CREDIT AGREEMENT among FLOWERS FOODS, INC., VARIOUS LENDERS, COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH, BRANCH BANKING AND TRUST COMPANY, and REGIONS BANK, as CO-DOCUMENTATION AGENTS, BANK OF AMERICA,...
Exhibit 10.1
Execution Version
among
FLOWERS FOODS, INC.,
VARIOUS LENDERS,
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH,
B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH,
BRANCH BANKING AND TRUST COMPANY,
and
REGIONS BANK,
as CO-DOCUMENTATION AGENTS,
as CO-DOCUMENTATION AGENTS,
BANK OF AMERICA, N.A.,
as SYNDICATION AGENT,
as SYNDICATION AGENT,
and
DEUTSCHE BANK AG NEW YORK BRANCH,
as ADMINISTRATIVE AGENT
as ADMINISTRATIVE AGENT
____________________
Dated as of October 24, 2003
and
amended and restated as of October 29, 2004
and
amended and restated as of October 29, 2004
and
further amended and restated as of June 6, 2006
and
further amended and restated as of June 6, 2006
and
further amended and restated as of May 20, 2011
____________________
DEUTSCHE BANK SECURITIES INC.,
as SOLE LEAD ARRANGER and BOOKRUNNER
CREDIT AGREEMENT, dated as of October 24, 2003 and amended and restated as of October 29, 2004
and further amended and restated as of June 6, 2006 and further amended as of October 5, 2007 and
further amended and restated as of May 20, 2011, among FLOWERS FOODS, INC., a Georgia corporation
(the “Borrower”), the Lenders party hereto from time to time, COÖPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., “Rabobank Nederland”, New York Branch, Branch Banking and Trust
Company, and Regions Bank, as co-documentation agents (in such capacity, collectively, the
“Co-Documentation Agents” and each, a “Co-Documentation Agent”), BANK OF AMERICA, N.A., as
syndication agent (in such capacity, the “Syndication Agent”), and DEUTSCHE BANK AG NEW YORK
BRANCH, as administrative agent (in such capacity, the “Administrative Agent”) (all capitalized
terms used herein and defined in Section 11 are used herein as therein defined).
W I T N E S S E T H:
WHEREAS, the Borrower, certain financial institutions from time to time party thereto and
DBAG, as administrative agent, are party to a Credit Agreement, dated as of October 24, 2003 (as
amended, restated, amended and restated, modified and/or supplemented to, but not including, the
Restatement Effective Date, the “Existing Credit Agreement”); and
WHEREAS, the parties hereto wish to amend and restate the Existing Credit Agreement in its
entirety in the form of this Agreement subject to and on the terms and conditions set forth herein
and the Lenders are willing to make available to the Borrower the credit facility provided for
herein;
NOW, THEREFORE, the Borrower, the Lenders and the Administrative Agent agree that, on the
Restatement Effective Date, the Existing Credit Agreement shall be and is hereby amended and
restated in its entirety as follows:
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 Commitments. (a) Subject to and upon the terms and conditions set forth herein,
each Lender severally agrees to make, at any time and from time to time on or after the Restatement
Effective Date and prior to the Maturity Date, a revolving loan or revolving loans (each, a
“Revolving Loan” and, collectively, the “Revolving Loans”) to the Borrower, which Revolving Loans
(i) shall be denominated in Dollars, (ii) shall, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided that
except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the
same Borrowing shall at all times be of the same Type, (iii) may be repaid and reborrowed in
accordance with the provisions hereof, (iv) shall not exceed for any Lender at any time outstanding
that aggregate principal amount which, when added to the product of (x) such Lender’s Percentage and (y) the sum of (I) the aggregate amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate
principal amount of all Swingline Loans (exclusive of Swingline
Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) then outstanding, equals the Commitment of such Lender at
such time and (v) shall not exceed for all Lenders at any time outstanding that aggregate principal
amount which, when added to (x) the aggregate amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time and (y) the aggregate
principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving
Loans) then outstanding, equals the Total Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees
to make at any time and from time to time on or after the Restatement Effective Date and prior to
the Swingline Expiry Date, a revolving loan or revolving loans (each, a “Swingline Loan” and,
collectively, the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be incurred
and maintained as Base Rate Loans, (ii) shall be denominated in Dollars, (iii) may be repaid and
reborrowed in accordance with the provisions hereof, (iv) shall not exceed in aggregate principal
amount at any time outstanding, when combined with the aggregate principal amount of all Revolving
Loans then outstanding and the aggregate amount of all Letter of Credit Outstandings (exclusive of
Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of,
the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Commitment
at such time, and (v) shall not exceed in the aggregate principal amount at any time outstanding
the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Agreement,
(i) the Swingline Lender’s obligation to make Swingline Loans at any time that a Lender Default
exists shall be subject to Section 1.15 and (ii) the Swingline Lender shall not make any Swingline
Loan after it has received written notice from the Borrower, any other Credit Party or the Required
Lenders stating that a Default or an Event of Default exists and is continuing until such time as
the Swingline Lender shall have received written notice (A) of rescission of all such notices from
the party or parties originally delivering such notice or notices or (B) of the waiver of such
Default or Event of Default by the Required Lenders. It is acknowledged and agreed that each of
the outstanding swingline loans which were incurred under the Existing Credit Agreement and which
remain outstanding on the Restatement Effective Date and are set forth on Schedule III (each, an
“Existing Swingline Loan” and, collectively, the “Existing Swingling Loans”) shall, from and after
the Restatement Effective Date, constitute a Swingline Loan for all purposes of this Agreement.
(c) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the
Lenders that the Swingline Lender’s outstanding Swingline Loans shall be funded with one or more
Borrowings of Revolving Loans (provided that such notice shall be deemed to have been
automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or
upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which
case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a
“Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all Lenders
pro rata based on each such Lender’s Percentage (determined before giving effect to any termination of the Commitments
pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly by
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the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each
Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day’s notice pursuant to
each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on
the date specified in writing by the Swingline Lender notwithstanding (i) the amount of the
Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder,
(ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or
an Event of Default then exists, (iv) the date of such Mandatory Borrowing, and (v) the amount of
the Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason
be made on the date otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each
Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would
otherwise have occurred, but adjusted for any payments received from the Borrower on or after such
date and prior to such purchase) from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause the Lenders to share in such Swingline Loans ratably
based upon their respective Percentages (determined before giving effect to any termination of the
Commitments pursuant to the last paragraph of Section 10), provided that (x) all interest
payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as
of which the respective participation is required to be purchased and, to the extent attributable
to the purchased participation, shall be payable to the participant from and after such date and
(y) at the time any purchase of participations pursuant to this sentence is actually made, the
purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of
participation purchased for each day from and including the day upon which the Mandatory Borrowing
would otherwise have occurred to but excluding the date of payment for such participation, at the
overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable
to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
1.02 Minimum Amount of Each Borrowing. The aggregate principal amount of each
Borrowing of Loans shall not be less than the Minimum Borrowing Amount applicable to such Loans;
provided that Mandatory Borrowings shall be made in the amounts required by Section
1.01(c). More than one Borrowing may occur on the same date, but at no time shall there be
outstanding more than eight Borrowings of Eurodollar Loans in the aggregate.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to incur Revolving
Loans hereunder (excluding Borrowings of Swingline Loans and Revolving Loans incurred pursuant to
Mandatory Borrowings), an Authorized Representative of the Borrower shall give the Administrative
Agent at the Notice Office prior written notice (or telephonic notice promptly confirmed in
writing) not later than 10:00 A.M. (New York time) on the date of each Base Rate Loan incurred
hereunder, and not later than 11:00 A.M. (New York time) on the third Business Day prior to each
Eurodollar Loan incurred hereunder. Each such written notice or written
confirmation of telephonic notice (each a “Notice of Borrowing”), except as otherwise
expressly provided in Section 1.10, shall be irrevocable and shall be given by an Authorized
Representative of the Borrower in the form of Exhibit A-1, appropriately completed to specify: (i)
the aggregate principal amount of the Revolving Loans to be incurred pursuant to such Borrowing,
(ii) the date of such Borrowing (which shall be a Business Day) and (iii) whether the Revolving
Loans being incurred pursuant to such Borrowing are to be initially maintained as
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Base Rate Loans or, to the extent permitted hereunder, Eurodollar Loans and, if Eurodollar
Loans, the initial Interest Period to be applicable thereto. The Administrative Agent shall
promptly give each Lender notice of such proposed Borrowing, of such Lender’s proportionate share
thereof and of the other matters required by the immediately preceding sentence to be specified in
the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline Loans hereunder, an Authorized
Representative of the Borrower shall give the Swingline Lender not later than 12:00 Noon (New York
time) on the date that a Swingline Loan is to be incurred, written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Loan to be incurred hereunder. Each such notice
shall be irrevocable and specify in each case (A) the date of Borrowing (which shall be a Business
Day) and (B) the aggregate principal amount of the Swingline Loans to be incurred pursuant to such
Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in Section 1.01(c), with the
Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of the
Mandatory Borrowings as set forth in Section 1.01(c).
(c) Without in any way limiting the obligation of the Borrower to confirm in writing any
telephonic notice of any Borrowing, conversion or prepayment of Loans, the Administrative Agent or
the Swingline Lender, as the case may be, may act without liability upon the basis of telephonic
notice of such Borrowing, conversion or prepayment, as the case may be, believed by the
Administrative Agent or the Swingline Lender, as the case may be, in good faith to be from an
Authorized Representative of the Borrower prior to receipt of written confirmation. In each such
case, the Borrower hereby waives the right to dispute the Administrative Agent’s and the Swingline
Lender’s record of the terms of such telephonic notice of such Borrowing, conversion or prepayment
of Loans, as the case may be, absent manifest error.
1.04 Disbursement of Funds. No later than 12:00 Noon (New York time) on the date
specified in each Notice of Borrowing (or (w) in the case of Revolving Loans to be maintained as
Base Rate Loans, no later than 2:00 P.M. (New York time) on the date specified in the respective
Notice of Borrowing, (x) in the case of Swingline Loans, no later than 2:00 P.M. (New York time) on
the date specified pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, no
later than 12:00 Noon (New York time) on the date specified in Section 1.01(c)), each Lender will
make available its pro rata portion (determined in accordance with Section 1.07) of
each such Borrowing requested to be made on such date (or in the case of Swingline Loans, the
Swingline Lender shall make available the full amount thereof). All such amounts will be made
available in Dollars and in immediately available funds at the Payment Office, and the
Administrative Agent will, except in the case of Revolving Loans made pursuant to a Mandatory
Borrowing, make available to the Borrower at the Payment Office the aggregate of the amounts so
made available by the Lenders ((x) for Loans other than Swingline Loans and Revolving Loans
maintained as Base Rate Loans, prior to 1:00 P.M. (New York time) on such day, to the extent of
funds actually received by the Administrative Agent prior to 12:00 Noon (New York time) on such day
and (y) for Swingline Loans and Revolving Loans maintained as Base Rate Loans, prior to 3:00 P.M. (New York time) on such day, to the extent of funds actually received by the Administrative
Agent prior to 2:00 P.M. (New York time) on such day). Unless
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the Administrative Agent shall have
been notified by any Lender prior to the date of Borrowing that such Lender does not intend to make
available to the Administrative Agent such Lender’s portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date of Borrowing and the Administrative Agent may (but shall not be
obligated to), in reliance upon such assumption, make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the Administrative Agent by
such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower
and the Borrower shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover on demand from such Lender or the Borrower,
as the case may be, interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the Borrower until the date
such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to
(i) if recovered from such Lender, the overnight Federal Funds Rate for the first three days and at
the interest rate otherwise applicable to such Loans for each day thereafter and (ii) if recovered
from the Borrower, the rate of interest applicable to the respective Borrowing, as determined
pursuant to Section 1.08. Nothing in this Section 1.04 shall be deemed to relieve any Lender from
its obligation to make Loans hereunder or to prejudice any rights which the Borrower may have
against any Lender as a result of any failure by such Lender to make Loans hereunder.
1.05 Notes. (a) The Borrower’s obligation to pay the principal of, and interest on,
the Loans made by each Lender shall be evidenced in the Register maintained by the Administrative
Agent pursuant to Section 13.17 and shall, if requested by such Lender, also be evidenced (i) in
the case of Revolving Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-1, with blanks appropriately completed in conformity
herewith (each a “Revolving Note” and, collectively, the “Revolving Notes”) and (ii) in the case of
Swingline Loans, by a promissory note duly executed and delivered by the Borrower substantially in
the form of Exhibit B-2, with blanks appropriately completed in conformity herewith (the “Swingline
Note”).
(b) The Revolving Note issued to each Lender shall (i) be executed by the Borrower, (ii) be
payable to such Lender or its registered assigns and be dated the Restatement Effective Date (or,
if issued to an Eligible Transferee after the Restatement Effective Date, be dated the date of
issuance thereof), (iii) be in a stated principal amount equal to the Commitment of such Lender and
be payable in the principal amount of the outstanding Revolving Loans evidenced thereby, (iv)
mature on the Maturity Date, (v) bear interest as provided in the appropriate clause of Section
1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to voluntary prepayment as provided in Section 4.01 and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(c) The Swingline Note issued to the Swingline Lender shall (i) be executed by the Borrower,
(ii) be payable to the Swingline Lender or its registered assigns and be dated the Restatement
Effective Date, (iii) be in a stated principal amount equal to the Maximum
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Swingline Amount and be
payable in the principal amount of the outstanding Swingline Loans evidenced thereby from time to
time, (iv) mature on the Swingline Expiry Date, (v) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Base Rate Loans evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as provided in Section
4.02, and (vii) be entitled to the benefits of this Agreement and the other Credit Documents.
(d) Each Lender will note on its internal records the amount of each Loan made by it and each
payment in respect thereof and prior to any transfer of any of its Notes will endorse on the
reverse side thereof the outstanding principal amount of Loans evidenced thereby. Failure to make
any such notation or any error in any such notation or endorsement shall not affect the Borrower’s
obligations in respect of such Loans.
(e) Notwithstanding anything to the contrary contained above in this Section 1.05 or elsewhere
in this Agreement, Notes shall only be delivered to Lenders which at any time (or from time to
time) specifically request the delivery of such Notes. No failure of any Lender to request or
obtain a Note evidencing its Loans to the Borrower shall affect or in any manner impair the
obligations of the Borrower to pay the Loans (and all related Obligations) incurred by the Borrower
which would otherwise be evidenced thereby in accordance with the requirements of this Agreement,
and shall not in any way affect the guaranties therefor provided pursuant to the various Credit
Documents. Any Lender which does not have a Note evidencing its outstanding Loans shall in no
event be required to make the notations otherwise described in preceding clause (d). At any time
when any Lender requests the delivery of a Note to evidence any of its Loans, the Borrower shall
(at its expense) promptly execute and deliver to the respective Lender the requested Note or Notes
in the appropriate amount or amounts to evidence such Loans.
1.06 Conversions. The Borrower shall have the option to convert, on any Business
Day, all or a portion equal to at least the Minimum Borrowing Amount of the outstanding principal
amount of Revolving Loans made pursuant to one or more Borrowings of one or more Types of Revolving
Loans into a Borrowing of another Type of Revolving Loan, provided that (i) except as
otherwise provided in Section 1.10(b), Eurodollar Loans may be converted into Base Rate Loans only
on the last day of an Interest Period applicable to the Revolving Loans being converted and no such
partial conversion of Eurodollar Loans shall reduce the outstanding principal amount of such
Eurodollar Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount
applicable thereto, (ii) unless the Required Lenders specifically otherwise agree in writing, Base
Rate Loans may only be converted into Eurodollar Loans if no Specified Default or Event of Default
is in existence on the date of the conversion and (iii) no conversion pursuant to this Section 1.06
shall result in a greater number of Borrowings of Eurodollar Loans than is permitted under Section
1.02. Each such conversion shall be effected by the Borrower by giving the Administrative Agent at
the Notice Office prior to 12:00 Noon (New York time) at least three Business Days’ prior notice
(each a “Notice of Conversion/Continuation”) in the form of Exhibit A-2, appropriately completed to
specify the Revolving Loans to be so converted, the Borrowing or Borrowings pursuant to which such Revolving Loans were made and, if to be
converted into Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Lender prompt notice of any such proposed conversion.
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1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans (including Mandatory
Borrowings) under this Agreement shall be incurred from the Lenders pro rata on the
basis of their Commitments. It is understood that no Lender shall be responsible for any default
by any other Lender of its obligation to make Revolving Loans hereunder and that each Lender shall
be obligated to make the Revolving Loans provided to be made by it hereunder, regardless of the
failure of any other Lender to make its Revolving Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Base Rate Loan from the date of Borrowing thereof until the earlier of (i)
the maturity thereof (whether by acceleration or otherwise) and (ii) the conversion of such Base
Rate Loan to a Eurodollar Loan pursuant to Section 1.06 or 1.09, as applicable, at a rate per annum
which shall be equal to the sum of the Applicable Margin plus the Base Rate as in effect from time
to time.
(b) The Borrower agrees to pay interest in respect of the unpaid principal amount of each
Eurodollar Loan from the date of Borrowing thereof until the earlier of (i) the maturity thereof
(whether by acceleration or otherwise) and (ii) the conversion of such Eurodollar Loan to a Base
Rate Loan pursuant to Section 1.06, 1.09 or 1.10, as applicable, at a rate per annum which shall,
during each Interest Period applicable thereto, be equal to the sum of the Applicable Margin plus
the Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue interest in respect of each
Loan shall, in each case, bear interest at a rate per annum equal to the greater of (x) the rate
which is 2% in excess of the rate then borne by such Loans and (y) the rate which is 2% in excess
of the rate otherwise applicable to Base Rate Loans from time to time, and all other overdue
amounts payable hereunder and under any other Credit Document shall bear interest at a rate per
annum equal to the rate which is 2% in excess of the rate applicable to Base Rate Loans from time
to time. Interest that accrues under this Section 1.08(c) shall be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in respect of each Base
Rate Loan (x) quarterly in arrears on each Quarterly Payment Date, (y) in the case of a repayment
in full of all outstanding Base Rate Loans, on the date of such repayment or prepayment, and (z) at
maturity (whether by acceleration or otherwise) and, after such maturity, on demand, and (ii) in
respect of each Eurodollar Loan (x) on the last day of each Interest Period applicable thereto and,
in the case of an Interest Period in excess of three months, on each date occurring at three month
intervals after the first day of such Interest Period and (y) on any repayment or prepayment (on
the amount repaid or prepaid), at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative Agent shall determine the
Eurodollar Rate for each Interest Period applicable to the respective Eurodollar Loans and shall
promptly notify the Borrower and the Lenders thereof. Each such determination shall, absent
manifest error, be final and conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time the Borrower gives any Notice of Borrowing or
Notice of Conversion/Continuation in respect of the making of, or conversion into, any Eurodollar
Loan (in the case of the initial Interest Period applicable thereto) or on the third
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Business Day
prior to the expiration of an Interest Period applicable to such Eurodollar Loan (in the case of
any subsequent Interest Period), the Borrower shall have the right to elect, by having an
Authorized Representative of the Borrower give the Administrative Agent notice thereof, the
interest period (each an “Interest Period”) applicable to such Eurodollar Loan, which Interest
Period shall, at the option of the Borrower, be a one, two, three or six-month period,
provided that, in each case:
(i) all Eurodollar Loans comprising a Borrowing shall at all times have the same
Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall commence on the date of
Borrowing of such Eurodollar Loan (including the date of any conversion thereto from a Base
Rate Loan) and each Interest Period occurring thereafter in respect of such Eurodollar Loan
shall commence on the day on which the next preceding Interest Period applicable thereto
expires;
(iii) if any Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is not a Business
Day, such Interest Period shall expire on the first succeeding Business Day;
provided, however, that if any Interest Period for a Eurodollar Loan would
otherwise expire on a day which 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;
(v) unless otherwise agreed in writing by the Required Lenders, no Interest Period may
be selected at any time when any Specified Default or any Event of Default is then in
existence;
(vi) no Interest Period in respect of any Borrowing of Eurodollar Loans shall be
selected which extends beyond the Maturity Date; and
(vii) the selection of Interest Periods shall be subject to the provisions of Section
1.02.
If upon the expiration of any Interest Period applicable to a Borrowing of Eurodollar Loans,
the Borrower has failed to elect, or is not permitted to elect, a new Interest Period to be applicable to such Eurodollar Loans as provided above, the Borrower shall be
deemed to have elected to convert such Eurodollar Loans into Base Rate Loans effective as of the
expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any Lender shall have
determined (which determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto but, with respect to clause (i) below, may be made only by the
Administrative Agent):
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(i) on any Interest Determination Date that, by reason of any changes arising after the
Restatement Effective Date affecting the interbank Eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the basis provided for
in the definition of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x)
any change since the Restatement Effective Date in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request, such as, for example, but not
limited to: (A) a change in the basis of taxation of payment to any Lender of the principal
of or interest on the Loans or the Notes or any other amounts payable hereunder (except for
changes in the rate of tax on, or determined by reference to, the net income or net profits
of such Lender, or any franchise tax based on the net income or profits of such Lender, in
either case pursuant to the laws of the United States of Americas, the jurisdiction in which
it is organized or in which its principal office or applicable lending office is located or
any subdivision thereof or therein), but without duplication of any amounts payable in
respect of Taxes pursuant to Section 4.04(a), or (B) a change in official reserve
requirements, but, in all events, excluding reserves required under Regulation D to the
extent included in the computation of the Eurodollar Rate and/or (y) other circumstances
arising since the Restatement Effective Date affecting such Lender, the interbank Eurodollar
market or the position of such Lender in such market (including the Eurodollar Rate with
respect to such Eurodollar Loan does not adequately and fairly reflect the cost to such
Lender of funding such Eurodollar Loan); or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made
(x) unlawful by any law or governmental rule, regulation or order, (y) impossible by
compliance by any Lender in good faith with any governmental request (whether or not having
force of law) or (z) impracticable as a result of a contingency occurring after the
Restatement Effective Date which materially and adversely affects the interbank Eurodollar
market;
then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i)
above) shall promptly give notice (by telephone confirmed in writing) to the Borrower and, except
in the case of clause (i) above, to the Administrative Agent of such determination (which
notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter
(x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time
as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving
rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or
Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have
not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower,
(y) in the case of clause (ii) above, the Borrower agrees, subject to the provisions of Section
13.15 (to the extent applicable), to pay to such Lender, upon such Lender’s written request
therefor, such additional amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its reasonable
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discretion shall determine) as
shall be required to compensate such Lender for such increased costs or reductions in amounts
received or receivable hereunder (a written notice as to the additional amounts owed to such
Lender, showing the basis for the calculation thereof, submitted to the Borrower by such Lender in
good faith shall, absent manifest error, be final and conclusive and binding on all the parties
hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions
specified in Section 1.10(b) as promptly as possible and, in any event, within the time period
required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice
to the Borrower of any of the events described in clause (i) or (iii) above, it shall promptly
notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event
ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender,
the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into
Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section
1.10(a)(ii), the Borrower may, and in the case of a Eurodollar Loan affected by the circumstances
described in Section 1.10(a)(iii), the Borrower shall, either (x) if the affected Eurodollar Loan
is then being made initially or pursuant to a conversion, cancel such Borrowing by giving the
Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower
was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or
(iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least one Business Day’s
written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar
Loan into a Base Rate Loan at the end of the then current Interest Period or at such earlier date
as may be required to eliminate such circumstance or to comply with applicable law,
provided that if more than one Lender is affected at any time, then all affected Lenders
must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender determines that after the Restatement Effective Date the introduction or
effectiveness of or any change in any applicable law or governmental rule, regulation, order,
guideline, directive or request (whether or not having the force of law) concerning capital
adequacy, or any change in interpretation or administration thereof by any governmental authority,
central bank or comparable agency, will have the effect of increasing the amount of capital
required or expected to be maintained by such Lender or any corporation controlling such Lender
based on the existence of such Lender’s Commitment hereunder or its Loans or obligations hereunder,
then the Borrower agrees, subject to the provisions of Section 13.15 (to the extent applicable), to
pay to such Lender, upon its written demand therefor, such additional amounts as shall be required
to compensate such Lender or such other corporation for the increased cost to such Lender or such
other corporation or the reduction in the rate of return to such Lender or such other corporation as a result of such increase of capital. In
determining such additional amounts, each Lender will act reasonably and in good faith and will use
averaging and attribution methods which are reasonable, provided that such Lender’s
determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be
final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any
additional amounts will be payable pursuant to this Section 1.10(c), will give written notice
thereof to the Borrower, which notice shall show the basis for calculation of such additional
amounts.
