by telephone confirmed in writing) to Administrative Agent of such rescission on
the date on which the Affected Lender gives notice of its determination as
described above. Administrative Agent shall promptly notify each other Lender of
the receipt of such notice. Except as provided in the immediately preceding
sentence, nothing in this subsection 2.6C shall affect the obligation of any
Lender other than an Affected Lender to make or maintain Loans as, or to convert
Loans to, Eurocurrency Rate Loans in accordance with the terms of this
Agreement.
D. Compensation For Breakage or Non-Commencement of Interest Periods.
Company shall compensate each Lender, upon written request by that Lender
pursuant to subsection 2.8A, for all reasonable losses, expenses and liabilities
(including any interest paid by that Lender to lenders of funds borrowed by it
to make or carry its Eurocurrency Rate Loans and any loss, expense or liability
sustained by that Lender in connection with the liquidation or re-employment of
such funds) which that Lender may sustain: (i) if for any reason (other than a
default by that Lender) a borrowing of any Eurocurrency Rate Loan does not occur
on a date specified therefor in a Notice of Borrowing or a telephonic request
therefor, or a conversion to or continuation of any Eurocurrency Rate Loan does
not occur on a date specified therefor in a Notice of Conversion/Continuation or
a telephonic request therefor, (ii) if any prepayment or other principal payment
or any conversion of any of its Eurocurrency Rate Loans (including any
prepayment or conversion occasioned by the circumstances described in subsection
2.6C or the paragraph following subsection 8.12) occurs on a date prior to the
last day of an Interest Period applicable to that Loan, (iii) if any prepayment
of any of its Eurocurrency Rate Loans is not made on any date specified in a
notice of prepayment given by Company, or (iv) as a consequence of any other
default by Company in the repayment of its Eurocurrency Rate Loans on a date
prior to the last day of the Interest Period therefor. Breakage cost loss shall
consist of an amount equal to the excess, if a positive number, of (i) the
amount of interest that would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Eurocurrency
Rate Loans provided for herein (excluding, however, the Eurocurrency Rate Margin
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such amount
by placing such amount on deposit for a comparable period with leading banks in
the interbank Eurocurrency market.
42
E. Booking of Eurocurrency Rate Loans. Any Lender may make, carry or
transfer Eurocurrency Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of that Lender.
F. Assumptions Concerning Funding of Eurocurrency Rate Loans. Calculation
of all amounts payable to a Lender under this subsection 2.6 and under
subsection 2.7A shall be made as though that Lender had funded each of its
Eurocurrency Rate Loans through the purchase of a Eurocurrency deposit bearing
interest at the rate obtained pursuant to clause (i) of the definition of
Eurocurrency Rate in an amount equal to the amount of such Eurocurrency Rate
Loan and having a maturity comparable to the relevant Interest Period, whether
or not its Eurocurrency Rate Loans had been funded in such manner.
G. Eurocurrency Rate Loans After Default. After the occurrence of and
during the continuation of an Event of Default, (i) Company may not elect to
have a Loan be made or maintained as, or converted to, a Eurocurrency Rate Loan
after the expiration of any Interest Period then in effect for that Loan and
(ii) subject to the provisions of subsection 2.6D, any Notice of Borrowing or
Notice of Conversion/Continuation given by Company with respect to a requested
borrowing or conversion/continuation that has not yet occurred shall be deemed
to be for a Base Rate Loan or, if the conditions to making a Loan set forth in
subsection 4.2 cannot then be satisfied, to be rescinded by Company.
2.7 Increased Costs; Taxes; Capital Adequacy.
A. Compensation for Increased Costs. Subject to the provisions of
subsection 2.7B (which shall be controlling with respect to the matters covered
thereby), in the event that any Lender (including the Issuing Lender) shall
determine (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) that any Change in Law:
(i) subjects such Lender to any additional Tax of any kind whatsoever
with respect to this Agreement or any of its obligations hereunder
(including with respect to issuing or maintaining any Letters of Credit or
purchasing or maintaining any participations therein or maintaining any
Commitment hereunder) or any payments to such Lender of principal,
interest, fees or any other amount payable hereunder (except for the
imposition of, or any change in the rate of, any Excluded Tax payable by
such Lender);
(ii) imposes, modifies or holds applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement against
assets held by, or deposits or other liabilities in or for the account of,
or advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender (other than any such
reserve or other requirements with respect to Eurocurrency Rate Loans that
are reflected in the definition of Eurocurrency Rate); or
(iii) imposes any other condition (other than with respect to Taxes)
on or affecting such Lender or its obligations hereunder or the interbank
Eurocurrency market;
43
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining its Loans or Commitments or agreeing to
issue, issuing or maintaining any Letter of Credit or agreeing to purchase,
purchasing or maintaining any participation therein or to reduce any amount
received or receivable by such Lender with respect thereto; then, in any such
case, Company shall promptly pay to such Lender, upon receipt of the statement
referred to in subsection 2.8A, such additional amount or amounts (in the form
of an increased rate of, or a different method of calculating, interest or
otherwise as such Lender in its sole discretion may reasonably determine) as may
be necessary to compensate such Lender on an after-tax basis for any such
increased cost or reduction in amounts received or receivable hereunder. Company
shall not be required to compensate a Lender pursuant to this subsection 2.7A
for any increased cost or reduction in respect of a period occurring more than
180 days prior to the date on which such Lender notifies Company of such Change
in Law and such Lender's intention to claim compensation therefor, except, if
the Change in Law giving rise to such increased cost or reduction is
retroactive, no such 180 day time limitation shall apply to such period of
retroactivity, so long as such Lender requests compensation within 180 days from
the date on which the applicable Government Authority informed Lender of such
Change in Law.
B. Taxes.
(i) Payments to Be Free and Clear. Any and all payments by or on
account of any obligation of Company under this Agreement and the other
Loan Documents shall be made free and clear of, and without any deduction
or withholding on account of, any Indemnified Taxes or Other Taxes.
(ii) Grossing-up of Payments. If Company or any other Person is
required by law to make any deduction or withholding on account of any Tax
from any sum paid or payable by Company to Administrative Agent or any
Lender under any of the Loan Documents:
(a) Company shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as Company
becomes aware of it;
(b) Company shall timely pay any such Tax to the relevant
Government Authority when such Tax is due, in accordance with
applicable law;
(c) unless such Tax is an Excluded Tax, the sum payable by
Company shall be increased to the extent necessary to ensure that,
after making the required deductions (including deductions applicable
to additional sums payable under this subsection 2.7B(ii)),
Administrative Agent or such Lender, as the case may be, receives on
the due date a net sum equal to the sum it would have received had no
such deduction been required or made; and
(d) within 30 days after the due date of payment of any Tax which
it is required by clause (b) above to pay, Company shall deliver to
Administrative Agent the original or a certified copy of an official
receipt or other document satisfactory to the other affected parties
to evidence the payment and its remittance to the relevant Government
Authority.
44
(iii) Indemnification by Company. Company shall indemnify Administrative
Agent and each Lender, within 10 days after the date Administrative Agent or
such Lender (as the case may be) makes written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including for the full amount of
any Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this subsection 2.7B(iii)) paid by Administrative Agent or
such Lender, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes were correctly or legally imposed or asserted by the relevant
Government Authority. A certificate as to the amount of such payment or
liability delivered to Company by a Lender (with a copy to Administrative
Agent), or by Administrative Agent on its own behalf or on behalf of a Lender,
shall be conclusive absent manifest error.
(iv) Tax Status of Lenders. Unless not legally entitled to do so:
(a) any Lender, if requested by Company or Administrative Agent, shall
deliver such forms or other documentation prescribed by applicable law or
reasonably requested by Company or Administrative Agent as will enable
Company or Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements;
(b) any Foreign Lender that is entitled to an exemption from or
reduction of any Tax with respect to payments hereunder or under any other
Loan Document shall deliver to Company and Administrative Agent, on or
prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter, as may be necessary in the
determination of Company or Administrative Agent, each in the reasonable
exercise of its discretion), such properly completed and duly executed
forms or other documentation prescribed by applicable law as will permit
such payments to be made without withholding or at a reduced rate of
withholding;
(c) without limiting the generality of the foregoing, in the event
that Company is resident for tax purposes in the United States, any Foreign
Lender shall deliver to Company and 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, as may be necessary in the determination of
Company or Administrative Agent, each in the reasonable exercise of its
discretion), whichever of the following is applicable:
(1) properly completed and duly executed 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, or
45
(2) properly completed and duly executed copies of Internal
Revenue Service Form W-8ECI, or
(3) in the case of a Foreign Lender claiming the benefits of the
exemption for "portfolio interest" under Section 881(c) of the
Internal Revenue Code, (A) a duly executed certificate to the effect
that such Foreign Lender is not (i) a "bank" within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code, (ii) a ten-percent
shareholder (within the meaning of Section 881(c)(3)(B) of the
Internal Revenue Code) of Company or (iii) a controlled foreign
corporation described in Section 881(c)(3)(C) of the Internal Revenue
Code and (B) properly completed and duly executed copies of Internal
Revenue Service Form W-8BEN,
(4) properly completed and duly executed copies of any other form
prescribed by applicable law as a basis for claiming exemption from or
a reduction in any Tax,
in each case together with such supplementary documentation as may be prescribed
by applicable law to permit Company and Administrative Agent to determine the
withholding or deduction required to be made, if any;
(d) without limiting the generality of the foregoing, in the event that
Company is resident for tax purposes in the United States, any Foreign Lender
that does not act or ceases to act for its own account with respect to any
portion of any sums paid or payable to such Lender under any of the Loan
Documents (for example, in the case of a typical participation by such Lender)
shall deliver to Administrative Agent and Company (in such number of copies as
shall be requested by the recipient), on or prior to the date such Foreign
Lender becomes a Lender, or on such later date when such Foreign Lender ceases
to act for its own account with respect to any portion of any such sums paid or
payable, and from time to time thereafter, as may be necessary in the
determination of Company or Administrative Agent (each in the reasonable
exercise of its discretion):
(1) duly executed and properly completed copies of the forms and
statements required to be provided by such Foreign Lender under clause (c)
of subsection 2.7B(iv), to establish the portion of any such sums paid or
payable with respect to which such Lender acts for its own account and may
be entitled to an exemption from or a reduction of the applicable Tax, and
(2) duly executed and properly completed copies of Internal Revenue
Service Form W-8IMY (or any successor forms) properly completed and duly
executed by such Foreign Lender, together with any information, if any,
such Foreign Lender chooses to transmit with such form, and any other
certificate or statement of exemption required under the Internal Revenue
Code or the regulations thereunder, to establish that such Foreign Lender
is not acting for its own account with respect to a portion of any such
sums payable to such Foreign Lender;
46
(e) without limiting the generality of the foregoing, in the event
that Company is resident for tax purposes in the United States, any Lender
that is not a Foreign Lender and has not otherwise established to the
reasonable satisfaction of Company and Administrative Agent that it is an
exempt recipient (as defined in section 6049(b)(4) of the Internal Revenue
Code and the United States Treasury Regulations thereunder) shall deliver
to Company and Administrative Agent (in such numbers of copies as shall be
requested by the recipient) on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter as
prescribed by applicable law or upon the request of Company or
Administrative Agent), duly executed and properly completed copies of
Internal Revenue Service Form W-9; and
(f) without limiting the generality of the foregoing, each Lender
hereby agrees, from time to time after the initial delivery by such Lender
of such forms, whenever a lapse in time or change in circumstances renders
such forms, certificates or other evidence so delivered obsolete or
inaccurate in any material respect, that such Lender shall promptly (1)
deliver to Administrative Agent and Company two original copies of
renewals, amendments or additional or successor forms, properly completed
and duly executed by such Lender, together with any other certificate or
statement of exemption required in order to confirm or establish that such
Lender is entitled to an exemption from or reduction of any Tax with
respect to payments to such Lender under the Loan Documents and, if
applicable, that such Lender does not act for its own account with respect
to any portion of such payment, or (2) notify Administrative Agent and
Company of its inability to deliver any such forms, certificates or other
evidence.
(v) Refunds. If Administrative Agent or any Lender becomes aware that it is
entitled to claim a refund from a Government Authority or other taxation
authority in respect of any Indemnified Taxes or Other Taxes as to which it has
been indemnified by Company or with respect to which Company has paid additional
amounts pursuant to this subsection 2.7B it shall promptly notify Company of the
availability of such refund claim and shall, within 30 days after receipt of a
request by Company, make a claim to such Government Authority or taxation
authority for such refund at Company's expense. If Administrative Agent or any
Lender receives a refund (including pursuant to a claim made pursuant to the
preceding sentence) in respect of any Indemnified Taxes or Other Taxes as to
which it has been indemnified by Company or with respect to which Company has
paid additional amounts pursuant to this subsection 2.7B, it shall pay over such
refund to Company (but only to the extent of indemnity payments made, or
additional amounts paid, by Company under this subsection 2.7B with respect to
the Indemnified Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Government Authority or
taxation authority with respect to such refund); provided, that Company, upon
the request of Administrative Agent or such Lender, agrees to repay the amount
paid over to Company (plus any penalties, interest or other charges imposed by
the relevant Government Authority or taxation authority) to Administrative Agent
or such Lender in the event Administrative Agent or such Lender is required to
repay such refund to such Government Authority. This paragraph shall not be
construed to require Administrative Agent or any Lender to make available its
tax returns (or any other information relating to its taxes which it deems
confidential) to Company or any other Person.
47
C. Capital Adequacy Adjustment. If any Lender shall have determined that
any Change in Law regarding capital adequacy has or would have the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of, or with reference to, such Lender's
Loans or Commitments or Letters of Credit or participations therein or other
obligations hereunder with respect to the Loans or the Letters of Credit to a
level below that which such Lender or such controlling corporation could have
achieved but for such Change in Law (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within ten Business Days after receipt by Company from
such Lender of the statement referred to in subsection 2.8A, Company shall pay
to such Lender such additional amount or amounts as will compensate such Lender
or such controlling corporation on an after-tax basis for such reduction.
Company shall not be required to compensate a Lender pursuant to this subsection
2.7C for any reduction in respect of a period occurring more than 180 days prior
to the date on which such Lender notifies Company of such Change in Law and such
Lender's intention to claim compensation therefor, except, if the Change in Law
giving rise to such reduction is retroactive, no such 180 day time limitation
shall apply to such period of retroactivity, so long as such Lender requests
compensation within 180 days from the date on which the applicable Government
Authority informed such Lender of such Change in Law.
2.8 Statement of Lenders; Obligation of Lenders and Issuing Lender to
Mitigate.
A. Statements. Each Lender claiming compensation or reimbursement pursuant
to subsection 2.6D, 2.7 or 2.8B shall deliver to Company (with a copy to
Administrative Agent) a written statement, setting forth in reasonable detail
the basis of the calculation of such compensation or reimbursement, which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.
B. Mitigation. Each Lender and Issuing Lender agrees that, as promptly as
practicable after the officer of such Lender or Issuing Lender responsible for
administering the Loans or Letters of Credit of such Lender or Issuing Lender,
as the case may be, becomes aware of the occurrence of an event or the existence
of a condition that would cause such Lender to become an Affected Lender or that
would entitle such Lender or Issuing Lender to receive payments under subsection
2.7, it will use reasonable efforts to make, issue, fund or maintain the
Commitments of such Lender or the Loans or Letters of Credit of such Lender or
Issuing Lender through another lending or letter of credit office of such Lender
or Issuing Lender, if (i) as a result thereof the circumstances which would
cause such Lender to be an Affected Lender would cease to exist or the
additional amounts which would otherwise be required to be paid to such Lender
or Issuing Lender pursuant to subsection 2.7 would be materially reduced and
(ii) as determined by such Lender or Issuing Lender in its sole discretion, such
action would not otherwise be disadvantageous to such Lender or Issuing Lender;
provided that such Lender or Issuing Lender will not be obligated to utilize
such other lending or letter of credit office pursuant to this subsection 2.8B
unless Company agrees to pay all incremental expenses incurred by such Lender or
Issuing Lender as a result of utilizing such other lending or letter of credit
office as described above.
48
2.9 Replacement of a Lender.
If (i) Company receives a statement of amounts due pursuant to subsection
2.8A from a Lender (other than for breakage costs under subsection 2.6D), (ii) a
Lender is a Defaulting Lender or (iii) a Lender becomes an Affected Lender (any
such Lender, a "Subject Lender"), so long as (i) no Event of Default shall have
occurred and be continuing and Company has obtained a commitment from another
Lender or an Eligible Assignee to purchase at par the Subject Lender's Loans and
assume the Subject Lender's Commitments and all other obligations of the Subject
Lender hereunder, (ii) such Lender is not the Issuing Lender with respect to any
Letters of Credit outstanding (unless all such Letters of Credit are terminated
or arrangements reasonably acceptable to the Issuing Lender (such as a
"back-to-back" letter of credit) are made) and (iii), if applicable, the Subject
Lender is unwilling to withdraw the notice delivered to Company pursuant to
subsection 2.8 upon 10 days prior written notice to the Subject Lender and
Administrative Agent and/or is unwilling to remedy its default upon three days
prior written notice to the Subject Lender and Administrative Agent, Company may
require the Subject Lender to assign all of its Loans and Commitments to such
other Lender, Lenders, Eligible Assignee or Eligible Assignees pursuant to the
provisions of subsection 10.1B; provided that, prior to or concurrently with
such replacement, (1) the Subject Lender shall have received payment in full of
all principal, interest, fees and other amounts (including all amounts under
subsections 2.6D, 2.7 and/or 2.8B (if applicable)) through such date of
replacement and a release from its obligations under the Loan Documents, (2) the
processing fee required to be paid by subsection 10.1B(i) shall have been paid
to Administrative Agent by Company or the assignee, and (3) all of the
requirements for such assignment contained in subsection 10.1B, including,
without limitation, the consent of Administrative Agent (if required) and the
receipt by Administrative Agent of an executed Assignment Agreement and other
supporting documents, have been fulfilled.
2.10 Increase in Commitments.
A. Request for Increase. Provided there exists no Potential Event of
Default or Event of Default, upon notice to the Administrative Agent (which
shall promptly notify the Lenders), Company may from time to time request an
increase in the Revolving Loan Commitment Amount by an amount (for all such
requests) not exceeding $30,000,000; provided that (i) the Revolving Loan
Commitment Amount may not exceed $100,000,000; and provided further that any
such request for an increase shall be in a minimum amount of $10,000,000 and in
multiples of $5,000,000 in excess thereof and (ii) Company may not request more
than two increases. At the time of sending such notice, Company (in consultation
with the Administrative Agent) shall specify the time period within which each
Lender is requested to respond (which shall in no event be less than ten
Business Days from the date of delivery of such notice to the Lenders).
49
B. Lender Elections to Increase. Each Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Revolving Loan Commitment and, if so, whether by an amount equal
to, greater than, or less than its Pro Rata Share of such requested increase.
Any Lender not responding within such time period shall be deemed to have
declined to increase its Revolving Loan Commitment.
C. Notification by Administrative Agent; Additional Lenders. The
Administrative Agent shall notify Company and each Lender of the Lenders'
responses to each request made hereunder. If the Lenders do not agree to the
full amount of a requested increase, subject to the approval of the
Administrative Agent and the Issuing Lender (which approvals shall not be
unreasonably withheld), Company may also invite additional Eligible Assignees to
become Lenders pursuant to a joinder agreement in form and substance
satisfactory to the Administrative Agent and its counsel.
D. Increase Effective Date and Allocations. If the Revolving Loan
Commitment Amount is increased in accordance with this Section, the
Administrative Agent and Company shall determine the effective date (the
"Increase Effective Date") and the final allocation of such increase. The
Administrative Agent shall promptly notify Company and the Lenders of the final
allocation of such increase, the Increase Effective Date and revised Pro Rata
Shares.
E. Conditions to Effectiveness of Increase. As a condition precedent to
such increase, Company shall deliver to the Administrative Agent an Officer's
Certificate dated as of the Increase Effective Date (i) certifying and attaching
the resolutions adopted by Company approving or consenting to such increase, and
(ii) certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Section 5 and the other Loan
Documents are true and correct on and as of the Increase Effective Date, except
to the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and (B) no Potential Event of Default or Event of Default exists or shall result
from such increase to the Revolving Loan Commitment Amount. The Lenders (new or
existing) shall accept an assignment from the existing Lenders, and the existing
Lenders shall make an assignment to the new or existing Lender accepting a new
or increased Commitment, of a direct or participation interest in each then
outstanding Loan and Letter of Credit such that, after giving effect thereto,
all Revolving Loan Exposure hereunder is held ratably by the Lenders in
proportion to their respective Commitments, Assignments pursuant to the
preceding sentence shall be made in exchange for the principal amount assigned
plus accrued and unpaid interest and facility and letter of credit fees. Company
shall make any payments under Subsection 2.6D resulting from such assignments.