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(d) Notwithstanding anything in this Agreement to the contrary, (x) the Xxxx-Xxxxx Xxxx Street
Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives
thereunder, issued in connection therewith or in implementation thereof and (y) all requests,
rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States or
foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a change
after the Restatement Effective Date in a requirement of law or government rule, regulation or
order, regardless of the date enacted, adopted, issued or implemented (including for purposes of
this Section 1.10 and Section 2.06).
1.11 Compensation. The Borrower agrees, subject to the provisions of Section 13.15
(to the extent applicable), to compensate each Lender, upon its written request (which request
shall set forth in reasonable detail the basis for requesting such compensation), for all
reasonable losses, expenses and liabilities (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits or other funds required
by such Lender to fund its Eurodollar Loans but excluding loss of anticipated profits) which such
Lender may sustain: (i) if for any reason (other than a default by such Lender or the
Administrative Agent) a Borrowing of, or conversion from or into, Eurodollar Loans does not occur
on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether
or not withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a)); (ii) if any
repayment (including any repayment made pursuant to Sections 1.13, 4.01, 4.02, 13.12(b) or as a
result of an acceleration of the Loans pursuant to Section 10) or conversion of any of its
Eurodollar Loans occurs on a date which is not the last day of an Interest Period with respect
thereto; (iii) if any prepayment of any of its Eurodollar Loans is not made on any date specified
in a notice of prepayment given by the Borrower; or (iv) as a consequence of (x) any other default
by the Borrower to repay Eurodollar Loans when required by the terms of this Agreement or any Note
held by such Lender or (y) any election made pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Lender agrees that upon the occurrence of any
event giving rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.06
or Section 4.04 with respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate another lending
office for any Loans or Letters of Credit affected by such event, provided that such
designation is made on such terms that such Lender and its lending office suffer no economic, legal
or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of such
Section. Nothing in this Section 1.12 shall affect or postpone any of the obligations of the
Borrower or the right of any Lender provided in Sections 1.10, 2.06 and 4.04.
1.13 Replacement of Lenders. (x) If any Lender becomes a Defaulting Lender or
otherwise defaults in its obligations to make Loans or fund Unpaid Drawings, (y) upon the
occurrence of an event giving rise to the operation of Section 1.10(a)(ii) or (iii), Section
1.10(c), Section 1.10(d), Section 2.06 or Section 4.04 with respect to any Lender which results in
such Lender charging to the Borrower increased costs in excess of a de minimis amount in excess of
those being generally charged by the other Lenders or (z) as provided in Section 13.12(b) in the
case of a refusal by a Lender to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the Required Lenders
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as (and to the extent) provided in Section 13.12(b), the Borrower shall have the right, if no Default
or Event of Default then exists (or, in the case of preceding clause (z) will exist immediately
after giving effect to such replacement), to replace such Lender (the “Replaced Lender”) with one
or more other Eligible Transferee or Transferees, none of whom shall constitute a Defaulting Lender
at the time of such replacement (collectively, the “Replacement Lender”) and each of whom shall be
required to be reasonably acceptable to the Administrative Agent, provided that (i) at the
time of any replacement pursuant to this Section 1.13, the Replacement Lender shall enter into one
or more Assignment and Assumption Agreements pursuant to Section 13.04(b) (and with all fees
payable pursuant to said Section 13.04(b) to be paid by the Replacement Lender) pursuant to which
the Replacement Lender shall acquire all of the Commitments and outstanding Revolving Loans of, and
in each case participations in Letters of Credit by, the Replaced Lender and, in connection
therewith, shall pay to (x) the Replaced Lender in respect thereof an amount equal to the sum of
(A) an amount equal to the principal of, and all accrued and unpaid interest on, all outstanding
Revolving Loans of the Replaced Lender, (B) an amount equal to all Unpaid Drawings that have been
funded by (and not reimbursed to) such Replaced Lender, together with all then accrued and unpaid
interest with respect thereto at such time, and (C) an amount equal to all accrued, but theretofore
unpaid, Fees owing to the Replaced Lender pursuant to Section 3.01, (y) each Issuing Lender an
amount equal to such Replaced Lender’s Percentage of any Unpaid Drawing (which at such time remains
an Unpaid Drawing) to the extent such amount was not theretofore funded by such Replaced Lender to
such Issuing Lender, together with all then accrued and unpaid interest with respect thereto at
such time and (z) the Swingline Lender an amount equal to such Replaced Lender’s Percentage of any
Mandatory Borrowing to the extent such amount was not theretofore funded by such Replaced Lender to
the Swingline Lender, together with all then accrued and unpaid interest thereon at such time and
(ii) all Obligations of the Borrower due and owing to the Replaced Lender at such time (other than
those specifically described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the respective Assignment and Assumption
Agreement, the payment of amounts referred to in clauses (i) and (ii) above and, if so requested by
the Replacement Lender, delivery to the Replacement Lender of the appropriate Revolving Note
executed by the Borrower, the Replacement Lender shall become a Lender hereunder and the Replaced
Lender shall cease to constitute a Lender hereunder, except with respect to indemnification
provisions under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.06, 4.04, 13.01 and 13.06),
which shall survive as to such Replaced Lender.
1.14 Incremental Revolving Loan Commitments. (a) So long as the Incremental
Revolving Loan Commitment Requirements are satisfied at the time of the delivery of the request
referred to below, the Borrower shall have the right at any time and from time to time and upon at
least 5 Business Days’ prior written notice to the Administrative Agent, to request on no more than
two occasions per fiscal year of the Borrower (or, with the prior written approval of the
Administrative Agent, on no more than three occasions per fiscal year of the Borrower) that one or
more Lenders (and/or one or more other Persons which will become Lenders as provided below) provide
Incremental Revolving Loan Commitments and, subject to the applicable terms and conditions
contained in this Agreement, make Revolving Loans pursuant thereto; it being understood and agreed,
however, that (i) no Lender shall be obligated to provide an Incremental Revolving Loan Commitment
as a result of any such request by the
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Borrower, (ii) until such time, if any, as (x) such Lender
(or other Person who qualifies as an Eligible Transferee) has agreed in its sole discretion to
provide an Incremental Revolving Loan Commitment and executed and delivered to the Administrative
Agent an Incremental Revolving Loan Commitment Agreement in respect thereof as provided in clause
(b) of this Section 1.14 and (y) the Incremental Revolving Loan Commitment Requirements shall have
been satisfied, such Lender shall not be obligated to fund any Revolving Loans in excess of its
Revolving Loan Commitment as in effect prior to giving effect to such Incremental Revolving Loan
Commitment provided pursuant to this Section 1.14, (iii) any Lender (or any other Person who
qualifies as an Eligible Transferee) may so provide an Incremental Revolving Loan Commitment
without the consent of any other Lender, (iv) any Incremental Revolving Loan Commitments added to
the Total Commitment on a given date pursuant to this Section 1.14 shall be in a minimum aggregate
amount of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the
aggregate amount of all Incremental Revolving Loan Commitments permitted to be provided pursuant to
this Section 1.14 shall not cause the Total Commitment to exceed $700,000,000 (after giving effect
to all such Incremental Revolving Loan Commitments in an amount not to exceed $200,000,000 in the
aggregate) and (vi) all actions taken by the Borrower pursuant to this Section 1.14 shall be done
in coordination with the Administrative Agent. For the avoidance of doubt, the Borrower may
request Incremental Revolving Loan Commitments from Persons reasonably acceptable to the
Administrative Agent and each Issuing Lender which would qualify as Eligible Transferees without
first requesting such Incremental Revolving Loan Commitments from the then existing Lenders.
(b) In connection with the Incremental Revolving Loan Commitments to be provided pursuant to
this Section 1.14, (i) the Borrower, the Administrative Agent and each such Lender or other
Eligible Transferee (each, an “Incremental RL Lender”) which agrees to provide an
Incremental Revolving Loan Commitment shall execute and deliver to the Administrative Agent an
Incremental Revolving Loan Commitment Agreement, with the effectiveness of such Incremental RL
Lender’s Incremental Revolving Loan Commitment to occur upon delivery of such Incremental Revolving
Loan Commitment Agreement (fully executed by all Persons party thereto) to the Administrative
Agent, the payment of any fees required in connection therewith (including, without limitation, any
agreed upon up-front or arrangement fees owing to the Administrative Agent) and (ii) the Incremental Revolving Loan Commitment Requirements shall
have been satisfied as of the relevant Incremental Revolving Loan Commitment Date. The
Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental
Revolving Loan Commitment Agreement, and upon the effectiveness of such Incremental Revolving Loan
Commitment Agreement (i) the Total Commitment under, and for all purposes of, this Agreement shall
be increased by the aggregate amount of such Incremental Revolving Loan Commitments, (ii) Schedule
I shall be deemed modified to reflect the revised or new Commitments of the affected existing
Lenders and each new Person added as a Lender (provided such new Person qualifies as an Eligible
Transferee), which Commitment shall equal (x) in the case of a Person providing an Incremental
Revolving Loan Commitment who was not a Lender prior to effectiveness of the Incremental Revolving
Loan Commitment Agreement, an amount equal to the Incremental Revolving Loan Commitment for such
Person as described in such Incremental Revolving Loan Commitment Agreement and (y) in the case of
a Person providing an Incremental Revolving Loan Commitment who is an existing Lender, an amount
equal to the sum of the Incremental Revolving Loan Commitment for such Person as described in such
Incremental Revolving Loan Commitment Agreement plus such Lender’s Commitment
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immediately prior to giving effect to such Incremental Revolving Loan Commitment Agreement and (iii) to the
extent requested by any Incremental RL Lender, Revolving Notes will be issued, at the Borrower’s
expense, to such Incremental RL Lender, to be in conformity with the requirements of Section 1.05
(with appropriate modification) to the extent needed to reflect the new Commitment made by such
Incremental RL Lender.
(c) In connection with any provision of Incremental Revolving Loan Commitments pursuant to
this Section 1.14, the Lenders and the Borrower hereby agree that, notwithstanding anything to the
contrary contained in this Agreement, (i) the Borrower shall, in coordination with the
Administrative Agent, (x) repay outstanding Revolving Loans of certain of the Lenders, and incur
additional or new Revolving Loans from certain other Lenders (including the Incremental RL Lenders)
or (y) take such other actions as may be reasonably required by the Administrative Agent (including
by requiring new Revolving Loans to be incurred and added to then outstanding Borrowings of the
respective Revolving Loans, even though as a result thereof such new Loans (to the extent required
to be maintained as Eurodollar Loans) may have a shorter Interest Period than the then outstanding
Borrowings of the respective Revolving Loans), in each case to the extent necessary so that all of
the Lenders effectively participate in each outstanding Borrowing of Revolving Loans pro
rata on the basis of their Percentages (determined after giving effect to any increase in
the Total Commitment pursuant to this Section 1.14), (ii) the Borrower shall pay to the respective
Lenders any costs of the type referred to in Section 1.11 in connection with any repayment and/or
Borrowing required pursuant to preceding clause (i), and (iii) to the extent Revolving Loans are to
be so incurred or added to the then outstanding Borrowings of the respective Revolving Loans which
are maintained as Eurodollar Loans, the Lenders that have made such Loans shall be entitled to
receive from the Borrower such amounts, as reasonably determined by the respective Lenders, to
compensate them for funding the various Revolving Loans during an existing Interest Period (rather
than at the beginning of the respective Interest Period, based upon rates then applicable thereto).
In coordinating the actions to be taken pursuant to this Section 1.14(c), the Administrative Agent
shall endeavor to minimize (but shall have no express obligation to minimize) costs to the Borrower
(including, without limitation, by agreeing in its sole discretion to delay any relevant
Incremental Revolving Loan Commitment Date to an end of an Interest Period). All determinations by
any Lender pursuant to clause (iii) of the second preceding sentence shall, absent manifest error, be final and conclusive and
binding on all parties hereto.
1.15 Defaulting Lenders. Notwithstanding any provision of this Agreement to the
contrary, the following provisions shall apply at all times that any Lender is a Defaulting Lender:
(a) if any Swingline Loan Exposure or Letter of Credit Exposure exists at the time a Lender
becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan Exposure and Letter of Credit Exposure shall
automatically be reallocated among the Lenders that are Non-Defaulting Lenders in accordance
with their respective Percentages but only to the extent (x) the sum of the Individual
Exposures of all Lenders that are Non-Defaulting Lenders plus such Defaulting
Lender’s Swingline Loan Exposure and Letter of Credit Exposure does not exceed the aggregate
amount of all Non-Defaulting Lenders’ Commitments and (y)
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immediately following the
reallocation to a Lender that is a Non-Defaulting Lender, the Individual Exposure of such
Lender does not exceed its Commitment at such time;
(ii) if at any time the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall (x) within two Business Days following notice by
the Administrative Agent, prepay such Swingline Loan Exposure and (y) within two Business
Days following notice by the Administrative Agent, enter into Letter of Credit Back-Stop
Arrangements in respect of such Defaulting Lender’s Letter of Credit Exposure (after giving
effect to any partial reallocation pursuant to clause (i) above) for so long as such Letter
of Credit Exposure is outstanding;
(iii) the Borrower shall not be required to pay any fees to such Defaulting Lender
pursuant to Section 3.01(b) with respect to such Defaulting Lender’s Letter of Credit
Exposure;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated
pursuant to Section 1.15(a)(i), then the fees payable to the Lenders pursuant to Section
3.01(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Percentages; and
(v) if any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized
nor reallocated pursuant to this Section 1.15(a), then, without prejudice to any rights or
remedies of any Issuing Lender or any Lender hereunder, all letter of credit fees payable
under Section 3.01(b) with respect to such Defaulting Lender’s Letter of Credit Exposure
shall be payable to each Issuing Lender until such Letter of Credit Exposure is cash
collateralized and/or reallocated; and
(b) in addition to the other conditions precedent set forth in Sections 5 and 6, the Issuing
Lender will not be required to issue, amend or increase any Letter of Credit, and the Swingline
Lender will not be required to make any Swingline Loans, unless they are satisfied that 100% of the related Letter of Credit Exposure and Swingline Loan Exposure is fully
covered or eliminated by any combination of the following:
(i) the Letter of Credit Exposure and Swingline Loan Exposure of such Defaulting Lender
is reallocated, as to outstanding Letters of Credit and Swingline Loans, to the
Non-Defaulting Lenders as provided in clause (a)(i) above; and
(ii) without limiting the provisions of clause (a)(ii) above, the Borrower has entered
into Letter of Credit Back-Stop Arrangements or Swingline Back-Stop Arrangements, as
applicable, in respect of such Letter of Credit or Swingline Loan in an amount at least
equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of
such Defaulting Lender in respect of such Letter of Credit or Swingline Loan.
In the event that the Administrative Agent, the Borrower, each Issuing Lender and the Swingline
Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then (i) the Swingline Loan Exposure and Letter of Credit
Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s
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Commitments
and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders
(other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order
for such Lender to hold such Revolving Loans in accordance with its Percentage and (ii) so long as
no Event of Default then exists, all funds held as cash collateral pursuant to the Letter of Credit
Back-Stop Arrangements shall thereafter be promptly returned to the Borrower. If the Commitments
have been terminated, all other Obligations have been paid in full and no Letters of Credit are
outstanding, then, so long as no Event of Default then exists, all funds held as cash collateral
pursuant to the Letter of Credit Back-Stop Arrangements shall thereafter be promptly returned to
the Borrower.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and conditions set forth
herein, the Borrower may request that an Issuing Lender issue, at any time and from time to time on
and after the Restatement Effective Date and prior to the 30th day prior to the Maturity
Date, for the account of the Borrower and for the benefit of (x) any holder (or any trustee, agent
or other similar representative for any such holders) of L/C Supportable Obligations of the
Borrower or any of its Subsidiaries, an irrevocable standby letter of credit, in a form customarily
used by such Issuing Lender or in such other form as has been approved by such Issuing Lender and
(y) sellers of goods to the Borrower or any of its Subsidiaries, an irrevocable trade letter of
credit, in a form customarily used by such Issuing Lender or in such other form as has been
approved by such Issuing Lender (each such letter of credit, a “Letter of Credit” and,
collectively, the “Letters of Credit”). All Letters of Credit shall be denominated in Dollars and
shall be issued on a sight basis only. It is acknowledged and agreed that each of the letters of
credit which were issued under the Existing Credit Agreement and which remain outstanding on the
Restatement Effective Date and are set forth on Schedule III (each such letter of credit, an “Existing Letter of
Credit” and, collectively, the “Existing Letters of Credit”) shall, from and after the Restatement
Effective Date, constitute a Letter of Credit for all purposes of this Agreement and shall, for
purposes of Sections 2.04 and 3.01, be deemed issued on the Restatement Effective Date. Schedule
III sets forth, with respect to Existing Letters of Credit, (i) the name of the issuing lender,
(ii) the letter of credit number, (iii) the stated amount, (iv) the name of the beneficiary and (v)
the expiry date.
(b) Subject to and upon the terms and conditions set forth herein, each Issuing Lender agrees
that it will, at any time and from time to time on and after the Restatement Effective Date and
prior to the 30th day prior to the Maturity Date, following its receipt of the
respective Letter of Credit Request, issue for the account of the Borrower one or more Letters of
Credit as are permitted to remain outstanding hereunder without giving rise to a Default or an
Event of Default, provided that no Issuing Lender shall be under any obligation to issue
any Letter of Credit of the types described above if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or arbitrator shall
purport by its terms to enjoin or restrain such Issuing Lender from issuing such Letter of
Credit or any requirement of law applicable to such Issuing Lender or any request or
directive (whether or not having the force of law) from any governmental authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such Issuing Lender
refrain from, the issuance of letters of credit generally or such Letter of
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Credit in
particular or shall impose upon such Issuing Lender with respect to such Letter of Credit
any restriction or reserve or capital requirement (for which such Issuing Lender is not
otherwise compensated hereunder), in any such case not in effect with respect to such
Issuing Lender on the Restatement Effective Date, or any unreimbursed loss, cost or expense
which was not applicable, or in effect with respect to such Issuing Lender as of the
Restatement Effective Date and which such Issuing Lender in good xxxxx xxxxx material to it;
or
(ii) such Issuing Lender shall have received notice from the Borrower, any other Credit
Party or the Required Lenders prior to the issuance of such Letter of Credit of the type
described in the second sentence of Section 2.03(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount
of which, when added to the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid on the date of, and prior to the issuance of, the respective Letter of Credit) at such time
would exceed the lesser of (x) $50,000,000 or (y) when added to the aggregate principal amount of
all Revolving Loans then outstanding and the aggregate amount of all Swingline Loans then
outstanding, an amount equal to the Total Commitment at such time, and (ii) (x) each standby Letter
of Credit shall by its terms terminate on or before the earlier of (A) the date which occurs twelve
months after the date of the issuance thereof (although any such Letter of Credit may be extendible
for successive periods of up to twelve months, but not beyond the tenth Business Day prior to the
Maturity Date, on terms acceptable to the Issuing Lender thereof) and (B) the tenth Business Day
prior to the Maturity Date, and (y) each trade Letter of Credit shall by its terms terminate on or
before the earlier of (A) the date which occurs 180 days after the date of the issuance thereof and
(B) the date which is 30 Business Days prior to the Maturity Date.
2.02 Minimum Stated Amount. The Stated Amount of each Letter of Credit shall not be
less than $50,000 or such lesser amount as is acceptable to the respective Issuing Lender.
2.03 Letter of Credit Requests. (a) Whenever the Borrower desires that a Letter of
Credit be issued hereunder for its account, the Borrower shall have (x) executed and delivered to
the Administrative Agent and the respective Issuing Lender at least five Business Days prior to the
issuance thereof (or such shorter period as may be acceptable to the respective Issuing Lender), a
Letter of Credit Request in the form of Exhibit C attached hereto (each a “Letter of Credit
Request”).
(b) The making of each Letter of Credit Request shall be deemed to be a representation and
warranty by the Borrower to the Lenders that such Letter of Credit may be issued in accordance
with, and will not violate the requirements of, Section 2.01(c). Unless the respective Issuing
Lender has received notice from the Borrower, any other Credit Party or the Required Lenders before
it issues a Letter of Credit that one or more of the conditions specified in Section 6 are not then
satisfied, or that the issuance of such Letter of Credit would violate Section 2.01(c), then such
Issuing Lender shall, subject to the terms and conditions of this Agreement, issue the requested
Letter of Credit for the account of the Borrower in accordance with such Issuing Lender’s usual and
customary practices. Upon the issuance of, or modification or amendment to, any standby Letter of
Credit, the Issuing Lender thereof shall notify the
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Administrative Agent and the Borrower, in
writing, of such issuance, modification or amendment and such notice shall be accompanied by a copy
of such Letter of Credit or the respective modification or amendment thereto, as the case may be.
Upon receipt of such notice, the Administrative Agent shall promptly notify each Lender, in
writing, of such issuance, modification or amendment. With respect to trade Letters of Credit, the
Issuing Lender shall on the first Business Day of each week provide the Administrative Agent with a
written (including via facsimile) report of the daily aggregate outstandings of trade Letters of
Credit issued by such Issuing Lender for the immediately preceding week. Notwithstanding anything
to the contrary contained in this Agreement, the issuance, renewal, extension or amendment of any
Letter of Credit at any time that a Lender Default exists shall be subject to the terms of Section
1.15.
2.04 Letter of Credit Participations. (a) Immediately upon the issuance by an
Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and
transferred to each Lender, other than such Issuing Lender (each such Lender, in its capacity under
this Section 2.04, a “Participant”), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Lender, without recourse or
warranty, an undivided interest and participation, to the extent of such Participant’s Percentage,
in such Letter of Credit and each drawing or payment made thereunder and the obligations of the
Borrower under this Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto. Upon any change in the Commitments or Percentages of the Lenders pursuant to
Section 1.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit
and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations
pursuant to this Section 2.04 to reflect the new Percentages of the assignor and assignee Lender or of all Lenders, as the
case may be.