F. Conflicting Provisions. This Section shall supersede any provisions in
subsection 10.5 or 10.6 to the contrary.
Section 3. LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
Therein.
A. Letters of Credit. Company may request, in accordance with the
provisions of this subsection 3.1, from time to time during the period from the
Closing Date to but excluding the Revolving Loan Commitment Termination Date,
that Issuing Lender issue Letters of Credit, denominated in the applicable
Designated Currency requested by Company, for the account of Company for the
general corporate purposes of Company or a Subsidiary of Company. Subject to the
terms and conditions of this Agreement and in reliance upon the representations
and warranties of Company herein set forth, Issuing Lender shall issue such
Letters of Credit in accordance with the provisions of this subsection 3.1;
provided that Company shall not request that Issuing Lender issue (and Issuing
Lender shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the
Total Utilization of Revolving Loan Commitments would exceed the Revolving
Loan Commitment Amount then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance,
the Letter of Credit Usage would exceed $10,000,000; or
(iii) any Letter of Credit having an expiration date later than the
earlier of (a) five days prior to the Revolving Loan Commitment Termination
Date and (b) the date which is one year from the date of issuance of such
Letter of Credit; provided that the immediately preceding clause (b) shall
not prevent Issuing Lender from agreeing that a Letter of Credit will
automatically be extended for one or more successive periods not to exceed
one year each unless Issuing Lender elects not to extend for any such
additional period; and provided, further that Issuing Lender shall elect
not to extend such Letter of Credit if it has knowledge that an Event of
Default has occurred and is continuing (and has not been waived in
accordance with subsection 10.6) at the time Issuing Lender must elect
whether or not to allow such extension.
Notwithstanding anything contained in this Agreement, Issuing Lender shall
not be under any obligation to issue any Letter of Credit if (i) the Issuing
Lender has received written notice that the conditions precedent set forth in
subsection 4.3 have not been satisfied or (ii) a default of any Lender's
obligations to fund under subsection 3.3C exists or any Lender is at such time a
Defaulting Lender hereunder, unless the Issuing Lender has entered into
satisfactory arrangements with Company or such Lender to eliminate the Issuing
Lender's risk with respect to such Lender.
B. Mechanics of Issuance.
(i) Request for Issuance. Whenever Company desires the issuance of a
Letter of Credit, it shall deliver to Issuing Lender a Request for Issuance
no later than 1:00 P.M. (New York time) at least five Business Days or such
shorter period as may be agreed to by the Issuing Lender in any particular
instance, in advance of the proposed date of issuance. The Issuing Lender,
in its reasonable discretion, may require changes in the text of the
proposed Letter of Credit or any documents described in or attached to the
Request for Issuance. In furtherance of the provisions of subsection 10.8,
and not in limitation thereof, Company may submit Requests for Issuance by
telefacsimile and Administrative Agent and Issuing Lender may rely and act
upon any such Request for Issuance without receiving an original signed
copy thereof.
51
Company shall notify the Issuing Lender prior to the issuance of any
Letter of Credit in the event that any of the matters to which Company is
required to certify in the applicable Request for Issuance is no longer
true and correct as of the proposed date of issuance of such Letter of
Credit, and upon the issuance of any Letter of Credit, Company shall be
deemed to have re-certified, as of the date of such issuance, as to the
matters to which Company is required to certify in the applicable Request
for Issuance.
(ii) Determination of Issuing Lender. Upon receipt by Issuing Lender
of a Request for Issuance pursuant to subsection 3.1B(i) requesting the
issuance of a Letter of Credit, Issuing Lender shall issue such Letter of
Credit, notwithstanding the fact that the Letter of Credit Usage with
respect to such Letter of Credit and with respect to all other Letters of
Credit issued by Xxxxx Fargo, when aggregated with Xxxxx Fargo's
outstanding Revolving Loans and Swing Line Loans, may exceed the amount of
Xxxxx Fargo's Revolving Loan Commitment then in effect.
(iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in
accordance with subsection 10.6) of the conditions set forth in subsection
4.3, the Issuing Lender shall issue the requested Letter of Credit in
accordance with the Issuing Lender's standard operating procedures.
(iv) Notification to Lenders. Upon the issuance of or amendment to any
Letter of Credit the Issuing Lender shall promptly notify Company of such
issuance or amendment in writing and such notice shall be accompanied by a
copy of such Letter of Credit or amendment. Upon receipt of such notice,
Administrative Agent shall notify each Lender in writing of such issuance
or amendment and the amount of such Lender's respective participation in
such Letter of Credit or amendment, and, if so requested by a Lender,
Administrative Agent shall provide such Lender with a copy of such Letter
of Credit or amendment.
C. Lenders' Purchase of Participations in Letters of Credit. Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby agrees to, have irrevocably purchased from the Issuing Lender a
participation in such Letter of Credit and any drawings honored thereunder in an
amount equal to such Lender's Pro Rata Share of the maximum amount that is or at
any time may become available to be drawn thereunder.
3.2 Letter of Credit Fees.
Company agrees to pay the following amounts with respect to Letters of
Credit issued hereunder:
52
(i) with respect to (A) each outstanding standby Letter of Credit, (1)
a fronting fee, payable directly to the Issuing Lender for its own account,
in an amount agreed to between Company and the Issuing Lender and (2) a
letter of credit fee, payable to Administrative Agent for the account of
Lenders, equal to the applicable Eurocurrency Rate Margin plus, for as long
as any increased rates of interest apply pursuant to subsection 2.2E, 2%
per annum, multiplied by the daily amount available to be drawn under such
Letter of Credit and (B) each outstanding documentary Letter of Credit, (1)
a fronting fee, payable directly to the Issuing Lender for its own account,
in an amount agreed to between Company and the Issuing Lender and (2) a
letter of credit fee, payable to Administrative Agent for the account of
Lenders, equal to 50% of the applicable Eurocurrency Rate Margin plus, for
as long as any increased rates of interest apply pursuant to subsection
2.2E, 2% per annum, multiplied by the face amount of such documentary
letter of credit, in each case, such fronting fee or letter of credit fee
to be payable in arrears on and to (but excluding) the last Business Day of
each March, June, September and December of each year and computed on the
basis of a 360-day year for the actual number of days elapsed; and
(ii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each payment of a drawing made thereunder (without
duplication of the fees payable under clause (i) above), documentary and
processing charges payable directly to the Issuing Lender for its own
account in accordance with the Issuing Lender's standard schedule for such
charges in effect at the time of such issuance, amendment, transfer or
payment, as the case may be.
For purposes of calculating any fees payable under clause (i) of this
subsection 3.2, the daily amount available to be drawn under any Letter of
Credit shall be determined as of the close of business on any date of
determination.
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit.
A. Responsibility of Issuing Lender With Respect to Drawings. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit.
B. Reimbursement by Company of Amounts Paid Under Letters of Credit. In the
event Issuing Lender has determined to honor a drawing under a Letter of Credit
issued by it, Issuing Lender shall immediately notify Company and Administrative
Agent, and Company shall reimburse Issuing Lender on or before the Business Day
immediately following the date on which such drawing is honored (the
"Reimbursement Date") in an amount in Dollars and in Same Day Funds equal to the
amount of such payment; provided that, anything contained in this Agreement to
the contrary notwithstanding, (i) unless Company shall have notified
Administrative Agent and Issuing Lender prior to 12:00 noon (New York time) on
the date such drawing is honored that Company intends to reimburse the Issuing
Lender for the amount of such payment with funds other than the proceeds of
Revolving Loans, Company shall be deemed to have given a timely Notice of
Borrowing to Administrative Agent requesting Lenders to make Revolving Loans
that are Base Rate Loans on the Reimbursement Date in an amount in Dollars equal
to the amount of such payment and (ii) subject to satisfaction or waiver of the
53
conditions specified in subsection 4.2, Lenders shall, on the Reimbursement
Date, make Revolving Loans that are Base Rate Loans in the amount of such
payment, the proceeds of which shall be applied directly by Administrative Agent
to reimburse the Issuing Lender for the amount of such payment; and provided,
further that if for any reason proceeds of Revolving Loans are not received by
the Issuing Lender on the Reimbursement Date in an amount equal to the amount of
such payment, Company shall reimburse the Issuing Lender, on demand, in an
amount in Same Day Funds equal to the excess of the amount of such payment over
the aggregate amount of such Revolving Loans, if any, which are so received.
Nothing in this subsection 3.3B shall be deemed to relieve any Lender from its
obligation to make Revolving Loans on the terms and conditions set forth in this
Agreement, and Company shall retain any and all rights it may have against any
Lender resulting from the failure of such Lender to make such Revolving Loans
under this subsection 3.3B. During the continuance of an Event of Default, if
Administrative Agent receives any cash collateral in respect of any outstanding
Letter of Credit, such cash collateral shall be held by Administrative Agent for
the ratable benefit of the Lenders.
C. Payment by Lenders of Unreimbursed Amounts Paid Under Letters of Credit.
(i) Payment by Lenders. In the event that Company shall fail for any
reason to reimburse the Issuing Lender as provided in subsection 3.3B in an
amount equal to the amount of any payment by the Issuing Lender under a
Letter of Credit issued by it, the Issuing Lender shall promptly notify
Administrative Agent, who shall promptly notify each Lender of the
unreimbursed amount of such honored drawing and of such Lender's respective
participation therein based on such Lender's Pro Rata Share (after giving
effect to any Revolving Loans made by such Lender under subsection 3.3B in
respect of such drawing). Each Lender (other than the Issuing Lender) shall
make available to Administrative Agent an amount equal to its respective
participation, in Dollars, in Same Day Funds, at the Funding and Payment
Office, not later than 1:00 P.M. (New York time) on the first Business Day
after the date notified by Administrative Agent, and Administrative Agent
shall make available to the Issuing Lender in Dollars, in Same Day Funds,
at the office of the Issuing Lender on such Business Day the aggregate
amount of the payments so received by Administrative Agent. In the event
that any Lender fails to make available to Administrative Agent on such
Business Day the amount of such Lender's participation in such Letter of
Credit as provided in this subsection 3.3C, the Issuing Lender shall be
entitled to recover such amount on demand from such Lender together with
interest thereon at the rate customarily used by the Issuing Lender for the
correction of errors among banks for three Business Days and thereafter at
the Base Rate. Nothing in this subsection 3.3C shall be deemed to prejudice
the right of Administrative Agent to recover, for the benefit of Lenders,
from the Issuing Lender any amounts made available to the Issuing Lender
pursuant to this subsection 3.3C in the event that it is determined by the
final judgment of a court of competent jurisdiction that the payment with
respect to a Letter of Credit by the Issuing Lender in respect of which
payments were made by Lenders constituted gross negligence or willful
misconduct on the part of the Issuing Lender.
54
(ii) Distribution to Lenders of Reimbursements Received From Company.
In the event the Issuing Lender shall have been reimbursed by other Lenders
pursuant to subsection 3.3C(i) for all or any portion of any payment by the
Issuing Lender under a Letter of Credit issued by it, and Administrative
Agent or the Issuing Lender thereafter receives any payments from Company
in reimbursement of such payment under the Letter of Credit, to the extent
any such payment is received by the Issuing Lender, it shall distribute
such payment to Administrative Agent, and Administrative Agent shall
distribute to each other Lender that has paid all amounts payable by it
under subsection 3.3C(i) with respect to such payment such Lender's Pro
Rata Share of all payments subsequently received by Administrative Agent or
by the Issuing Lender from Company. Any such distribution shall be made to
a Lender at the account specified in subsection 2.4B(iii).
D. Interest on Amounts Paid Under Letters of Credit.
(i) Payment of Interest by Company. Company agrees to pay to Administrative
Agent, with respect to payments under any Letters of Credit issued by the
Issuing Lender, interest on the amount paid by the Issuing Lender in respect of
each such payment from the date a drawing is honored to but excluding the date
such amount is reimbursed by Company (including any such reimbursement out of
the proceeds of Revolving Loans pursuant to subsection 3.3B) at a rate equal to
(a) for the period from the date such drawing is honored to but excluding the
Reimbursement Date, the rate then in effect under this Agreement with respect to
Base Rate Loans and (b) thereafter, a rate which is 2% per annum in excess of
the rate of interest otherwise payable under this Agreement with respect to Base
Rate Loans. Interest payable pursuant to this subsection 3.3D(i) shall be
computed on the basis of a 365-day year (or 366-day year in case of a leap year)
for the actual number of days elapsed in the period during which it accrues and
shall be payable on demand or, if no demand is made, on the date on which the
related drawing under a Letter of Credit is reimbursed in full.
(ii) Distribution of Interest Payments by Administrative Agent. Promptly
upon receipt by Administrative Agent of any payment of interest pursuant to
subsection 3.3D(i) with respect to a payment under a Letter of Credit, (a)
Administrative Agent shall distribute to (x) each Lender (including the Issuing
Lender) out of the interest received by Administrative Agent in respect of the
period from the date such drawing is honored to but excluding the date on which
the Issuing Lender is reimbursed for the amount of such payment (including any
such reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B), the amount that such Lender would have been entitled to receive in
respect of the letter of credit fee that would have been payable in respect of
such Letter of Credit for such period pursuant to subsection 3.2 if no drawing
had been honored under such Letter of Credit, and (y) the Issuing Lender the
amount, if any, remaining after payment of the amounts applied pursuant to
clause (x), and (b) in the event the Issuing Lender shall have been reimbursed
by other Lenders pursuant to subsection 3.3C(i) for all or any portion of such
payment, Administrative Agent shall distribute to each Lender (including the
Issuing Lender) that has paid all amounts payable by it under subsection 3.3C(i)
with respect to such payment such Lender's Pro Rata Share of any interest
received by Administrative Agent in respect of that portion of such payment so
made by Lenders for the period from the date on which the Issuing Lender was so
reimbursed to but excluding the date on which such portion of such payment is
reimbursed by Company. Any such distribution shall be made to a Lender at the
account specified in subsection 2.4B(iii).
55
3.4 Obligations Absolute.
The obligation of Company to reimburse the Issuing Lender for payments
under the Letters of Credit issued by it and to repay any Revolving Loans made
by Lenders pursuant to subsection 3.3B and the obligations of Lenders under
subsection 3.3C(i) shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances
including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which
Company or any Lender may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), the Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against Company, whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between Company or one of
its Subsidiaries and the beneficiary for which any Letter of Credit was
procured);
(iii) any draft or other document presented under any 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;
(iv) payment by the Issuing Lender under any Letter of Credit against
presentation of a draft or other document which does not substantially
comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by any
party thereto;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
provided, in each case, that payment by the Issuing Lender under the applicable
Letter of Credit shall not have constituted gross negligence or willful
misconduct of the Issuing Lender under the circumstances in question (as
determined by a final judgment of a court of competent jurisdiction).
56
3.5 Nature of Issuing Lender's Duties.
As between Company and the Issuing Lender, Company assumes all risks of the
acts and omissions of, or misuse of the Letters of Credit issued by the Issuing
Lender by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, the Issuing Lender shall not
be responsible for: (i) 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 such Letter of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such 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; (iii) failure
of the beneficiary of any such Letter of Credit to comply fully with any
conditions required in order to draw upon such Letter of Credit; (iv) 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;
(v) errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of the Issuing Lender, including any act or
omission by a Government Authority, and none of the above shall affect or
impair, or prevent the vesting of, any of the Issuing Lender's rights or powers
hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5, any action
taken or omitted by the Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put the Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this subsection 3.5,
Company shall retain any and all rights it may have against the Issuing Lender
for any liability arising solely out of the gross negligence or willful
misconduct of the Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6 Applicability of UCP.
Unless otherwise expressly agreed by the Issuing Lender and Company when a
Letter of Credit is issued, the rules of the Uniform Customs and Practice for
Documentary Credits (UCP 500) (the "UCP"), as most recently published by the
International Chamber of Commerce at the time of issuance, shall apply to each
Letter of Credit.
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters of
Credit hereunder are subject to the satisfaction of the following conditions.
57
4.1 Conditions to Closing.
This Agreement shall become effective subject to prior or concurrent
satisfaction of the following conditions, upon which the Closing Date shall
occur:
A. Loan Documents. Company shall deliver to Lenders (or to Administrative
Agent with sufficient originally executed copies, where appropriate, for each
Lender) the following with respect to Company, each, unless otherwise noted,
dated the date hereof:
(i) Copies of the Organizational Documents of Company and each
Subsidiary Guarantor, certified by the Secretary of State of its
jurisdiction of organization or, if such document is of a type that may not
be so certified, certified by the secretary or similar officer of Company
and such Subsidiary Guarantor, together with a good standing certificate
from the Secretary of State of its jurisdiction of organization dated a
recent date prior to the date hereof;
(ii) Resolutions of the Governing Body of Company and each Subsidiary
Guarantor approving and authorizing the execution, delivery and performance
of the Loan Documents to which it is a party, certified as of the date
hereof by the secretary or similar officer of Company as being in full
force and effect without modification or amendment;
(iii) Signature and incumbency certificates of the officers of Company
and each Subsidiary Guarantor;
(iv) Executed originals of the Loan Documents; and
(v) Such other opinions, documents or materials as Administrative
Agent or any Lender may reasonably request.
B. Fees. Company shall have paid to Administrative Agent, for distribution
(as appropriate) to Administrative Agent, and Lenders, the fees payable on the
date hereof referred to in subsection 2.3.
C. Representations and Warranties. Company shall have delivered to
Administrative Agent an Officer's Certificate, in form and substance
satisfactory to Administrative Agent, to the effect that the representations and
warranties in Section 5 are true and correct in all material respects on and as
of the date hereof to the same extent as though made on and as of that date (or,
to the extent such representations and warranties specifically relate to an
earlier date, that such representations and warranties were true and correct in
all material respects on and as of such earlier date); provided that, if a
representation and warranty is qualified as to materiality, the applicable
materiality qualifier set forth above shall be disregarded with respect to such
representation and warranty for purposes of this condition.
D. Financial Statements. Lenders shall have received from Company (i)
audited financial statements for the years ended November 2, 2003, October 31,
2004 and October 30, 2005 and unaudited consolidated financial statements of
Company and its Subsidiaries for the Fiscal Quarter ended July 30, 2006, and
(ii) projections for the three year period beginning October 30, 2006, all in
form and substance satisfactory to the Administrative Agent.
58
E. Opinions of Counsel. Lenders shall have received executed copies of the
opinion of Xxxxxxxx Xxxxxxx LLP, counsel for Company, in addition to any local
counsel opinions reasonably requested by Agent, all dated as of the date hereof
and in form and substance reasonably satisfactory to Administrative Agent.
F. Solvency Assurances. Administrative Agent and Lenders shall have
received an Officer's Certificate of Company dated as of the date hereof as to
solvency matters in form and substance reasonably satisfactory to Administrative
Agent.
G. Evidence of Insurance. Administrative Agent shall have received a
certificate from Company's insurance broker or other evidence satisfactory to it
that all insurance required to be maintained pursuant to subsection 6.4 is in
full force and effect and that Administrative Agent, on behalf of Lenders, has
been named as additional insured and/or loss payee thereunder to the extent
required under subsection 6.4.
H. Necessary Governmental Authorizations and Consents; Expiration of
Waiting Periods, Etc. Company shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary or advisable in connection with the transactions contemplated by the
Loan Documents and all Governmental Authorizations and consents necessary for
the continued operation of the business conducted by Company and its
Subsidiaries in substantially the same manner as conducted prior to the date
hereof. Each such Governmental Authorization and consent shall be in full force
and effect, except in a case where the failure to obtain or maintain a
Governmental Authorization or consent, either individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse Effect. All
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority that would restrain, prevent or otherwise
impose adverse conditions on the transactions contemplated by the Loan Documents
or the financing thereof. No action, request for stay, petition for review or
rehearing, reconsideration, or appeal with respect to any of the foregoing shall
be pending.