(b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any
obligation relative to the other Lenders other than to confirm that any documents required to be
delivered under such Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit
if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a
court of competent jurisdiction in a final and non-appealable proceeding, shall not create for such
Issuing Lender any resulting liability to the Borrower or any Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued
by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender
pursuant to Section 2.05(a), such Issuing Lender shall promptly notify the Administrative Agent,
which shall promptly notify each Participant of such failure, and each Participant shall promptly
and unconditionally pay to such Issuing Lender the amount of such Participant’s Percentage of such
unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, on
or prior to 11:00 A.M. (New York time) on any Business Day, any Participant required to fund a
payment under a Letter of Credit, such Participant shall make available to the respective Issuing
Lender in Dollars such Participant’s Percentage of the amount of such payment on such Business Day
in same day funds. If and to the extent such Participant shall not have so made its Percentage of
the amount of such payment available to the respective Issuing Lender, such Participant agrees to
pay to such Issuing Lender, forthwith on
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demand, such amount, together with interest thereon, for
each day from such date until the date such amount is paid to such Issuing Lender at the overnight
Federal Funds Rate for the first three days and at the interest rate applicable to Base Rate Loans
for each day thereafter. The failure of any Participant to make available to an Issuing Lender its
Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not
relieve any other Participant of its obligation hereunder to make available to such Issuing Lender
its Percentage of any payment with respect to any Letter of Credit on the date required, as
specified above, but no Participant shall be responsible for the failure of any other Participant
to make available to such Issuing Lender such other Participant’s Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it
has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender
shall pay to each such Participant which has paid its Percentage thereof, in Dollars and in same
day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate
amount originally funded by such Participant to the aggregate amount funded by all Participants) of
the principal amount of such reimbursement obligation and interest thereon accruing after the
purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant
copies of any standby Letter of Credit or modifications or amendments thereto issued by it and such
other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect
to Letters of Credit issued thereunder shall be irrevocable and not subject to any qualification or
exception whatsoever (the respective Issuing Lender’s only obligation being to confirm that any
documents required to be delivered under such Letter of Credit have been delivered and that they
substantially comply on their face with the requirements of such Letter of Credit) and shall be
made in accordance with the terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit
Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or
any of its Subsidiaries may have at any time against a beneficiary named in a Letter of
Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee
may be acting), the Administrative Agent, any Participant, or any other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction between the Borrower or
any Subsidiary of the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any 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;
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(iv) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to
reimburse the respective Issuing Lender, by making payment in Dollars to the Administrative Agent
at the Payment Office in immediately available funds for the account of such Issuing Lender, for
any payment or disbursement made by such Issuing Lender under any Letter of Credit (each such
amount so paid until reimbursed, an “Unpaid Drawing”), immediately after, and in any event on the
date of such payment or disbursement (provided that any such notice shall be deemed to have been
given on a certain day only if given before 10:00 A.M. (New York time) on such day), with interest
on the amount so paid or disbursed by such Issuing Lender, to the extent not reimbursed prior to
12:00 Noon (New York time) on the date of such payment or disbursement, from and including the date
paid or disbursed to but excluding the date such Issuing Lender was reimbursed by the Borrower
therefor at a rate per annum which shall be the Base Rate in effect from time to time plus the
Applicable Margin, provided, however, to the extent such amounts are not reimbursed
prior to 12:00 Noon (New York time) on the third Business Day following notice by the Issuing
Lender to the Borrower of such payment or disbursement, interest shall thereafter accrue on the
amounts so paid or disbursed by such Issuing Lender (and until reimbursed by the Borrower) at a
rate per annum which shall be the Base Rate in effect from time to time plus the Applicable Margin
plus 2%, in each such case, with such interest, in each case, to be payable by the Borrower on
demand. The respective Issuing Lender shall give the Borrower prompt notice of each Drawing under
any Letter of Credit, provided that the failure to give any such notice shall in no way
affect, impair or diminish the Borrower’s obligations hereunder.
(b) The obligations of the Borrower under this Section 2.05 to reimburse the respective
Issuing Lender with respect to drawings on Letters of Credit (including interest thereon) (each, a
“Drawing”) shall be absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or have had against any
Lender (including in its capacity as issuer of the Letter of Credit or as Participant), or any
nonapplication or misapplication by the beneficiary of the proceeds of such Drawing, the respective
Issuing Lender’s only obligation to the Borrower being to confirm that any documents required to be
delivered under such Letter of Credit have been delivered and that they substantially comply on
their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken
by any Issuing Lender under or in connection with any Letter of Credit if taken or omitted in the
absence of gross negligence or willful misconduct, as determined by a court of competent
jurisdiction in a final and non-appealable proceeding, shall not create for such Issuing Lender any
resulting liability to the Borrower.
2.06 Increased Costs. If at any time after the Restatement Effective Date, the
introduction of or any change in any applicable law, rule, regulation, order, guideline or request
or in the interpretation
or administration thereof by any governmental authority charged with the interpretation or
administration thereof, or compliance by any Issuing Lender or any Participant with any request or
directive by any such authority (whether or not having the force of law), or any change in
generally acceptable accounting principles, shall either (i) impose, modify or make
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applicable any reserve, deposit, capital adequacy or similar requirement against Letters of Credit
issued by any Issuing Lender or participated in by any Participant, or (ii) impose on any Issuing
Lender or any Participant any other conditions relating, directly or indirectly, to this Agreement
or any Letter of Credit; and the result of any of the foregoing is to increase the cost to any
Issuing Lender or any Participant of issuing, maintaining or participating in any Letter of Credit
or reduce the amount of any sum received or receivable by any Issuing Lender or any Participant
hereunder or reduce the rate of return on its capital with respect to Letters of Credit (except for
changes in the rate of tax on, or determined by reference to, the net income or net profits of such
Issuing Lender or such Participant pursuant to the laws of the jurisdiction in which it is
organized or in which its principal office or applicable lending office is located or any
subdivision thereof or therein), then, upon demand to the Borrower by such Issuing Lender or any
Participant (a copy of which demand shall be sent by such Issuing Lender or such Participant to the
Administrative Agent) and subject to the provisions of Section 13.15 (to the extent applicable),
the Borrower agrees to pay to such Issuing Lender or such Participant such additional amount or
amounts as will compensate such Lender for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. Any Issuing Lender or any
Participant, upon determining that any additional amounts will be payable pursuant to this Section
2.06, will give prompt written notice thereof to the Borrower, which notice shall include a
certificate submitted to the Borrower by such Issuing Lender or such Participant (a copy of which
certificate shall be sent by such Issuing Lender or such Participant to the Administrative Agent),
setting forth in reasonable detail the basis for the calculation of such additional amount or
amounts necessary to compensate such Issuing Lender or such Participant. The certificate required
to be delivered pursuant to this Section 2.06 shall, if delivered in good faith and absent manifest
error, be final and conclusive and binding on the Borrower.
SECTION 3. Facility Fee; Other Fees; Reductions of Commitment.
3.01 Fees. (a) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Lender a facility fee (the “Facility Fee”) for the account of
such Non-Defaulting Lenders for the period from the Restatement Effective Date to but excluding the
Maturity Date (or such earlier date as the Total Commitment shall have been terminated), computed
at a rate per annum equal to the Applicable Facility Fee Percentage on the Commitment of such
Non-Defaulting Lender (as in effect from time to time) (regardless of utilization). Accrued
Facility Fees shall be due and payable quarterly in arrears on each Quarterly Payment Date and on
the Maturity Date or such earlier date upon which the Total Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for pro rata
distribution to each Lender (based on each such Lender’s respective Percentage) a fee in respect
of each Letter of Credit (the “Letter of Credit Fee”) for the period from and including the
date of issuance of such Letter of Credit to and including the date of termination or expiration of
such Letter of Credit, computed at a rate per annum equal to the Applicable Margin (as in effect
from time to time) with respect to Eurodollar Loans on the daily Stated Amount of each such Letter
of Credit; provided that the Letter of Credit Fee payable with respect to any Defaulting Lender’s
Letter of Credit Exposure shall be payable as set forth in Section 1.15(a). Accrued Letter of
Credit Fees shall be due and payable quarterly in arrears on each Quarterly Payment Date and on
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the first day on or after the termination of the Total Commitment upon which no Letters of Credit
remain outstanding.
(c) The Borrower agrees to pay to the respective Issuing Lender, for its own account, a facing
fee in respect of each Letter of Credit issued hereunder (the “Facing Fee”), for the period from
and including the date of issuance of such Letter of Credit to and including the termination of
such Letter of Credit, computed at a rate equal to 1/8 of 1% per annum of the daily Stated Amount
of such Letter of Credit; provided that, in no event shall the annual (or such shorter
period as any Letter of Credit is outstanding) Facing Fee with respect to any Letter of Credit be
less than $500. Accrued Facing Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the date upon which the Total Revolving Loan Commitment has been
terminated and such Letter of Credit has been terminated in accordance with its terms.
(d) The Borrower agrees to pay to each Issuing Lender, for its own account, upon each payment
under, issuance of, or amendment to any Letter of Credit issued by it, such amount as shall at the
time of such event be the administrative charge and the reasonable expenses which such Issuing
Lender is generally imposing in connection with such occurrence with respect to letters of credit.
(e) The Borrower shall pay to the Administrative Agent for distribution to each Incremental RL
Lender such fees and other amounts, if any, as are specified in the relevant Incremental Revolving
Loan Commitment Agreement, with the fees and other amounts, if any, to be payable on the respective
Incremental Revolving Loan Commitment Date.
(f) The Borrower agrees to pay to the Administrative Agent, such fees as may be agreed to in
writing from time to time by the Borrower and the Administrative Agent and/or the Lead Arranger.
3.02 Optional Commitment Reductions. (a) Upon at least three Business Days’ prior
notice from an Authorized Representative of the Borrower to the Administrative Agent at the Notice
Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right, at any time or from time to time, without premium or penalty, to
terminate or partially reduce the Total Unutilized Commitment, provided that any partial reduction
pursuant to this Section 3.02(a) shall be in an amount of at least $5,000,000 or, if greater, in
integral multiples of $1,000,000. Each such reduction shall apply proportionately to permanently
reduce the Commitment of each Lender.
(b) In the event of a refusal by a Lender to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been approved by the Required
Lenders as (and to the extent) provided in Section 13.12(b), the Borrower may, subject to its
compliance with the requirements of Section 13.12(b), upon five Business Days’ prior written notice
to the Administrative Agent at the Notice Office (which notice the Administrative Agent shall
promptly transmit to each of the Lenders) terminate all of the Commitments of such Lender, so long
as all Loans, together with accrued and unpaid interest, Fees and all other amounts, owing to such
Lender are repaid concurrently with the effectiveness of such termination pursuant to Section
4.01(b) (at which time Schedule I shall be
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deemed modified to reflect such changed amounts), and such Lender’s Percentage of all outstanding
Letters of Credit is cash collateralized in a manner satisfactory to the Administrative Agent and
the respective Issuing Lenders and at such time, such Lender shall no longer constitute a “Lender”
for purposes of this Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2.06, 4.04, 13.01 and 13.06), which shall
survive as to such repaid Lender.
3.03 Mandatory Reduction of Commitments. (a) The Total Commitment (and the
Commitment of each Lender) shall terminate in its entirety on June 30, 2011 unless the Credit
Agreement has been executed and delivered by all of the parties hereto and the Restatement
Effective Date has occurred.
(b) In addition to any other mandatory commitment reductions pursuant to this Section 3.03,
the Total Commitment (and the Commitment of each Lender) shall terminate in its entirety on the
Maturity Date.
3.04 Commitment Extensions. The Borrower, may, by notice to the Administrative Agent
(which shall promptly deliver a copy to each of the Lenders) given not less than 45 days and not
more than 90 days prior to each of the first and second anniversary of the Restatement Effective
Date (each such notice a “Maturity Extension Request”), request that the Lenders extend the
Maturity Date for an additional one-year period, in each such case. Each Lender shall, by notice
to the Borrower and the Administrative Agent given not later than the 20th day after the date of
the Administrative Agent’s receipt of the Borrower’s Maturity Extension Request, advise the
Borrower whether or not it agrees to the requested extension (each Lender agreeing to a requested
extension being called a “Consenting Lender” and each Lender declining to agree to a requested
extension being called a “Declining Lender”). Any Lender that has not so advised the Borrower and
the Administrative Agent by such day shall be deemed to have declined to agree to such extension
and shall be a Declining Lender. If Lenders constituting the Required Lenders shall have agreed to
a Maturity Extension Request, then the Maturity Date shall, as to the Consenting Lenders, be
extended by one year to the anniversary of the Maturity Date in effect at such time. The decision
to agree or withhold agreement to any Maturity Extension Request shall be at the sole discretion of
each Lender. The Commitment of any Declining Lender shall terminate on the then existing Maturity
Date in effect prior to giving effect to any such extension (such Maturity Date being called the
“Existing Maturity Date”). The principal amount of any outstanding Loans made by Declining
Lenders, together with any accrued interest thereon and any accrued fees and other
amounts payable to or for the account of such Declining Lenders hereunder, shall be due and
payable on the Existing Maturity Date, and on the Existing Maturity Date the Borrowers shall also
make such other prepayments of their respective Loans pursuant to Section 4.01 as shall be required
in order that, after giving effect to the termination of the Commitments of, and all payments to,
Declining Lenders pursuant to this sentence, (i) no Lender’s Total Unutilized Commitment shall
exceed such Lender’s Commitment and (ii) the sum of the Total Commitments of all the Lenders shall
not exceed the sum of the Commitments of all Lenders. Notwithstanding the foregoing provisions of
this paragraph, the Borrower shall have the right, pursuant to Section 1.13, at any time prior to
the then Existing Maturity Date, to replace a Declining Lender with a Lender or other financial
institution that will agree to a Maturity Extension Request, and any such replacement Lender shall
for all purposes constitute a Consenting Lender. Notwithstanding the foregoing, no extension of
the Maturity
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Date pursuant to this paragraph shall become effective unless the Borrower shall have satisfied
each of the conditions precedent set forth in Sections 5.02, 5.03, 5.08, 5.09, 5.11 and 5.12,
modified, in each case, as appropriate to apply to each such extension.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. (a) The Borrower shall have the right to prepay the
Loans, without premium or penalty, in whole or in part at any time and from time to time on the
following terms and conditions: (i) an Authorized Representative of the Borrower shall give the
Administrative Agent prior to 12:00 Noon (New York time) at the Notice Office (x) at least one
Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) of the
Borrower’s intent to prepay Base Rate Loans and (y) at least three Business Days’ prior written
notice (or telephonic notice promptly confirmed in writing) of their intent to prepay Eurodollar
Loans, whether Revolving Loans or Swingline Loans shall be prepaid, the amount of such prepayment
and the Type of Loans to be prepaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, which notice the Administrative Agent shall promptly transmit to
each of the Lenders; (ii) each prepayment shall be in an aggregate principal amount of at least
$1,000,000 (or $100,000 in the case of Swingline Loans), provided that if any partial prepayment of
Eurodollar Loans made pursuant to any Borrowing shall reduce the outstanding Eurodollar Loans made
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto,
then such Borrowing may not be continued as a Borrowing of Eurodollar Loans and any election of an
Interest Period with respect thereto given by the Borrower shall have no force or effect; and (iii)
each prepayment in respect of any Revolving Loans made pursuant to a Borrowing shall be applied pro
rata among such Revolving Loans, provided that at the Borrowers’ election in connection with any
prepayment of Revolving Loans pursuant to this Section 4.01(a), such prepayment shall not, so long
as no Default or Event of Default then exists, be applied to the prepayment of Revolving Loans of a
Defaulting Lender.
(b) In the event of certain refusals by a Lender as provided in Section 13.12(b) to consent to
certain proposed changes, waivers, discharges or terminations with respect to this Agreement which
have been approved by the Required Lenders, the Borrower may, upon five
Business Days’ written notice by an Authorized Representative of the Borrower to the
Administrative Agent at the Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders) repay all Revolving Loans, together with accrued and unpaid
interest, Fees, and other amounts owing to such Lender in accordance with, and subject to the
requirements of, said Section 13.12(b) so long as (A) the Commitment of such Lender is terminated
concurrently with such repayment pursuant to Section 3.02(b) (at which time Schedule I shall be
deemed modified to reflect the changed Commitments) and (B) the consents required by Section
13.12(b) in connection with the repayment pursuant to this clause (b) have been obtained.
4.02 Mandatory Repayments and Cash Collateralizations. (a) On any day on which the
sum of (i) the aggregate outstanding principal amount of all Revolving Loans (after giving effect
to all other repayments thereof on such date), (ii) the aggregate principal amount of all Swingline
Loans (after giving effect to all other repayments thereof on such date) and (iii) the aggregate
amount of all Letter of Credit Outstandings (after giving effect to all other repayments thereof on
such date) exceeds the Total Commitment as then in effect, the Borrower agrees to
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prepay on such day the principal of Swingline Loans and, after the Swingline Loans have been repaid
in full, Revolving Loans, in an amount equal to such excess. If, after giving effect to the
prepayment of all outstanding Swingline Loans and Revolving Loans, the aggregate amount of the
Letter of Credit Outstandings exceeds the Total Commitment as then in effect, the Borrower agrees
to pay to the Administrative Agent at the Payment Office on such date an amount of cash and/or Cash
Equivalents equal to the amount of such excess (up to a maximum amount equal to the Letter of
Credit Outstandings at such time), such cash and/or Cash Equivalents to be held as security for all
Obligations of the Borrower to Lenders hereunder in a cash collateral account to be established by
the Administrative Agent on terms reasonably satisfactory to the Administrative Agent.
(b) With respect to each repayment of Revolving Loans required by Section 4.02(a), the
Borrower may designate the Types of Revolving Loans which are to be repaid and, in the case of
Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which made, provided
that: (i) repayments of Eurodollar Loans pursuant to Section 4.02(a) may only be made on the last
day of an Interest Period applicable thereto unless all Eurodollar Loans with Interest Periods
ending on such date of required repayment and all Base Rate Loans have been paid in full; (ii) if
any repayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce the outstanding
Eurodollar Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount applicable thereto, then such Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans; and (iii) each repayment of Revolving Loans
required by Section 4.02(a) shall be applied pro rata among such Revolving Loans.
In the absence of a designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in its sole discretion with
a view, but no obligation, to minimize breakage costs owing under Section 1.11.
(c) In addition to any other mandatory repayments required pursuant to this Section 4.02, (i)
all then outstanding Revolving Loans shall be repaid in full on the Maturity Date and (ii) all then
outstanding Swingline Loans shall be repaid in full on the Swingline Expiry Date.
4.03 Method and Place of Payment. Except as otherwise specifically provided herein,
all payments under this Agreement or any Note shall be made to the Administrative Agent for the
account of the Lender or Lenders entitled thereto not later than 12:00 Noon (New York time) on the
date when due and shall be made in Dollars in immediately available funds at the Payment Office.
Any payments received by the Administrative Agent after such time shall be deemed to have been
received on the next Business Day. Whenever any payment to be made hereunder or under any Note
shall be stated to be due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, with respect to payments of principal, interest
shall be payable at the applicable rate during such extension.
4.04 Net Payments; Taxes. (a) All payments made by any Credit Party hereunder or
under any Note will be made without setoff, counterclaim or other defense. Except as provided in
Section 4.04(b), 13.04, 13.14 or 13.15, all such payments will be made free and clear of, and
without deduction or withholding for, any present or future Taxes now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or therein
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with respect to such payments (but excluding, except as provided in the second succeeding sentence,
any tax imposed on or measured by the net income or net profits of a Lender pursuant to the laws of
the jurisdiction in which it is organized or the jurisdiction in which the principal office or
applicable lending office of such Lender is located or any subdivision thereof or therein) (all
such non-excluded Taxes being referred to collectively as “Withholding Taxes”). If any Withholding
Taxes are so levied or imposed, the Borrower agrees to pay the full amount of such Withholding
Taxes, and such additional amounts as may be necessary so that every payment of all amounts due
under this Agreement or any other Credit Document or under any Note, after withholding or deduction
for or on account of any Withholding Taxes, will not be less than the amount provided for herein or
in such Credit Document or in such Note. If any amounts are payable in respect of Withholding
Taxes pursuant to the preceding sentence, the Borrower agrees to reimburse each Lender, upon the
written request of such Lender, for taxes imposed on or measured by the net income or net profits
of such Lender pursuant to the laws of the jurisdiction in which such Lender is organized or in
which the principal office or applicable lending office of such Lender is located or under the laws
of any political subdivision or taxing authority of any such jurisdiction in which such Lender is
organized or in which the principal office or applicable lending office of such Lender is located
and for any withholding of taxes as such Lender shall determine are payable by, or withheld from,
such Lender, in respect of such amounts so paid to or on behalf of such Lender pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such Lender pursuant to
this sentence. The Borrower will furnish to the Administrative Agent within 45 days after the date
the payment of any Withholding Taxes is due pursuant to applicable law certified copies of tax
receipts evidencing such payment by the Borrower. The Borrower agrees to indemnify and hold
harmless each Lender, and reimburse such Lender upon its written request, for the amount of any
Withholding Taxes so levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) (each, a “Foreign Lender”) for U.S. Federal income tax purposes agrees to
deliver to the Borrower and the Administrative Agent on or prior to the
Restatement Effective Date, or in the case of a Lender that is an assignee or transferee of an
interest under this Agreement pursuant to Section 1.13 or 13.04 (unless the respective Lender was
already a Lender hereunder immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) two accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI or W-8BEN (with respect to complete exemption under an income
tax treaty) (or successor forms) certifying to such Lender’s entitlement as of such date to a
complete exemption from United States withholding tax with respect to payments to be made under
this Agreement and under any Note, or (ii) if the Lender is not a “bank” within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or
W-8BEN (with respect to complete exemption under an income tax treaty) pursuant to clause (i)
above, (x) a certificate substantially in the form of Exhibit D (any such certificate, a “Section
4.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal
Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form)
certifying to such Lender’s entitlement to a complete exemption from United States withholding tax
with respect to payments of interest to be made under this Agreement and under any Note. In
addition, each Foreign Lender shall, in the case of any payment made after December 31, 2012 in
respect of any Loan, Letters of Credit, Note or Obligation that was not treated as outstanding for
purposes of FATCA on March 18, 2012,
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provide any forms, documentation, or other information as shall be prescribed by the IRS to
demonstrate that the relevant Lender has complied with the applicable reporting requirements of
FATCA (including, without limitation, those contained in Sections 1471(b) or 1472(b) of the Code,
as applicable), so that such payments made to such Lender hereunder would not be subject to U.S.
federal withholding taxes imposed by FACTA. In addition, each Lender agrees that from time to time
after the Restatement Effective Date, when a lapse in time or change in circumstances renders the
previous certification obsolete or inaccurate in any material respect, it will deliver to the
Borrower and the Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to the benefits of any income tax
treaty), Form W-8BEN (with respect to the portfolio interest exemption) and a Section 4.04(b)(ii)
Certificate, as the case may be, and such other forms as may be required in order to confirm or
establish the entitlement of such Lender to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement and any Note, or it shall
immediately notify the Borrower and the Administrative Agent of its inability to deliver any such
Form or Certificate, in which case such Lender shall not be required to deliver any such Form or
Certificate pursuant to this Section 4.04(b). Notwithstanding anything to the contrary contained
in Section 4.04(a), but subject to Section 13.04(b) and the immediately succeeding sentence, (x)
the Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, Fees or other amounts payable hereunder for the
account of any Lender which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that such Lender has
not provided to the Borrower U.S. Internal Revenue Service Forms that establish a complete
exemption from such deduction or withholding and (y) the Borrower shall not be obligated pursuant
to Section 4.04(a) hereof to gross-up payments to be made to a Lender in respect of income or
similar taxes imposed by the United States if (I) such Lender has not provided to the Borrower the
Internal Revenue Service Forms described above in this Section 4.04(b) (if applicable) or (II) in
the case of a payment,
other than interest, to a Lender described in clause (ii) above, to the extent that such Forms do
not establish a complete exemption from withholding of such taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section 4.04 and except as set
forth in Section 13.04(b), the Borrower agrees to pay any additional amounts and to indemnify each
Lender in the manner set forth in Section 4.04(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any Taxes deducted or withheld
by it as described in the immediately preceding sentence as a result of any changes that are
effective after the Restatement Effective Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to the deducting or
withholding of such Taxes.
(c) If the Borrower pays any additional amount under this Section 4.04 to a Lender and such
Lender determines in its sole discretion that it has actually received or realized in connection
therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect
to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay
to the Borrower an amount that the Lender shall, in its sole discretion, determine is equal to the
net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax
Benefit; provided, however, that (i) any Lender may determine, in its sole
discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii)
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any Taxes that are imposed on a Lender as a result of a disallowance or reduction (including
through the expiration of any tax credit carryover or carryback of such Lender that otherwise would
not have expired) of any Tax Benefit with respect to which such Lender has made a payment to the
Borrower pursuant to this Section 4.04(c) shall be treated as a Tax for which the Borrower is
obligated to indemnify such Lender pursuant to this Section 4.04 without any exclusions or
defenses; (iii) nothing in this Section 4.04(c) shall require the Lender to disclose any
confidential information to the Borrower; and (iv) no Lender shall be required to pay any amounts
pursuant to this Section 4.04(c) at any time during which a Default or Event of Default exists.
SECTION 5. Conditions Precedent to the Restatement Effective Date. The occurrence
of the Restatement Effective Date pursuant to Section 13.10 is subject to the satisfaction of the
following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Restatement Effective Date
(i) this Agreement shall have been executed and delivered as provided in Section 13.10 and (ii)
there shall have been delivered to the Administrative Agent for the account of each Lender that has
requested same the appropriate Revolving Note executed by the Borrower and to the Swingline Lender,
to the extent the Swingline Lender has requested same, the Swingline Note executed by the Borrower,
in each case, in the amount, maturity and as otherwise provided herein.
5.02 Officer’s Certificate. On the Restatement Effective Date, the Administrative
Agent shall have received a certificate, dated the Restatement Effective Date, and signed on behalf
of the
Borrower by an Authorized Representative, stating that all conditions in Sections 5.07, 5.08,
5.09, 5.12 and 6.02 have been satisfied on such date.
5.03 Opinions of Counsel. On the Restatement Effective Date, the Administrative
Agent shall have received (i) from Xxxxx Day, counsel to the Credit Parties, an opinion addressed
to each Agent, each Issuing Lender, and each of the Lenders and dated the Restatement Effective
Date covering the matters set forth in Exhibit E-1 and such other matters incident to the
transactions contemplated herein as the Administrative Agent may reasonably request; provided that,
with respect to each Credit Party other than the Borrower, such opinion shall be limited to matters
relating to enforceability, no conflicts and similar “non-corporate” matters only and (ii) subject
to Section 13.19, from Xxxxxxx X. Xxxxx, general counsel of the Borrower and special counsel to the
other Credit Parties, an opinion addressed to each Agent, each Issuing Lender, and each of the
Lenders and dated the Restatement Effective Date covering such matters with respect to the Credit
Parties as the Administrative Agent may reasonably request and such other matters incident to the
transactions contemplated herein.
5.04 Corporate Documents; Proceedings; etc. (a) Subject to Section 13.19, on the
Restatement Effective Date, the Administrative Agent shall have received a certificate, dated the
Restatement Effective Date, signed by an Authorized Representative of each Credit Party, and
attested to by another Authorized Representative of such Credit Party, in the form of Exhibit F
with appropriate insertions, together with copies of the certificate of incorporation and by-laws
(or equivalent organizational documents) of such Credit Party, and the resolutions of such Credit
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Party referred to in such certificate, and the foregoing shall be in form and substance reasonably
acceptable to the Administrative Agent.
(b) Subject to Section 13.19, all corporate, partnership, limited liability company and legal
proceedings and all instruments and agreements in connection with the transactions contemplated by
this Agreement and the other Credit Documents shall be reasonably satisfactory in form and
substance to the Administrative Agent, and the Administrative Agent shall have received all
information and copies of all documents and papers, including governmental approvals, good standing
certificates and bring-down telegrams, if any, which the Administrative Agent reasonably may have
requested in connection therewith, such documents and papers where appropriate to be certified by
proper corporate or governmental authorities.
5.05 Existing Credit Agreement. On the Restatement Effective Date, all letters of
credit (or acceptances created thereunder) issued under the Existing Credit Agreement shall be
continued as Letters of Credit hereunder and all interest, fees and other amounts that have accrued
and remain, as of the Restatement Effective Date, unpaid under the Existing Credit Agreement shall
have been paid in full (including, without limitation, amounts payable pursuant to Section 1.11 of
the Existing Credit Agreement, accrued and unpaid commitment fees, letter of credit fees and facing
fees).
5.06 Guaranties. On the Restatement Effective Date, each Subsidiary Guarantor shall have executed and
delivered a Subsidiaries Guaranty in the form of Exhibit G (as amended, restated, modified and/or
supplemented from time to time, the “Subsidiaries Guaranty”) and the Subsidiaries Guaranty shall be
in full force and effect.
5.07 Outstanding Indebtedness; Preferred Stock. On the Restatement Effective Date,
the Borrower and its Subsidiaries shall have no outstanding Indebtedness which has a principal
balance of $2,000,000 or more or any issued and outstanding Preferred Stock other than (i)
Indebtedness pursuant to this Agreement, and (ii) the Scheduled Existing Indebtedness identified in
Schedule VI hereto, with no defaults, events of default, breaches, required repayments, required
offer to purchase or termination rights existing thereunder or arising as a result of the
Transaction and the other transactions contemplated hereby. On and as of the Restatement Effective
Date, the Administrative Agent shall be reasonably satisfied with the amount of and the terms and
conditions of all Scheduled Existing Indebtedness and Preferred Stock described above in this
Section 5.07.
5.08 Adverse Change; Governmental Approvals; etc. (a) Since January 1, 2011, nothing
shall have occurred (and neither the Administrative Agent nor the Required Lenders shall have
become aware of any facts or conditions not previously known) which the Administrative Agent or the
Required Lenders shall determine has had, or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
(b) On or prior to the Restatement Effective Date, all necessary governmental (domestic and
foreign) and third party approvals and/or consents in connection with the transactions contemplated
by the Credit Documents and otherwise referred to herein shall have been obtained and remain in
effect. Additionally, there shall not exist any judgment, order, injunction or other restraint
issued or filed or a hearing seeking injunctive relief or other restraint
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pending or notified prohibiting or imposing materially adverse conditions upon the making of any
Loan, issuance of any Letter of Credit or the consummation of the transactions contemplated by the
Credit Documents.
5.09 Litigation. On the Restatement Effective Date, no litigation by any entity
(private or governmental) shall be pending or threatened in writing with respect to this Agreement,
any other Credit Document or any other documentation executed in connection herewith and therewith
or the transactions contemplated hereby and thereby, or which the Administrative Agent shall
determine has had, or could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
5.10 Financial Statements. On or prior to the Restatement Effective Date, the
Administrative Agent shall have received true and correct copies of the historical financial
statements referred to in Section
7.05(a)(ii), which historical financial statements shall be in form and substance reasonably
satisfactory to the Administrative Agent.
5.11 Solvency Certificate; Leverage Ratio Certificate. On or prior to the
Restatement Effective Date, the Administrative Agent shall have received (and be reasonably
satisfied with):
(a) a solvency certificate from the chief financial officer or treasurer of the
Borrower, in the form of Exhibit H, which shall be addressed to the Agents and the Lenders
and dated the Restatement Effective Date, setting forth the conclusions that, after giving
effect to the Transaction and the incurrence of all of the financings contemplated hereby,
each of the Borrower and the Borrower and its Subsidiaries taken as a whole, is or are not
insolvent and will not be rendered insolvent by the indebtedness incurred in connection
therewith, will not be left with unreasonably small capital with which to engage in its or
their business and will not have incurred debts beyond its or their ability to pay such
debts as they mature; and
(b) a certificate from the chief financial officer of the Borrower in form and
substance reasonably satisfactory to the Administrative Agent, which shall be addressed to
the Agents and the Lenders and dated the Restatement Effective Date, setting forth the
Leverage Ratio as of the Restatement Effective Date together with such calculations as are
reasonably required by the Administrative Agent in support thereof.
5.12 Fees, etc. On the Restatement Effective Date, all reasonably documented
reasonable costs, fees and expenses (including, without limitation, legal fees and expenses)
payable under the terms of this Agreement (or any letter or other agreement with the Agents) to the
Agents and the Lenders shall have been paid to the extent due.
SECTION 6. Conditions Precedent to All Credit Events. The obligation of each Lender
to make Loans (including Loans made on the Restatement Effective Date and on each Incremental
Revolving Loan Commitment Date, but excluding Mandatory Borrowings made thereafter, which shall be
made as provided in Section 1.01(c)), and the obligation of an Issuing Lender to issue any Letter
of Credit, is subject, at the time of each such Credit Event, to the satisfaction of the following
conditions:
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6.01 Restatement Effective Date. The Restatement Effective Date shall have
occurred.
6.02 No Default; Representations and Warranties. At the time of each such Credit
Event and also after giving effect thereto (i) there shall exist no Default or Event of Default and
(ii) all representations and warranties contained herein (other than the representations and
warranties set forth in Section 7.05(b) and
7.06, which shall be required to be true and correct only (i) on the Restatement Effective
Date, (ii) at the time of making any Loan, the proceeds of which will be used to finance a
Significant Acquisition, and (iii) at the time of any Credit Event if (x) the Debt Rating is below
both Baa3 from Xxxxx’x and BBB- from S&P, (y) the Borrower (for any reason) does not have a current
Debt Rating from both Xxxxx’x and S&P or (z) (1) the Debt Rating is below either Baa3 from Xxxxx’x
or BBB- from S&P and (2) the Borrower (for any reason) does not have a current Debt Rating from
either Xxxxx’x or S&P) and in the other Credit Documents shall be true and correct in all material
respects with the same effect as though such representations and warranties had been made on the
date of such Credit Event (it being understood and agreed that any representation or warranty which
by its terms is made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date).
6.03 Notice of Borrowing; Letter of Credit Request. (a) Prior to the making of each
Revolving Loan (excluding Swingline Loans), the Administrative Agent shall have received the notice
required by Section 1.03(a). Prior to the making of each Swingline Loan, the Swingline Lender
shall have received the notice required by Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the Administrative Agent and the
respective Issuing Lender shall have received a Letter of Credit Request meeting the requirements
of Section 2.03.
The acceptance of the benefit of each Credit Event shall constitute a representation and
warranty by the Borrower to the Agents and each of the Lenders that all the conditions specified in
Section 5 (with respect to Credit Events on the Restatement Effective Date) and in this Section 6
(with respect to Credit Events to occur on or after the Restatement Effective Date) and applicable
to such Credit Event have been satisfied as of that time. All of the Notes, certificates, legal
opinions and other documents and papers referred to in Section 5 and in this Section 6, unless
otherwise specified, shall be delivered to the Administrative Agent at the Notice Office for the
account of each of the Lenders and, except for the Notes, in sufficient counterparts or copies for
each of the Lenders and shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders.
6.04 The Existing Credit Agreement. On the Restatement Effective Date and
concurrently with the initial incurrence of any Loans hereunder, (i) the total commitments in
respect of the Indebtedness under the Existing Credit Agreement shall be terminated, all
outstanding Existing Revolving Loans thereunder shall have been repaid in full in cash, together
with accrued but unpaid interest thereon, and all swingline loans and existing letters of credit
issued thereunder, as the case may be, shall have been incorporated hereunder as Swingline Loans or
Letters of Credit pursuant to Sections 1.01(b) and 2.01(a), respectively, provided that, at the
request of the Administrative Agent, any Continuing Lender may net fund any Revolving
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Loans required to be made by it on the Restatement Effective Date by permitting the principal
amount of the Existing Revolving Loans made by such Continuing Lender to remain outstanding on the
Restatement Effective Date to satisfy such Continuing Lender’s obligation to fund a like principal
amount of Revolving
Loans to be incurred hereunder by the Borrower on the Restatement Effective Date, and such
principal amounts of Continuing Lenders shall be deemed to be outstanding only as Revolving Loans
hereunder and the corresponding Existing Revolving Loans shall be deemed to have been repaid in
full, and (ii) there shall have been paid in cash in full all accrued but unpaid Fees under, and as
defined in, the Existing Credit Agreement (including, without limitation, commitment fees, letter
of credit fees and facing fees) due through the Restatement Effective Date and all other amounts,
costs and expenses (including, without limitation, breakage costs, if any, with respect to
Eurodollar rate loans and all legal fees and expenses) then owing to any of the Existing Lenders
and/or the Administrative Agent, as agent under the Existing Credit Agreement, in each case to the
satisfaction of the Administrative Agent or the Existing Lenders, as the case may be, regardless of
whether or not such amounts would otherwise be due and payable at such time pursuant to the terms
of the Existing Credit Agreement, and (iii) all outstanding Notes (as defined in the Existing
Credit Agreement) issued by the Borrower to the Existing Lenders under the Existing Credit
Agreement shall be deemed cancelled.
SECTION 7. Representations, Warranties and Agreements. In order to induce the
Lenders to enter into this Agreement and to make the Loans, and issue (or participate in) the
Letters of Credit as provided herein, the Borrower makes the following representations, warranties
and agreements, in each case after giving effect to the occurrence of the Restatement Effective
Date, all of which shall survive the execution and delivery of this Agreement and the Notes and the
making of the Loans and issuance of the Letters of Credit, with the occurrence of each Credit Event
on or after the Restatement Effective Date being deemed to constitute a representation and warranty
that the matters specified in this Section 7 are true and correct in all material respects on and
as of the Restatement Effective Date and on the date of each such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of such specified date):
7.01 Corporate Status. The Borrower and each of its Subsidiaries (i) is a duly
organized and validly existing corporation, limited liability company or partnership, as the case
may be, in good standing under the laws of the jurisdiction of its organization or formation, (ii)
has the corporate, limited liability company or partnership power and authority, as the case may
be, to own its property and assets and to transact the business in which it is engaged and
presently proposes to engage and (iii) is duly qualified and is authorized to do business and is in
good standing in each jurisdiction where the conduct of its business requires such qualifications,
except for failures to be so qualified that, individually or in the aggregate, have not had, and
could not reasonably be expected to have, a Material Adverse Effect.
7.02 Corporate Power and Authority. Each Credit Party has the corporate, limited
liability company or partnership power and authority, as the case may be, to execute, deliver and
perform the terms and provisions of each of the Credit Documents to which it is party and has taken
all necessary corporate, limited liability company or partnership action, as the case may be, to
authorize the execution,
delivery and performance by it of each of such
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Credit Documents. Each Credit Party has duly executed and delivered each of the Credit Documents to
which it is party, and each of such Credit Documents constitutes the legal, valid and binding
obligation of such Credit Party enforceable in accordance with its terms, except to the extent that
the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors’ rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by any Credit
Party of the Credit Documents to which it is a party, nor compliance by it with the terms and
provisions thereof, (i) will contravene any provision of any applicable law, statute, rule or
regulation or any applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the creation or imposition
of (or the obligation to create or impose) any Lien (other than Permitted Liens) upon any of the
material properties or assets of the Borrower or any of its Subsidiaries pursuant to the terms of
any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other material
agreement, contract or instrument, to which the Borrower or any of its Subsidiaries is a party or
by which it or any of its property or assets is bound or to which it may be subject or (iii) will
violate any provision of the Certificate or Articles of Incorporation or By-Laws (or equivalent
organizational documents) of the Borrower or any of its Subsidiaries.
7.04 Governmental Approvals. No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with or exemption by, any governmental or
public body or authority, or any subdivision thereof, is required to authorize, or is required in
connection with, (i) the execution, delivery and performance of any Credit Document or (ii) the
legality, validity, binding effect or enforceability of any such Credit Document.
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Projections;
etc. (a) (i) The audited consolidated balance sheet of the Borrower and its Subsidiaries for
the fiscal year of the Borrower ended January 1, 2011, and the related consolidated statements of
income, cash flows and shareholders’ equity of the Borrower and its Subsidiaries for the fiscal
year of the Borrower ended on such date, copies of which have been furnished to the Lenders prior
to the Restatement Effective Date and (ii) the unaudited consolidated balance sheets of the
Borrower and its Subsidiaries for the fiscal quarters of the Borrower ended on April 23, 2011, and
the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal quarters of the Borrower ended on such dates, copies of which have been furnished to
the Lenders prior to the Restatement Effective Date, in each case, present fairly in all material
respects the financial condition of the Borrower and its Subsidiaries at the date of such balance
sheets and the results of the operations of the Borrower and its Subsidiaries for the periods
covered thereby. All of the foregoing financial
statements have been prepared in accordance with generally accepted accounting principles and
practices consistently applied (except, in the case of the aforementioned unaudited financial
statements, for normal year-end audit adjustments and the absence of footnotes).
(b) After giving effect to the Transaction, since January 1, 2011, there has been no condition
or circumstance that, individually or in the aggregate with such other
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conditions or circumstances, has had, or could reasonably be expected to have, a Material Adverse
Effect.
(c) On and as of the Restatement Effective Date, on a pro forma basis after
giving effect to the Transaction and all other transactions contemplated by this Agreement and the
other Credit Documents and to all Indebtedness (including the Loans) being incurred or assumed,
with respect to each of the Borrower and the Borrower and its Subsidiaries taken as a whole, (x)
the sum of its or their assets (including goodwill), at a fair valuation, will exceed its or their
debts; (y) it or they have not incurred and do not intend to incur, nor believe that it or they
will incur, debts beyond its or their ability to pay such debts as such debts mature; and (z) it or
they will have sufficient capital with which to conduct its or their business. For purposes of
this Section 7.05(c), “debt” means any liability on a claim and “claim” means (i) right to payment,
whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a payment, whether or
not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured.
(d) Except as fully disclosed in the financial statements referred to in Section 7.05(a) or
created by the transactions contemplated by this Agreement and the other Credit Documents, there
were, as of the Restatement Effective Date, no material liabilities or obligations with respect to
the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due) which would, under generally accepted accounting
principles, be required to be disclosed on consolidated financial statements (or footnotes thereto)
of the Borrower and its Subsidiaries if same had been prepared as of the Restatement Effective
Date. In addition, as of the Restatement Effective Date, there are no liabilities or obligations
with respect to the Borrower or any of its Subsidiaries of any nature whatsoever not required to be
disclosed in such financial statements in accordance with generally accepted accounting principles
that, individually or in the aggregate, have had, or could reasonably be expected to have, a
Material Adverse Effect.
7.06 Litigation. There are no actions, suits or proceedings pending or threatened in
writing (i) with respect to any Credit Document or (ii) that, individually or in the aggregate, has
had, or could reasonably be expected to have, a Material Adverse Effect.
7.07 True and Complete Disclosure. All factual information (taken as a whole)
furnished by or on behalf of the Borrower or any of its Subsidiaries in writing to any Agent or any
Lender (including, without
limitation, all factual information contained in the Credit Documents) for purposes of or in
connection with this Agreement, the other Credit Documents or any transaction contemplated herein
or therein is, and all other such factual information (taken as a whole) hereafter furnished by or
on behalf of the Borrower or any of its Subsidiaries in writing to any Agent or any Lender will be,
true and accurate in all material respects on the date as of which such information is dated or
certified and not incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading in any material respect at the time such information was
provided.
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7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of Loans shall be used
(i) to repay all outstanding Indebtedness under the Existing Credit Agreement, (ii) to pay fees and
expenses incurred in connection with the consummation of the Transaction and (iii) for the
Borrower’s and its Subsidiaries’ ongoing working capital and general corporate purposes (including
capital expenditures, acquisitions, dividends and share repurchases).
(b) Neither the making of any Loan nor the use of the proceeds thereof nor the occurrence of
any other Credit Event will violate or be inconsistent with the provisions of the Margin
Regulations. At the time of each Credit Event and after giving effect thereto (including after
giving effect to the application of proceeds therefrom), no more than 25% of the value of the
assets of the Borrower, or of the Borrower and its Subsidiaries taken as a whole, constitutes
Margin Stock.
7.09 Tax Returns and Payments. The Borrower and each of its Subsidiaries has timely
filed or caused to be timely filed, on the due dates thereof or within applicable grace periods,
with the appropriate taxing authority, all Federal, state, foreign and other material returns,
statements, forms and reports for taxes (the “Returns”) required to be filed by or with respect to
the income, properties or operations of the Borrower and its Subsidiaries. Each of the Borrower
and each of its Subsidiaries has paid all taxes and assessments payable by it which have become
due, other than those contested in good faith and for which adequate reserves have been established
in accordance with generally accepted accounting principles. There is no action, suit, proceeding,
investigation, audit, or claim now pending or threatened in writing by any authority regarding any
material taxes relating to the Borrower or its Subsidiaries. Neither the Borrower nor any of its
Subsidiaries has entered into an agreement or waiver or been requested to enter into an agreement
or waiver extending any statute of limitations relating to the payment or collection of taxes of
the Borrower or any of its Subsidiaries, or is aware of any circumstances that would cause the
taxable years or other taxable periods of the Borrower or any of its Subsidiaries not to be subject
to the normally applicable statute of limitations.
7.10 Compliance with ERISA. (a) Each Plan is in compliance in all material respects
with ERISA and the Code; no Reportable Event has occurred with respect to a Plan; to the knowledge
of the Borrower, no Multiemployer Plan is insolvent or in reorganization; no Plan has an Unfunded
Current Liability which, when added to the aggregate amount of Unfunded Current Liabilities
with respect to all other Plans, exceeds $100,000,000; no Plan has an accumulated or waived funding
deficiency, or has applied for an extension of any amortization period within the meaning of
Section 412 of the Code; neither the Borrower nor any of its respective Subsidiaries nor any ERISA
Affiliate has incurred any liability to or on account of a Plan and/or a Multiemployer Plan
pursuant to Section 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA in excess of
$10,000,000 in the aggregate for all such liabilities; no proceedings have been instituted to
terminate or appoint a trustee to administer any Plan; no action, suit, proceeding, hearing, audit
or investigation with respect to the administration, operation or investment of assets of any Plan
(other than routine claims for benefits) is pending, expected or threatened in writing; no
condition exists which presents a risk to the Borrower or any of its Subsidiaries or any ERISA
Affiliate of incurring a material liability to or on account of a Plan and/or a Multiemployer Plan
pursuant to the foregoing provisions of ERISA and the Code; using actuarial assumptions and
computation methods consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of the Borrower, its Subsidiaries and its ERISA
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Affiliates to all Multiemployer Plans in the event of a complete withdrawal therefrom, as of the
close of the most recent fiscal year of each such Multiemployer Plan ended prior to the date of the
most recent Credit Event, could not reasonably be expected to have a Material Adverse Effect.
(b) Each Foreign Pension Plan has been maintained in compliance in all material respects with
its terms and with the requirements of any and all applicable laws, statutes, rules, regulations
and orders and has been maintained, where required, in good standing with applicable regulatory
authorities. Neither the Borrower nor any of its Subsidiaries has incurred any obligation in
connection with the termination of or withdrawal from any Foreign Pension Plan. The present value
of the accrued benefit liabilities (whether or not vested) under each Foreign Pension Plan,
determined as of the end of the Borrower’s most recently ended fiscal year on the basis of
actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets
of such Foreign Pension Plan allocable to such benefit liabilities.
7.11 Properties. The Borrower and each of its Subsidiaries has good and valid title
to all properties owned by them, including all property reflected in the balance sheets referred to
in Sections 7.05(a) (except as sold or otherwise disposed of since the date of such balance sheet
in the ordinary course of business or otherwise as permitted hereunder), free and clear of all
Liens other than Permitted Liens.
7.12 Subsidiaries. As of the Restatement Effective Date (i) Schedule IV sets forth
the correct legal name of each Subsidiary of the Borrower, the direct and indirect (if any) owner
of each such Subsidiary and whether each such Subsidiary is a Wholly-Owned Domestic Subsidiary, and
(ii) the Borrower has no Subsidiaries other than those Subsidiaries listed on such Schedule IV.
7.13 Compliance with Statutes, etc. The Borrower and each of its Subsidiaries is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership of its property,
except such noncompliances as have not had, and could not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
7.14 Investment Company Act. Neither the Borrower nor any of its Subsidiaries is an
“investment company” or a company “controlled” by an “investment company,” within the meaning of
the Investment Company Act of 1940, as amended.
7.15 [Reserved].
7.16 Environmental Matters. Except to the extent that any matter described below in
this Section 7.16, either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, (i) the Borrower and each of its Subsidiaries is in compliance with
all applicable Environmental Laws and the requirements of any permits required under such
Environmental Laws; (ii) there are no Environmental Claims pending or threatened in writing against
the Borrower or any of its Subsidiaries or any Real Property presently or formerly owned, leased or
operated by the Borrower or any of its Subsidiaries; and
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(iii) there are no facts, circumstances, or conditions relating to the past or present business or
operations of the Borrower or any of its Subsidiaries (including the disposal of any wastes,
hazardous substances or other materials), or to any Real Property at any time owned, leased,
operated or occupied by the Borrower or any of its Subsidiaries that, to the knowledge of the
Borrower, could reasonably be expected to (A) to form the basis of an Environmental Claim against
the Borrower or any of its Subsidiaries or any such currently owned Real Property, or (B) to cause
any such currently owned Real Property to be subject to any restriction on the ownership,
occupancy, use or transferability of such Real Property by the Borrower or any of its Subsidiaries
under any applicable Environmental Laws.
7.17 Labor Relations. Neither the Borrower nor any of its Subsidiaries is engaged in
any unfair labor practice that could reasonably be expected to have a Material Adverse Effect.