I. Security Interests in Personal Property. Administrative Agent shall have
received evidence reasonably satisfactory to it that Company and each of the
Subsidiary Guarantors shall have taken or caused to be taken all such actions,
executed and delivered or caused to be executed and delivered all such
agreements, documents and instruments, that may be necessary or, in the
reasonable opinion of Administrative Agent, advisable in order to create in
favor of Administrative Agent, for the benefit of Lenders, a valid and perfected
First Priority security interest in the Collateral. Such actions shall include
the following:
(i) Stock Certificates and Instruments. Delivery to Administrative
Agent of (a) certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and otherwise
reasonably satisfactory in form and substance to Administrative Agent)
representing all certificated Capital Stock pledged pursuant to the
59
Guarantee and Collateral Agreement, and (b) all promissory notes or other
instruments (duly endorsed, where appropriate, in a manner reasonably
satisfactory to Administrative Agent) evidencing any Collateral; provided,
that, in the case of the Capital Stock of Foreign Subsidiaries, such pledge
shall be limited to 65% of the Capital Stock of Volt Delta Europe Limited
and Volt Delta GmbH, such pledge shall be effected pursuant to the
Guarantee and Collateral Agreement, and, in the case of Volt Delta GmbH
(whose Capital Stock is uncertificated), in lieu of stock certificates the
Company may instead furnish Administrative Agent with a copy of that
issuer's share records as certified by a public notary or other certifying
authority in the jurisdiction in which Volt Delta GmbH is organized;
(ii) Lien Searches and UCC Termination Statements. Delivery to
Administrative Agent of (a) the results of a recent search, by a Person
reasonably satisfactory to Administrative Agent, of all effective UCC
financing statements and all judgment and tax lien filings which may have
been made with respect to any personal property of any Loan Party, together
with copies of all such filings disclosed by such search, and (b) duly
completed UCC termination statements, and authorization of the filing
thereof from the applicable secured party, as may be necessary to terminate
any effective UCC financing statements disclosed in such search (other than
any such financing statements in respect of Liens permitted to remain
outstanding pursuant to the terms of this Agreement).
(iii) UCC Financing Statements. Delivery to Administrative Agent of
duly completed UCC financing statements with respect to all personal
property Collateral of such Loan Party, for filing in all jurisdictions as
may be necessary or, in the reasonable opinion of Administrative Agent,
advisable to perfect the security interests created in such Collateral
pursuant to the Collateral Documents; and
(iv) Cover Sheets, Etc. Delivery to Administrative Agent of all cover
sheets or other documents or instruments required to be filed with any IP
Filing Office in order to create or perfect Liens in respect of any IP
Collateral, together with releases duly executed (if necessary) of security
interests by all applicable Persons for filing in all applicable
jurisdictions as may be necessary to terminate any effective filings in any
IP Filing Office in respect of any IP Collateral (other than any such
filings in respect of Liens permitted to remain outstanding pursuant to the
terms of this Agreement).
J. Completion of Proceedings. All corporate and other proceedings taken or
to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by Administrative
Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in
form and substance to Administrative Agent and such counsel, and Administrative
Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as Administrative Agent may reasonably
request.
60
4.2 Conditions to Closing; All Loans.
The obligations of Lenders to make any Revolving Loans and Swing Line Loans
on any Funding Date are, in addition to the conditions precedent specified in
subsection 4.1, subject to prior or concurrent satisfaction of the following
conditions:
A. Notice of Borrowing. Administrative Agent shall have received before
that Funding Date, in accordance with the provisions of subsection 2.1B, a duly
executed Notice of Borrowing, in each case signed by a duly authorized Officer
of Company.
B. Representations and Warranties True; No Default; Etc. As of that Funding
Date:
(i) the representations and warranties contained herein and in the
other Loan Documents shall be true and correct in all material respects on
and as of that Funding Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations
and warranties shall have been true and correct in all material respects on
and as of such earlier date; provided, that, if a representation and
warranty is qualified as to materiality, the materiality qualifier set
forth above shall be disregarded with respect to such representation and
warranty for purposes of this condition;
(ii) no event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute an Event of Default or a Potential Event of
Default; and
(iii) no order, judgment or decree of any arbitrator or Government
Authority shall purport to enjoin or restrain such Lender from making the
Loans to be made by it on that Funding Date.
4.3 Conditions to Letters of Credit.
The issuance of any Letter of Credit hereunder (whether or not the Issuing
Lender is obligated to issue such Letter of Credit) is subject to the following
conditions precedent:
A. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Request for Issuance (or a facsimile
copy thereof) in each case signed by a duly authorized Officer of Company,
together with all other information specified in subsection 3.1B(i) and such
other documents or information as the Issuing Lender may reasonably require in
connection with the issuance of such Letter of Credit.
B. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
61
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the
Loans, to induce the Issuing Lender to issue Letters of Credit and to induce
Lenders to purchase participations therein, Company represents and warrants to
each Lender:
5.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries.
A. Organization and Powers. Company is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Nevada. Company has all requisite limited liability company power and authority
to own and operate its properties, to carry on its business as now conducted, to
enter into the Loan Documents to which it is a party and to carry out the
transactions contemplated thereby.
B. Qualification and Good Standing. Company is qualified to do business and
in good standing in every jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, except in jurisdictions
where the failure to be so qualified or in good standing would not reasonably be
expected to result in a Material Adverse Effect.
C. Conduct of Business. The Loan Parties are engaged only in the businesses
permitted to be engaged in pursuant to subsection 7.11.
D. Subsidiaries. All of the Subsidiaries of Company as of the Closing Date
and their jurisdictions of organization as of the Closing Date are identified in
Schedule 5.1 annexed hereto, and each such Subsidiary which is a Significant
Subsidiary as of the Closing Date is identified as such on Schedule 5.1. The
Capital Stock of each of the Subsidiaries of Company is duly authorized, validly
issued, fully paid and (except for any interest as a general partner)
nonassessable and none of such Capital Stock constitutes Margin Stock. Each of
the Subsidiaries of Company is a corporation, partnership, trust or limited
liability company duly organized, validly existing and in good standing under
the laws of its respective jurisdiction of organization, has all requisite
organizational power and authority to own and operate its properties and to
carry on its business as now conducted, and is qualified to do business and in
good standing in every jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, in each case except where
failure to be so qualified or in good standing or a lack of such power and
authority would not reasonably be expected to result in a Material Adverse
Effect.
5.2 Authorization of Borrowing, etc.
A. Authorization of Borrowing. The execution, delivery and performance of
the Loan Documents have been duly authorized by all necessary organizational
action on the part of each Loan Party party thereto.
62
B. No Conflict. The execution, delivery and performance by each Loan Party
of the Loan Documents to which it is a party and the consummation of the
transactions contemplated by the Loan Documents do not and will not (i) violate
any provision of any law or any governmental rule or regulation applicable to
such Loan Party, the Organizational Documents of such Loan Party or any order,
judgment or decree of any court or other Government Authority binding on such
Loan Party, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual Obligation of
such Loan Party, (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of such Loan Party (other than any
Liens created under any of the Loan Documents in favor of Administrative Agent
on behalf of Lenders), or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of such Loan
Party, except for such approvals or consents which will be obtained on or before
the date hereof and disclosed in writing to Lenders and except, in each case, to
the extent such violation, conflict, breach, default, Lien or failure to obtain
such approval or consent would not reasonably be expected to result in a
Material Adverse Effect.
C. Governmental Consents. The execution, delivery and performance by each
Loan Party of the Loan Documents to which it is a party and the consummation of
the transactions contemplated by the Loan Documents do not and will not require
any Governmental Authorization except for any Governmental Authorization
required in connection with the conduct of business of such Loan Party in the
ordinary course and any filings or recordings necessary to perfect Liens in the
Collateral or to direct the payment of receivables owing by a Government
Authority.
D. Binding Obligation. Each of the Loan Documents has been duly executed
and delivered by each Loan Party party thereto and is the legally valid and
binding obligation of such Loan Party, enforceable against such Loan Party in
accordance with its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
5.3 Financial Condition.
Company has heretofore delivered to Lenders, at Lenders' request, the
audited consolidated balance sheets, statements of income and cash flows of
Company and its Subsidiaries as at and for the Fiscal Years ended November 2,
2003, October 31, 2004 and October 30, 2005, and the unaudited consolidated
balance sheets, statements of income and cash flows of Company and its
Subsidiaries as at July 30, 2006. All such statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial
position (on a consolidated basis) of the entities described in such financial
statements as at the respective dates thereof and the results of operations and
cash flows (on a consolidated basis) of the entities described therein for each
of the periods then ended, subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal year-end adjustments and
the absence of footnote disclosure. Neither Company nor any of its Subsidiaries
has any Contingent Obligation, contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment not incurred in the
ordinary course of business that (a) as of the Closing Date, is not reflected in
the Company's audited consolidated balance sheets, statements of income and cash
flows of Company and its Subsidiaries as at and for the Fiscal Year ended
October 30, 2005 or the notes thereto, or the unaudited consolidated balance
sheets, statements of income and cash flows of Company and its Subsidiaries as
at July 30, 2006 or described in Schedule 7.1 or Schedule 7.4, or (b) as of any
Funding Date subsequent to the Closing Date, is not reflected in the most recent
audited financial statements delivered to Lenders pursuant to subsection 6.1 or
the notes thereto or permitted pursuant to Section 7.1 or 7.4 (or if prior to
the delivery of audited financial statements for the 2006 Fiscal Year, is not
reflected in any of the Company's audited financial statements described in
clause (a) above) and that, in any such case, could reasonably be expected to
have a Material Adverse Effect.
63
5.4 No Material Adverse Change.
Since October 30, 2005, no event or change has occurred that has resulted
in or evidences, either in any case or in the aggregate, a Material Adverse
Effect.
5.5 Title to Properties; Liens; Intellectual Property.
A. Company and its Significant Subsidiaries have good and marketable title
to all of their respective properties and assets reflected in the financial
statements referred to in subsection 5.3 or in the most recent financial
statements delivered pursuant to subsection 6.1, in each case except for assets
disposed of since the date of such financial statements in the ordinary course
of business or as otherwise permitted under subsection 7.7 and except for
defects and irregularities that would not reasonably be expected to result in a
Material Adverse Effect. Except as permitted by this Agreement, all such
properties and assets are free and clear of Liens.
B. As of the Closing Date, Company and its Subsidiaries own or have the
right to use, all Intellectual Property used in the conduct of their business,
except where the failure to own or have such right to use in the aggregate would
not reasonably be expected to result in a Material Adverse Effect. No claim has
been asserted and is pending by any Person challenging or questioning the use of
any Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does Company know of any valid basis for any such
claim, except for such claims that in the aggregate would not reasonably be
expected to result in a Material Adverse Effect. The use of such Intellectual
Property by Company and its Subsidiaries does not infringe on the rights of any
Person, except for such claims and infringements that, in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect. All federal,
state and foreign registrations of and applications for Intellectual Property
that are owned or licensed by Company or any of its Subsidiaries on the Closing
Date and are material to the business of the Company and its Subsidiaries taken
as a whole are listed on Schedule 5.5B annexed hereto.
5.6 Litigation; Adverse Facts.
Except as set forth in Schedule 5.6 annexed hereto, there are no
Proceedings (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity, or before or by any court or other Government
Authority (including any Environmental Claims) that are pending or, to the
knowledge of Company, threatened against or affecting Company or any of its
Subsidiaries or any property or assets of Company or any of its Subsidiaries and
that, individually or in the aggregate, would reasonably be expected to result
in a Material Adverse Effect. Neither Company nor any of its Subsidiaries (i) is
in violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, would reasonably be expected to result in a
Material Adverse Effect, or (ii) is subject to or in default with respect to any
final judgments, writs, injunctions, decrees, rules or regulations of any court
or other Government Authority that, individually or in the aggregate, would
reasonably be expected to result in a Material Adverse Effect.
64
5.7 Payment of Taxes.
All federal and all other material tax returns and reports of Company and
its Subsidiaries required to be filed by any of them have been timely filed, and
all taxes shown on such tax returns to be due and payable and all material
assessments, fees and other governmental charges upon Company and its
Subsidiaries and upon their respective properties, assets, income, businesses
and franchises that are due and payable have been paid when due and payable,
excluding any such tax, assessment, charge or claim being contested in good
faith by appropriate proceedings, so long as (i) such reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor and (ii) in the case of a tax, assessment, charge
or claim which has or may become a Lien against any of the properties or assets
of Company or its Significant Subsidiaries, the Lien is not being enforced by
foreclosure or sale of any portion of such properties or assets to satisfy such
charge or claim or is otherwise permitted by this Agreement.
5.8 Governmental Regulation.
Neither Company nor any of its Subsidiaries is subject to regulation under
the Federal Power Act, the Interstate Commerce Act or the Investment Company Act
of 1940 or under any other federal or state statute or regulation which may
limit its ability to incur Indebtedness or which may otherwise render all or any
portion of the Obligations unenforceable.
5.9 Securities Activities.
A. Neither Company nor any of 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 any Margin Stock.
B. No part of the proceeds of the Loans will be used for the purpose,
directly or indirectly, of buying or carrying any Margin Stock.
5.10 Employee Benefit Plans.
A. Company, each of its Subsidiaries and each of their respective ERISA
Affiliates are in material compliance with all applicable provisions and
requirements of ERISA and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan, and have performed all
their obligations under each Employee Benefit Plan. To the knowledge of Company
and each of its Subsidiaries, each Employee Benefit Plan that is intended to
qualify under Section 401(a) of the Internal Revenue Code is so qualified.
B. No ERISA Event has occurred or is reasonably expected to occur.
C. Except to the extent required under Section 4980B of the Internal
Revenue Code, no Employee Benefit Plan provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employee of Company, any of its Subsidiaries or any of their respective ERISA
Affiliates.
65
D. None of Company, any of its Subsidiaries or any of their respective
ERISA Affiliates sponsor or contribute to, or have ever sponsored or contributed
to, any Pension Plan or Multiemployer Plan, other than defined contribution
plans of Affiliates of Company (other than its Subsidiaries) where the
applicable defined contributions, if not made, would not reasonably be expected
to result in a Material Adverse Effect.
5.11 Environmental Protection.
In the ordinary course of its business, the officers of Company and its
Subsidiaries consider the effect of Environmental Laws on the business of
Company and its Subsidiaries, in the course of which they identify and evaluate
potential risks and liabilities accruing to Company due to Environmental Laws.
On the basis of this consideration, Company has concluded that Environmental
Laws would not reasonably be expected to have a Material Adverse Effect. Neither
Company nor any of its Subsidiaries has received any notice to the effect that
its operations are not in material compliance with any of the requirements of
applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any Hazardous Materials into the environment, which non-compliance or
remedial action could reasonably be expected to have a Material Adverse Effect.
5.12 Solvency.
Company is and upon the incurrence of any Obligations by Company on any
date on which this representation is made, will be, Solvent.
5.13 Matters Relating to Collateral.
A. Governmental Authorizations. No authorization, approval or other action
by, and no notice to or filing with, any Government Authority is required for
either (i) the pledge or grant by any Loan Party of the Liens purported to be
created in favor of Administrative Agent pursuant to any of the Collateral
Documents or (ii) the exercise by Administrative Agent of any rights or remedies
in respect of any Collateral (whether specifically granted or created pursuant
to any of the Collateral Documents or created or provided for by applicable
law), except for filings or recordings necessary to perfect Liens and except as
may be required, in connection with (x) the direction of the payment of accounts
owing by Governmental Authorities or (y) the disposition of any Pledged
Collateral, by laws generally affecting the offering and sale of securities.
B. Absence of Third-Party Filings. Except such as may have been filed in
favor of Administrative Agent as contemplated by the Collateral Documents and to
evidence permitted lease obligations and other Liens permitted pursuant to
subsection 7.2, (i) no effective UCC financing statement or other instrument
similar in effect covering all or any part of the Collateral is on file in any
filing or recording office and (ii) no effective filing covering all or any part
of the IP Collateral is on file in any IP Filing Office.
66
C. Margin Regulations. The pledge of the Pledged Collateral pursuant to the
Collateral Documents does not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
D. Information Regarding Collateral. All information supplied to
Administrative Agent by or on behalf of any Loan Party with respect to the
Collateral taken as a whole is accurate in all material respects.
5.14 Disclosure.
No representation or warranty of any Loan Party or any of its Subsidiaries
contained in the Confidential Information Memorandum dated July 17, 2006, or in
any Loan Document or in any other document, certificate or written statement
furnished to Lenders by or on behalf of the Loan Parties or any of their
Subsidiaries for use in connection with the transactions contemplated by this
Agreement, contains any untrue statement of a material fact or omits to state a
material fact (known to Company, in the case of any information not furnished by
it) necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances in which the same were made. Any
projections and pro forma financial information contained in such materials were
based upon good faith estimates and assumptions believed by Company to be
reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results. There are no facts known (or which should upon the
reasonable exercise of diligence be known) to Company that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect and that have not been disclosed herein or in such other documents,
certificates and statements furnished to Lenders for use in connection with the
transactions contemplated hereby.
5.15 Foreign Assets Control Regulations, etc..
Neither the making of the Loans to, or issuance of Letters of Credit on
behalf of, Company nor its use of the proceeds thereof will violate the Trading
with the Enemy Act, as amended, or any of the foreign assets control regulations
of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or any enabling legislation or executive order relating thereto.
Without limiting the foregoing, no Loan Party nor any of its Subsidiaries or
Affiliates (a) is or will become a Person whose property or interests in
property are blocked pursuant to Section 1 of Executive Order 13224 of September
23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) or (b)
engages or will engage in any dealings or transactions, or be otherwise
associated, with any such Person. The Loan Parties and their Subsidiaries and
Affiliates are in compliance, in all material respects, with the Uniting And
Strengthening America By Providing Appropriate Tools Required To Intercept And
Obstruct Terrorism (USA Patriot Act of 2001).
67
Section 6. AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations (other than Unasserted Obligations) and the cancellation
or expiration of all Letters of Credit, unless Requisite Lenders shall otherwise
give consent, Company shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 6.