There is (i) no unfair labor practice complaint pending against the Borrower or any of its
Subsidiaries or threatened in writing against any of them, before the National Labor Relations
Board, and no material grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Borrower or any of its Subsidiaries or threatened in
writing against any of them, (ii) no strike, labor dispute, slowdown or stoppage pending against
the Borrower or any of its Subsidiaries or threatened in writing against the Borrower or any of its
Subsidiaries and (iii) to the knowledge of the Borrower after due inquiry, no union representation
proceeding pending with respect to the employees of the Borrower or any of its Subsidiaries, except
(with respect to any matter specified in clause (i), (ii) or (iii) above, either individually or
in the aggregate) such as have not had, and could not reasonably be expected to have, a
Material Adverse Effect.
7.18 Patents, Licenses, Franchises and Formulas. The Borrower and its Subsidiaries
own or have valid licenses to use all material patents, trademarks, permits, service marks, trade
names, copyrights, licenses, franchises and formulas, or rights with respect to the foregoing, and
have obtained assignments of all leases and other rights of whatever nature, reasonably necessary
for the present conduct of their business, without any known conflict with the rights of others
except for such failures and conflicts which have not had, and could not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect.
7.19 Scheduled Existing Indebtedness, etc. Schedule VI sets forth a true and
complete list of all Indebtedness of the Borrower and each of its Subsidiaries which has a
principal balance of $2,000,000 or more as of the Restatement Effective Date and which is to remain
outstanding after giving effect to the Transaction (excluding the Loans and the Letters of Credit,
the “Scheduled Existing Indebtedness”), in each case, showing the aggregate principal amount
thereof and the name of the respective borrower and any Credit Party or any of its Subsidiaries
which directly or indirectly guaranteed such debt and describing any security therefor.
SECTION 8. Affirmative Covenants. The Borrower hereby covenants and agrees that on
and after the Restatement Effective Date and until the Total Commitment and all Letters of Credit
have terminated and the Loans, Notes and Unpaid Drawings (in each case together with interest
thereon), Fees and all other Obligations (other than indemnities described
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in Section 13.13 which are not then due and payable) incurred hereunder and thereunder, are paid in
full:
8.01 Information Covenants. The Borrower will furnish to each Lender:
(a) Quarterly Financial Statements. As soon as available and in any event within 45
days after the close of each of the first three fiscal quarters in each fiscal year of the
Borrower, (i) the consolidated balance sheets of the Borrower and its Subsidiaries, in each case,
as at the end of such quarterly period and the related consolidated statements of income and
retained earnings and consolidated statements of cash flows, in each case for such fiscal quarter
and for the elapsed portion of the fiscal year ended with the last day of such quarterly period,
and in each case, setting forth comparative figures for the corresponding quarterly accounting
period in the prior fiscal year, all of which shall be certified by the chief financial officer of
the Borrower, subject to normal year-end audit adjustments and the absence of footnotes, and (ii)
management’s discussion and analysis of the important operational and financial developments during
the fiscal quarter and year-to-date periods (it being understood and agreed that the delivery of
such management’s discussion and analysis as contained in the Borrower’s quarterly report on Form
10-Q shall satisfy the requirement contained in this clause (ii)).
(b) Annual Financial Statements. Within 90 days after the close of each fiscal year
of the Borrower, (i) the consolidated balance sheets of the Borrower and its Subsidiaries, in each
case, as of the end of such fiscal year and the related consolidated statements of income and
retained earnings and consolidated statements of cash flows, in each case for such fiscal year
setting forth comparative figures for the preceding fiscal year and certified (x) in the case of
such consolidated financial statements, by PricewaterhouseCoopers LLP or such other independent
certified public accountants of recognized national standing reasonably acceptable to the
Administrative Agent, and (y) in the case of such financial statements, by the chief financial
officer of the Borrower together with a report of such accounting firm stating that in the course
of its regular audit of the financial statements of the Borrower and its Subsidiaries, which audit
was conducted in accordance with generally accepted auditing standards, such accounting firm
obtained no knowledge of any Default or Event of Default which has occurred and is continuing as a
result of a violation of any of Sections 9.01(xiii), 9.02(b), 9.02(c), 9.04, 9.05, 9.07, and/or
9.08 or, if in the opinion of such accounting firm such a Default or Event of Default has occurred
and is continuing, a statement as to the nature thereof and (ii) management’s discussion and
analysis of the important operational and financial developments during such fiscal year (it being
understood and agreed that the delivery of such management’s discussion and analysis as contained
in the Borrower’s annual report on Form 10-K shall satisfy the requirement contained in this clause
(ii)).
(c) Officer’s Certificates. At the time of the delivery of the financial statements
provided for in Section 8.01(a) and (b), a certificate of an Authorized Representative of the
Borrower in the form of Exhibit J to the effect that, (i) to the best of such Authorized
Representative’s knowledge, no Default or Event of Default has occurred and is continuing or, if
any Default or Event of Default has occurred and is continuing, specifying the nature and extent
thereof, which certificate shall set forth the calculations required to establish whether the
Borrower was in compliance with the provisions of Sections 9.01(xiii), 9.05(v), 9.07 and 9.08 at
the end of such fiscal quarter or year, as the case may be and (ii) there have been no changes
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since the Restatement Effective Date or, if later, since the date of the most recent certificate
delivered pursuant to this Section 8.01(c)(ii), to Schedule IV to this Agreement or, if there have
been any such changes, a list in reasonable detail of such changes and a certification that the
Borrower and its Subsidiaries have taken all action required by Sections 8.10 with respect to any
new Subsidiaries.
(d) Notice of Default or Litigation. Promptly, and in any event within three Business
Days (or five Business Days in the case of following clause (ii)) after the Borrower obtains
knowledge thereof, notice of (i) the occurrence of any event which constitutes a Default or Event
of Default, or (ii) any litigation or governmental investigation or proceeding pending or
threatened in writing (x) against the Borrower or any of its Subsidiaries which has had, or could
reasonably be expected to have, a Material Adverse Effect or (y) with respect to any Credit
Document.
(e) Environmental Matters. Promptly upon, and in any event within ten Business Days
after, the Borrower obtains knowledge thereof, notice of any of the following environmental matters
occurring after the Restatement Effective Date, except to the extent that such environmental
matters have not had, and could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect:
(i) any Environmental Claim pending or threatened in writing against the Borrower or
any of its Subsidiaries or any Real Property owned or operated or occupied by the Borrower
or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real Property owned or operated
or occupied by the Borrower or any of its Subsidiaries that (a) results in noncompliance by
the Borrower or such Subsidiary with any applicable Environmental Law or (b) could
reasonably be expected to form the basis of an Environmental Claim against the Borrower or
any of its Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned or operated or occupied by
the Borrower or any of its Subsidiaries that could reasonably be expected to cause such Real
Property to be subject to any restrictions on the ownership, occupancy, use or
transferability by the Borrower or such Subsidiary of such Real Property under any
Environmental Law; and
(iv) the taking of any removal or remedial action in response to the actual or alleged
presence of any Hazardous Material on any Real Property owned or operated or occupied by the
Borrower or any of its Subsidiaries as required by any Environmental Law or any governmental
or other administrative agency.
All such notices shall describe in reasonable detail the nature of the claim, investigation,
condition, occurrence or removal or remedial action and the Borrower’s or such Subsidiary’s
response thereto. In addition, the Borrower will provide the Lenders with copies of all material
communications with any government or governmental agency and all material communications with any
Person relating to any Environmental Claim of which notice is required to be given pursuant to this
Section 8.01(e), and such detailed reports of any such
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Environmental Claim as may reasonably be requested by the Lenders; provided that, in any
event, the Borrower shall deliver to the Administrative Agent all material notices received by the
Borrower or any of its Subsidiaries from any government or governmental agency under, or pursuant
to, CERCLA.
(f) Other Reports and Filings. Promptly, copies of all financial information, proxy
materials and other information and reports, if any, which the Borrower or any of its Subsidiaries
shall file with the Securities and Exchange Commission or any successor thereto (the “SEC”) or
deliver to holders of its Indebtedness (or any trustee, agent or other representative therefor)
pursuant to the terms of the documentation governing such Indebtedness.
(g) Debt Rating. Promptly upon, and in any event within five Business Days after, an
Authorized Representative of the Borrower obtains knowledge of any change by Xxxxx’x or S&P in any
Debt Rating, notice of such change.
(h) Other Information. From time to time, such other information or documents
(financial or otherwise) with respect to the Borrower or any of its Subsidiaries as the
Administrative Agent or Lender may reasonably request in writing.
8.02 Books, Records and Inspections. The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries in conformity with generally accepted
accounting principles and all requirements of law shall be made of all dealings and transactions in
relation to its business and activities. The Borrower will, and will cause each of its
Subsidiaries to, permit officers and designated representatives of the Administrative Agent or any
Lender to visit and inspect, after reasonable notice during regular business hours and under
guidance of officers of the Borrower or such Subsidiary, any of the properties of the Borrower or
such Subsidiary, and to examine the books of account of the Borrower or such Subsidiary and discuss
the affairs, finances and accounts of the Borrower or such Subsidiary with, and be advised as to
the same by, its and their officers and independent accountants, all upon reasonable advance notice
and at such reasonable times and intervals and to such reasonable extent as the Administrative
Agent or such Lender may request.
8.03 Maintenance of Property; Insurance. The Borrower will, and will cause each of
its Subsidiaries to, (i) keep all property necessary to the business of the Borrower and its
Subsidiaries in good working order and condition, ordinary wear and tear excepted, and (ii)
maintain insurance on all its property in at least such amounts and against at least such risks and
with such deductibles or self-insured retentions as is consistent and in accordance with industry
practice.
8.04 Corporate Franchises. The Borrower will, and will cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and keep in full force
and effect its existence and its material rights, franchises, licenses and patents used in its
business; provided, however, that nothing in this Section 8.04 shall prevent (i) sales of assets,
mergers or other transactions by or among the Borrower or any of its Subsidiaries in accordance
with Section 9.02, (ii) the withdrawal by the Borrower or any of the Subsidiaries of its
qualification as a foreign corporation or the failure to qualify as a foreign corporation in any
jurisdiction which would not in any way materially and adversely affect the Lenders, and where such
withdrawals,
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failures or amendments, as the case may be, have not had, and could not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect or (iii) the abandonment
by the Borrower or any of its Subsidiaries of any rights, franchises, licenses, trademarks,
copyrights and patents that the Borrower reasonably determines are not useful to or needed in its
or their business, as the case may be.
8.05 Compliance with Statutes, etc. The Borrower will, and will cause each of its
Subsidiaries to, comply with all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of
its business and the ownership of its property, except such noncompliances as have not had, and
could not reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect.
8.06 Compliance with Environmental Laws. The Borrower will, and will cause each of its Subsidiaries to, comply with all
Environmental Laws applicable to the Borrower and its Subsidiaries (and the respective businesses
conducted by them) and the ownership or use of any Real Property now or hereafter owned or operated
by the Borrower or any of its Subsidiaries, and will within a reasonable time period pay or cause
to be paid all costs and expenses incurred in connection with such compliance (except to the extent
being contested in good faith). Furthermore, neither the Borrower nor any of its Subsidiaries will
generate, use, treat, store, release or dispose of, or permit the generation, use, treatment,
storage, release or disposal of, Hazardous Materials on any Real Property now or hereafter owned or
operated or occupied by the Borrower or any of its Subsidiaries, or transport or permit the
transportation of Hazardous Materials to or from any such Real Property. Notwithstanding anything
to the contrary contained above, the covenant contained above in this Section 8.06 shall only be
violated if the aggregate effect of all failures and noncompliances with respect to the matters
described above in this Section 8.06 has had, or could reasonably be expected to have, a Material
Adverse Effect.
8.07 ERISA. As soon as possible and, in any event, within 30 days after the Borrower
or any of its Subsidiaries or any ERISA Affiliate knows or has reason to know of the occurrence of
any of the following, the Borrower will deliver to the Administrative Agent, and the Administrative
Agent shall promptly forward to each Lender, a certificate of an Authorized Representative of the
Borrower setting forth details as to such occurrence and the action, if any, that the Borrower,
such Subsidiary or such ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by the Borrower, such Subsidiary, the ERISA
Affiliate, the PBGC, or a Plan or Multiemployer Plan participant, or the Plan administrator with
respect thereto: (i) that a Reportable Event has occurred; (ii) that an accumulated funding
deficiency has been incurred or an application is likely to be or has been made to the Secretary of
the Treasury for a waiver or modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under Section 412 of the Code with
respect to a Plan and/or a Multiemployer Plan; (iii) that a Plan and/or Multiemployer Plan has been
or is reasonably expected to be terminated, reorganized, partitioned or declared insolvent under
Title IV of ERISA; (iv) that a Plan and/or a Multiemployer Plan has an Unfunded Current Liability
giving rise to a lien under ERISA or the Code; (v) that proceedings are likely to be or have been
instituted or notice has been given to terminate or appoint a trustee to administer a Plan and/or a
Multiemployer Plan; (vi) that a
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proceeding has been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Multiemployer Plan if material in amount; (vii) that the Borrower, any of its
Subsidiaries or any ERISA Affiliate will or is reasonably expected to incur any liability
(including any indirect, contingent or secondary liability) to or on account of the termination of
or withdrawal from a Plan and/or Multiemployer Plan under Section 4062, 4063, 4064, 4069, 4201,
4204 or 4212 of ERISA or with respect to a Plan and/or Multiemployer Plan under Section 401(a)(29)
of the Code which could reasonably be expected to have a Material Adverse Effect; or that the
Borrower or any Subsidiary is reasonably expected to incur any liability pursuant to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to retired
employees or other former employees (other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA) which liability, individually
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect. Upon request, the Borrower will deliver to each of the Lenders a complete copy of
the annual report (Form 5500) of each Plan required to be filed with the Internal Revenue Service.
In addition to any certificates or notices delivered to the Lenders pursuant to the first sentence
hereof, copies of such annual reports and any material notices received by the Borrower or any of
its Subsidiaries or any ERISA Affiliate with respect to any Plan and/or Multiemployer Plan and/or
Foreign Pension Plan shall be delivered to the Lenders no later than 30 days after the date such
report has been requested or such notice has been received by the Borrower, such Subsidiary or such
ERISA Affiliate, as applicable. The Borrower and each of its applicable Subsidiaries shall ensure
that all Foreign Pension Plans administered by it or into which it makes payments obtains or
retains (as applicable) registered status under and as required by applicable law and is
administered in a timely manner in all respects in compliance with all applicable laws except where
the failure to do any of the foregoing could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Affect.
8.08 End of Fiscal Years; Fiscal Quarters. The Borrower shall cause (i) each of its,
and each of its Subsidiaries’, fiscal years to end on the Saturday closest to December 31 of each
year and (ii) each of its, and each of its Subsidiaries’, fiscal quarters to end on the date which
is sixteen weeks after the last day of the previous fiscal year, twenty-eight weeks after the last
day of the previous fiscal year, forty weeks after the last day of the previous fiscal year and the
date of the end of the respective fiscal year.
8.09 Payment of Taxes. The Borrower will pay and discharge, or cause to be paid and
discharged, and will cause each of its Subsidiaries to pay and discharge, all taxes, assessments
and governmental charges or levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, in each case on a timely basis and prior to the date on which penalties
attach thereto and all lawful claims which, if unpaid, might become a Lien or charge upon any
properties of the Borrower or any of its Subsidiaries not otherwise permitted under Section
9.01(i); provided that neither the Borrower nor any of its Subsidiaries shall be required to pay
any such tax, assessment, charge, levy or claim which is being contested in good faith and by
proper proceedings if it has maintained adequate reserves with respect thereto in accordance with
generally accepted accounting principles.
8.10
Subsidiaries Guaranty; Additional Subsidiary Guarantors.
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(a) Notwithstanding anything to the contrary contained herein (including, for the avoidance
of doubt, Section 5.06), the Subsidiaries Guaranty shall be required to be maintained hereunder
only to the extent that, and for so long as, subsidiary guarantees granted to the lenders (x) under
that certain credit agreement, dated as of August 1, 2008, among the Borrower, certain financial
institutions from time to time party thereto, and the Administrative Agent (as the same may be
amended, restated, amended and restated, modified and/or supplemented from time to time, the “Term
Loan Agreement”) or (y) under any refinancing of such Term Loan Agreement, are in effect (and,
unless the provisions of the following proviso are then in effect, each Credit
Party which is a party to the Subsidiaries Guaranty shall be released therefrom (and the
Administrative Agent shall, upon the Borrower’s request (and is hereby instructed by the Lenders
to) execute and deliver such documents as are reasonably necessary to effect such release) upon the
release of such Credit Party from any subsidiary guarantees relating to the Term Loan Agreement or
any such refinancing thereof); provided further that, notwithstanding the forgoing, in the event
that (x) the Debt Rating falls below both Baa3 from Xxxxx’x and BBB- from S&P, (y) the Borrower
fails (for any reason) to obtain and maintain a Debt Rating from both Xxxxx’x and S&P or (z) (1)
the Debt Rating falls below either Baa3 from Xxxxx’x or BBB- from S&P and (2) the Borrower fails
(for any reason) to obtain and maintain a Debt Rating from either Xxxxx’x or S&P then, following
any such event described in preceding clauses (x), (y) or (z), the Borrower shall promptly (and in
any event within 30 days following such event) deliver a Subsidiaries Guaranty to the
Administrative Agent duly authorized, executed and delivered by each Subsidiary of the Borrower
required to be a Subsidiary Guarantor on the Restatement Effective Date and under Section 8.10(b).
(b) So long as the Subsidiaries Guaranty is in effect (or is required to be in effect in
accordance with the terms of the Credit Documents), the Borrower agrees to cause each of its
Wholly-Owned Domestic Subsidiaries that are acquired or created after the Restatement Effective
Date (other than any special purpose entity created for purposes of effecting, in whole or in part,
any Permitted Securitization) to promptly (and in any event within 20 Business Days of such
acquisition or creation) execute and deliver a counterpart of (or, if requested by the
Administrative Agent, an assumption agreement or a Joinder Agreement in respect of) the
Subsidiaries Guaranty.
8.11 Use of Proceeds. The Borrower will use the proceeds of the Loans only as
provided in Section 7.08.
SECTION 9. Negative Covenants. The Borrower covenants and agrees that on and after
the Restatement Effective Date and until the Total Commitment and all Letters of Credit have
terminated and the Loans, Notes and Unpaid Drawings (in each case together with interest thereon),
Fees and all other Obligations (other than indemnities described in Section 13.03 which are not
then due and payable) incurred hereunder and thereunder, are paid in full:
9.01 Liens. The Borrower will not, and will not permit any of its Subsidiaries to,
create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets
(real or personal, tangible or intangible) of the Borrower or any of its Subsidiaries, whether now
owned or hereafter acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets (including sales of
accounts receivable with recourse to the Borrower or any of its Subsidiaries), or assign any right
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to receive income or permit the filing of any financing statement under the UCC or any other
similar notice of Lien under any similar recording or notice statute; provided that the provisions
of this Section 9.01 shall not prevent the creation, incurrence, filing, assumption or existence of
the following (Liens described below are herein referred to as “Permitted Liens”):
(i) inchoate Liens for taxes, assessments or governmental charges or levies not yet due
and payable or Liens for taxes, assessments or governmental charges or levies being
contested in good faith and by appropriate proceedings for which adequate reserves have been
established in accordance with generally accepted accounting principles in the United States
(or the equivalent thereof in any country in which a Foreign Subsidiary is doing business,
as applicable);
(ii) Liens in respect of property or assets of the Borrower or any of its Subsidiaries
imposed by law, which were incurred in the ordinary course of business and do not secure
Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s and
mechanics’ liens and other similar Liens arising in the ordinary course of business, and (x)
which do not in the aggregate materially detract from the value of the Borrowers’ or such
Subsidiary’s property or assets or materially impair the use thereof in the operation of the
business of the Borrower or such Subsidiary or (y) which are being contested in good faith
by appropriate proceedings, which proceedings (or orders entered in connection with such
proceedings) have the effect of preventing the forfeiture or sale of the property or assets
subject to any such Lien;
(iii) Liens in existence on the Restatement Effective Date which are listed, and the
property subject thereto described, in Schedule V, plus renewals, replacements and
extensions of such Liens, provided that (x) the aggregate principal amount of the
Indebtedness, if any, secured by such Liens does not increase from that amount outstanding
at the time of any such renewal, replacement or extension and (y) any such renewal,
replacement or extension does not encumber any additional assets or properties of the
Borrower or any of its Subsidiaries;
(iv) easements, rights-of-way, restrictions (including zoning restrictions),
encroachments and other similar charges or encumbrances, and minor title deficiencies, in
each case whether now or hereafter in existence, not securing Indebtedness and not
materially interfering with the conduct of the business of the Borrower or any of its
Subsidiaries;
(v) Liens arising from the rights of lessors under operating leases entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business;
(vi) Liens arising out of the existence of judgments or awards not constituting an
Event of Default under Section 10.08;
(vii) statutory and common law landlords’ liens (or contractual landlords’ liens which
are limited solely to the leased premises which are the subject of such contract and
fixtures thereon) under leases or subleases to which the Borrower or any of its Subsidiaries
is a party;
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(viii) any interest or title of a lessor, sublessor, licensee or licensor under any
lease or license agreement permitted by this Agreement;
(ix) Liens (other than any Lien imposed by ERISA) incurred in the ordinary course of
business of the Borrower or any of its Subsidiaries in connection with workers’
compensation, unemployment insurance and other social security legislation;
(x) Liens (x) to secure the performance by the Borrower or any of its Subsidiaries of
tenders, statutory obligations (other than excise taxes), surety, stay, customs and appeal
bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance and
return of money bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money) and securing liability for premiums to insurance carriers or (y)
to secure the performance by the Borrower or any of its Subsidiaries of leases of Real
Property, to the extent incurred or made in the ordinary course of business consistent with
past practices;
(xi) Liens in favor of customs and revenue authorities arising as a matter of law to
secure the payment of customs duties in connection with the importation of goods;
(xii) Liens on cash deposited or posted by the Borrower or any of its Subsidiaries in
connection with any Other Hedging Agreements entered into with respect to commodities values
in the ordinary course of business, and which are bona fide hedging activities and are
not for speculative purposes, not in excess of $200,000,000 in the aggregate;
(xiii) Liens not otherwise permitted pursuant to this Section 9.01 which secure
obligations otherwise permitted under this Agreement not exceeding, when added to the
aggregate principal amount of unsecured Permitted Subsidiary Indebtedness at any time
outstanding, $150,000,000 in aggregate principal amount at any time outstanding and which
apply to property and/or assets with an aggregate fair market value (as determined in good
faith by an Authorized Representative of the Borrower or the Board of Directors of the
Borrower) not to exceed at any time $180,000,000;
(xiv) sales or other transfers of Receivables pursuant to, and Liens existing or deemed
to exist in connection with, Permitted Securitizations; and
(xv) Liens on assets which are presented on the balance sheet of the Borrower or any
Subsidiary because of the existence of a VIE Transaction not otherwise prohibited hereunder.
9.02 Consolidations, Mergers, Sales of Assets and Acquisitions. (a) The
Borrower will not, and will not permit any of its Subsidiaries to, consolidate or merge with or
into any other Person, provided that the Borrower and its Subsidiaries may consolidate or merge
with or into other Persons so long as (i) both before and immediately after giving effect thereto,
no Specified Default or Event of Default shall have occurred and be continuing, (ii) in the case of
any consolidation or merger involving the Borrower, the Borrower is the corporation surviving such
consolidation or merger, (iii) in the case of any consolidation or merger involving a Foreign
Subsidiary, only Foreign Subsidiaries are consolidating or merging with or into such Foreign
Subsidiary, (iv) while the Subsidiaries Guaranty is in effect (or required to be in effect in
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accordance with the terms of the Credit Documents), in the case of any consolidation or merger
involving a Subsidiary Guarantor, a
Subsidiary Guarantor is the surviving Person unless the respective Subsidiary Guarantor is
consolidating with or merging into the Borrower (in which case the Borrower will be the survivor
thereof) and (v) while the Subsidiaries Guaranty is not in effect (or not required to be in effect
in accordance with the terms of the Credit Documents), in the case of any consolidation or merger
involving a Wholly-Owned Domestic Subsidiary, a Wholly-Owned Domestic Subsidiary is the surviving
Person unless the respective Wholly-Owned Domestic Subsidiary is consolidating with or merging into
the Borrower (in which case the Borrower will be the survivor thereof).