6.1 Financial Statements and Other Reports.
Company will maintain, and cause each of its Subsidiaries to maintain, a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in conformity
with GAAP. Company will deliver, or cause to be delivered, to Administrative
Agent and Lenders:
(i) Events of Default, etc.: promptly upon any Officer of Company
obtaining knowledge (A) of any condition or event that constitutes an Event
of Default or Potential Event of Default, or becoming aware that any Lender
has given any notice (other than to Administrative Agent) or taken any
other action with respect to a claimed Event of Default or Potential Event
of Default, (B) that any Person has given any notice to Company or any of
its Subsidiaries or taken any other action with respect to a claimed
default or event or condition of the type referred to in subsection 8.2 or
(C) of the occurrence of any event or change that has caused or evidences,
either in any case or in the aggregate, a Material Adverse Effect, an
Officer's Certificate specifying the nature and period of existence of such
condition, event or change, or specifying the notice given or action taken
by any such Person and the nature of such claimed Event of Default,
Potential Event of Default, default, event or condition and what action
Company has taken, is taking and proposes to take with respect thereto;
(ii) Quarterly Financials: (a) as soon as available and in any event
within 50 days after the end of each of the first three Fiscal Quarters of
each Fiscal Year, the consolidated balance sheets of Company and its
Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated statements of operations and cash flows (including all
footnotes thereto) of Company and its Subsidiaries for such Fiscal Quarter
and for the period from the beginning of the then current Fiscal Year to
the end of such Fiscal Quarter, setting forth in each case in comparative
form the corresponding figures for the corresponding periods of the
previous Fiscal Year, all in reasonable detail and certified by the chief
financial officer of Company that they fairly present, in all material
respects, the financial condition of Company and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows
for the periods indicated, subject to changes resulting from audit and
normal year-end adjustments and the absence of footnote disclosure, and (b)
within 50 days after the end of each of the first three Fiscal Quarters of
each Fiscal Year, a narrative report describing the operations of Company
and its Subsidiaries in the form prepared for presentation to senior
management for such Fiscal Quarter and for the period from the beginning of
the then current Fiscal Year to the end of such Fiscal Quarter; it being
understood and agreed that the delivery of Company's Form 10-Q, if
required, promptly following the filing thereof with the Securities and
Exchange Commission shall satisfy the delivery requirements set forth in
this clause (subject to the time periods set forth in this clause (ii));
68
(iii) Year-End Financials: as soon as available and in any event
within 90 days after the end of each Fiscal Year, (a) the consolidated
balance sheets of Company and its Subsidiaries as at the end of such Fiscal
Year and the related consolidated statements of operations and cash flows
(including all footnotes thereto) of Company and its Subsidiaries for such
Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year, all in reasonable
detail and certified by the chief financial officer of Company that they
fairly present, in all material respects, the consolidated financial
condition of Company and its Subsidiaries as at the dates indicated and the
consolidated results of their operations and their cash flows for the
periods indicated, (b) a report for Company and its Subsidiaries setting
forth in comparative form the corresponding figures for the previous Fiscal
Year, (c) a narrative report describing the operations of Company and its
Subsidiaries in the form prepared for presentation to senior management for
such Fiscal Year, (d) in the case of all such consolidated financial
statements, a report and opinion thereon of Ernst & Young, LLP or other
independent certified public accountants of recognized national standing
selected by Company and reasonably satisfactory to Administrative Agent,
which report and opinion shall be prepared in accordance with audit
standards of the Public Company Accounting Oversight Board and applicable
Securities Laws unqualified as to the scope of the audit or the ability of
Company and its Subsidiaries to continue as a going concern, and shall
state that such consolidated financial statements fairly present, in all
material respects, the consolidated financial position of Company and its
Subsidiaries as at the dates indicated and the consolidated results of
their operations and their cash flows for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except
as otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards, and it being understood and agreed that the delivery of
Company's Form 10-K, if required, promptly after the filing thereof with
the Securities and Exchange Commission shall satisfy the requirements set
forth in this clause (subject to the time periods set forth in this clause
(iii));
(iv) Compliance Certificates: together with each delivery of financial
statements pursuant to subdivisions (ii) and (iii) above, (a) an Officer's
Certificate of Company stating that the signers have reviewed the terms of
this Agreement and have made, or caused to be made under their supervision,
a review in reasonable detail of the transactions and condition of Company
and its Subsidiaries during the accounting period covered by such financial
statements and that such review has not disclosed the existence during or
at the end of such accounting period, and that the signers do not have
knowledge of the existence as at the date of such Officer's Certificate, of
any condition or event that constitutes an Event of Default or Potential
Event of Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what action
Company has taken, is taking and proposes to take with respect thereto; and
(b) a Compliance Certificate demonstrating in reasonable detail compliance
at the end of the applicable accounting periods with the restrictions
contained in subsection 7.6;
69
(v) Reconciliation Statements: if, as a result of any change in accounting
principles and policies from those used in the preparation of the audited
financial statements referred to in subsection 5.3, the consolidated financial
statements of Company and its Subsidiaries delivered pursuant to subdivisions
(ii) or (iii) of this subsection 6.1 will differ in any material respect from
the consolidated financial statements that would have been delivered pursuant to
such subdivisions had no such change in accounting principles and policies been
made, then, together with the first delivery of financial statements pursuant to
subdivision (ii) or (iii) of this subsection 6.1 following such change,
consolidated financial statements of Company and its Subsidiaries for the
current Fiscal Year to the effective date of such change, prepared on a pro
forma basis as if such change had been in effect during such periods, together
with, if required pursuant to subsection 1.2, a written statement of the chief
accounting officer or chief financial officer of Company setting forth the
differences (including any differences that would affect any calculations
relating to the financial covenants set forth in subsection 7.6) which would
have resulted if such financial statements had been prepared without giving
effect to such change;
(vi) Accountants' Reports: promptly upon receipt thereof (unless restricted
by applicable professional standards), copies of all reports submitted to
Company by independent certified public accountants in connection with each
annual, interim or special audit of the financial statements of Company and its
Subsidiaries made by such accountants;
(vii) SEC Filings and Press Releases: promptly upon their becoming
available, copies of (a) regular and periodic reports and all registration
statements (other than on Form S-8 or a similar form) and prospectuses, if any,
filed by Company or any of its Subsidiaries with any securities exchange or with
the Securities and Exchange Commission or any governmental or private regulatory
authority, and (b) all press releases and other statements made available
generally by Company or any of its Subsidiaries to the public concerning
material developments in the business of Company and its Subsidiaries, taken as
a whole;
(viii) Litigation or Other Proceedings: promptly upon any Officer of
Company obtaining knowledge of (a) the institution of, or non-frivolous threat
of, any Proceeding against or affecting Company or any of its Subsidiaries or
any property or assets of Company or any of its Subsidiaries not previously
disclosed in writing by Company to Lenders or (b) any material development in
any Proceeding that, in any case:
(x) if adversely determined, after giving
effect to the coverage and policy limits of insurance
policies issued to Company and its Subsidiaries,
would reasonably be expected to result in a Material
Adverse Effect; or
(y) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain
relief as a result of, the making, securing or
repayment of the Obligations hereunder or the
application of proceeds thereof;
70
written notice thereof together with such other information as may be reasonably
available to Company to enable Lenders and their counsel to evaluate such
matters;
(ix) ERISA Events: promptly upon becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event, a written notice specifying the
nature thereof, what action Company, any of its Subsidiaries or any of their
respective ERISA Affiliates has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect thereto;
(x) ERISA Notices: with reasonable promptness, copies of all notices
received by Company or any of its Subsidiaries from a Multiemployer Plan sponsor
concerning an ERISA Event;
(xi) Insurance: as soon as practicable after any material change in
insurance coverage maintained by Company and its Subsidiaries, notice thereof to
Administrative Agent specifying the changes and reasons therefor;
(xii) New Subsidiaries: in addition to any notice required under subsection
6.8A, (a) promptly upon any Person becoming a Significant Subsidiary of Company,
a written notice setting forth with respect to such Person (i) the date on which
such Person became a Significant Subsidiary of Company and (ii) information
comparable to that set forth in Schedule 5.1 annexed hereto with respect to
Subsidiaries of Company as of the Closing Date; and (b) together with each
delivery of a Compliance Certificate pursuant to subdivision (iv) above, an
updated list (containing information comparable to that set forth in Schedule
5.1 annexed hereto with respect to Subsidiaries of Company as of the Closing
Date) with respect to all Subsidiaries of Company (including a designation of
which Subsidiaries, if any, are Significant Subsidiaries);
(xiii) Ratings: immediately upon becoming aware of the issuance of any
rating of Company's Indebtedness or any change therein, a statement describing
such change, whether such change was made by Fitch, S&P or Xxxxx'x, and the
effective date of such rating or change; and
(xiv) Other Information: with reasonable promptness, such other information
and data with respect to Company or any of its Subsidiaries as from time to time
may be reasonably requested by Administrative Agent.
6.2 Existence, etc.
Except as permitted under subsection 7.7, Company will, and will cause each
of its Subsidiaries to, at all times preserve and keep in full force and effect
its existence and all rights and franchises material to its business; provided,
however that neither Company nor any of its Subsidiaries shall be required to
preserve any such right or franchise if the Governing Body of Company or such
Subsidiary shall determine that the preservation thereof is no longer desirable
in the conduct of the business of Company or such Subsidiary, as the case may
be, and that the loss thereof would not reasonably be expected to result in a
Material Adverse Effect.
71
6.3 Payment of Taxes and Claims.
Company will, and will cause each of its Significant Subsidiaries to, pay
all material taxes, assessments and other governmental charges imposed upon it
or any of its properties or assets or in respect of any of its income,
businesses or franchises before any material penalty accrues thereon, and all
material claims (including claims for labor, services, materials and supplies)
for sums that have become due and payable and that by law have or may become a
Lien upon any of its properties or assets, prior to the time when any material
penalty or fine shall be incurred with respect thereto; provided that no such
tax, assessment, charge or claim need be paid if it is being contested in good
faith by appropriate proceedings, so long as (i) such reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor and (ii) in the case of a tax, assessment, charge
or claim which has or may become a Lien against any of the properties or assets
of Company or its Significant Subsidiaries, the Lien is not being enforced by
foreclosure or sale of any portion of such properties or assets to satisfy such
charge or claim or is otherwise permitted by this Agreement.
6.4 Maintenance of Properties; Insurance.
A. Maintenance of Properties. Company will, and will cause each of its
Significant Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Company and its Significant
Subsidiaries (including all material Intellectual Property).
B. Insurance. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations
of established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry. Without limiting the generality
of the foregoing, Company will maintain or cause to be maintained replacement
value casualty insurance on the Collateral under such policies of insurance,
with such insurance companies, in such amounts, with such deductibles, and
covering such risks as are at all times reasonably satisfactory to
Administrative Agent. Each such insurance policy relating to Company and
Subsidiary Guarantors shall, as applicable, (a) name Administrative Agent for
the benefit of Lenders as an additional insured thereunder as its interests may
appear and/or (b) contain a loss payable clause or endorsement, reasonably
satisfactory in form and substance to Administrative Agent, that names
Administrative Agent for the benefit of Lenders as the loss payee thereunder for
any covered loss in excess of $1,000,000 and provides for at least 30 days prior
written notice to Administrative Agent of any modification or cancellation of
such policy, as applicable.
6.5 Inspection Rights; Books and Records.
Company shall, and shall cause each of its Significant Subsidiaries to,
permit any authorized representatives designated by Administrative Agent (and,
during the continuance of an Event of Default, any Lender) to visit and inspect
any of the properties of Company or of any of its Significant Subsidiaries, to
inspect, copy and take extracts from its and their financial and accounting
records, and to discuss its and their affairs, finances and accounts with its
and their officers and independent public accountants (provided that Company
may, if it so chooses, be present at or participate in any such discussion), all
upon reasonable notice and at such reasonable times during normal business hours
and as often as may reasonably be requested or at any time or from time to time
following the occurrence and during the continuation of an Event of Default.
Company shall, and shall cause each of its Significant Subsidiaries to maintain,
books and records, including those pertaining to the Collateral, in such detail,
form and scope as is consistent with good business practice.
72
6.6 Compliance with Laws, etc.
Company shall comply, and shall cause each of its Subsidiaries to comply,
with the requirements of all applicable laws, rules, regulations and orders of
any Government Authority (including all Environmental Laws), noncompliance with
which would reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect.
6.7 Environmental Matters.
Company will, and will cause each of its Subsidiaries to:
(a) use and operate all of its facilities and properties in compliance
with all Environmental Laws except for such non-compliance which, singly or
in the aggregate, will not have a Material Adverse Effect, keep all
necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
compliance therewith, except where the failure to keep such permits,
approvals, certificates, licenses or other authorizations, or any
non-compliance with the provisions thereof will not have a Material Adverse
Effect, and handle all Hazardous Materials in compliance with all
applicable Environmental Laws, except for any non-compliance that will not
have a Material Adverse Effect;
(b) immediately notify the Administrative Agent and provide copies
upon receipt of all written inquiries from any local, state or federal
governmental agency, claims, complaints or notices relating to the
condition of its facilities and properties or compliance with Environmental
Laws which will have a Material Adverse Effect, and shall promptly cure and
have dismissed with prejudice or contest in good faith any actions and
proceedings relating to material compliance with Environmental Laws the
result of which, if not contested by Company, would have a Material Adverse
Effect; and
(c) provide such non-confidential information and certifications which
the Administrative Agent may reasonably request from time to time to
evidence compliance with this subsection 6.7.
73
6.8 Execution of Guarantee and Collateral Agreement and Other Collateral
Documents After the Closing Date; Supplemental Foreign Pledge Agreements.
A. Execution of Guarantee and Collateral Agreement and Other Collateral
Documents. In the event that any Person becomes a Subsidiary of Company after
the Closing Date, Company will, within ten days thereafter, notify
Administrative Agent of that fact and cause such Subsidiary to execute and
deliver to Administrative Agent a joinder to or a counterpart of the Guarantee
and Collateral Agreement and to take all such further actions and execute all
such further documents and instruments (including actions, documents and
instruments comparable to those described in subsection 4.1I) as may be
necessary or, in the reasonable opinion of Administrative Agent, advisable to
create in favor of Administrative Agent, for the benefit of Lenders, a valid and
perfected First Priority Lien on all of the personal property assets of such
Subsidiary described in the applicable forms of Collateral Documents. In
addition, as provided in the Guarantee and Collateral Agreement, Company shall,
or shall cause the Person that owns the Capital Stock of such Subsidiary to,
execute and deliver to Administrative Agent a supplement to the Guarantee and
Collateral Agreement and, if reasonably requested by Administrative Agent with
respect to the Capital Stock of a Foreign Subsidiary, a Foreign Pledge
Agreement, and to deliver to Administrative Agent all certificates representing
such Capital Stock of such Subsidiary (accompanied by irrevocable undated stock
powers, duly endorsed in blank). Notwithstanding the foregoing, (i) no Foreign
Subsidiary shall be required to execute and deliver the Guarantee and Collateral
Agreement or take the further actions or execute the further documents and
instruments referenced in this subsection 6.8A, and (ii) no Capital Stock of a
Foreign Subsidiary shall be required to be pledged pursuant to the provisions of
the Guarantee and Collateral Agreement or a Foreign Pledge Agreement or
otherwise, in each case except as provided in subsection 6.8B.
B. Foreign Subsidiaries.
(i) In the event that any Person becomes a Foreign Subsidiary of
Company after the Closing Date, Company will, within ten days thereafter,
notify Administrative Agent of that fact.
(ii) If the Foreign Subsidiary referenced in clause (i) is a
first-tier Foreign Subsidiary, Company shall, or shall cause the Person
that owns the Capital Stock of such Foreign Subsidiary to: (a) execute and
deliver to Administrative Agent a supplement to the Guarantee and
Collateral Agreement (and, if reasonably requested by Administrative Agent,
a Foreign Pledge Agreement) to create in favor of Administrative Agent a
First Priority Lien on 65% of the Capital Stock of such first-tier Foreign
Subsidiary; and (b) deliver to Administrative Agent all certificates
representing such 65% of such Capital Stock of such Foreign Subsidiary
(accompanied by irrevocable undated stock powers, duly endorsed in blank).
(iii) Company may defer the stock pledge required under clause (ii),
subject to the following two conditions: (a) such first-tier Foreign
Subsidiary (considered individually and together with all of its own
Subsidiaries) (collectively, a "Foreign Subsidiary Chain") does not
constitute a Significant Subsidiary; and (b) after giving effect to such
deferral, that Foreign Subsidiary Chain, in the aggregate with all other
Foreign Subsidiary Chains where the first-tier Foreign Subsidiary is not
pledged (in accordance with subsection 4.1I or this Section 6.8) as
Collateral, represents both: (1) 10% or less of the consolidated total
assets of Company and its Subsidiaries; and (2) 10% or less of the
consolidated total revenues of the Company and its Subsidiaries for the
trailing four Fiscal quarter period then ended; in each case as reflected
in the then most-recent consolidated financial statements of Company
delivered pursuant to Section 6.1. At its option, Company may effect the
pledge of a previously deferred first-tier Foreign Subsidiary in order to
facilitate deferral for another first-tier Foreign Subsidiary.
74
(iv) At Administrative Agent's reasonable request (but subject to the
next sentence), Company shall cause any Foreign Subsidiary designated by
Administrative Agent to fully comply with subsection 6.8A to the extent
that no material adverse Tax consequences to Company, any of its
Subsidiaries, Parent and/or any of Parent's other Subsidiaries would
reasonably be expected to result therefrom. Company shall be entitled to
defer such compliance in reliance on clause (iii), applied mutatis
mutandis.
C. Subsidiary Organizational Documents, Legal Opinions, Etc. With respect
to any Subsidiary obligated to join the Guarantee and Collateral Agreement in
accordance with subsection 6.8A, Company shall deliver to Administrative Agent,
together with such Loan Documents, (i) certified copies of such Subsidiary's
Organizational Documents, together with, if such Subsidiary is organized or
incorporated under the laws of the United States of America, any state thereof
or the District of Columbia, a good standing certificate from the Secretary of
State of the jurisdiction of its organization and each other state in which such
Person is qualified to do business and, to the extent generally available, a
certificate or other evidence of good standing as to payment of any applicable
franchise or similar taxes from the appropriate taxing authority of each such
jurisdiction, each to be dated a recent date prior to their delivery to
Administrative Agent, (ii) a certificate executed by the secretary or similar
officer of such Subsidiary as to (a) the fact that the attached resolutions of
the Governing Body of such Subsidiary approving and authorizing the execution,
delivery and performance of such Loan Documents are in full force and effect and
have not been modified or amended and (b) the incumbency and signatures of the
officers of such Subsidiary executing such Loan Documents, and (iii) if
reasonably requested by Administrative Agent, a favorable opinion of counsel to
such Subsidiary, in form and substance satisfactory to Administrative Agent and
its counsel, as to (a) the due organization and good standing of such
Subsidiary, (b) the due authorization, execution and delivery by such Subsidiary
of such Loan Documents, (c) the enforceability of such Loan Documents against
such Subsidiary and (d) such other matters (including matters relating to the
creation and perfection of Liens in any Collateral pursuant to such Loan
Documents) as Administrative Agent may reasonably request, all of the foregoing
to be reasonably satisfactory in form and substance to Administrative Agent.
D. Receivables owed by Government Authorities. In the event that any
material accounts receivable which constitute Collateral are owed by any
Government Authority, then Company shall promptly notify Administrative Agent
thereof and, to the extent that a Governmental Authorization is required in
order to direct their payment to any party other than Company or any of its
Subsidiaries, then, upon the Administrative Agent's reasonable request, Company
shall or shall cause such Subsidiary to take all such further actions and
execute all such further documents and instruments as may be necessary or, in
the reasonable opinion of Administrative Agent, advisable to obtain such
Governmental Authorization.
75
E. Supplemental Foreign Pledge Agreement. In its reasonable discretion,
Administrative Agent may require that any pledge of all or any part of the
Capital Stock of a Foreign Subsidiary (whether pledged as of the Closing Date,
in accordance with subsection 4.1I, or pledged thereafter in accordance with
this subsection 6.8) originally made solely pursuant to the Guarantee and
Collateral Agreement to be replaced or supplemented by a pledge made pursuant to
an appropriate Foreign Pledge Agreement.
F. License. No later than sixty (60) days following the Closing Date,
Parent shall grant to Company a written license to use the "VOLT DELTA"
trademarks and patent in connection with its business, and evidence of such
license shall have been provided to Administrative Agent, in form and substance
reasonably acceptable to Administrative Agent.
6.9 Repayment of Parent Loan.
Within thirty days following the Closing Date, Company shall have made
arrangements reasonably satisfactory to Administrative Agent for the repayment
of the Parent Loan and delivered evidence of such repayment to Administrative
Agent.
Section 7. NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations (other than Unasserted Obligations) and the cancellation
or expiration of all Letters of Credit, unless Requisite Lenders shall otherwise
give consent, Company shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 7.
7.1 Indebtedness.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness,
except:
(i) Company and its Subsidiaries (as Subsidiary Guarantors, or in
respect of Interest Rate Agreements or Currency Agreements, as applicable)
may become and remain liable with respect to the Obligations;
(ii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations permitted by subsection 7.4 and, upon any
matured obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Contingent Obligations so extinguished;
(iii) Company may become and remain liable with respect to
Indebtedness owed to any of its Subsidiaries, and any Wholly-Owned
Subsidiary of Company may become and remain liable with respect to
Indebtedness owed to Company or any other Subsidiary; provided, that any
such Indebtedness owed to Company or any Subsidiary Guarantor by any
Subsidiary which is not a Subsidiary Guarantor shall be evidenced by a note
pledged to Administrative Agent as Pledged Collateral;
76
(iv) Company and its Subsidiaries, as applicable, may remain liable
with respect to Indebtedness described in Schedule 7.1 annexed hereto;
(v) Company and its Subsidiaries may incur or assume Indebtedness in
connection with acquisitions, in the form of seller notes or otherwise, to
the extent permitted pursuant to subsection 7.3(vi), and otherwise on terms
and conditions acceptable to Administrative Agent;
(vi) Company and its Subsidiaries may receive advances from their
customers in the ordinary course of business; and
(vii) Company and its Subsidiaries may become and remain liable with
respect to other Indebtedness in an aggregate principal amount not to
exceed $7,500,000 at any time outstanding; provided, Subsidiaries which are
not Subsidiary Guarantors may only incur up to $1,500,000 of such amount of
Indebtedness, with such Indebtedness to be in the form of unsecured
borrowings for ordinary course cash flow requirements.
7.2 Liens and Related Matters.
A. Prohibition on Liens. Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the UCC or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens described in Schedule 7.2 annexed hereto;
(iii) Liens in favor of Administrative Agent securing the Obligations;
(iv) (a) Liens securing obligations incurred in connection with any
transaction governed by an Interest Rate Agreement or a Currency Agreement
pursuant to subsection 7.3(ix) with a Person other than a Lender or an
Affiliate of a Lender;
(b) Liens on any property or assets existing at the time such property
or asset was acquired (including Liens on the property or assets of any
Person that becomes a Subsidiary of Company that existed at the time such
Person became a Subsidiary by acquisition, merger, consolidation or
otherwise), which Liens were not created in contemplation of such
acquisition; provided that (i) such Liens shall not extend to or cover any
property or assets of any character other than the property or assets being
acquired and (ii) such Liens shall secure only those obligations which such
Liens secured on the date of such acquisition;
(c) Liens in respect of purchase money and Capital Lease obligations
upon or in any real property or equipment acquired or held by Company or
any Subsidiary in the ordinary course of business to secure the purchase
price of such property or equipment or to secure Indebtedness incurred
solely for the purpose of financing the acquisition of such property or
equipment; provided that such Liens shall not extend to or cover any
property or assets of any character other than the property or equipment
being financed; and
(d) Liens securing other Indebtedness incurred pursuant to subsection
7.1(vii);
77
provided, that the aggregate amount of obligations secured pursuant to this
subsection 7.2A(iv) shall not exceed $3,000,000 at any one time
outstanding; and
(v) the replacement, extension or renewal of any Lien permitted by
clauses (ii), (iv)(b) and (iv)(c) above upon or in the same property
subject thereto arising out of the replacement, extension or renewal of the
Indebtedness secured thereby (without any increase in the amount thereof).
B. No Further Negative Pledges. Neither Company nor any of its Subsidiaries
shall enter into any agreement prohibiting the creation or assumption of any
Lien upon any of its properties or assets, whether now owned or hereafter
acquired, other than (i) any agreement evidencing Indebtedness secured by Liens
permitted by this Agreement, as to the assets securing such Indebtedness, and
(ii) any agreement evidencing an asset sale, lease or license as to the assets
being sold, leased or licensed.
C. No Restrictions on Subsidiary Distributions to Company or Other
Subsidiaries. Company will not, and will not permit any of its Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any such Subsidiary to
(i) pay dividends or make any other distributions on any of such Subsidiary's
Capital Stock owned by Company or any other Subsidiary of Company, (ii) except
for the subordination terms of any intercompany note pledged to Administrative
Agent pursuant to subsection 7.1(iii), repay or prepay any Indebtedness owed by
such Subsidiary to Company or any other Subsidiary of Company, (iii) make loans
or advances to Company or any other Subsidiary of Company, or (iv) transfer any
of its property or assets to Company or any other Subsidiary of Company, except
in each case (a) as provided in this Agreement or any other Loan Document, (b)
as to transfers of assets, as may be provided in an agreement with respect to a
sale, lease or license of such assets and (c) as required by law.
7.3 Investments; Acquisitions.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including any
Joint Venture, or acquire, by purchase or otherwise, all or substantially all
the business, property or fixed assets of, or Capital Stock of any Person, or
any division or line of business of any Person except:
78
(i) Company and its Subsidiaries may make and own Investments in cash
and cash equivalents;
(ii) Company and its Subsidiaries may continue to own the Investments
owned by them as of the Closing Date in any Subsidiaries of Company, and
Company and any of its Subsidiaries may make additional equity Investments
in any of Company's Subsidiaries;
(iii) Company and its Subsidiaries may make intercompany loans to the
extent permitted under subsection 7.1(iii);
(iv) Company and its Subsidiaries may make Consolidated Capital
Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments
owned by them and described in Schedule 7.3 annexed hereto;
(vi) Company and its Subsidiaries may acquire, in a single transaction
or series of related transactions (a) all or substantially all of the
assets or a majority of the outstanding Securities entitled to vote in an
election of members of the Governing Body of a Person incorporated or
organized in the United States of America or (b) any division, line of
business or other business unit of a Person that is incorporated or
organized in the United States of America (such Person or such division,
line of business or other business unit of such Person being referred to
herein as the "Target"), in each case that is a type of business (or assets
used in a type of business) permitted to be engaged in by Company and its
Subsidiaries pursuant to subsection 7.11, so long as (1) no Event of
Default or Potential Event of Default shall then exist or would exist after
giving effect thereto, (2) upon the closing of such acquisition, Company
shall, and shall cause its Subsidiaries (including Target, if Target is a
Person) to, comply with the requirements of subsection 6.8 with respect to
such acquisition, (3) Company delivers a Compliance Certificate for any
acquisition for which total consideration to be paid is in excess of
$10,000,000 demonstrating that Company and its Subsidiaries are in pro
forma compliance with each of the financial covenants set forth in
subsection 7.6, (4) Target shall have Consolidated EBITDA for the four
fiscal quarter period prior to the acquisition date in an amount greater
than $0 (after giving effect to cost savings due to merger synergies) on a
pro forma basis as approved by Administrative Agent, (5) such acquisition
shall not be a "hostile" acquisition and shall have been approved by the
Governing Body and/or shareholders of the Company or such Subsidiary, as
applicable, and Target, and (6) the aggregate consideration (including
without limitation equity consideration, earn-outs, deferred compensation
or non-competition arrangements and the amount of Indebtedness assumed by
Company and its Subsidiaries) paid by Company and its Subsidiaries in
connection with any such acquisition shall not exceed $30,000,000 in the
aggregate per Fiscal Year; provided that no more than -------- $20,000,000
in the aggregate per Fiscal Year may be financed with cash and/or
Indebtedness (including Indebtedness assumed in connection with such
acquisition).
79
(vii) Company and its Subsidiaries may receive and hold promissory
notes and other non-cash consideration received in connection with any
Asset Sale permitted by subsection 7.7;
(viii) Company and its Subsidiaries may acquire Securities in
connection with the satisfaction or enforcement of Indebtedness or claims
due or owing to Company or any of its Subsidiaries or as security for any
such Indebtedness or claim;
(ix) Company and its Subsidiaries may enter into transactions governed
by Interest Rate Agreements and Currency Agreements entered into in the
ordinary course of business for the purpose of asset and liability
management; and
(x) Company and its Subsidiaries may make and own other Investments in
an aggregate amount not to exceed $5,000,000.
7.4 Contingent Obligations.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or become or remain liable with respect to any
Contingent Obligation, except:
(i) Company may become and remain liable with respect to Contingent
Obligations in respect of Letters of Credit;
(ii) Company and its Subsidiaries may become and remain liable with respect
to Contingent Obligations in respect of customary indemnification and purchase
price adjustment obligations incurred in connection with Asset Sales or with the
purchases of properties or assets;
(iii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations in respect of (a) any Indebtedness of Company
or any of its Subsidiaries permitted by subsection 7.1 or (b) any other
liability of Company or any of its Subsidiaries incurred in a transaction that
is not prohibited by this Agreement or any of the other Loan Documents; and
(iv) Company and its Subsidiaries, as applicable, may remain liable with
respect to Contingent Obligations described in Schedule 7.4 annexed hereto.
7.5 Restricted Junior Payments.
Company shall not and shall not permit any of its Subsidiaries to, directly
or indirectly, declare, order, pay, make or set apart any sum for any Restricted
Junior Payment so long as any Event of Default or Potential Event of Default
shall have occurred and be continuing or shall be caused thereby; provided,
that, at any time, so long as Company is treated as a partnership for federal
income tax purposes, Company may make cash distributions ("Tax Distributions")
to the direct and indirect members of Company, from time to time, in amounts not
exceeding the amount of income taxes deemed payable by the direct and indirect
members of Company with respect to the net income of Company (calculated as set
forth on Schedule 7.5); provided, further, that no Tax Distribution shall be
paid to the extent that doing so would cause the cumulative amount of Tax
Distributions theretofore paid (after giving effect to the pending Tax
Distribution) to exceed the cumulative tax liability of the direct and indirect
members of Company, calculated as set forth on Schedule 7.5.
80
7.6 Financial Covenants.
A. Maximum Total Debt to EBITDA Ratio. Company shall not permit the Total
Debt to EBITDA Ratio as of the last day of any Fiscal Quarter to exceed 2.00 to
1.00.
B. Minimum Fixed Charge Coverage Ratio. Company shall not permit the ratio
as of the last day of any Fiscal Quarter of (i) the aggregate of (a)
Consolidated EBIT, plus (b) the aggregate amount of all rents paid or payable
during that period under all real estate leases to which Company or any of its
Subsidiaries is a party as lessee, less (c) income taxes paid in cash in such
period (as determined in accordance with GAAP) and (d) all dividends paid in
cash in such period (excluding, to the extent applicable, the $17,036,000
dividend paid in December 2005 in connection with the buyout of the Nortel
minority interest), to (ii) Consolidated Fixed Charges, in each case for the
period of four Fiscal Quarters ending on the date of determination, to be less
than 2.00 to 1.00.
C. Minimum Consolidated Net Worth. Company shall maintain a Consolidated
Net Worth at all times equal to at least $50,439,000; provided that such minimum
requirement shall be increased by 100% of the net proceeds received by the
Company following any issuance of equity by Company or any Subsidiary.
7.7 Restriction on Fundamental Changes; Asset Sales.
Company shall not, and shall not permit any of its Subsidiaries to, enter
into any transaction of merger or consolidation, or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any part of its business,
property or assets (including its notes or receivables and Capital Stock of any
Subsidiary, whether newly issued or outstanding), whether now owned or hereafter
acquired, except:
(i) any Subsidiary of Company may be merged with or into Company or
any Wholly-Owned Subsidiary, or be liquidated, wound up or dissolved, or
all or any part of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one transaction or a
series of transactions, to Company or any Wholly-Owned Subsidiary; provided
that, in the case of such a merger, Company or such Wholly-Owned Subsidiary
shall be the continuing or surviving Person;
(ii) Company and its Subsidiaries may make sales, assignments,
transfers and dispositions of accounts in the ordinary course of business
for purposes of collection;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out
or surplus property in the ordinary course of business;
81
(iv) Company and its Subsidiaries may make Asset Sales in any Fiscal
Year of assets having a fair market value in an aggregate amount for such
Fiscal Year not to exceed 10% of Consolidated Net Worth, as determined as
of the date of such Asset Sale;
(v) Company and its Subsidiaries may sell or dispose of shares of
Capital Stock of any of Company's Subsidiaries in order to qualify members
of the Governing Body of such Subsidiary if required by applicable law;
(vi) any Person may be merged with or into Company or any Subsidiary
if the acquisition of the Capital Stock of such Person by Company or such
Subsidiary would have been permitted pursuant to subsection 7.3; provided
that (a) in the case of Company, Company shall be the continuing or
surviving Person, (b) if a Subsidiary is not the surviving or continuing
Person, the surviving Person becomes a Subsidiary and (c) no Potential
Event of Default or Event of Default shall have occurred or be continuing
after giving effect thereto; and
(vii) Company and its Subsidiaries may license, sublicense or otherwise
transfer Intellectual Property in the ordinary course of business in
accordance with past practices.
7.8 Capital Expenditures.
Company shall not, and shall not permit its Subsidiaries to, make or
incur Consolidated Capital Expenditures, in any Fiscal Year, in an
aggregate amount (excluding Qualified Capital Expenditures of up to
$18,000,000 in any Fiscal Year) in excess of $8,000,000.
7.9 Transactions with Affiliates.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any property or assets
or the rendering of any service) of any kind with any Affiliate of Company,
whether or not in the ordinary course of business, other than on reasonable
terms; provided that the foregoing restriction will not apply to
transactions between or among the Company and any of its Wholly-Owned
Subsidiaries or between and among any Wholly-Owned Subsidiaries .
7.10 Sale and Lease-Backs.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease (including a Capital Lease), of any
property (whether real, personal or mixed), whether now owned or hereafter
acquired, that Company or any of its Subsidiaries has sold or transferred or is
to sell or transfer to any other Person (other than Company or any of its
Subsidiaries); provided that Company and its Subsidiaries may become and remain
liable as lessee, guarantor or other surety with respect to any such lease if
and to the extent that Company or any of its Subsidiaries would be permitted to
enter into, and remain liable under, such lease to the extent that the
transaction would be permitted under subsection 7.1, assuming the sale and lease
back transaction constituted Indebtedness in a principal amount equal to the
gross proceeds of the sale.
82
7.11 Conduct of Business.
From and after the Closing Date, Company shall not, and shall not permit
any of its Subsidiaries to, engage in any businesses that are material to
Company and its Subsidiaries, taken as a whole, other than the businesses of
providing directory assistance, operator services, data management and
information service solutions.
7.12 Fiscal Year.
Company shall not change its Fiscal Year-end from the Sunday closest to
October 31.
7.13 Deposit Accounts and Securities Accounts.
Company and Subsidiary Guarantors shall not, at any time following the 30th
day after the Closing Date, permit the aggregate amount on deposit in Deposit
Accounts or Securities Accounts maintained by Company or any Subsidiary
Guarantor at any time to have a principal balance in excess of $1,000,000 other
than (a) accounts maintained with any Lender, or (b) accounts in respect of
which such Company or such Subsidiary Guarantor, as the case may be, has
executed and delivered to Administrative Agent a Control Agreement. At
Administrative Agent's reasonable request, Company shall or shall cause such
Subsidiary Guarantor to obtain a Control Agreement from the financial
institution at which any Deposit Account or Securities Account is maintained,
or, if Company or such Subsidiary Guarantor is unable or unwilling to obtain a
Control Agreement, to transfer all amounts in the applicable account to an
account maintained with (x) Xxxxx Fargo or (y) another financial institution
from which Company or such Subsidiary Guarantor has obtained a Control
Agreement.
Section 8. EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default") shall
occur:
8.1 Failure to Make Payments When Due.
Failure of Company to pay any principal of any Loan when due, whether at
stated maturity, by acceleration, by notice of voluntary prepayment, by
mandatory prepayment or otherwise; failure by Company to pay when due any amount
payable to the Issuing Lender in reimbursement of any drawing under a Letter of
Credit; or failure by Company to pay any interest on any Loan or any fee or any
other amount due under this Agreement within five days after the date due; or
8.2 Default in Other Agreements.
(i) Failure of Company or any of its Subsidiaries to pay when due any
principal of or interest on or any other amount payable in respect of one
or more items of Indebtedness (other than Indebtedness referred to in
subsection 8.1), or Contingent Obligations relating to Indebtedness with an
aggregate principal amount of $3,000,000 or more, in each case beyond the
end of any grace period provided therefor; or
83
(ii) breach or default by Company or any of its Subsidiaries with
respect to any other material term of (a) one or more items of Indebtedness
or Contingent Obligations relating to Indebtedness in the individual or
aggregate principal amounts referred to in clause (i) above or (b) any loan
agreement, mortgage, indenture or other agreement relating to such item(s)
of Indebtedness or Contingent Obligation(s), if the effect of such breach
or default is to cause, or to permit the holder or holders of that
Indebtedness or Contingent Obligation(s) (or a trustee on behalf of such
holder or holders) to cause, that Indebtedness or Contingent Obligation(s)
to become or be declared due and payable prior to its stated maturity or
the stated maturity of any underlying obligation, as the case may be (with
all notices provided for therein having been given and all grace periods
provided for therein having lapsed, such that no further notice or passage
of time is required in order for such holders or such trustee to exercise
such right, other than notice of their or its election to exercise such
right); or
8.3 Breach of Certain Covenants.
Failure of Company to perform or comply with any term or
condition contained in subsection 2.5, 6.1(i) (to the extent arising from the
failure to provide notice of an Event of Default) or 6.2 or Section 7 of this
Agreement; or
8.4 Breach of Warranty.
Any representation, warranty or certification made by Company
or any of its Subsidiaries in any Loan Document or in any certificate at any
time given by Company or any of its Subsidiaries in writing pursuant hereto or
thereto or in connection herewith or therewith shall be false in any material
respect on the date as of which made; or
8.5 Other Defaults Under Loan Documents.
Company or any of its Subsidiaries shall default in the
performance of or compliance with any term contained in this Agreement or any of
the other Loan Documents, other than any such term referred to or covered in any
other subsection of this Section 8, and such default shall not have been
remedied or waived within 30 days after receipt by Company or such Subsidiary of
notice from Administrative Agent or any Lender of such default; or
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
(i) A court having jurisdiction in the premises shall enter a decree
or order for relief in respect of Company or any of its Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which
decree or order is not stayed; or any other similar relief shall be granted
under any applicable federal or state law; or
(ii) an involuntary case shall be commenced against Company or any of
its Subsidiaries under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect; or a
decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, conservator,
custodian or other officer having similar powers over Company or any of its
Subsidiaries, or over all or a substantial part of its property, shall have
been entered; or there shall have occurred the involuntary appointment of
an interim receiver, trustee or other custodian of Company or any of its
Subsidiaries for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any
substantial part of the property of Company or any of its Subsidiaries, and
any such event described in this clause (ii) shall continue for 60 days
unless dismissed, bonded or discharged; or
84
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
(i) Company or any of its Subsidiaries shall have an order for relief
entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or shall consent
to the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or Company or any
of its Subsidiaries shall make any assignment for the benefit of creditors;
or
(ii) Company or any of its Subsidiaries shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay its debts as
such debts become due; or the Governing Body of Company or any of its
Subsidiaries (or any committee thereof) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to in
clause (i) above or this clause (ii); or
8.8 Judgments and Attachments.
Any money judgment, writ or warrant of attachment or similar process
involving in the aggregate at any time an amount in excess of $3,000,000 to the
extent not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage, shall be entered or
filed against Company or any of its Subsidiaries or any of their respective
assets and shall remain undischarged, unvacated, unbonded or unstayed for a
period of 60 days (or in any event later than five days prior to the date of any
proposed sale thereunder); or
8.9 Dissolution.
Any order, judgment or decree shall be entered against Company or any of
its Subsidiaries decreeing the dissolution or split up of Company or that
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of 30 days; or
8.10 Employee Benefit Plans.
There shall occur one or more ERISA Events that individually or in the
aggregate result in or would reasonably be expected to result in liability of
Company or any of its Subsidiaries in excess of $1,000,000; or there shall exist
an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans to which Company
or any of its Subsidiaries has contributed (excluding for purposes of such
computation any Pension Plans with respect to which assets exceed benefit
liabilities), which would reasonably be expected to result in a Material Adverse
Effect; or
85
8.11 Change in Control.
A Change in Control shall have occurred; or
8.12 Invalidity of Loan Documents; Repudiation of Obligations.
At any time after the execution and delivery thereof, (i) any Loan Document
or any provision thereof, for any reason other than the satisfaction in full of
all Obligations, shall cease to be in full force and effect (other than in
accordance with its terms) or shall be declared to be null and void, (ii)
Company or any of its Subsidiaries shall contest the validity or enforceability
of any Loan Document or any provision thereof in writing, or (iii) any Loan
Party shall deny in writing that it has any further liability, including with
respect to future advances by Lenders, under any Loan Document or any provision
thereof;
THEN (i) upon the occurrence of any Event of Default described in
subsection 8.6 or 8.7 in respect of Company or any Subsidiary Guarantor, each of
(a) the unpaid principal amount of and accrued interest on the Loans, (b) an
amount equal to the maximum amount that may at any time be drawn under all
Letters of Credit then outstanding (whether or not any beneficiary under any
such Letter of Credit shall have presented, or shall be entitled at such time to
present, the drafts or other documents or certificates required to draw under
such Letter of Credit), and (c) all other Obligations of Company shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Company, and the obligation of each Lender to make any Loan, the
obligation of Administrative Agent to issue any Letter of Credit and the right
of any Lender to issue any Letter of Credit hereunder shall thereupon terminate,
and (ii) upon the occurrence and during the continuation of any other Event of
Default, Administrative Agent shall, upon the written request or with the
written consent of Requisite Lenders, by written notice to Company, declare all
or any portion of the amounts described in clauses (a) through (c) above to be,
and the same shall forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan, the obligation of Administrative
Agent to issue any Letter of Credit and the right of any Lender to issue any
Letter of Credit hereunder shall thereupon terminate; provided that the
foregoing shall not affect in any way the obligations of Lenders under
subsection 3.3C(i) or the obligations of Lenders to purchase assignments of any
unpaid Swing Line Loans as provided in subsection 2.1A(ii). On the date that
there has been an acceleration of the maturity of the Obligations of Company or
a termination of the obligations of the Lenders to make Loans or issue Letters
of Credit hereunder as a result of any Event of Default, all Loans and all other
Obligations of Company denominated in any Foreign Currency shall be converted
into, and all such amounts due thereunder shall accrue and be payable in,
Dollars at the Exchange Rate on such date. From and after such date, all Loans
hereunder shall be denominated only in Dollars.
Notwithstanding anything contained in the preceding paragraph, if at any
time within 60 days after an acceleration of the Loans pursuant to clause (ii)
of such paragraph Company shall pay all arrears of interest and all payments on
account of principal which shall have become due otherwise than as a result of
such acceleration (with interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified in this Agreement) and all
Events of Default and Potential Events of Default (other than non-payment of the
principal of and accrued interest on the Loans, in each case which is due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to subsection 10.6, then Requisite Lenders, by written notice to Company, may at
their option rescind and annul such acceleration and its consequences; but such
action shall not affect any subsequent Event of Default or Potential Event of
Default or impair any right consequent thereon. The provisions of this paragraph
are intended merely to bind Lenders to a decision which may be made at the
election of Requisite Lenders, and such provisions shall not at any time be
construed so as to grant Company the right to require Lenders to rescind or
annul any acceleration hereunder or to preclude Administrative Agent or Lenders
from exercising any of the rights or remedies available to them under any of the
Loan Documents, even if the conditions set forth in this paragraph are met.
86
Section 9. ADMINISTRATIVE AGENT
9.1 Appointment.
A. Appointment of Administrative Agent. Xxxxx Fargo is hereby appointed
Administrative Agent hereunder and under the other Loan Documents. Each Lender
hereby authorizes Administrative Agent to act as its agent in accordance with
the terms of this Agreement and the other Loan Documents. Xxxxx Fargo agrees to
act upon the express conditions contained in this Agreement and the other Loan
Documents, as applicable. The provisions of this Section 9 are solely for the
benefit of Administrative Agent and Lenders and none of Company or any of its
Subsidiaries shall have rights as a third party beneficiary of any of the
provisions thereof, except that Company shall be a third party beneficiary of
subsection 9.5A and shall be entitled to enforce its rights thereunder. In
performing its functions and duties under this Agreement, Administrative Agent
(other than as provided in subsection 2.1D) shall act solely as an agent of
Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for Company or any
of its Subsidiaries.