(b) The Borrower will not, and will not permit any of its Subsidiaries to, sell, convey,
assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily (any of
the foregoing being referred to in this Section 9.02(b) as a “Disposition” and any series of
related Dispositions constituting but a single Disposition), any of its properties or assets,
tangible or intangible (including but not limited to sale, assignment, discount or other
disposition of accounts, contract rights, chattel paper or general intangibles with or without
recourse), provided that (A) such Dispositions shall be permitted if (i) such Disposition
is in an arm’s length transaction and the Borrower or its respective Subsidiary receives at least
fair market value therefor (as determined in good faith by an Authorized Representative of the
Borrower or the Board of Directors of the Borrower) and (ii) the fair market value of the assets
sold, conveyed, assigned, leased, abandoned or otherwise transferred or disposed of pursuant to any
Disposition or Dispositions (as determined in good faith by an Authorized Representative of the
Borrower or the Board of Directors of the Borrower), when added to the fair market value of the
assets sold, conveyed, assigned, leased, abandoned or otherwise transferred or disposed of pursuant
to all such other Disposition or Dispositions previously consummated after the Restatement
Effective Date (as determined in good faith by an Authorized Representative of the Borrower or the
Board of Directors of the Borrower), does not constitute more than 20% of the consolidated assets
of the Borrower and its Subsidiaries as of the time of such Disposition (after giving effect
thereto), (B) while the Subsidiaries Guaranty is in effect (or required to be in effect in
accordance with the terms of the Credit Documents), the Borrower may make Dispositions to
Subsidiary Guarantors and any Subsidiary Guarantor may make Dispositions to the Borrower or any
other Subsidiary Guarantor, (C) while the Subsidiaries Guaranty is not in effect (or is not
required to be in effect in accordance with the terms of the Credit Documents), the Borrower may
make Dispositions to Wholly-Owned Domestic Subsidiaries and any Wholly-Owned Domestic Subsidiary
may make Dispositions to the Borrower or any other Wholly-Owned Domestic Subsidiary and (D) each of
the Borrower and its Subsidiaries may sell, transfer and other dispose of Receivables and
Related Assets pursuant to Permitted Securitizations.
(c) The Borrower will not, and will not permit any of its Subsidiaries to, consummate any
Significant Acquisition unless (i) no Specified Default or Event of Default then exists or would
result therefrom and (ii) the Borrower shall have delivered to the Administrative Agent an
officer’s certificate (together with reasonably detailed calculations) demonstrating compliance
with the covenants contained in Sections 9.07 and 9.08, for the period (each, a “Calculation
Period”) of four consecutive fiscal quarters (taken as one accounting period) most recently ended
for which financial statements have been delivered (or were required to be delivered) pursuant to
Section 8.01(a) or (b), as the case may be, prior to the date of such Significant Acquisition, on a
pro forma basis as if the respective Significant Acquisition (as well
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as all other Dispositions and Acquisitions theretofore consummated after the first day of such
Calculation Period) had occurred on the first day of such Calculation Period, and such
recalculations shall show that such financial covenants would have been complied with if such
Significant Acquisition (as well as all other Dispositions and Acquisitions theretofore consummated
after the first day of such Calculation Period) had occurred on the first day of such Calculation
Period.
9.03 Dissolution, etc. The Borrower will not, and will not permit any of its
Subsidiaries to, dissolve or liquidate, either in whole or in part, except (i) to the extent
permitted by Section 9.02(a) and (ii) inactive Subsidiaries of the Borrower (i.e., Subsidiaries of
the Borrower that do not conduct business other than that related solely to its existence and
governance) may be dissolved or liquidated from time to time so long as (x) no Specified Default or
Event of Default then exists or would result therefrom and (y) the Borrower determines that such
dissolution or liquidation is not adverse to the interests of the Lenders.
9.04 Restricted Payments. The Borrower shall not declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Interests now or
hereafter outstanding, return any capital to its shareholders, partners or members (or the
equivalent Persons thereof) as such, make any distribution of assets, Equity Interests, obligations
or securities to its shareholders, partners or members (or the equivalent Persons thereof) as the
case may be, or permit any of its Subsidiaries to purchase, redeem, retire, defease or otherwise
acquire for value any Equity Interests in the Borrower if, in any case referred to above, any
Specified Default or any Event of Default has occurred, is continuing or would result therefrom.
9.05 Indebtedness. The Borrower will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except for
(i) Indebtedness incurred pursuant to this Agreement and the other Credit Documents, (ii) Permitted
Borrower Indebtedness, (iii) Permitted Subsidiary Indebtedness, (iv) Permitted Subsidiary Guarantee
Obligations, (v) Permitted Securitizations, (vi) Indebtedness arising in the ordinary course of
business under Interest Rate Protection Agreements and Other Hedging Agreements which are bona fide
hedging activities and are not for speculative purposes and (vii) Scheduled Existing Indebtedness
to the extent the same is listed on Schedule VI, together with, in the case of this clause (vii),
any refinancings or renewals thereof, in each case so long as no additional obligors or guarantors,
or additional security, is provided in connection with the respective renewal or refinancing and so
long as the principal amount is not increased as a result thereof.
9.06 Transactions with Affiliates. The Borrower will not, and will not permit any of
its Subsidiaries to, enter into or be a party to a transaction with any Affiliate of the Borrower
or any other Subsidiary of the Borrower, except for transactions between (i) the Borrower and any
Subsidiary Guarantor, (ii) any Subsidiary Guarantor and any other Subsidiary Guarantor or (iii) the
Borrower or any Subsidiary of the Borrower on one hand and any Affiliate of the Borrower and/or any
other
Subsidiary of the Borrower on the other hand, so long as all such transactions referred to in
this clause (iii) are entered into in good faith in the ordinary course of business consistent with
past practice and on terms no less favorable to the Borrower or such Subsidiary of the Borrower
than those that could have been obtained in a comparable transaction on an arm’s length basis from
an unrelated Person.
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9.07 Maximum Leverage Ratio. The Borrower will not permit the Leverage Ratio at any
time to be greater than 3.50:1.00.
9.08 Minimum Interest Coverage Ratio. The Borrower will not permit the Consolidated
Interest Coverage Ratio on the last day of any fiscal quarter of the Borrower to be less than
4.50:1.00.
9.09 Business. The Borrower will not, and will not permit any of its Subsidiaries
to, engage (directly or indirectly) in any business other than substantially the same lines of
business in which they are engaged on the Restatement Effective Date and reasonable extensions
thereof and other businesses that are complimentary or reasonably related thereto.
9.10 Limitation on Certain Restrictions on Subsidiaries. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the ability of any such
Subsidiary to (x) pay dividends or make any other distributions on its Equity Interests or any
other interest or participation in its profits owned by the Borrower or any of its Subsidiaries, or
pay any Indebtedness owed to the Borrower or any of its Subsidiaries, (y) make loans or advances
to the Borrower or any of its Subsidiaries or (z) transfer any of its properties or assets to the
Borrower or any of its Subsidiaries, except for such encumbrances or restrictions existing under or
by reason of (i) applicable law, (ii) this Agreement and the other Credit Documents, (iii) in the
case of the foregoing clauses (y) (solely to the extent such encumbrance or restriction only
applies to loans or advances made by any such Subsidiary of the Borrower to other Subsidiaries of
the Borrower, and not loans and advances to be made by any such Subsidiary to the Borrower) and (z)
of this Section 9.10, other Indebtedness permitted pursuant to Section 9.05, (iv) holders of
Permitted Liens may restrict the transfer of any assets subject thereto, (v) in the case of
foregoing clause (x), restrictions or conditions imposed by any agreement relating to Permitted
Securitizations if such restrictions or conditions apply only to the Receivables and the Related
Assets that are the subject of the Permitted Securitization, (vi) customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of the Borrower or of any
Subsidiary of the Borrower, and (vii) customary provisions restricting assignment of any licensing
agreement entered into by the Borrower or any of its Subsidiaries in the ordinary course of
business.
9.11 Limitation on Issuance of Capital Stock. (a) The Borrower will not issue (i) any Preferred Stock other than (x) Qualified Preferred
Stock or (y) Disqualified Preferred Stock so long as, on the date of any an issuance of
Disqualified Preferred Stock, (I) no Specified Default or Event of Default then exists or would
result therefrom and (II) the Borrower is in compliance with the covenants contained in Sections
9.07 and 9.08 for the most recently ended Calculation Period, on a pro forma basis as if the
respective issuance of Disqualified Preferred Stock (as well as all other issuances of Disqualified
Preferred Stock theretofore consummated after the first day of such Calculation Period) had
occurred on the first day of such Calculation Period or (ii) any redeemable common stock other than
common stock that is redeemable at the sole option of the Borrower.
(b) The Borrower shall not permit any of its Subsidiaries to issue any Equity Interests
(including by way of sales of treasury stock) or any options or warrants to purchase, or
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securities convertible into, capital stock, except for issuances of non-redeemable common equity
interests issued (i) for transfers and replacements of then outstanding shares of capital stock,
(ii) for stock splits, stock dividends and additional issuances which do not decrease the
percentage ownership of the Borrower or any of its Subsidiaries in any class of the capital stock
of such Subsidiaries, (iii) to qualify directors to the extent required by applicable law, and (iv)
by newly created or acquired Subsidiaries in accordance with the terms of this Agreement.
SECTION 10. Events of Default. Upon the occurrence of any of the following specified
events (each an “Event of Default”):
10.01 Payments. The Borrower shall (i) default in the payment when due of any
principal of any Loan or any Note or (ii) default, and such default shall continue unremedied for
three or more Business Days, in the payment when due of any Unpaid Drawings or interest on any Loan
or Note, or any Fees or any other amounts owing hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or statement made by any
Credit Party herein or in any other Credit Document or in any certificate delivered pursuant hereto
or thereto shall prove to be untrue in any material respect on the date as of which made or deemed
made; or
10.03 Covenants. The Borrower shall (i) default in the due performance or observance
by it of any term, covenant or agreement contained in Section 8.01(d)(i), 8.08, 8.10 or Section 9
or (ii) default in the due performance or observance by it of any other term, covenant or agreement
contained in this Agreement and such default shall continue unremedied for a period of 30 days
after written notice to the Borrower by the Administrative Agent or any Lender; or
10.04 Default Under Other Agreements. (i) The Borrower or any of its Subsidiaries shall default in any payment of any
Indebtedness (other than the Obligations) beyond the period of grace or cure, if any, provided in
the instrument or agreement under which such Indebtedness was created; or (ii) the Borrower or any
of its Subsidiaries shall default in the observance or performance of any agreement or condition
relating to any Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to cause, or to permit the holder
or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause (after giving effect to any grace or cure period, but determined without regard to whether
any notice is required), any such Indebtedness to become due or, in the case of a Permitted
Securitization, terminating (except voluntary terminations by the Credit Parties), prior to
its stated maturity; or (iii) any Indebtedness (other than the Obligations) of the Borrower or any
of its Subsidiaries shall be declared to be due and payable, or required to be prepaid (other than
(x) by a regularly scheduled required prepayment or (y) as a mandatory prepayment (unless such
required prepayment or mandatory prepayment results from a default thereunder or an event of the
type that constitutes an Event of Default)) or, in the case of a Permitted Securitization,
shall be terminated (except voluntary terminations by the Credit Parties), prior to the stated
maturity thereof, provided that it shall not be a Default or Event of Default under this Section
10.04 unless the aggregate principal amount of
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all Indebtedness as described in preceding clauses (i) through (iii), inclusive, is at least
$50,000,000; or
10.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries shall commence a
voluntary case concerning itself under Title 11 of the United States Code entitled “Bankruptcy” as
now or hereafter in effect, or any successor thereto (the “Bankruptcy Code”); or an involuntary
case is commenced against the Borrower or any of its Subsidiaries and the petition is not
controverted within 10 days after service of summons, or is not dismissed within 60 days after
service of summons, after commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the property of the
Borrower or any of its Subsidiaries, or the Borrower or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter
in effect relating to the Borrower or any of its Subsidiaries, or there is commenced against the
Borrower or any of its Subsidiaries any such proceeding which remains undismissed for a period of
60 days, or the Borrower or any of its Subsidiaries is adjudicated insolvent or bankrupt; or any
order of relief or other order approving any such case or proceeding is entered; or the Borrower or
any of its Subsidiaries suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a period of 60 days; or
the Borrower or any of its Subsidiaries makes a general assignment for the benefit of creditors; or
any corporate action is taken by the Borrower or any of its Subsidiaries for the purpose of
effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan and/or Multiemployer Plan shall fail to satisfy the
minimum funding standard required for any plan year or part thereof or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412 of the Code, any
Plan and/or Multiemployer Plan shall have had or is likely to have a trustee appointed to
administer such Plan and/or Multiemployer Plan pursuant to Section 4042 of ERISA, any Plan and/or
Multiemployer Plan shall have been or is reasonably expected to be terminated or to be the subject
of termination proceedings under Section 4042 of ERISA, any Plan and/or Multiemployer Plan shall
have an Unfunded Current Liability, a contribution required to be made to a Plan, Multiemployer
Plan and/or Foreign Pension Plan has not been timely made, the Borrower or any of its respective
Subsidiaries or any ERISA Affiliate have incurred or is reasonably expected to incur a liability to
or on account of a Plan and/or Multiemployer Plan under Section 409, 502(i), 502(l), 515, 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the
Code, or the Borrower or any of its respective Subsidiaries have incurred or are reasonably
expected to incur liabilities pursuant to one or more employee welfare benefit plans (as defined in
Section 3(1) of ERISA) which provide benefits to retired employees or other former employees (other
than as required by Section 601 of ERISA) or employee pension benefit plans (as defined in Section
3(2) of ERISA) or Foreign Pension Plans; (b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or a liability or a material risk of
incurring a liability; (c) and in each case in clauses (a) and (b) above, such lien, security
interest or liability, individually, or in the aggregate, has had or could reasonably be expected
to have a Material Adverse Effect; or
10.07 Subsidiaries Guaranty. The Subsidiaries Guaranty or any provision thereof
shall cease to be in full force or effect as to any Subsidiary Guarantor (unless (x) such
Subsidiary
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Guarantor is no longer a Subsidiary by virtue of liquidation, sale, merger or consolidation
permitted by Section 9.02 or Section 9.03 or (y) the Subsidiaries Guaranty is no longer required to
be in effect, or has been released, as provided in Section 8.10(a)), or any Subsidiary Guarantor
(or Person acting by or on behalf of such Subsidiary Guarantor) shall deny or disaffirm such
Subsidiary Guarantor’s obligations under the Subsidiaries Guaranty, or any Subsidiary Guarantor
shall default in the due performance or observance of any term, covenant or agreement on its part
to be performed or observed pursuant to the Subsidiaries Guaranty beyond any grace or cure period
(if any) provided therefor; or
10.08 Judgments. One or more judgments or decrees shall be entered against the
Borrower or any of its respective Subsidiaries involving in the aggregate for the Borrower and its
respective Subsidiaries a liability (not paid or fully covered by a reputable and solvent insurance
company) and such judgments and decrees either shall be final and non-appealable or shall not be
vacated, discharged or stayed or bonded pending appeal for any period of 60 consecutive days, and
the aggregate amount of all such judgments exceeds $50,000,000; or
10.09 Change of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent, upon the written request of the Required Lenders, shall by
written notice to the Borrower, take any or all of the following actions, without prejudice to the
rights of any Agent, any Lender or the holder of any Note to enforce its claims against any Credit
Party (provided that, if an Event of Default specified in Section 10.05 shall occur with
respect to the Borrower, the result of which would occur upon the giving of such written notice by
the Administrative Agent to the Borrower as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total Commitment terminated,
whereupon the Commitment of each Lender shall forthwith terminate immediately and any Facility Fees
and other Fees shall forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and the Notes and all
Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Credit Party; (iii) terminate any Letter of Credit which may be terminated in
accordance with its terms; (iv) direct the Borrower to pay (and the Borrower agrees that upon
receipt of such notice, or upon the occurrence of an Event of Default specified in Section 10.05
with respect to the Borrower, it will pay) to the Administrative Agent at the Payment Office such
additional amount of cash, to be held as security by the Administrative Agent, as is equal to the
aggregate Stated Amount of all Letters of Credit issued for the account of the Borrower then
outstanding; and (v) apply any cash collateral held for the benefit of the Lenders pursuant to
Section 4.02 to repay outstanding Obligations.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
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“Acquisition” shall mean the acquisition of all or any portion of the assets or all or any
portion of the Equity Interests of any Person.
“Administrative Agent” shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor to the Administrative Agent appointed pursuant to Section
12.09.
“Affiliate” shall mean, with respect to any Person, any other Person (including, for purposes
of Section 9.06 only, all directors, officers and partners of such Person) directly or indirectly
controlling, controlled by, or under direct or indirect common control with, such Person;
provided, however, that for purposes of Section 9.06, an Affiliate of the Borrowers
shall include any Person that directly or indirectly owns more than 5% of any class of the Equity
Interests of the Borrower and any officer or director of the Borrower or any of its Subsidiaries.
A Person shall be deemed to control another Person if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and policies of such
other Person, whether through the ownership of voting securities, by contract or otherwise.
Notwithstanding anything to the contrary contained above, for purposes of Section 9.06, no Agent or
Lender shall be deemed to constitute an Affiliate of the Borrower or its Subsidiaries in connection
with the Credit Documents or its dealings or arrangements relating thereto.
“Agents” shall mean, collectively, the Administrative Agent, the Lead Arranger, the
Syndication Agent and the Co-Documentation Agents.
“Aggregate Consideration” shall mean, with respect to any Acquisition, the sum (without
duplication) of (i) the fair market value of the common stock of the Borrower (based on (x) the
closing and/or trading price of the common stock of the Borrower on the date of such Acquisition on
the stock exchange on which the common stock of the Borrower is listed or the automated quotation
system on which the common stock is quoted, or (y) if the common stock of the Borrower is not
listed on an exchange or quoted on a quotation system, the bid and asked prices of the common stock
in the over-the-counter market at the close of trading or (z) if the common stock of the Borrower
is not so listed, based on a good faith determination of an Authorized Representative of the
Borrower or the Board of Directors of the Borrower) issued as consideration in connection with such
Acquisition, (ii) the aggregate amount of all cash paid by the Borrower or any of its Subsidiaries
in connection with such Acquisition (including payments of fees and costs and expenses in
connection therewith), (iii) the aggregate principal amount of all Indebtedness assumed, incurred
and/or issued in connection with such Acquisition to the extent permitted by Section 9.05, (iv) the
aggregate amount that could reasonably be expected to be paid (based on good faith projections
prepared by an Authorized Representative of the Borrower or the Board of Directors of the Borrower)
pursuant to any earn-out, non-compete, consulting or deferred compensation or purchase price
adjustment) for such Acquisition and (v) the fair market value (based on good faith projections
prepared by an Authorized Representative of the Borrower or the Board of Directors of the Borrower)
of all other consideration payable in connection with such Acquisition.
“Agreement” shall mean this Credit Agreement, as modified, supplemented, amended, restated,
amended and restated, extended, renewed or replaced from time to time.
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“Applicable Facility Fee Percentage” and “Applicable Margin” shall initially mean a
percentage per annum equal to (x) in the case of the Applicable Facility Fee Percentage, 0.2250%
and (y) in the case of the Applicable Margin (A) with respect to Loans maintained as Base Rate
Loans, 0.40% and (B) with respect to Loans maintained as Eurodollar Loans, 1.40%. From and after
each day of delivery of any certificate in accordance with the first sentence of the following
paragraph for any fiscal quarter or fiscal year, as the case may be, of the Borrower ending on or
after April 23, 2011 (each, a “Start Date”), to and including the applicable End Date described
below, the Applicable Facility Fee Percentage and the Applicable Margins, shall (subject to any
adjustment pursuant to the immediately succeeding paragraph) be those set forth below opposite the
Leverage Ratio indicated to have been achieved in any certificate delivered in accordance with the
following sentence:
| Applicable Margin for | ||||||||||||
| Revolving Loans maintained | Applicable Margin for | |||||||||||
| as Base Rate Loans and | Revolving Loans maintained | Applicable Facility | ||||||||||
| Leverage Ratio | Swingline Loans | as Eurodollar Loans | Fee Percentage | |||||||||
Equal to or less
than 0.50:1.00
|
0.30 | % | 1.30 | % | 0.20 | % | ||||||
Greater than
0.50:1.00 but less
than or equal to
1.00:1.00
|
0.40 | % | 1.40 | % | 0.225 | % | ||||||
Greater than
1.00:1.00 but less
than or equal to
1.50:1.00
|
0.50 | % | 1.50 | % | 0.25 | % | ||||||
Greater than
1.50:1.00 but less
than or equal to
1.75:1.00
|
0.575 | % | 1.575 | % | 0.30 | % | ||||||
Greater than
1.75:1.00 but less
than or equal to
2.25:1.00
|
0.65 | % | 1.65 | % | 0.35 | % | ||||||
Greater than
2.25:1.00 but less
than or equal to
2.75:1.00
|
0.85 | % | 1.85 | % | 0.40 | % | ||||||
Greater than
2.75:1.00
|
1.25 | % | 2.25 | % | 0.50 | % | ||||||
The Leverage Ratio shall be determined based on the delivery of a certificate of the
Borrower by an Authorized Representative of the Borrower to the Administrative Agent and the
Lenders (each, a “Quarterly Pricing Certificate”), within 45 days of the last day of any fiscal
quarter of the Borrower (or 90 days in the case of the last fiscal quarter of any fiscal year of
the Borrower), which certificate shall set forth the calculation of the Leverage Ratio as at the
last day
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of the Test Period ended immediately prior to the relevant Start Date and the Applicable
Facility Fee Percentage and the Applicable Margins which, in each case, shall be thereafter
applicable (until same are changed or cease to apply in accordance with the following sentences).
The Applicable Facility Fee Percentage and the Applicable Margins so determined shall apply, except
as set forth in the succeeding sentence, from the relevant Start Date to the earlier of (x) the
date on which the next certificate is delivered to the Administrative Agent and (y) the date which
is 45 days (or 90 days in the case of the last fiscal quarter of any fiscal year of the Borrower)
following the last day of the Test Period in which the previous Start Date occurred (such earliest
date, the “End Date”), at which time, if no certificate has been delivered to the Administrative
Agent (and thus commencing a new Start Date), the Applicable Facility Fee Percentage and the
Applicable Margins shall be those set forth in the table above determined as if the Leverage Ratio
were greater than 2.75:1.00 (such Applicable Facility Fee Percentage and Applicable Margins as so
determined, being collectively referred to herein as the “Highest Applicable Margins”), until such
time as the relevant certificate has been delivered. Notwithstanding anything to the contrary
contained above in this definition, the Applicable Facility Fee Percentage and the Applicable
Margins shall be the Highest Applicable Margins (subject to further adjustment to the extent
provided in Section 1.08(c)) at all times during which there shall exist any Default or Event of
Default.
Notwithstanding anything to the contrary contained above in this definition or elsewhere in
this Agreement, if it is subsequently determined that the Leverage Ratio set forth in any Quarterly
Pricing Certificate delivered for any period is inaccurate for any reason and the result thereof is
that the Lenders received interest or fees for any period based on an Applicable Margin or
Applicable Facility Fee Percentage that is less than that which would have been applicable had the
Leverage Ratio been accurately determined, then, for all purposes of this Agreement, the
“Applicable Facility Fee Percentage” or “Applicable Margin” for any day occurring within the period
covered by such Quarterly Pricing Certificate shall retroactively be deemed to be the relevant
percentage as based upon the accurately determined Leverage Ratio for such period, and any
shortfall in the interest or fees theretofore paid by the Borrower for the relevant period pursuant
to Sections 1.08(a) and (b) and 3.01(b) as a result of the miscalculation of the Leverage Ratio
shall be deemed to be (and shall be) due and payable under the relevant provisions of Section
1.08(a) or (b) or Section 3.01(b), as applicable, at the time the interest or fees for such period
were required to be paid pursuant to said Section on the same basis as if the Leverage Ratio had
been accurately set forth in such Quarterly Pricing Certificate (and shall remain due and payable
until paid in full, together with all amounts owing under Section 1.08(d), in accordance with the
terms of this Agreement).