B. Control. Each Lender and Administrative Agent hereby appoints each other
Lender as agent for the purpose of perfecting Administrative Agent's security
interest in assets that, in accordance with the UCC, can be perfected by
possession or control.
9.2 Powers and Duties; General Immunity.
X. Xxxxxx; Duties Specified. Each Lender irrevocably authorizes
Administrative Agent to take such action on such Lender's behalf and to exercise
such powers, rights and remedies hereunder and under the other Loan Documents as
are specifically delegated or granted to Administrative Agent by the terms
hereof and thereof, together with such powers, rights and remedies as are
reasonably incidental thereto. Administrative Agent shall have only those duties
and responsibilities that are expressly specified in this Agreement and the
other Loan Documents. Administrative Agent may exercise such powers, rights and
remedies and perform such duties by or through its agents or employees.
Administrative Agent shall not have, by reason of this Agreement or any of the
other Loan Documents, a fiduciary relationship in respect of any Lender or
Company; and nothing in this Agreement or any of the other Loan Documents,
expressed or implied, is intended to or shall be so construed as to impose upon
Administrative Agent any obligations in respect of this Agreement or any of the
other Loan Documents except as expressly set forth herein or therein.
87
B. No Responsibility for Certain Matters. Administrative Agent shall not be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by Administrative Agent to Lenders or by
or on behalf of Company to Administrative Agent or any Lender in connection with
the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of Company or any other Person liable
for the payment of any Obligations, nor shall Administrative Agent be required
to ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans or the use of the
Letters of Credit or as to the existence or possible existence of any Event of
Default or Potential Event of Default.
C. Exculpatory Provisions. Neither Administrative Agent nor any of its
officers, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by Administrative Agent under or in connection with any
of the Loan Documents except to the extent caused by Administrative Agent's
gross negligence or willful misconduct. Administrative Agent shall be entitled
to refrain from any discretionary act or the taking of any discretionary action
(including the failure to take an action) in connection with this Agreement or
any of the other Loan Documents or from the exercise of any power, discretion or
authority vested in it hereunder or thereunder unless and until Administrative
Agent shall have received instructions in respect thereof from Requisite Lenders
(or such other Lenders as may be required to give such instructions under
subsection 10.6) and, upon receipt of such instructions from Requisite Lenders
(or such other Lenders, as the case may be), Administrative Agent shall be
required to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions;
provided that Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose Administrative
Agent to liability or that is contrary to any Loan Document or applicable law.
Without prejudice to the generality of the foregoing, (i) Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
communication (including any electronic message, Internet or intranet website
posting or other distribution), instrument or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and shall be entitled to rely and shall be protected in relying on
opinions and judgments of attorneys (who may be attorneys for Company and its
Subsidiaries), accountants, experts and other professional advisors selected by
it; and (ii) no Lender shall have any right of action whatsoever against
Administrative Agent as a result of Administrative Agent acting or (where so
instructed) refraining from acting under this Agreement or any of the other Loan
Documents in accordance with the instructions of Requisite Lenders (or such
other Lenders as may be required to give such instructions under subsection
10.6).
88
D. Administrative Agent Entitled to Act as Lender. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, Administrative Agent in its individual
capacity as a Lender hereunder. With respect to its participation in the Loans
and the Letters of Credit, Administrative Agent shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not performing the duties and functions delegated to it hereunder, and the term
"Lender" or "Lenders" or any similar term shall, unless the context clearly
otherwise indicates, include Administrative Agent in its individual capacity.
Administrative Agent and its Affiliates may accept deposits from, lend money to,
acquire equity interests in and generally engage in any kind of commercial
banking, investment banking, trust, financial advisory or other business with
Company or any of its Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from Company for
services in connection with this Agreement and otherwise without having to
account for the same to Lenders.
9.3 Independent Investigation by Lenders; No Responsibility For Appraisal
of Creditworthiness.
Each Lender agrees that it has made its own independent investigation of
the financial condition and affairs of Company and its Subsidiaries in
connection with the making of the Loans and the issuance of Letters of Credit
hereunder and that it has made and shall continue to make its own appraisal of
the creditworthiness of Company and its Subsidiaries. Administrative Agent shall
not have any duty or responsibility, either initially or on a continuing basis,
to make any such investigation or any such appraisal on behalf of Lenders or to
provide any Lender with any credit or other information with respect thereto,
whether coming into its possession before the making of the Loans or at any time
or times thereafter, and Administrative Agent shall not have any responsibility
with respect to the accuracy of or the completeness of any information provided
to Lenders.
9.4 Right to Indemnity.
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify Administrative Agent and its officers, directors, employees, agents,
attorneys, professional advisors and Affiliates to the extent that any such
Person shall not have been reimbursed by Company, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including reasonable counsel fees and disbursements and fees
and disbursements of any financial advisor engaged by Administrative Agent) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against Administrative Agent or such other Person in exercising
the powers, rights and remedies of Administrative Agent or performing duties of
Administrative Agent hereunder or under the other Loan Documents or otherwise in
its capacity as Administrative Agent in any way relating to or arising out of
this Agreement or the other Loan Documents; provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of
Administrative Agent resulting solely from Administrative Agent's gross
negligence or willful misconduct as determined by a final judgment of a court of
competent jurisdiction. If any indemnity furnished to Administrative Agent or
any other such Person for any purpose shall, in the opinion of Administrative
Agent, be insufficient or become impaired, Administrative Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
89
9.5 Resignation of Administrative Agent; Successor Administrative Agent and
Swing Line Lender.
A. Resignation; Successor Administrative Agent. Administrative Agent may
resign at any time by giving 30 days' prior written notice thereof to Lenders
and Company. Upon any such notice of resignation by Administrative Agent,
Requisite Lenders shall have the right, upon five Business Days' notice to
Company, to appoint a successor Administrative Agent, with such appointment
subject, so long as no Event of Default shall have occurred and be continuing,
to prior approval of Company (such approval not to be unreasonably withheld or
delayed). If no such successor shall have been so appointed by Requisite Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, the retiring
Administrative Agent may, on behalf of Lenders, appoint a successor
Administrative Agent. If Administrative Agent shall notify Lenders and Company
that no Person has accepted such appointment as successor Administrative Agent,
such resignation shall nonetheless become effective in accordance with
Administrative Agent's notice and (i) the retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents, and (ii)
all payments, communications and determinations provided to be made by, to or
through Administrative Agent shall instead be made by, to or through each Lender
directly, until such time as Requisite Lenders appoint a successor
Administrative Agent in accordance with this subsection 9.5A. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, that successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement (if not
already discharged as set forth above). After Administrative Agent's resignation
hereunder, the provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement.
B. Successor Swing Line Lender. Any resignation of Administrative Agent
pursuant to subsection 9.5A shall also constitute the resignation of Xxxxx Fargo
or its successor as Swing Line Lender, and any successor Administrative Agent
appointed pursuant to subsection 9.5A shall, upon its acceptance of such
appointment, become the successor Swing Line Lender for all purposes hereunder.
In such event (i) Company shall prepay any outstanding Swing Line Loans made by
the retiring Administrative Agent in its capacity as Swing Line Lender, (ii)
upon such prepayment, the retiring Administrative Agent and Swing Line Lender
shall surrender any Swing Line Note held by it to Company for cancellation, and
(iii) if so requested by the successor Administrative Agent and Swing Line
Lender in accordance with subsection 2.1E, Company shall issue a Swing Line Note
to the successor Administrative Agent and Swing Line Lender substantially in the
form of Exhibit V annexed hereto, in the amount of the Swing Line Loan
Commitment then in effect and with other appropriate insertions.
90
9.6 Collateral Documents and Guaranties.
Each Lender (which term shall include, for purposes of this subsection 9.6,
any Swap Counterparty) hereby further authorizes Administrative Agent, on behalf
of and for the benefit of Lenders, to enter into each Collateral Document as
secured party and to be the agent for and representative of Lenders under each
Collateral Document, and each Lender agrees to be bound by the terms of each
Collateral Document; provided that Administrative Agent shall not (i) enter into
or consent to any material amendment, modification, termination or waiver of any
provision contained in any Collateral Document or (ii) release any Collateral
(except as otherwise expressly permitted or required pursuant to the terms of
this Agreement or the applicable Collateral Document), in each case without the
prior consent of Requisite Lenders (or, if required pursuant to subsection 10.6,
all Lenders); provided further, however, that, without further written consent
or authorization from Lenders, Administrative Agent may execute any documents or
instruments necessary to (a) release any Lien encumbering any item of Collateral
that is the subject of a sale or other disposition of assets permitted by this
Agreement or to which Requisite Lenders have otherwise consented, (b) release
any Subsidiary Guarantor from the Guarantee and Collateral Agreement if all of
the Capital Stock of such Subsidiary Guarantor is sold to any Person (other than
to Company or any of its other Subsidiaries) pursuant to a sale or other
disposition permitted hereunder or to which Requisite Lenders have otherwise
consented or (c) subordinate the Liens of Administrative Agent, on behalf of
Lenders, to any Liens permitted by subsection 7.2; provided that, in the case of
a sale of such item of Collateral or stock referred to in subdivision (a) or
(b), the requirements of subsection 10.14 are satisfied. Anything contained in
any of the Loan Documents to the contrary notwithstanding, Company,
Administrative Agent and each Lender hereby agree that (1) no Lender shall have
any right individually to realize upon any of the Collateral under any
Collateral Document or to enforce the Guarantee and Collateral Agreement, it
being understood and agreed that all powers, rights and remedies under the
Collateral Documents may be exercised solely by Administrative Agent for the
benefit of Lenders in accordance with the terms thereof, and (2) in the event of
a foreclosure by Administrative Agent on any of the Collateral pursuant to a
public or private sale, Administrative Agent or any Lender may be the purchaser
of any or all of such Collateral at any such sale and Administrative Agent, as
agent for and representative of Lenders (but not any Lender or Lenders in its or
their respective individual capacities unless Requisite Lenders shall otherwise
agree in writing) shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the Obligations
as a credit on account of the purchase price for any Collateral payable by
Administrative Agent at such sale.
9.7 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 Company or any of the Subsidiaries of Company,
Administrative Agent (irrespective of whether the principal of any Loan shall
then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether Administrative Agent shall have made any demand on
Company) shall be entitled and empowered, by intervention in such proceeding or
otherwise
91
(i) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Loans and any other Obligations
that are owing and unpaid and to file such other papers or documents as may
be necessary or advisable in order to have the claims of Lenders and
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of Lenders and Administrative Agent
and their agents and counsel and all other amounts due Lenders and
Administrative Agent under subsections 2.3 and 10.2) allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys 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 Administrative Agent and, in the event that
Administrative Agent shall consent to the making of such payments directly to
Lenders, to pay to Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Administrative Agent and
its agents and counsel, and any other amounts due Administrative Agent under
subsections 2.3 and 10.2.
Nothing herein contained shall be deemed to authorize 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 Obligations or the rights of any Lenders or to authorize
Administrative Agent to vote in respect of the claim of any Lender in any
such proceeding.
Section 10. MISCELLANEOUS
10.1 Successors and Assigns; Assignments and Participations in Loans and
Letters of Credit.
A. General. This Agreement shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Lenders (it being understood
that Lenders' rights of assignment are subject to the further provisions of this
subsection 10.1). Neither Company's rights nor obligations hereunder nor any
interest therein may be assigned or delegated by Company without the prior
written consent of all Lenders (and any attempted assignment or transfer by
Company without such consent shall be null and void). No sale, assignment or
transfer or participation of any obligations of a Lender in respect of a Letter
of Credit or any participation therein may be made separately from a sale,
assignment, transfer or participation of a corresponding interest in the
Revolving Loan Commitment and the Revolving Loans of the Lender effecting such
sale, assignment, transfer or participation. Anything contained herein to the
contrary notwithstanding, except as provided in subsection 2.1A(ii) and
subsection 10.5, the Swing Line Loan Commitment and the Swing Line Loans of
Swing Line Lender may not be sold, assigned or transferred as described below to
any Person other than a successor Administrative Agent and Swing Line Lender to
the extent contemplated by subsection 9.5. Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Affiliates of each of Administrative
Agent and Lenders and Indemnitees) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
92
B. Assignments.
(i) Amounts and Terms of Assignments. Any Lender may assign to one or
more Eligible Assignees all or any portion of its rights and obligations
under this Agreement; provided that (a), except (1) in the case of an
assignment of the entire remaining amount of the assigning Lender's rights
and obligations under this Agreement or (2) in the case of an assignment to
a Lender or an Affiliate of a Lender or an Approved Fund of a Lender, the
aggregate amount of the Revolving Loan Exposure of the assigning Lender and
the assignee subject to each such assignment shall not be less than
$5,000,000, unless Administrative Agent otherwise consents (such consent
not to be unreasonably withheld or delayed), provided that simultaneous
assignments to or by two or more related Funds shall be treated as one
assignment for purposes of this clause (a), (b) each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement with respect to the
Loan or the Commitment assigned; and any assignment of all or any portion
of a Revolving Loan Commitment, Revolving Loan or Letter of Credit
participation shall be made only as an assignment of the same proportionate
part of the assigning Lender's Revolving Loan Commitment, Revolving Loans
and Letter of Credit participations, (c) the parties to each assignment
shall execute and deliver to Administrative Agent an Assignment Agreement,
together with a processing and recordation fee of $3,500, and the Eligible
Assignee, if it shall not already be a Lender, shall deliver to
Administrative Agent information reasonably requested by Administrative
Agent, including forms, certificates or other information in compliance
with subsection 2.7B(iv), and (d) except in the case of an assignment to
another Lender, an Affiliate of a Lender or an Approved Fund of a Lender,
Administrative Agent and, if no Event of Default or Potential Event of
Default has occurred and is continuing, Company, shall have consented
thereto (which consent shall not be unreasonably withheld).
Upon such execution, delivery and consent, from and after the
effective date specified in such Assignment Agreement, (y) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment
Agreement, shall have the rights and obligations of a Lender hereunder and
(z) the assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment
Agreement, relinquish its rights (other than any rights which survive the
termination of this Agreement under subsection 10.9B) and be released from
its obligations under this Agreement (and, in the case of an Assignment
Agreement covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be
a party hereto; provided that, anything contained in any of the Loan
Documents to the contrary notwithstanding, if such Lender is the Issuing
Lender such Lender shall continue to have all rights and obligations of the
Issuing Lender until the cancellation or expiration of any Letters of
Credit issued by it and the reimbursement of any amounts drawn thereunder).
The assigning Lender shall, upon the effectiveness of such assignment or as
promptly thereafter as practicable, surrender its Notes, if any, to
Administrative Agent for cancellation, and thereupon new Notes shall, if so
requested by the assignee and/or the assigning Lender in accordance with
subsection 2.1E, be issued to the assignee and/or to the assigning Lender,
substantially in the form of Exhibit IV or Exhibit V annexed hereto, as the
case may be, with appropriate insertions, to reflect the amounts of the new
Commitments and/or outstanding Revolving Loans, as the case may be, of the
assignee and/or the assigning Lender. Other than as provided in subsection
2.1A(ii) and subsection 10.5, any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection 10.1B 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 10.1C.
(ii) Acceptance by Administrative Agent; Recordation in Register. Upon
its receipt of an Assignment Agreement executed by an assigning Lender and
an assignee representing that it is an Eligible Assignee, together with the
processing and recordation fee referred to in subsection 10.1B(i) and any
forms, certificates or other evidence with respect to United States federal
income tax withholding matters that such assignee may be required to
deliver to Administrative Agent pursuant to subsection 2.7B(iv),
Administrative Agent shall, if Administrative Agent and Company have
consented to the assignment evidenced thereby (in each case to the extent
such consent is required pursuant to subsection 10.1B(i)), (a) accept such
Assignment Agreement by executing a counterpart thereof as provided therein
(which acceptance shall evidence any required consent of Administrative
Agent to such assignment), (b) record the information contained therein in
the Register, and (c) give prompt notice thereof to Company. Administrative
Agent shall maintain a copy of each Assignment Agreement delivered to and
accepted by it as provided in this subsection 10.1B(ii).
93
(iii) Deemed Consent by Company. If the consent of Company to an
assignment or to an Eligible Assignee is required hereunder, Company shall
be deemed to have given its consent five Business Days after the date
notice thereof has been delivered by the assigning Lender (through
Administrative Agent) unless such consent is expressly refused by Company
on or prior to such fifth Business Day.
C. Participations. Any Lender may, without the consent of, or notice to,
Company or Administrative Agent, sell participations to one or more Persons
(other than a natural Person or Company or any of its Affiliates) in all or a
portion of such Lender's rights and/or obligations under this Agreement;
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) Company, Administrative
Agent and Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver directly affecting (i) the extension of the
scheduled final maturity date of any Loan allocated to such participation or
(ii) a reduction of the principal amount of or the rate of interest payable on
any Loan allocated to such participation. Subject to the further provisions of
this subsection 10.1C, Company agrees that each Participant shall be entitled to
the benefits of subsections 2.6D and 2.7 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection 10.1B.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of subsection 10.4 as though it were a Lender, provided such
Participant agrees to be subject to subsection 10.5 as though it were a Lender.
A Participant shall not be entitled to receive any greater payment under
subsections 2.6D and 2.7A 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 Company's prior
written consent. No Participant shall be entitled to the benefits of subsection
2.7 unless Company is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of Company, to comply with subsection
2.7B(iv) as though it were a Lender.
94
D. Pledges and Assignments. Any Lender may, without the consent of
Administrative Agent or Company, at any time pledge or assign a security
interest in all or any portion of its Loans, and the other Obligations owed to
such Lender, to secure obligations of such Lender, including without limitation
(A) any pledge or assignment to secure obligations to any Federal Reserve Bank
and (B) in the case of any Lender that is a Fund, any pledge or assignment to
any holders of obligations owed, or securities issued, by such Lender including
to any trustee for, or any other representative of, such holders; provided that
(i) no Lender shall be relieved of any of its obligations hereunder as a result
of any such assignment or pledge and (ii) in no event shall any assignee or
pledgee be considered to be a "Lender" or be entitled to require the assigning
Lender to take or omit to take any action hereunder.
E. Information. Each Lender may furnish any information concerning Company
and its Subsidiaries in the possession of that Lender from time to time to
pledgees under subsection 10.1D, assignees and participants (including
prospective assignees and participants), in each case subject to subsection
10.19.
F. Agreements of Lenders. Each Lender listed on the signature pages hereof
hereby agrees, and each Lender that becomes a party hereto pursuant to an
Assignment Agreement shall be deemed to agree, (i) that it is an Eligible
Assignee described in clause (ii) of the definition thereof; (ii) that it has
experience and expertise in the making of or purchasing loans such as the Loans;
and (iii) that it will make or purchase Loans for its own account in the
ordinary course of its business and without a view to distribution of such Loans
within the meaning of the Securities Act or the Exchange Act or other federal
securities laws (it being understood that, subject to the provisions of this
subsection 10.1, the disposition of such Loans or any interests therein shall at
all times remain within its exclusive control).
10.2 Expenses.
Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (i) all reasonable out-of-pocket costs and
expenses incurred by Administrative Agent, including reasonable fees, expenses
and disbursements of counsel to the Administrative Agent, in connection with the
negotiation, preparation, execution and administration of the Loan Documents and
any consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by Company; (ii) all other reasonable costs and
expenses incurred by the Administrative Agent in connection with the syndication
of the Commitments; (iii) all reasonable costs and expenses, including
reasonable attorneys' fees (including allocated costs of internal counsel) and
reasonable fees, costs and expenses of accountants, advisors and consultants,
incurred by Administrative Agent and its counsel at any time when an Event of
Default has occurred and is continuing, relating to efforts to evaluate or
assess Company or any of its Subsidiaries and its business or financial
condition; and (iv) all reasonable costs and expenses, including reasonable
attorneys' fees (including allocated costs of internal counsel), reasonable
fees, costs and expenses of accountants, advisors and consultants and costs of
settlement, incurred by Administrative Agent and Lenders in enforcing any
Obligations of or in collecting any payments due from Company hereunder or under
the other Loan Documents (including in connection with the enforcement of the
Loan Documents) or in connection with any refinancing or restructuring of the
credit arrangements provided under this Agreement in the nature of a "work-out"
or pursuant to any insolvency or bankruptcy proceedings.