“Assignment and Assumption Agreement” shall mean the Assignment and Assumption Agreement
substantially in the form of Exhibit I (appropriately completed).
“Attributable Debt” shall mean as of the date of determination thereof, without duplication,
(i) in connection with a Sale and Leaseback Transaction, the net present value (discounted
according to generally accepted accounting principles at the cost of debt implied in the lease) of
the obligations of the lessee for rental payments during the then remaining term of any applicable
lease, and (ii) the principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing product to which
such Person is a party, where such transaction is considered borrowed money indebted-
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ness for tax purposes but is classified as an operating lease in accordance with generally
accepted accounting principles.
“Authorized Representative” shall mean, with respect to (i) delivering Notices of Borrowing,
Notices of Conversion/Continuation, Letter of Credit Requests and similar notices, any person or
persons that has or have been authorized by the Board of Directors of the Borrower to deliver such
notices pursuant to this Agreement and that has or have appropriate signature cards on file with
the Administrative Agent, the Swingline Lender and each Issuing Lender; (ii) delivering financial
information and officer’s certificates or making financial determinations pursuant to this
Agreement, any financial officer of the respective Credit Party and (iii) any other matter in
connection with this Agreement or any other Credit Document, any officer (or a person or persons so
designated by any two officers) of the respective Credit Party.
“Back-Stop Arrangements” shall mean, collectively, Letter of Credit Back-Stop Arrangements and
Swingline Back-Stop Arrangements.
“Bankruptcy Code” shall have the meaning provided in Section 10.05.
“Base Rate” shall mean, at any time, the highest of (x) the Prime Lending Rate, (y) 1/2 of 1% in
excess of the overnight Federal Funds Rate and (z) the Eurodollar Rate for a Eurodollar Loan with a
one-month interest period commencing on such day an interest period of one month plus 1.00%. For
purposes of this definition, the Eurodollar Rate shall be determined using the Eurodollar Rate as
otherwise determined by the Administrative Agent in accordance with the definition of Eurodollar
Rate, except that (x) if a given day is a Business Day, such determination shall be made on such
day (rather than two Business Days prior to the commencement of an Interest Period) or (y) if a
given day is not a Business Day, the Eurodollar Rate for such day shall be the rate determined by
the Administrative Agent pursuant to preceding clause (x) for the most recent Business Day
preceding such day. Any change in the Base Rate due to a change in the Prime Lending Rate, the
Federal Funds Rate or such Eurodollar Rate shall be effective as of the opening of business on the
day of such change in the Prime Lending Rate, the Federal Funds Rate or such Eurodollar Rate,
respectively.
“Base Rate Loan” shall mean (i) each Swingline Loan and (ii) each Revolving Loan designated or
deemed designated as such by the Borrower at the time of the incurrence thereof or conversion
thereto.
“Borrower” shall have the meaning provided in the first paragraph of this Agreement.
“Borrowing” shall mean the incurrence of (i) Swingline Loans by the Borrower from the
Swingline Lender on a given date or (ii) one Type of Revolving Loan by the Borrower from all of the
Lenders on a pro rata basis on a given date (or resulting from conversions on a
given date), having in the case of Eurodollar Loans the same Interest Period; provided that
Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of any related
Borrowing of Eurodollar Loans.
“Business Day” shall mean (i) for all purposes other than as covered by clause (ii) below, any
day except Saturday, Sunday and any day which shall be in New York City a legal
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holiday or a day on which banking institutions are authorized or required by law or other
government action to close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between banks in the New
York interbank Eurodollar market.
“Calculation Period” shall have the meaning provided in Section 9.02.
“Capitalized Lease Obligations” of any Person shall mean all rental obligations which, under
generally accepted accounting principles, are or will be required to be capitalized on the books of
such Person, in each case taken at the amount thereof accounted for as indebtedness in accordance
with such principles.
“Cash Equivalents” shall mean, as to any Person, (i) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than one year from the date of acquisition, (ii) time
deposits and certificates of deposit of any commercial bank having, or which is the principal
banking subsidiary of a bank holding company organized under the laws of the United States, any
State thereof, the District of Columbia or any foreign jurisdiction having capital, surplus and
undivided profits aggregating in excess of $200,000,000, with maturities of not more than one year
from the date of acquisition by such Person, (iii) repurchase obligations with a term of not more
than 90 days for underlying securities of the types described in clause (i) above entered into with
any bank meeting the qualifications specified in clause (ii) above, (iv) commercial paper issued by
any Person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or
at least P-1 or the equivalent thereof by Xxxxx’x and in each case maturing not more than one year
after the date of acquisition by such Person, (v) investments in money market funds substantially
all of whose assets are comprised of securities of the types described in clauses (i) through (iv)
above.
“CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as the same may be amended from time to time, 42 U.S.C. § 9601 et seq.
“Change of Control” shall mean (i) any “Person” or “Group” (within the meaning of Sections
13(d) and 14(d) under the Exchange Act, as in effect on the Initial Borrowing Date) (other than the
Permitted Holders) is or shall (A) be the “beneficial owner” (as so defined in Rules 13(d)-3 and
13(d)-5 under the Exchange Act) of 30% or more on a fully diluted basis of the voting and/or
economic interest in the Borrower’s capital stock or other Equity Interests or (B) have obtained
the power (whether or not exercised) to elect a majority of the Borrower’s directors or (ii) the
Board of Directors of the Borrower shall cease to consist of a majority of Continuing Directors.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and the rulings issued thereunder. Section references to the Code are to
the Code, as in effect at the date of this Agreement, and to any subsequent provision of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
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“Co-Documentation Agents” shall have the meaning provided in the first paragraph of this
Agreement, and shall include any successor thereto.
“Commitment” shall mean, for each Lender, the amount set forth opposite such Lender’s name in
Schedule I hereto directly below the column entitled “Commitment,” as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03 and/or 10, (y) adjusted from time to time as a result
of assignments to or from such Lender pursuant to Section 1.13 or 13.04(b) or (z) increased from
time to time pursuant to, and to the extent permitted by, Section 1.14.
“Consenting Lender” shall have the meaning provided in Section 3.04.
“Consolidated EBIT” shall mean, for any period, Consolidated Net Income for such period,
before interest expense and provision for taxes based on income that were included and arriving at
Consolidated Net Income for such period and without giving effect to (x) any extraordinary gains or
losses, (y) any gains or losses from sales of assets other than inventory sold in the ordinary
course of business and (z) any interest expense or provision for taxes attributable to, or arising
because of any VIE Transaction not prohibited hereunder.
“Consolidated EBITDA” shall mean, for any period, Consolidated EBIT, adjusted by adding
thereto the amount of all amortization of intangibles and depreciation, in each case that were
deducted in arriving at Consolidated EBIT for such period, but without giving effect to any such
amortization or depreciation attributable to, or arising because of any VIE Transaction not
prohibited hereunder.
“Consolidated Indebtedness” shall mean, as at any date of determination and without
duplication, (i) the aggregate stated balance sheet amount of all Indebtedness (but including in
any event the then outstanding principal amount of all Loans, all Capitalized Lease Obligations and
all Letter of Credit Outstandings) of the Borrower and its Subsidiaries on a consolidated basis as
determined in accordance with generally accepted accounting principles, (ii) the aggregate
outstanding amount of all Attributable Debt of the Borrower and its Subsidiaries at such time, and
(iii) the aggregate amount of all Indebtedness of the Borrower determined in accordance with clause
(ix) of the definition thereof; provided that (x) Indebtedness outstanding pursuant to
trade payables and accrued expenses incurred in the ordinary course of business shall be excluded
in determining Consolidated Indebtedness and (y) the items described in clauses (ii) and (iii)
above shall be included notwithstanding any contrary treatment required by generally accepted
accounting principles.
“Consolidated Interest Coverage Ratio” shall mean, for any period, the ratio of Consolidated
EBITDA for such period to Consolidated Interest Expense for such period.
“Consolidated Interest Expense” shall mean, for any period, the total consolidated interest
expense of the Borrower and its Subsidiaries (which term shall include, without limitation and on a
pro forma basis reasonably satisfactory to the Administrative Agent, any Person
which was acquired pursuant to an Acquisition consummated after the beginning of such period) for
such period (calculated without regard to any limitations on the payment thereof) plus, without
duplication, (x) that portion of Capitalized Lease Obligations of the Borrower and
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its Subsidiaries representing the interest factor for such period and (y) the product of (i)
all dividends actually paid, whether paid in cash or in any other consideration during such period
with respect to any Disqualified Preferred Stock, multiplied by (ii) a fraction, the
numerator of which is one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of the Borrower, expressed as a decimal; provided that
there shall be excluded from Consolidated Interest Expense (a) the amortization of any deferred
financing costs to the extent same would otherwise have been included therein and (b) any interest
expense attributable to, or arising because of any VIE Transaction not prohibited
hereunder.
“Consolidated Net Income” shall mean, for any period, the net after tax income of the Borrower
and its Subsidiaries (which term shall include, without limitation and on a pro
forma basis reasonably satisfactory to the Administrative Agent, any Person which was
acquired pursuant to an Acquisition consummated after the beginning of such period) determined on a
consolidated basis; provided that in determining Consolidated Net Income (i) the net income
of any Person that is not a Subsidiary of the Borrower or that is accounted for by the equity
method of accounting shall be included only to the extent of the payment of dividends or
disbursements by such Person to the Borrower of a Wholly-Owned Subsidiary of the Borrower during
such period, (ii) the net income of any Subsidiary of the Borrower shall be excluded to the extent
that the declaration or payment of dividends and disbursements by that Subsidiary of net income is
not at the date of determination permitted by operation of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such
Subsidiary or its stockholders and (iii) the net income of any Person acquired by the Borrower or
any of its Subsidiaries in a pooling of interests transaction for any period prior to the date of
such acquisition shall be excluded.
“Contingent Obligation” shall mean, as to any Person, any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations
(“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly
or indirectly, including, without limitation, any obligation of such Person, whether or not
contingent, (i) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the purchase or payment of any
such primary obligation or (y) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall not
include (x) endorsements of instruments for deposit or collection or product warranties extended,
in each case, in the ordinary course of business and (y) the guarantee by the Borrower of any
operating lease of any Subsidiary of the Borrower. The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the terms of the instrument
evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to perform thereunder)
as determined by such Person in good faith.
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“Continuing Directors” shall mean the directors of the Borrower on the Restatement Effective
Date and each other director if such director’s nomination for election to the board of directors
of the Borrower is recommended by a majority of the then Continuing Directors or is recommended by
a committee of the Board of Directors a majority of which is composed of the then Continuing
Directors.
“Continuing Lender” shall mean each Existing Lender that is a Lender hereunder.
“Credit Documents” shall mean this Agreement and, after the execution and delivery thereof
pursuant to the terms of this Agreement, each Note and the Subsidiaries Guaranty, each Incremental
Revolving Loan Commitment Agreement and, after the execution and delivery thereof, each additional
guaranty, assumption agreement and Joinder Agreement executed pursuant to Section 8.10.
“Credit Event” shall mean the making of any Loan or the issuance of any Letter of Credit.
“Credit Party” shall mean the Borrower and each Subsidiary Guarantor.
“DBAG” shall mean Deutsche Bank AG New York Branch, in its individual capacity.
“DBSI” shall mean Deutsche Bank Securities Inc., in its individual capacity.
“Declining Lender” shall have the meaning provided in Section 3.04.
“Debt Rating” shall mean, on any date, each of the Borrower’s corporate credit ratings (or the
equivalent thereof) as most recently publicly announced by Xxxxx’x and S&P.
“Default” shall mean any event, act or condition which with notice or lapse of time, or both,
would constitute an Event of Default.
“Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in effect.
“Disposition” shall have the meaning provided in Section 9.02.
“Disqualified Preferred Stock” shall mean, collectively, (i) all Preferred Stock of the
Borrower other than Qualified Preferred Stock and (ii) all Preferred Stock of any Subsidiary of the
Borrower (other than such Preferred Stock held by the Borrower or a Wholly-Owned Subsidiary
thereof).
“Dollars” and the sign “$” shall each mean freely transferable lawful money of the United
States.
“Domestic Subsidiary” shall mean each Subsidiary of the Borrower that is incorporated under
the laws of the United States, any State or territory thereof or the District of Columbia.
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“Drawing” shall have the meaning provided in Section 2.05(b).
“Eligible Transferee” shall mean and include a commercial bank, a financial institution, any
fund that regularly invests in bank loans or other “accredited investor” (as defined in Regulation
D of the Securities Act) but in any event excluding the Borrower and its Subsidiaries.
“End Date” shall have the meaning assigned that term in the definitions of “Applicable
Facility Fee Percentage” and “Applicable Margins”, contained herein.
“Environmental Claims” means any and all administrative, regulatory or judicial actions,
suits, demands, demand letters, directives, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law or any permit issued, or
any approval given, under any such Environmental Law (hereafter, “Claims”), including, without
limitation, (a) any and all Claims by governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection with alleged injury
or threat of injury to health, safety or the environment due to the presence of Hazardous
Materials.
“Environmental Law” means any applicable Federal, state, foreign or local statute, law, rule,
regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written
policy and rule of common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or administrative order,
consent decree or judgment, to the extent binding on the Borrower or any of its respective
Subsidiaries, relating to the environment, employee health and safety or Hazardous Materials,
including, without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33 U.S.C. §
1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et
seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Safe Drinking Water
Act, 42 U.S.C. § 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701
et seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42
U.S.C. § 11001 et seq.; the Hazardous Material Transportation Act, 49 U.S.C. § 1801
et seq.; the Occupational Safety and Health Act, 29 U.S.C. § 651 et
seq. (to the extent it regulates occupational exposure to Hazardous Materials); and any
state and local or foreign counterparts or equivalents, in each case as amended from time to time.
“Equity Interest” of any Person shall mean any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interest in (however designated)
equity of such Person, including, without limitation, any common stock, preferred stock, any
limited or general partnership interest and any limited liability company membership interest.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated and rulings issued thereunder. Section references to
ERISA are to ERISA, as in effect at the date of this Agreement and any subsequent provisions of
ERISA, amendatory thereof, supplemental thereto or substituted therefor.
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“ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) which together
with the Borrower or any Subsidiary of the Borrower would be deemed to be a “single employer” (i)
within the meaning of Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of the
Borrower or any Subsidiary of the Borrower being or having been a general partner of such person.
“Eurodollar Loan” shall mean each Loan designated as such by the Borrower at the time of the
incurrence thereof or conversion thereto.
“Eurodollar Rate” shall mean with respect to each Interest Period for a Eurodollar Loan, (i)
the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time)
on the date that is 2 Business Days prior to the commencement of such Interest Period by reference
to the Reuters Screen LIBOR01 for deposits in Dollars (or such other comparable page as may, in the
opinion of the Administrative Agent, replace such page for the purpose of displaying such rates)
for a period equal to such Interest Period; provided that to the extent that an interest rate is
not ascertainable pursuant to the foregoing provisions of this definition, the “Eurodollar Rate”
shall be the interest rate per annum determined by the Administrative Agent to be the average of
the rates per annum at which deposits in Dollars are offered for such relevant Interest Period to
major banks in the London interbank market in London, England by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date that is 2 Business Days prior to the beginning
of such Interest Period, divided by (ii) a percentage equal to 100% minus the then stated maximum
rate of all reserve requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable 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).
“Event of Default” shall have the meaning provided in Section 10.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Existing Credit Agreement” shall have the meaning provided in the recitals of this Agreement.
“Existing Lender” shall mean each “Lender” under, and as defined in, the Existing Credit
Agreement as of the Restatement Effective Date.
“Existing Letters of Credit” shall have the meaning provided in Section 2.01(a).
“Existing Maturity Date” shall have the meaning provided in Section 3.04.
“Existing Revolving Loans” shall mean the “Revolving Loans” under, and as defined in, the
Existing Credit Agreement.
“Existing Swingline Loan” has the meaning provided in Section 1.01(b).
“Facility Fee” shall have the meaning provided in Section 3.01(a).
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“Facing Fee” shall have the meaning provided in Section 3.01(c).
“FATCA” shall mean Sections 1471 through 1474 of the Code, as enacted on the Restatement
Effective Date, and the regulations promulgated thereunder or published administrative guidance
implementing such Sections.
“Federal Funds Rate” shall mean 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 the Administrative
Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent.
“Fees” shall mean all amounts payable pursuant to or referred to in Section 3.01.
“FIN 46” means FASB Interpretation No. 46.
“Foreign Lender” shall have the meaning provided in Section 4.04(b).
“Foreign Pension Plan” means any plan, fund (including, without limitation, any superannuation
fund) or other similar program established or maintained outside the United States by the Borrower
or any one or more of its Subsidiaries primarily for the benefit of employees of the Borrower or
such Subsidiary residing outside the United States, which plan, fund or other similar program
provides, or results in, retirement income, a deferral of income in contemplation of retirement or
payments to be made upon termination of employment, and which plan is not subject to ERISA or the
Code.
“Foreign Subsidiary” shall mean, as to any Person, each Subsidiary of such Person which is not
a Domestic Subsidiary.
“GAAP” shall mean generally accepted accounting principles in the United States as in effect
from time to time; provided that determinations in accordance with GAAP for purposes of the
Applicable Margins and Sections 4.02 and 9, including defined terms as used therein, and for all
purposes of determining the Leverage Ratio, are subject (to the extent provided therein) to Section
13.07(a).
“Guaranteed Obligations” shall mean the “Guaranteed Obligations” under, and as defined in, the
Subsidiaries Guaranty.
“Hazardous Materials” means (a) any petroleum or petroleum products, radioactive materials,
asbestos in any form that is or could become friable, urea formaldehyde foam insulation,
transformers or other equipment that contain dielectric fluid containing any level of
polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or
included in the definition of “hazardous substances,” “hazardous waste,” “hazardous materials,”
“extremely hazardous substances,” “restricted hazardous waste,” “toxic substances,” “toxic
pollutants,” “contaminants,” or “pollutants,” or words of similar import,
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under any applicable Environmental Law; and (c) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental authority under
Environmental Laws.
“Highest Applicable Margins” shall have the meaning assigned that term in the definitions of
“Applicable Facility Fee Percentage” and “Applicable Margin” contained herein.
“Incremental Revolving Loan Commitment” shall mean, for each Incremental RL Lender, any
commitment by such Incremental RL Lender to make Revolving Loans pursuant to Section 1.01(a) as
agreed to by such Incremental RL Lender in the respective Incremental Revolving Loan Commitment
Agreement delivered pursuant to Section 1.14; it being understood, however, that on each
Incremental Revolving Loan Commitment Date, such Incremental Revolving Loan Commitment of such
Incremental RL Lender shall, as applicable, become or be added to (and thereafter become a part of)
the Commitment of such Incremental RL Lender for all purposes of this Agreement as contemplated by
Section 1.14 and as same may be terminated pursuant to Sections 3.03 and/or 10.
“Incremental Revolving Loan Commitment Agreement” shall mean an Incremental Revolving Loan
Commitment Agreement substantially in the form of Exhibit L (appropriately completed).
“Incremental Revolving Loan Commitment Date” shall mean each date upon which an Incremental
Revolving Loan Commitment under an Incremental Revolving Loan Commitment Agreement becomes
effective as provided in Section 1.14(b)(i).
“Incremental Revolving Loan Commitment Requirements” shall mean, with respect to any provision
of an Incremental Revolving Loan Commitment on a given Incremental Revolving Loan Commitment Date,
the satisfaction of each of the following conditions: (i) no Default or Event of Default then
exists or would result therefrom (for purposes of such determination, assuming the relevant Loans
in an aggregate principal amount equal to the full amount of Incremental Revolving Loan Commitments
then requested or provided had been incurred on the Incremental Revolving Loan Commitment Date),
(ii) calculations are made by the Borrower demonstrating compliance with the covenants contained in
Sections 9.07 and 9.08 for the Test Period most recently ended prior to the relevant Incremental
Revolving Loan Commitment Date on a pro forma basis, as if the maximum principal
amount of all Revolving Loans estimated by the Borrower in good faith to be outstanding against the
Total Commitments (after giving effect to such Incremental Revolving Loan Commitments) during the
six-month period following the relevant Incremental Revolving Loan Commitment Date had been
incurred on the first day of such Test Period, (iii) the Borrower shall have certified to the
Administrative Agent that the incurrence of Loans in an aggregate principal amount equal to the
full amount of the Total Commitment (after giving effect to all Incremental Revolving Loan
Commitments then requested or provided) is permitted under, and in accordance with all indentures
and all other material debt agreements to which a Credit Party is a party, (iv) all representations
and warranties contained herein and in the other Credit Documents shall be true and correct in all
material respects with the same effect as though such representations and warranties had been made
as of the relevant Incremental Revolving Loan Commitment Date (after giving effect to the
incurrence of the respective Loan), unless stated to relate to a specified date, in which case such
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representations and warranties shall be true and correct in all material respects as of such
specified date, (v) all other conditions precedent agreed to by the Borrower that may be set forth
in the respective Incremental Revolving Loan Commitment Agreement shall have been satisfied to the
reasonable satisfaction of the Administrative Agent, and (vi) the delivery by the Borrower of an
officer’s certificate to the Administrative Agent certifying as to compliance with preceding
clauses (i), (ii), (iii) and (iv) and containing the calculations required by preceding clauses
(ii) and/or (iii) (as applicable).
“Incremental RL Lender” shall have the meaning provided in Section 1.14(b).
“Indebtedness” shall mean, as to any Person, without duplication, (i) all indebtedness
(including principal, interest, fees and charges) of such Person for borrowed money or for the
deferred purchase price of property or services, (ii) the maximum amount available to be drawn
under all letters of credit issued for the account of such Person and all unpaid drawings in
respect of such letters of credit, (iii) all Indebtedness of the types described in clause (i),
(ii), (iv), (v), (vi) or (vii) of this definition secured by any Lien on any property owned by such
Person, whether or not such Indebtedness has been assumed by such Person (to the extent of the
value of the respective property), (iv) the aggregate amount required to be capitalized under
leases under which such Person is the lessee, (v) all obligations of such person to pay a specified
purchase price for goods or services, whether or not delivered or accepted, i.e.,
take-or-pay and similar obligations, (vi) all Contingent Obligations of such Person, (vii) all
obligations under any Interest Rate Protection Agreement, Other Hedging Agreement or under any
similar type of agreement, (viii) all Attributable Debt of such Person, (ix) the amount of any
Permitted Securitizations of such Person, and (x) the greater of the aggregate liquidation value or
the maximum fixed repurchase price of all Disqualified Preferred Stock, provided that,
notwithstanding the foregoing, (x) Indebtedness outstanding (a) pursuant to trade payables and
accrued expenses incurred in the ordinary course of business, and (b) under leases which are or
would be properly characterized as operating leases in accordance with generally accepted
accounting principles existing on the Restatement Effective Date, regardless of any change in
accounting principles occurring after the Restatement Effective Date, shall be excluded in
determining Indebtedness and (y) liabilities presented on the balance sheet of the Borrower or any
Subsidiary shall not constitute Indebtedness to the extent attributable to, or arising because of,
a VIE Transaction not prohibited hereunder.
“Individual Exposure” of any Lender shall mean, at any time, the sum of (x) the aggregate
principal amount of all Revolving Loans made by such Lender and then outstanding, (y) such Lender’s
Letter of Credit Exposure and (z) such Lender’s Swingline Loan Exposure.
“Interest Determination Date” shall mean, with respect to any Eurodollar Loan, the second
Business Day prior to the commencement of any Interest Period relating to such Eurodollar Loan.