95
10.3 Indemnity.
In addition to the payment of expenses pursuant to subsection 10.2, whether
or not the transactions contemplated hereby shall be consummated, Company agrees
to defend (subject to Indemnitees' selection of counsel; provided, that Company
shall only be required to reimburse Lenders other than Administrative Agent for
the expenses of one counsel under the conditions described in clause (iv)),
indemnify, pay and hold harmless Administrative Agent and Lenders (including the
Issuing Lender), and the officers, directors, trustees, employees, agents,
advisors and Affiliates of Administrative Agent and Lenders (collectively called
the "Indemnitees"), from and against any and all Indemnified Liabilities (as
hereinafter defined); provided that Company shall not have any obligation to any
Indemnitee hereunder with respect to any Indemnified Liabilities to the extent
such Indemnified Liabilities arise solely from the gross negligence or willful
misconduct of that Indemnitee as determined by a final judgment of a court of
competent jurisdiction.
As used herein, "Indemnified Liabilities" means, collectively, any and all
liabilities, obligations, losses, damages (including natural resource damages)
penalties, actions, judgments, suits, claims (including Environmental Claims),
costs (including the costs of any investigation, study, sampling, testing,
abatement, cleanup, removal, remediation or other response action necessary to
remove, remediate, clean up or xxxxx any Hazardous Materials Activity), expenses
and disbursements of any kind or nature whatsoever (including the reasonable
fees and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto, and any fees or expenses incurred by Indemnitees in
enforcing this indemnity), whether direct, indirect or consequential and whether
based on any federal, state or foreign laws, statutes, rules or regulations
(including securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or
the other Loan Documents or the transactions contemplated hereby or thereby
(including Lenders' agreement to make the Loans hereunder or the use or intended
use of the proceeds thereof or the issuance of Letters of Credit hereunder or
the use or intended use of any thereof, the failure of the Issuing Lender 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 Authority, or any enforcement of any of the Loan Documents) or (ii)
any Environmental Claim or any Hazardous Materials Activity relating to or
arising from, directly or indirectly, any past or present activity, operation,
land ownership, or practice of Company or any of its Subsidiaries.
96
To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this subsection 10.3 may be unenforceable in whole or in
part because they are violative of any law or public policy, Company shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
10.4 Set-Off.
In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence and during the
continuation of any Event of Default each of Lenders and their Affiliates is
hereby authorized by Company at any time or from time to time, without notice to
Company or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and to apply any and all deposits (general or
special, time or demand, provisional or final, including Indebtedness evidenced
by certificates of deposit, whether matured or unmatured, but not including
trust accounts) and any other Indebtedness at any time held or owing by that
Lender or any Affiliate of that Lender to or for the credit or the account of
Company and each of its Subsidiaries against and on account of the Obligations
of Company or any of its Subsidiaries to that Lender (or any Affiliate of that
Lender) or to any other Lender (or any Affiliate of any other Lender) under this
Agreement, the Letters of Credit and participations therein and the other Loan
Documents, including all claims of any nature or description arising out of or
connected with this Agreement, the Letters of Credit and participations therein
or any other Loan Document, irrespective of whether or not (i) that Lender shall
have made any demand hereunder or (ii) the principal of or the interest on the
Loans or any amounts in respect of the Letters of Credit or any other amounts
due hereunder shall have become due and payable pursuant to Section 8 and
although said obligations and liabilities, or any of them, may be contingent or
unmatured.
10.5 Ratable Sharing.
Lenders hereby agree among themselves that if any of them shall, whether by
voluntary or mandatory payment (other than a payment or prepayment of Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "Aggregate
Amounts Due" to such Lender) that is greater than the proportion received by any
other Lender in respect of the Aggregate Amounts Due to such other Lender, then
the Lender receiving such proportionately greater payment shall, unless such
proportionately greater payment is required by the terms of this Agreement, (i)
notify Administrative Agent and each other Lender of the receipt of such payment
and (ii) apply a portion of such payment to purchase assignments (which it shall
be deemed to have purchased from each seller of an assignment simultaneously
upon the receipt by such seller of its portion of such payment) of the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided that (A) if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company or otherwise, those
purchases shall be rescinded and the purchase prices paid for such assignments
shall be returned to such purchasing Lender ratably to the extent of such
recovery, but without interest and (B) the foregoing provisions shall not apply
to (1) any payment made by Company pursuant to and in accordance with the
express terms of this Agreement or (2) any payment obtained by a Lender as
consideration for the assignment (other than an assignment pursuant to this
subsection 10.5) of or the sale of a participation in any of its Obligations to
any Eligible Assignee or Participant pursuant to subsection 10.1B. Company
expressly consents to the foregoing arrangement and agrees that any purchaser of
an assignment so purchased may exercise any and all rights of a Lender as to
such assignment as fully as if that Lender had complied with the provisions of
subsection 10.1B with respect to such assignment. In order to further evidence
such assignment (and without prejudice to the effectiveness of the assignment
provisions set forth above), each purchasing Lender and each selling Lender
agree to enter into an Assignment Agreement at the request of a selling Lender
or a purchasing Lender, as the case may be, in form and substance reasonably
satisfactory to each such Lender.
97
10.6 Amendments and Waivers.
No amendment, modification, termination or waiver of any provision of this
Agreement or of the Notes, and no consent to any departure by Company therefrom,
shall in any event be effective without the written concurrence of Requisite
Lenders and Company; provided that no such amendment, modification, termination,
waiver or consent shall, without the consent of:
(i) each Lender with Obligations directly affected (whose consent
shall be sufficient for any such amendment, modification, termination or
waiver without the consent of Requisite Lenders) (1) reduce or forgive the
principal amount of any Loan, (2) postpone the scheduled final maturity
date of any Loan (but not the date of any scheduled installment of
principal), (3) postpone the date on which any interest or any fees are
payable, (4) decrease the interest rate borne by any Loan (other than any
waiver of any increase in the interest rate applicable to any of the Loans
pursuant to subsection 2.2E) or the amount of any fees payable hereunder
(other than any waiver of any increase in the fees applicable to Letters of
Credit pursuant to subsection 3.2 following an Event of Default), (5)
reduce the amount or postpone the due date of any amount payable in respect
of any Letter of Credit reimbursement obligation, (6) extend the expiration
date of any Letter of Credit beyond the Revolving Loan Commitment
Termination Date, (7) extend the Revolving Commitment Termination Date, (8)
change in any manner the obligations of Lenders relating to the purchase of
participations in Letters of Credit or (9) change in any manner the
provisions of subsection 2.4B to provide that Lenders will not share pro
rata in reductions of the Revolving Loan Commitment Amount;
(ii) each Lender, (1) change in any manner the definition of "Pro Rata
Share" or the definition of "Requisite Lenders" (except for any changes
resulting solely from an increase in the aggregate amount of the
Commitments approved by Requisite Lenders), (2) change the provisions of
subsection 2.4B(iii) to provide that Lenders will not share pro rata in
payments, (3) change in any manner any provision of this Agreement that, by
its terms, expressly requires the approval or concurrence of all Lenders,
(4) increase the maximum duration of Interest Periods permitted hereunder,
(5) release any Lien granted in favor of Administrative Agent with respect
to all or substantially all of the Collateral or release all or
substantially all of the Subsidiary Guarantors from their obligations under
the Guarantee and Collateral Agreement, in each case other than in
accordance with the terms of the Loan Documents, or (6) change in any
manner or waive the provisions contained in subsection 2.4A(iii),
subsection 8.1 (except by virtue of any acceleration that has been
rescinded and annulled in accordance with this Agreement), subsection 10.5
or this subsection 10.6.
98
In addition, no amendment, modification, termination or waiver of any
provision (i) of subsection 2.1A(ii) or of any other provision of this Agreement
relating to the Swing Line Loan Commitment or the Swing Line Loans shall be
effective without the written concurrence of Swing Line Lender, (ii) of Section
3 shall be effective without the written concurrence of Administrative Agent
and, with respect to the purchase of participations in Letters of Credit,
without the written concurrence of each Issuing Lender that has issued an
outstanding Letter of Credit or has not been reimbursed for a payment under a
Letter of Credit, (iii) of Section 9 or of any other provision of this Agreement
which, by its terms, expressly requires the approval or concurrence of
Administrative Agent shall be effective without the written concurrence of
Administrative Agent; and (iv) that increases the amount of a Commitment of a
Lender shall be effective without the consent of such Lender.
Administrative Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No
notice to or demand on Company in any case shall entitle Company to any other or
further notice or demand in similar or other circumstances. Any amendment,
modification, termination, waiver or consent effected in accordance with this
subsection 10.6 shall be binding upon each Lender at the time outstanding and
each future Lender.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender.
10.7 Independence of Covenants.
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
99
10.8 Notices; Effectiveness of Signatures; Posting on Electronic Delivery
Systems.
A. Notices. Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, or sent by telefacsimile or United States mail or
courier service and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telefacsimile in complete and legible
form, or three Business Days after depositing it in the United States mail with
postage prepaid and properly addressed; provided that notices to Company,
Administrative Agent, Swing Line Lender and the Issuing Lender and notices to
any Lender under Section 2 or Section 3 shall not be effective until received.
For the purposes hereof, the address of Company, Administrative Agent, Swing
Line Lender and the Issuing Lender shall be as set forth on Schedule 10.8 and
the address of each other Lender shall be as set forth on its Administrative
Questionnaire or (i) as to Company and Administrative Agent, such other address
as shall be designated by such Person in a written notice delivered to the other
parties hereto and (ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to Administrative Agent.
Electronic mail and Internet and intranet websites may be used to distribute
routine communications, such as financial statements and other information as
provided in subsection 6.1. Administrative Agent or 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.
B. Effectiveness of Signatures. Loan Documents and notices under the Loan
Documents may be transmitted and/or signed by telefacsimile and by signatures
delivered in `PDF' format by electronic mail; provided, however, that after the
Closing Date no signature with respect to any notice, request, agreement,
waiver, amendment or other document that is intended to have a binding effect
may be sent by electronic mail. The effectiveness of any such documents and
signatures shall, subject to applicable law, have the same force and effect as
an original copy with manual signatures and shall be binding on Company,
Administrative Agent and Lenders. Administrative Agent may also require that any
such documents and signature be confirmed by a manually-signed copy thereof;
provided, however, that the failure to request or deliver any such
manually-signed copy shall not affect the effectiveness of any facsimile
document or signature.
C. Posting on Electronic Delivery Systems. Company acknowledges and agrees
that (I) Administrative Agent may make any material delivered by Company to
Administrative Agent, as well as any amendments, waivers, consents, and other
written information, documents, instruments and other materials relating to
Company, any of its Subsidiaries, or any other materials or matters relating to
this Agreement, the Notes or any of the transactions contemplated hereby
(collectively, the "Communications"), available to the Lenders by posting such
notices on an electronic delivery system (which may be provided by
Administrative Agent, an Affiliate of Administrative Agent, or any Person that
is not an Affiliate of Administrative Agent), such as IntraLinks, or a
substantially similar electronic system (the "Platform") and (II) certain of the
Lenders may be "public-side" Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to Company or its securities)
(each, a "Public Lender"). Company acknowledges that (i) the distribution of
material through an electronic medium is not necessarily secure and that there
are confidentiality and other risks associated with such distribution; (ii) the
Platform is provided "as is" and "as available" and (iii) neither Administrative
Agent nor any of its Affiliates warrants the accuracy, completeness, timeliness,
sufficiency, or sequencing of the Communications posted on the Platform.
Administrative Agent and its Affiliates expressly disclaim with respect to the
Platform any liability for errors in transmission, incorrect or incomplete
downloading, delays in posting or delivery, or problems accessing the
Communications posted on the Platform and any liability for any losses, costs,
expenses or liabilities that may be suffered or incurred in connection with the
Platform. No warranty of any kind, express, implied or statutory, including,
without limitation, 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 Administrative Agent or any of its Affiliates in
connection with the Platform.
100
The Company hereby agrees that (w) all Communications 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; (x) by marking Communications "PUBLIC", Company shall
be deemed to have authorized Administrative Agent, the Issuing Lender and the
Lenders to treat such Communications as not containing any material non-public
information with respect to Company or its securities for purposes of United
States Federal and state securities laws (provided, however, that to the extent
such Communications constitute confidential information pursuant to subsection
10.18, they shall be treated as set forth in such subsection); (y) all
Communications marked "PUBLIC" are permitted to be made available through a
portion of the Platform designated "Public Investor"; and (z) Administrative
Agent shall be entitled to treat any Communications that are not marked "PUBLIC"
as being suitable only for posting on a portion of the Platform not designated
"Public Investor".
Each Lender agrees that notice to it (as provided in the next sentence) (a
"Notice") specifying that any Communication has been posted to the Platform
shall for purposes of this Agreement constitute effective delivery to such
Lender of such information, documents or other materials comprising such
Communication. Each Lender agrees (i) to notify, on or before the date such
Lender becomes a party to this Agreement (pursuant to an Administrative
Questionnaire or otherwise), Administrative Agent in writing of such Lender's
e-mail address to which a Notice may be sent (and from time to time thereafter
to ensure that Administrative Agent has on record an effective e-mail address
for such Lender) and (ii) that any Notice may be sent to such e-mail address.
Notwithstanding the foregoing, (x) Company shall not be responsible for any
failure of the Platform or for the inability of any Lender to access any
Communication made available by Company to Administrative Agent in connection
with the Platform and in no event shall any such failure constitute an Event of
Default hereunder and (y) notices to any Lender pursuant to Section 2 or Section
3 shall not be provided by means other than hard copy or telecopy if such Lender
notifies Administrative Agent that it is not capable of receiving such notices
by such other means.
101
10.9 Survival of Representations, Warranties and Agreements.
A. All representations, warranties and agreements made herein shall survive
the execution and delivery of this Agreement and the making of the Loans and the
issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Company set forth in subsections 2.6D, 2.7, 10.2,
10.3, 10.17 and 10.18 and the agreements of Lenders set forth in subsections
9.2C, 9.4, 10.5 and 10.18 shall survive the payment of the Obligations, the
cancellation or expiration of the Letters of Credit and the reimbursement of any
amounts drawn thereunder, and the termination of this Agreement.
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of an Agent or any Lender in the exercise
of any power, right or privilege hereunder or under any other Loan Document
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other power, right or privilege. All rights and remedies existing under
this Agreement and the other Loan Documents are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
10.11 Marshalling; Payments Set Aside.
Neither any Agent nor any Lender shall be under any obligation to marshal
any assets in favor of Company or any other party or against or in payment of
any or all of the Obligations. To the extent that Company makes a payment or
payments to Administrative Agent or Lenders (or to Administrative Agent for the
benefit of Lenders), or Administrative Agent or Lenders enforce any security
interests or exercise their rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
10.12 Severability.
In case any provision in or obligation under this Agreement or the Notes
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
102
10.13 Obligations Several; Independent Nature of Lenders' Rights; Damage
Waiver.
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders, or
Lenders and Company, as a partnership, an association, a joint venture or any
other kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and, subject to subsection 9.6, each
Lender shall be entitled to protect and enforce its rights arising out of this
Agreement and it shall not be necessary for any other Lender to be joined as an
additional party in any proceeding for such purpose.
To the extent permitted by law, Company shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with or as a result of this
Agreement (including, without limitation, subsection 2.1C hereof), any other
Loan Document, any transaction contemplated by the Loan Documents, any Loan or
the use of proceeds thereof. No Indemnitee 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 the Loan Documents or the
transactions contemplated thereby.
10.14 Release of Security Interest or Guaranty.
A. Notwithstanding anything to the contrary contained herein or in any
other Loan Document, Administrative Agent is hereby irrevocably authorized by
each Lender (without requirement of notice to or consent of any Lender except as
expressly required by subsection 10.6) to take any action requested by Company
having the effect of releasing any Collateral or the Guarantee and Collateral
Agreement (i) to the extent necessary to permit consummation of any proposed
sale or other disposition of any Collateral not prohibited by any Loan Document
or that has been consented to in accordance with subsection 10.6 or (ii) under
the circumstances described in subsection 10.14B below.
B. At such time as the Loans, the Letters of Credit and the other
Obligations under the Loan Documents (other than obligations under or in respect
of any Interest Rate Agreement or Currency Agreement and Unasserted Obligations)
shall have been paid in full, the Commitments have been terminated and no
Letters of Credit shall be outstanding, the Collateral shall be released from
the Liens created by the Collateral Documents, and the Collateral Documents and
all obligations (other than those expressly stated to survive such termination)
of Administrative Agent and each Loan Party under the Collateral Documents shall
terminate, all without delivery of any instrument or performance of any act by
any Person.
103
10.15 Applicable Law.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT AS OTHERWISE EXPRESSLY
SET FORTH IN ANY SUCH LOAN DOCUMENT), AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER
LAW.
10.16 Construction of Agreement; Nature of Relationship.
Company acknowledges that (i) it has been represented by counsel in the
negotiation and documentation of the terms of this Agreement, (ii) it has had
full and fair opportunity to review and revise the terms of this Agreement,
(iii) this Agreement has been drafted jointly by the parties hereto, and (iv)
neither Administrative Agent nor any Lender or other Agent has any fiduciary
relationship with or duty to Company arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between
Administrative Agent and Lenders, on one hand, and Company, on the other hand,
in connection herewith or therewith is solely that of debtor and creditor.
Accordingly, each of the parties hereto acknowledges and agrees that the terms
of this Agreement shall not be construed against or in favor of another party.
10.17 Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS HEREUNDER AND
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING AND
DELIVERING THIS AGREEMENT, COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE
COURTS OF ANY OTHER JURISDICTION; AND
(IV) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR
OTHERWISE.
104
10.18 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.18 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.19 Confidentiality.
Each Lender shall hold all non-public information obtained pursuant to the
requirements of this Agreement in accordance with such Lender's customary
procedures for handling confidential information of this nature, it being
understood and agreed by Company that in any event a Lender may make disclosures
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, and legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such information and instructed to keep such information
confidential, (b) to the extent requested by any Government Authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this subsection 10.19, to (i) any pledgee under subsection 10.10, any
Eligible Assignee of or participant in, or any prospective Eligible Assignee of
or Participant in, any of its rights or obligations under this Agreement or (ii)
any direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty's or prospective counterparty's professional
advisor) to any credit derivative transaction relating to obligations of
Company, (g) with the consent of Company, (h) to the extent such information (i)
becomes publicly available other than as a result of a breach of this subsection
10.19 or (ii) becomes available to Administrative Agent or any Lender on a
nonconfidential basis from a source other than Company (i) to the National
Association of Insurance Commissioners or any other similar organization or any
nationally recognized rating agency that requires access to information about a
Lender's or its Affiliates' investment portfolio in connection with ratings
issued with respect to such Lender or its Affiliates and that no written or oral
communications from counsel to an Agent and no information that is or is
designated as privileged or as attorney work product may be disclosed to any
Person unless such Person is a Lender or a Participant hereunder; provided that,
unless specifically prohibited by applicable law or court order, each Lender
shall notify Company of any request by any Government Authority or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such Government
Authority) for disclosure of any such non-public information prior to disclosure
of such information; and provided, further that in no event shall any Lender be
obligated or required to return any materials furnished by Company or any of its
Subsidiaries. In addition, subject to obtaining the prior approval of Company
(such approval not to be unreasonably withheld or delayed), Administrative Agent
and Lenders may disclose the existence of this Agreement and information about
this Agreement to market data collectors, similar service providers to the
lending industry, and service providers to Administrative Agent and Lenders, and
Administrative Agent or any of its Affiliates may place customary "tombstone"
advertisements relating hereto in publications (including publications
circulated in electronic form) of its choice at its own expense.
105
10.20 Counterparts; Effectiveness.
This Agreement and any amendments, waivers, consents or supplements hereto
or in connection herewith may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
10.21 USA Patriot Act.
Each Lender hereby notifies Company that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies Company, which information includes the name and address of Company
and other information that will allow such Lender to identify Company in
accordance with the Act.
10.22 Judgment Currency.
If for the purposes of obtaining judgment in any court it is necessary to
convert a sum due from Company hereunder in the currency expressed to be payable
herein (the "specified currency") into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with usual and customary
banking procedures Administrative Agent could purchase the specified currency
with such other currency at any of Administrative Agent's offices in the United
States of America on the Business Day preceding that on which final judgment is
given. The obligations of the Company in respect of any sum due to any Lender,
Issuing Lender, or Administrative Agent hereunder shall, notwithstanding any
judgment in a currency other than the specified currency, be discharged only to
the extent that on the Business Day following receipt by such Lender, Issuing
Lender or Administrative Agent (as the case may be) of any sum adjudged to be so
due in such other currency such Lender, Issuing Lender or Administrative Agent
106
(as the case may be) may in accordance with normal, reasonable banking
procedures purchase the specified currency with such other currency. If the
amount of the specified currency so purchased is less than the sum originally
due to such Lender, Issuing Lender or Administrative Agent, as the case may be,
in the specified currency, Company agrees, to the fullest extent that it may
effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender, Issuing Lender or Administrative Agent, as
the case may be, against such loss, and if the amount of the specified currency
so purchased exceed (a) the sum originally due to any Lender, Issuing Lender or
Administrative Agent, as the case may be, in the specified currency and (b) any
amounts shared with other Lenders as a result of allocations of such excess as a
disproportionate payment to such Lender under Section 10.5, each Lender, Issuing
Lender or Administrative Agent, as the case may be, agrees to promptly remit
such excess to the Company.
[Remainder of page intentionally left blank]
107
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
COMPANY:
VOLT DELTA RESOURCES, LLC
By:_____________________________________
Title:__________________________________
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
individually and as Administrative Agent and as a Lender
By:___________________________________________________________
Title:________________________________________________________
JPMORGAN CHASE BANK, N.A.,
as a Lender
By:___________________________________________________________
Title:________________________________________________________
BANK OF AMERICA, N.A.
as a Lender
By:___________________________________________________________
Title:________________________________________________________
LLOYDS TSB BANK PLC,
as a Lender
By:___________________________________________________________
Title:________________________________________________________
EXHIBIT I
FORM OF NOTICE OF BORROWING
[COMPANY LETTERHEAD]
[Date]
Xxxxx Fargo Bank, National Association
as Administrative Agent
[Insert Bank Address
Attn: Name and fax number]
Re: Credit Agreement dated as of December 19, 2006 among Volt Delta
Resources, LLC (the "Company"), the financial institutions listed
therein as lenders and Xxxxx Fargo Bank, National Association, as
Administrative Agent (the "Credit Agreement")
Pursuant to Section 2.1 of the Credit Agreement, the Company hereby gives notice
of its request for a borrowing as follows:
Date of Borrowing: [Date]
Currency: [Dollar, Euro, Sterling or other Agreed Currency]
Requested Amount: [Amount]
Lender: [Lenders or Swing Line Lender]
Type of Loan: [Revolving Loans or Swing Line Loan]
Interest Rate Option: [Base Rate Loan or Eurocurrency Rate Loan]
Interest Period: [For Eurocurrency Rate Loan: Duration of
Interest Period]
Maturity Date: [Date if applicable]
Please deliver the borrowing amount of $____________ to the following account of
the Company:
[Insert Company's bank account delivery instructions based on Currency]
The undersigned Officer, to the best of his knowledge, and Company certify that
no event has occurred and is continuing or would result from the consummation of
the borrowing contemplated hereby that would constitute an Event of Default or a
Potential Event of Default.
If you have any questions regarding this transaction please contact the
undersigned as soon as possible.
Sincerely,
[Certifying Officer]
[Title]
EXHIBIT II
[FORM OF] NOTICE OF CONVERSION/CONTINUATION
[COMPANY LETTERHEAD]
[Date]
Xxxxx Fargo Bank, National Association
as Administrative Agent
[Insert Bank Address
Attn: Name and fax number]
Re: Credit Agreement dated as of December 19, 2006 among Volt Delta
Resources, LLC (the "Company"), the financial institutions listed
therein as lenders and Xxxxx Fargo Bank, National Association, as
Administrative Agent (the "Credit Agreement")
Pursuant to Section 2.2 D of the Credit Agreement, the Company hereby gives
notice of its request for a conversion/continuation as follows:
Description of outstanding Loan:
Maturity Date: Date if applicable]
Currency: Dollar, Euro, Sterling or other Agreed Currency]
Amount: Amount]
Type of Loan: Revolving Loan or Swing Line Loan]
Description of new Loan(s):
Date: Date]
Currency: Dollar, Euro, Sterling or other Agreed Currency]
Requested Amount: Amount]
Type of Request: Continuation or Conversion]
Interest Rate Option:Base Rate Loan or Eurocurrency Rate Loan]
Interest Period: For Eurocurrency Rate Loan: Duration of Interest Period]
Maturity Date: Date if applicable]
Company will wire funds for [both the paydown in principal of [amount] plus]
interest of [amount] for value [Date] to:
[Insert Administrative Agent bank account delivery
instructions based on Currency]
In the case of a conversion to or continuation of Eurocurrency Rate Loans, the
undersigned officer, to the best of his or her knowledge, and Company certifies
that no Event of Default or Potential Event of Default has occurred and is
continuing under the Credit Agreement.
If you have any questions regarding this transaction please contact the
undersigned as soon as possible.
Sincerely,
[Certifying Officer]
[Title]
EXHIBIT III
[FORM OF] REQUEST FOR ISSUANCE
Pursuant to that certain Credit Agreement dated as of December
19, 2006 as amended, restated, supplemented or otherwise modified to the date
hereof (said Credit Agreement, as so amended, restated, supplemented or
otherwise modified, being the "Credit Agreement", the terms defined therein and
not otherwise defined herein being used herein as therein defined), by and among
VOLT DELTA RESOURCES, LLC ("Company"), the financial institutions listed therein
as Lenders, and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent
("Administrative Agent"), this represents Company's request for the issuance of
a Letter of Credit by Administrative Agent as follows:
1. Issuing Lender: Xxxxx Fargo Bank, National Association
2. Date of issuance of Letter of Credit: ________________,_________
3. Face amount of Letter of Credit: $________________________
4. Expiration date of Letter of Credit: ________________,__________
5. Name and address of beneficiary:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Attached hereto is:
[_] the verbatim text of such proposed Letter of Credit
[_] a description of the proposed terms and conditions of such Letter of
Credit, including a precise description of any documents to be
presented by the beneficiary which, if presented by the beneficiary
prior to the expiration date of such Letter of Credit, would require
the Issuing Lender to make payment under such Letter of Credit.
The undersigned officer, to the best of his or her knowledge, and Company
certify that no event has occurred and is continuing or would result from the
issuance of the Letter of Credit contemplated hereby that would constitute an
Event of Default or a Potential Event of Default.
DATED: ____________________ VOLT DELTA RESOURCES, LLC
By:
------------------------------
Title:
----------------------------
EXHIBIT IV
[FORM OF] REVOLVING NOTE
VOLT DELTA RESOURCES, LLC
$_____________________(1) ______________________(2)
[Issuance date]
FOR VALUE RECEIVED, VOLT DELTA RESOURCES, LLC ("Company"),
promises to pay to ________________(3) ("Payee") or its registered assigns, the
lesser of (x) _______________________(4) ($[____________________(1)]) and (y)
the unpaid principal amount of all advances made by Payee to Company as
Revolving Loans under the Credit Agreement referred to below. The principal
amount of this Note shall be payable on the dates and in the amounts specified
in the Credit Agreement.
Company also promises to pay interest on the unpaid principal
amount hereof, until paid in full, at the rates and at the times which shall be
determined in accordance with the provisions of that certain Credit Agreement
dated as of December 19, 2006 by and among Company, the financial institutions
listed therein as Lenders, and Xxxxx Fargo Bank, National Association, as
Administrative Agent (said Credit Agreement, as it may be amended, restated,
supplemented or otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined herein being
used herein as therein defined).
This Note is one of Company's "Revolving Notes" and is issued
pursuant to and entitled to the benefits of the Credit Agreement, to which
reference is hereby made for a more complete statement of the terms and
conditions under which the Revolving Loans evidenced hereby were made and are to
be repaid.
All payments of principal and interest in respect of this Note
shall be made in the same currency in which such Revolving Loan was made in Same
Day Funds at the Funding and Payment Office or at such other place as shall be
designated in writing for such purpose in accordance with the terms of the
Credit Agreement. Unless and until an Assignment Agreement effecting the
assignment or transfer of this Note shall have been consented to by Company (to
the extent required under the terms of the Credit Agreement) and accepted by
Administrative Agent and recorded in the Register as provided in the Credit
Agreement, Company and Administrative Agent shall be entitled to deem and treat
Payee as the owner and holder of this Note and the Loans evidenced hereby. Payee
hereby agrees, by its acceptance hereof, that before disposing of this Note or
any part hereof it will make a notation hereon of all principal payments
previously made hereunder and of the date to which interest hereon has been
paid; provided, however, that the failure to make a notation of any payment made
on this Note shall not limit or otherwise affect the obligations of Company
hereunder with respect to payments of principal of or interest on this Note.
(1) Insert amount of Lender's Revolving Loan commitment in numbers
(2) Insert place of delivery Note.
(3) Insert Lender's name in capital letters.
(4) Insert amount of Lender's Revolving Loan Commitment in words.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in
the Credit Agreement and to prepayment at the option of Company as provided in
the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligations of
Company, which are absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
prescribed herein and in the Credit Agreement.
Company promises to pay all reasonable costs and expenses,
including reasonable and documented attorneys' fees, all as and to the extent
provided in the Credit Agreement, incurred in the collection and enforcement of
this Note. Company and any endorsers of this Note hereby consent to renewals and
extensions of time at or after the maturity hereof, without notice, and hereby
waive diligence, presentment, protest, demand and notice of every kind and, to
the full extent permitted by law, the right to plead any statute of limitations
as a defense to any demand hereunder.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, Company has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
VOLT DELTA RESOURCES, LLC
By:
-----------------------------------------------
Title:
---------------------------------------------
TRANSACTIONS
ON
REVOLVING NOTE
Outstanding
Type of Amount of Amount of Principal
Loan Made Loan Made Principal Paid Balance Notation
Date This Date This Date This Date This Date Made By
---- --------- --------- --------- --------- -------
EXHIBIT V
[FORM OF] SWING LINE NOTE
VOLT DELTA RESOURCES, LLC
$_____________________(1) ______________________(2)
_________ [Issuance date]
FOR VALUE RECEIVED, VOLT DELTA RESOURCES, LLC ("Company"),
promises to pay to _______________________(3) ("Payee") or its registered
assigns, the lesser of (x) _______________________
($[________________________(1)]) and (y) the unpaid principal amount of all
advances made by Payee to Company as Swing Line Loans under the Credit Agreement
referred to below. The principal amount of this Note shall be payable on the
dates and in the amounts specified in the Credit Agreement.
Company also promises to pay interest on the unpaid principal
amount hereof, until paid in full, at the rates and at the times which shall be
determined in accordance with the provisions of that certain Credit Agreement
dated as of December 19, 2006 by and among Company, the financial institutions
listed therein as Lenders, and Xxxxx Fargo Bank, National Association, as
Administrative Agent (said Credit Agreement, as it may be amended, restated,
supplemented or otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined herein being
used herein as therein defined).
This Note is Company's "Swing Line Note" and is issued
pursuant to and entitled to the benefits of the Credit Agreement, to which
reference is hereby made for a more complete statement of the terms and
conditions under which the Swing Line Loans evidenced hereby were made and are
to be repaid.
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in Same Day Funds
at the Funding and Payment Office or at such other place as shall be designated
in writing for such purpose in accordance with the terms of the Credit
Agreement.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in
the Credit Agreement and to prepayment at the option of Company as provided in
the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW.
(1) Insert amount of Lender's Revolving Loan commitment in numbers
(2) Insert place of delivery Note.
(3) Insert amount of Swing Line Lender's Swing Line Commitment in words.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligations of
Company, which are absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
prescribed herein and in the Credit Agreement.
Company promises to pay all reasonable costs and expenses,
including reasonable and documented attorneys' fees, all as and to the extent
provided in the Credit Agreement, incurred in the collection and enforcement of
this Note. Company and any endorsers of this Note hereby consent to renewals and
extensions of time at or after the maturity hereof, without notice, and hereby
waive diligence, presentment, protest, demand and notice of every kind and, to
the full extent permitted by law, the right to plead any statute of limitations
as a defense to any demand hereunder.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, Company has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
VOLT DELTA RESOURCES, LLC
By:
-----------------------------------------------
Title:
---------------------------------------------
TRANSACTIONS
ON
SWING LINE NOTE
Outstanding
Amount of Amount of Amount of Principal
Loan Made Principal Paid Principal Paid Balance Notation
Date This Date This Date This Date This Date Made By
---- --------- --------- --------- --------- -------
EXHIBIT VI
[FORM OF] COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFY THAT:
(1) We are the duly elected [Title] and [Title] of Volt Delta
Resources, LLC ("Company");
(2) We have reviewed the terms of that certain Credit
Agreement dated as of December 19, 2006, as amended, restated, supplemented or
otherwise modified to the date hereof (said Credit Agreement, as so amended,
restated, supplemented or otherwise modified, being the "Credit Agreement", the
terms defined therein and not otherwise defined in this Certificate (including
Attachment No. 1 annexed hereto and made a part hereof) being used in this
Certificate as therein defined), by and among Company, the financial
institutions listed therein as Lenders, and Xxxxx Fargo Bank, National
Association, as Administrative Agent, and we have made, or have caused to be
made under our supervision, a review in reasonable detail of the transactions
and condition of Company and its Subsidiaries during the accounting period
covered by the attached financial statements;
(3) The examination described in paragraph (2) above did not
disclose, and we have no knowledge of, the existence of any condition or event
which constitutes an Event of Default or Potential Event of Default during or at
the end of the accounting period covered by the attached financial statements or
as of the date of this Certificate [, except as set forth below].
[Set forth [below] [in a separate attachment to this
Certificate] are all exceptions to paragraph (3) above listing, in detail, the
nature of the condition or event, the period during which it has existed and the
action which Company has taken, is taking, or proposes to take with respect to
each such condition or event:
------------------------------------------------------------]
The foregoing certifications, together with the computations
set forth in Attachment No. 1 annexed hereto and made a part hereof and the
financial statements delivered with this Certificate in support hereof, are made
and delivered this __________ day of _____________, ____ pursuant to subsection
6.1(iv) of the Credit Agreement.
VOLT DELTA RESOURCES, LLC
By:
-----------------------------------------------
Title:
---------------------------------------------
ATTACHMENT NO. 1
TO COMPLIANCE CERTIFICATE
This Attachment No. 1 is attached to and made a part of a Compliance
Certificate dated as of ____________, ____ and pertains to the period from
____________, ____ to ____________, ____. Subsection references herein relate to
subsections of the Credit Agreement.
A. Total Debt to EBITDA Ratio (as of _____________, ____)
1. Consolidated Total Debt: $___________
2. Consolidated EBITDA: $___________
3. Leverage Ratio (1):(2): ____%
4. Maximum ratio permitted under
subsection 7.6A: 2.00 to 1.00
Compliance (Yes/No) ___________
B. Minimum Fixed Charge Coverage Ratio (as of ___________)
1. Consolidated EBIT: $___________
2. Aggregate amount of rents paid
or payable under all leases: $___________
3. Sum of (1 +2): $___________
4. Cash income taxes: $___________
5. Dividends paid in cash(8): $___________
6. Sum of (4+5): $___________
7. Line 3 minus line 6: $___________
-----
8. Consolidated Fixed Charges: $___________
9. Fixed Charge Coverage Ratio (7): (8) $___________
10. Minimum ratio permitted under
subsection 7.6B: 2.00 to 1.00
Compliance (Yes/No) __________
C. Minimum Consolidated Net Worth (as of _____________, ____)
1. Consolidated Net Worth: $___________
2. Minimum permitted under subsection 7.6C: $___________
Compliance (Yes/No) ___________
D. Applicable Margin
1. Total Debt to EBITDA Ratio ___ to 1.00
2. Pricing Level ___________
________________________________
(1) Excluding $17,036,000 dividend paid in December 2005 in connection
with buyout of Nortel minority interest.
EXHIBIT VII
[FORM OF] ASSIGNMENT AND
ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Assignment") is dated as of
the Effective Date set forth below and is entered into by and between [Insert
name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), receipt
of a copy of which is hereby acknowledged by the Assignee. The Standard Terms
and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment as if set
forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
Administrative Agent as contemplated below, the interest in and to all of the
Assignor's rights and obligations under the Credit Agreement and any other
documents or instruments delivered pursuant thereto that represents the amount
and percentage interest identified below of all of the Assignor's outstanding
rights and obligations under the respective facilities identified below
(including, to the extent included in any such facilities, letters of credit and
swingline loans) (the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment,
without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________
[and is an Affiliate/Approved Fund(9)]
3. Company: Volt Delta Resources, LLC
4. Administrative Agent: Xxxxx Fargo Bank, National
Association, as administrative agent under the Credit
Agreement
5. Credit Agreement:The Credit Agreement dated as of December
19, 2006 among Company, the Lenders parties thereto, Xxxxx Fargo Bank, National
Association, as Administrative Agent, and the other agents parties thereto, as
amended, restated, supplemented or otherwise modified from time to time.
--------------------
(1) Select as applicable.
6. Assigned Interest:
------------------------------- ---------------------------- ---------------------------- ----------------------------
Aggregate Amount of Amount of Commitment/Loans Percentage Assigned of
Commitment/Loans for all Assigned Commitment/Loans(10)
Facility Assigned Lenders
------------------------------- ---------------------------- ---------------------------- ----------------------------
Revolving Loan Commitment $_____________ $_____________ __________%
------------------------------- ---------------------------- ---------------------------- ----------------------------
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR
--------
[NAME OF ASSIGNOR]
By:
---------------------------------
Title:
ASSIGNEE
--------
[NAME OF ASSIGNEE]
By:
---------------------------------
Title:
Consented to and Accepted:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
-----------------------------------------------------------
Title:
[Consented to:]
VOLT DELTA RESOURCES, LLC
By:
-----------------------------------------------------------
Title:
----------------------------
(2) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
ANNEX 1
VOLT DELTA RESOURCES, LLC
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with any Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document delivered pursuant thereto, other than this Assignment
(herein collectively the "Loan Documents"), or any collateral thereunder, (iii)
the financial condition of Company, any of its Subsidiaries or Affiliates or any
other Person obligated in respect of any Loan Document or (iv) the performance
or observance by Company, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.
1.2 Assignee. The Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement, (iii)
from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to subsection 6.1 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and to purchase the Assigned
Interest on the basis of which it has made such analysis and decision, and (v)
if it is a Non-US Lender, attached to the Assignment is any documentation
required to be delivered by it pursuant to the terms of the Credit Agreement,
duly completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on Administrative Agent, the Assignor or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, Administrative
Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignor for
amounts which have accrued to but excluding the Effective Date and to the
Assignee for amounts which have accrued from and after the Effective Date.(11)
3. General Provisions. This Assignment shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and assigns. This Assignment may be executed in any number of counterparts,
which together shall constitute one instrument. Delivery of an executed
counterpart of a signature page of this Assignment by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
----------------------------
(3) Administrative Agent should consider whether this method conforms to its
systems. In some circumstances, the following alternative language may be
appropriate: "From and after the Effective Date, Administrative Agent shall
make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignee whether
such amounts have accrued prior to or on or after the Effective Date. The
Assignor and the Assignee shall make all appropriate adjustments in
payments by Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves."
Schedule 7.5
Calculation of Permitted Tax Distributions
The amount of Tax Distributions which are permitted for any period
shall be equal to the amount computed for such period as the total U.S. federal,
state and local income taxes for which direct and indirect members of Borrower
would be liable if (x) such member's income ("Member Income") were only from
items of income, gain, loss, deduction or credit attributable to direct or
indirect membership interests in the Borrower for the period beginning on the
first day of such period and ending on the last day of such period and (y) such
member was subject to tax at the highest marginal effective rate of tax
applicable to a corporation resident of New York, New York.
For purposes of the foregoing:
(a) Penalties will be excluded; provided, however, that penalties which
arise solely as a result of Borrower's failure to provide timely and accurate
information to any direct or indirect member necessary for such direct or
indirect member to determine its tax liability with respect to its direct or
indirect membership interests in Borrower may be paid in an aggregate amount not
to exceed ten percent (10%) of Borrower's total Tax Distributions for such
fiscal year; provided further, that penalties will be excluded to the extent
that they arise from any fraud or willful misconduct on the part of Borrower.
(b) (i) The benefits of the deductibility of state income tax and
allowable credits in effect for each of the respective tax periods will be taken
into account and (ii) the benefits of hypothetical net operating loss
carry-forwards attributable to Borrower will be taken into account (in the case
of both (i) and (ii), calculated on a basis consistent with the assumption that
no direct or indirect member will be deemed to have any item of income, gain,
loss, deduction or credit from any source other than such direct or indirect
member's holdings in Borrower).
(c) The benefits of net operating losses arising during any period
shall be determined without regard to any elections relating to carry backs and
carry forwards.
(d) The benefits of all other carry forwards and carry backs shall be
determined in a manner consistent with clauses (b)(ii) and (c) above.
(e) Computations shall be made on an annual basis, but interim
calculations may be made on a good faith basis to permit members to make
estimated tax payments from time to time.