“Interest Period” shall have the meaning provided in Section 1.09.
“Interest Rate Protection Agreement” shall mean any interest rate swap agreement, interest
rate cap agreement, interest collar agreement, interest rate hedging agreement, interest rate floor
agreement or other similar agreement or arrangement.
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“Issuing Lender” shall mean DBAG (which for purposes of this definition also shall include any
banking affiliate of DBAG) and any other Lender which at the request of the Borrower and with the
consent of the Administrative Agent (which shall not be unreasonably withheld or delayed) agrees,
in such Lender’s sole discretion, to become an Issuing Lender for the purpose of issuing Letters of
Credit pursuant to Section 2. On the Restatement Effective Date the sole Issuing Lender is DBAG.
“Joinder Agreement” shall mean a Joinder Agreement substantially in the form of Exhibit K
(appropriately completed).
“L/C Supportable Obligations” shall mean obligations of the Borrower or its Subsidiaries
incurred in the ordinary course of business with respect to insurance obligations and workers’
compensation, surety bonds and other similar statutory obligations, and all other obligations not
otherwise prohibited by the terms of this Agreement.
“Lead Arranger” shall mean DBSI, in its capacity as Sole Lead Arranger and Bookrunner.
“Leaseholds” of any Person means all the right, title and interest of such Person as lessee or
licensee in, to and under leases or licenses of land, improvements and/or fixtures.
“Lender” shall mean each financial institution listed on Schedule I, as well as any Person
which becomes a “Lender” hereunder pursuant to Section 1.13, 1.14 or 13.04(b).
“Lender Default” shall mean, as to any Lender, (i) the wrongful refusal (which has not been
retracted) of such Lender or the failure of such Lender (which has not been cured) to make
available its portion of any Borrowing (including any Mandatory Borrowing) or to fund its portion
of any unreimbursed payment with respect to a Letter of Credit pursuant to Section 2.04(c), (ii)
such Lender having been deemed insolvent or having become the subject of a bankruptcy or insolvency
proceeding or a takeover by a regulatory authority; unless the Administrative Agent, the Swingline
Lender, and each Issuing Lender shall have determined in their sole discretion that such Lender
intends and has all necessary regulatory and judicial approvals required to enable it to continue
to perform its obligations as a Lender hereunder (provided that a Lender Default shall not be
deemed to have occurred with respect to a Lender solely by virtue of the ownership or acquisition
of any equity interest in that Lender or any direct or indirect parent company thereof by a
regulatory authority so long as such ownership interest does not result in or provide such Lender
with immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Lender (or such regulatory authority)
to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender), or
(iii) such Lender having notified the Administrative Agent, the Swingline Lender, any Issuing
Lender and/or any Credit Party (x) that it does not intend to comply with its obligations under
Sections 1.01, Section 1.04 or Section 3, as the case may be, in circumstances where such
non-compliance would constitute a breach of such Lender’s obligations under the respective Section
or (y) of the events described in preceding clause (ii); provided that, for purposes of
(and only for purposes of) Section 1.01(b), Section 2.03(b) and Section 1.15 and any documentation
entered into pursuant to the Back-Stop Arrangements (and the term “Defaulting Lender” as used
therein), the term “Lender Default”
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shall also include, as to any Lender, (a) any Affiliate of such Lender that has “control”
(within the meaning provided in the definition of “Affiliate”) of such Lender having been deemed
insolvent or having become the subject of a bankruptcy or insolvency proceeding or a takeover by a
regulatory authority, unless the Administrative Agent, the Swingline Lender, and each Issuing
Lender shall have determined in their sole discretion that such Lender intends and has all
necessary regulatory and judicial approvals required to enable it to continue to perform its
obligations as a Lender hereunder (provided that a Lender Default shall not be deemed to have
occurred with respect to a Lender solely by virtue of the ownership or acquisition of any equity
interest in that Lender or such Affiliate thereof by a regulatory authority so long as such
ownership interest does not result in or provide such Lender with immunity from the jurisdiction of
courts within the United States or from the enforcement of judgments or writs of attachment on its
assets or permit such Lender (or such regulatory authority) to reject, repudiate, disavow or
disaffirm any contracts or agreements made with such Lender), (b) any previously cured “Lender
Default” of such Lender under this Agreement, unless such Lender Default has ceased to exist for a
period of at least 90 consecutive days, (c) any default by such Lender with respect to its
obligations under any other credit facility to which it is a party and which the Swingline Lender,
any Issuing Lender or the Administrative Agent believes in good faith has occurred and is
continuing, unless such Lender notifies the Administrative Agent and the Borrower in writing that
such default is the result of such Lender’s good faith determination that one or more conditions
precedent to funding under such credit facility (each of which conditions precedent, together with
any applicable default, shall be specifically identified in such writing) has not been satisfied
and (d) the failure of such Lender to make available its portion of any Borrowing (including any
Mandatory Borrowing) or to fund its portion of any unreimbursed payment with respect to a Letter of
Credit pursuant to Section 2.04(c) within two (2) Business Days of the date (x) the Administrative
Agent (in its capacity as a Lender) or (y) Lenders constituting the Required Lenders with
Commitments has or have, as applicable, funded its or their portion thereof.
“Letter of Credit” shall have the meaning provided in Section 2.01(a).
“Letter of Credit Back-Stop Arrangements” shall mean, with respect to any Letter of Credit,
arrangements satisfactory to the Issuing Lender entered into by the Issuing Lender and the Borrower
to eliminate or protect against such Issuing Lender’s risk with respect to each Defaulting Lender’s
participation in Letters of Credit issued by such Issuing Lender (which arrangements are hereby
consented to by the Lenders), by cash collateralizing and/or providing backstop letters of credit
in respect of each Defaulting Lender’s Percentage of the Letter of Credit Outstandings with respect
to such Letters of Credit.
“Letter of Credit Exposure” shall mean, at any time, the aggregate amount of all Letter of
Credit Outstandings at such time in respect of Letters of Credit. The Letter of Credit Exposure of
any Lender at any time shall be its Percentage of the aggregate Letter of Credit Exposure at such
time.
“Letter of Credit Fee” shall have the meaning provided in Section 3.01(b).
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“Letter of Credit Outstandings” shall mean, at any time, the sum of (i) the aggregate Stated
Amount of all outstanding Letters of Credit and (ii) the amount of all Unpaid Drawings.
“Letter of Credit Request” shall mean any request for the issuance of a Letter of Credit made
by the Borrower pursuant to Section 2.03(a).
“Leverage Ratio” shall mean, at any date of determination, the ratio of Consolidated
Indebtedness (but excluding any Indebtedness arising in the ordinary course of business in
connection with any Other Hedging Agreements entered into with respect to commodities values, and
which are bona fide hedging activities and are not for speculative purposes, to the
extent such Indebtedness is (a) cash collateralized or (b) supported by a Letter of Credit) on such
date to Consolidated EBITDA for the Test Period last ended on or prior to such date.
“Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), preference, priority or other security agreement of any
kind or nature whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under the UCC or any other
similar recording or notice statute, and any lease having substantially the same effect as any of
the foregoing).
“Loan” shall mean each Revolving Loan and each Swingline Loan.
“Mandatory Borrowing” shall have the meaning provided in Section 1.01(c).
“Margin Regulations” shall mean Regulation T, Regulation U and Regulation X.
“Margin Stock” shall have the meaning provided in Regulation U.
“Material Adverse Effect” shall mean (i) a material adverse effect on the property, assets,
nature of assets, operations, liabilities or condition (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole or (ii) a material adverse effect (x) on the rights or remedies
of the Administrative Agent or the Lenders under this Agreement or any other Credit Document or (y)
on the ability of the Credit Parties taken as a whole to perform their obligations to the
Administrative Agent or the Lenders under this Agreement or any other Credit Document.
“Maturity Date” shall mean May 20, 2016 or the applicable anniversary thereof as determined in
accordance with Section 3.04.
“Maturity Extension Request” shall have the meaning provided in Section 3.04.
“Maximum Swingline Amount” shall mean $50,000,000.
“Minimum Borrowing Amount” shall mean (i) for Revolving Loans $1,000,000 and (ii) for
Swingline Loans, $100,000.
“Moody’s” shall mean Xxxxx’x Investors Service, Inc.
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“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute
of) the Borrower or a Subsidiary of the Borrower or an ERISA Affiliate and each such plan for the
five year period immediately following the latest date on which the Borrower, any Subsidiaries of
the Borrower or any ERISA Affiliates maintained, contributed to or had an obligation to contribute
to such plan.
“Non-Defaulting Lender” shall mean and include each Lender other than a Defaulting Lender.
“Note” shall mean each Revolving Note and the Swingline Note.
“Notice of Borrowing” shall have the meaning provided in Section 1.03.
“Notice of Conversion/Continuation” shall have the meaning provided in Section 1.06.
“Notice Office” shall mean the office of the Administrative Agent located at 0000 Xxxx
Xxxxxxx, Xxxxxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, Attn: Xxxxxxx Xxxxxxx (telephone: (000)
000-0000) or such other office as the Administrative Agent may hereafter designate in writing as
such to the other parties hereto.
“Obligations” shall mean all amounts owing to any Agent, any Issuing Lender or any Lender
pursuant to the terms of this Agreement or any other Credit Document.
“Other Hedging Agreements” shall mean any foreign exchange contracts, currency swap agreements
or other similar agreements or arrangements designed to protect against the fluctuations in
currency or commodity values.
“Participant” shall have the meaning provided in Section 2.04(a).
“Payment Office” shall mean the office of the Administrative Agent located at 0000 Xxxx
Xxxxxxx, Xxxxxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, Attn: Xxxxxxx Xxxxxxx, or such other office as
the Administrative Agent may hereafter designate in writing as such to the other parties hereto.
“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section
4002 of ERISA, or any successor thereto.
“Percentage” of any Lender at any time shall mean a fraction (expressed as a percentage) the
numerator of which is the Commitment of such Lender at such time and the denominator of which is
the Total Commitment at such time, provided that if the Percentage of any Lender is to be
determined after the Total Commitment has been terminated, then the Percentages of the Lenders
shall be determined immediately prior (and without giving effect) to such termination (but giving
effect to assignments made thereafter in accordance with the terms hereof); provided, further, that
in the case of Section 1.15 when a Defaulting Lender shall exist, “Percentage” shall mean the
percentage of the Total Commitments (disregarding any Defaulting Lender’s Commitment) represented
by such Lender’s Commitment.
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“Permitted Holders” shall mean the descendants of Xxxxxxx X. Xxxxxxx, Xx. and members of their
immediate families.
“Permitted Borrower Indebtedness” shall mean any Indebtedness incurred by the Borrower after
the Restatement Effective Date, so long as (i) both before and immediately after giving effect to
the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be
continuing, (ii) based on calculations made by an Authorized Representative of the Borrower, the
Borrower and its Subsidiaries shall be in compliance with the financial covenant contained in
Section 9.07, both immediately before and after giving effect to each incurrence of such
Indebtedness and (iii) such Indebtedness (and any guarantees thereof) shall rank pari
passu or junior to the Obligations hereunder and the Guaranteed Obligations.
“Permitted Liens” shall have the meaning provided in Section 9.01.
“Permitted Securitization” shall mean any transaction or series of transactions that may be
entered into by the Borrower or any Subsidiary of the Borrower pursuant to which it may sell,
convey, contribute to capital or otherwise transfer (which sale, conveyance, contribution to
capital or transfer may include or be supported by the grant of a security interest) Receivables or
interests therein and all collateral securing such Receivables, all contracts and contract rights,
purchase orders, security interests, financing statements or other documentation in respect of such
Receivables, any guarantees, indemnities, warranties or other obligations or supporting obligations
in respect of such Receivables, any other assets that are customarily transferred or in respect of
which security interests are customarily granted in connection with asset securitization
transactions involving receivables similar to such Receivables and any collections or proceeds of
any of the foregoing (collectively, the “Related Assets”) (i) to a trust, partnership, corporation
or other Person (other than the Borrower or any Subsidiary of the Borrower other than a special
purpose entity created for purposes of such transaction or transactions), which transfer is funded
in whole or in part, directly or indirectly, by the incurrence or issuance by the transferee or any
successor transferee of Indebtedness, fractional undivided interests or other securities that are
to receive payments from, or that represent interests in, the cash flow derived from such
Receivables and Related Assets or interests in such Receivables and Related Assets, or (ii)
directly to one or more investors or other purchasers (other than the Borrower or any Subsidiary of
the Borrower other than a special purpose entity created for purposes of such transaction or
transactions), it being understood that a Permitted Securitization may involve (A) one or more
sequential transfers or pledges of the same Receivables and Related Assets, or interests therein,
and all such transfers, pledges and Indebtedness incurrences shall be part of and constitute a
single Permitted Securitization, and (B) periodic transfers or pledges of Receivables and/or
revolving transactions in which new Receivables and Related Assets, or interests therein, are
transferred or pledged upon collection of previously transferred or pledged Receivables and Related
Assets, or interests therein, provided that (x) any such transactions shall provide for
recourse to such Subsidiary of the Borrower or the Borrower (as applicable) only in respect of the
cash flows in respect of such Receivables and Related Assets and to the extent of other customary
securitization undertakings in the jurisdiction relevant to such transactions and (y) the aggregate
amount of all such transactions constituting “Permitted Securitizations” shall not exceed an
aggregate amount equal to $200,000,000 at any time outstanding. The “amount” or
“principal amount” of any Permitted Securitization shall be deemed at any time to be (1)
the aggregate principal, or stated amount, of the Indebtedness, fractional undivided interests
(which
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stated amount may be described as a “net investment” or similar term reflecting the amount
invested in such undivided interest) or other securities incurred or issued pursuant to such
Permitted Securitization, in each case outstanding at such time, or (2) in the case of any
Permitted Securitization in respect of which no such Indebtedness, fractional undivided interests
or securities are incurred or issued, the cash purchase price paid by the buyer in connection with
its purchase of Receivables less the amount of collections received by the Borrower or any
Subsidiary of the Borrower in respect of such Receivables and paid to such buyer, excluding any
amounts applied to purchase fees or discount or in the nature of interest.
“Permitted Subsidiary Guarantee Obligations” shall mean (a) while the Subsidiaries Guaranty is
in effect (or required to be in effect in accordance with the terms of the Credit Documents), any
guarantee by a Subsidiary Guarantor of Permitted Borrower Indebtedness and (b) at all other times
any guarantee by a Subsidiary of Permitted Borrower Indebtedness.
“Permitted Subsidiary Indebtedness” shall mean any Indebtedness incurred by any Subsidiary of
the Borrower after the Restatement Effective Date (other than (x) the Guaranteed Obligations and
(y) Permitted Subsidiary Guarantee Obligations), so long as (i) both before and immediately after
giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have
occurred and be continuing, (ii) based on calculations made by an Authorized Representative of the
Borrower, the Borrower and its Subsidiaries shall be in compliance with the financial covenant
contained in Section 9.07, both immediately before and after giving effect to each incurrence of
such Indebtedness, (iii) such Indebtedness (and any guarantees thereof) shall rank pari
passu or junior to the Obligations hereunder and the Guaranteed Obligations, as the case
may be, (iv) the aggregate principal amount of all Permitted Subsidiary Indebtedness incurred by
Foreign Subsidiaries of the Borrower shall not exceed at any time $1,000,000 and (v) the sum of (A)
the aggregate principal amount of all Permitted Subsidiary Indebtedness plus (B) the aggregate
principal amount of all Indebtedness (other than Permitted Subsidiary Indebtedness) secured by
Liens permitted pursuant to Section 9.01(xiii), shall not exceed at any time $150,000,000.
“Person” shall mean any individual, partnership, joint venture, firm, limited liability
company, corporation, association, trust or other enterprise or any government or political
subdivision or any agency, department or instrumentality thereof.
“Plan” shall mean any single-employer plan, as defined in Section 4001 of ERISA, which is
maintained or contributed to by (or to which there is an obligation to contribute of), the Borrower
or a Subsidiary of the Borrower or an ERISA Affiliate and each such plan for the five year period
immediately following the latest date on which the Borrower, a Subsidiary of the Borrower or an
ERISA Affiliate maintained, contributed or had an obligation to contribute to such plan.
“Preferred Stock” as applied to the capital stock of any Person, means capital stock of such
Person of any class or classes (however designed) that ranks prior, as to the payment of dividends
or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or
winding up of such Person, to shares of capital stock of any other class of such Person.
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“Prime Lending Rate” shall mean the rate which DBAG announces from time to time as its prime
lending rate, the Prime Lending Rate to change when and as such prime lending rate changes. The
Prime Lending Rate is a reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. DBAG may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
“Qualified Preferred Stock” means any Preferred Stock of the Borrower, the express terms of
which shall provide that dividends thereon shall not be required to be paid in cash at any time
that such cash payment would be prohibited by the terms of this Agreement or result in a Default or
Event of Default hereunder, and in either case which, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable), or upon the happening of any event
(including an event which would constitute a Change of Control), cannot mature and is not
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, and is not redeemable,
or required to be repurchased, at the sole option of the holder thereof (including, without
limitation, upon the occurrence of an event which would constitute a Change of Control), in whole
or in part, on or prior to the first anniversary of the Maturity Date.
“Quarterly Payment Date” shall mean the last Business Day of each of March, June, September
and December, occurring after the Restatement Effective Date.
“RCRA” shall mean the Resource Conservation and Recovery Act, as the same may be amended from
time to time, 42 U.S.C. § 6901 et seq.
“Receivables” shall mean accounts receivable (including all rights to payment created
by or arising from the sales of goods, leases of goods or the rendition of services, no matter how
evidenced (including in the form of chattel paper) and whether or not earned by performance).
“Real Property” of any Person shall mean all the right, title and interest of such Person
in and to land, improvements and fixtures, including Leaseholds.
“Register” shall have the meaning provided in Section 13.17.
“Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion thereof establishing reserve
requirements.
“Regulation T” shall mean Regulation T of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion thereof.
“Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion thereof.
“Regulation X” shall mean Regulation X of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion thereof.
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“Related Assets” shall have the meaning provided in the definition of Permitted
Securitization.
“Replaced Lender” shall have the meaning provided in Section 1.13.
“Replacement Lender” shall have the meaning provided in Section 1.13.
“Reportable Event” shall mean an event described in Section 4043(c) of ERISA with respect to a
Plan other than those events as to which the 30-day notice period is
waived under subsection .22, .23, .25, .27, or .28 of PBGC Regulation Section 4043.
“Required Lenders” shall mean Non-Defaulting Lenders, the sum of whose outstanding Commitments
(or after the termination thereof, outstanding Revolving Loans and Percentage of Swingline Loans
and Letter of Credit Outstandings) represent greater than 50% of the Total Commitment less the
Revolving Loan Commitments of all Defaulting Lenders (or after the termination thereof, the sum of
the then total outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate Percentages
of all Non-Defaulting Lenders of the total outstanding Swingline Loans and Letter of Credit
Outstandings at such time).
“Restatement Effective Date” shall have the meaning provided in Section 13.10.
“Returns” shall have the meaning provided in Section 7.09.
“Revolving Loan” shall have the meaning provided in Section 1.01(a).
“Revolving Note” shall have the meaning provided in Section 1.05(a).
“S&P” shall mean Standard & Poor’s Rating Services.
“Sale and Leaseback Transaction” shall mean any arrangement, directly or indirectly, whereby a
seller or transferor shall sell or otherwise transfer any real or personal property and then or
thereafter lease, or repurchase under an extended purchase contract, conditional sales or other
title retention agreement, the same or similar property.
“Scheduled Existing Indebtedness” shall having the meaning provided in Section 7.19.
“SEC” shall have the meaning provided in Section 8.01(f).
“Section 4.04(b)(ii) Certificate” shall have the meaning provided in Section 4.04(b)(ii).
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Significant Acquisition” shall mean any Acquisition by the Borrower or any of its
Subsidiaries involving an Aggregate Consideration of $325,000,000 or more.
“Specified Default” shall mean (x) any Default under Section 10.01 or 10.05 or (y) any Default
under Section 10.03(ii) occurring as a result of the failure by the Borrower to
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deliver the financial statements within the time period required by Sections 8.01(a) or (b)
(together with, in each case, the accompanying certification required by Section 8.01(c)).
“Start Date” shall have the meaning assigned that term in the definitions of “Applicable
Facility Fee Percentage” and “Applicable Margin” contained herein.
“Stated Amount” of each Letter of Credit shall, at any time, mean the maximum amount available
to be drawn thereunder (in each case determined without regard to whether any conditions to drawing
could then be met).
“Subsidiaries Guaranty” shall have the meaning provided in Section 5.06.
“Subsidiary” shall mean, as to any Person, (i) any corporation more than 50% of whose stock of
any class or classes having by the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person and
(ii) any partnership, association, joint venture or other entity in which such Person and/or one or
more Subsidiaries of such Person has more than a 50% Equity Interest at the time.
“Subsidiary Guarantor” shall mean each Wholly-Owned Domestic Subsidiary of the Borrower,
unless and until such time as the respective Subsidiary is released from all of its obligations
under the Subsidiaries Guaranty in accordance with the terms and provisions thereof.
“Swingline Back-Stop Arrangements” shall mean arrangements satisfactory to the Swingline
Lender entered into between the Swingline Lender and the Borrower to eliminate or protect against
the Swingline Lender’s risk with respect to each Defaulting Lender’s participation in Swingline
Loans (which arrangements are hereby consented to by the Lenders), by cash collateralizing and/or
providing backstop letters of credit in respect of such Defaulting Lender’s Percentage of all
Swingline Loan Exposure.
“Swingline Expiry Date” shall mean the date which is five Business Days prior to the Maturity
Date.
“Swingline Lender” shall mean DBAG.
“Swingline Loan” shall have the meaning provided in Section 1.01(b).
“Swingline Loan Exposure” shall mean, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Loan Exposure of any Lender at any time
shall be its Percentage of the aggregate Swingline Loan Exposure at such time.
“Swingline Note” shall have the meaning provided in Section 1.05(a).
“Syndication Agent” shall have the meaning provided in the first paragraph of this Agreement,
and shall include any successor thereto.
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“Tax Benefit” shall have the meaning set forth in Section 4.04(c).
“Taxes” shall mean all taxes, assessments, charges, duties, fees, levies or other governmental
charges, including, without limitation, all Federal, state, local, foreign and other income,
franchise, profits, capital gains, capital stock, transfer, sales, use, occupation, property,
excise, severance, windfall profits, stamp, license, payroll, withholding and other taxes,
assessments, charges, duties, fees, levies or other governmental charges of any kind whatsoever
(whether payable directly or by withholding and whether or not requiring the filing of a Return),
all estimated taxes, deficiency assessments, additions to tax, penalties and interest and shall
include any liability for such amounts as a result either of being a member of a combined,
consolidated, unitary or affiliated group or of a contractual obligation to indemnify any person or
other entity.
“Test Period” shall mean each period of four consecutive fiscal quarters then last ended, in
each case taken as one accounting period.
“Total Commitment” shall mean, at any time, the sum of the Commitments of each of the Lenders
(including, without limitation, any Incremental Revolving Loan Commitment added to the Total
Commitment as contemplated in Section 1.14).
“Total Unutilized Commitment” shall mean, at any time, an amount equal to the remainder of (i)
the Total Commitment then in effect, less (ii) the sum of the aggregate principal amount of
Revolving Loans and Swingline Loans outstanding plus the then aggregate amount of Letter of Credit
Outstandings.
“Transaction” shall mean, collectively, (i) the repayment of all outstanding loans and all
other obligations under the Existing Credit Agreement, (ii) the entering into of the Credit
Documents on the Restatement Effective Date and (iii) the payment of all fees and expenses in
connection with the foregoing.
“Type” shall mean the type of Loan determined with regard to the interest option applicable
thereto, i.e., whether a Base Rate Loan or a Eurodollar Loan.
“UCC” shall mean the Uniform Commercial Code as from time to time in effect in the relevant
jurisdiction.
“Unfunded Current Liability” of any Plan means the amount, if any, by which the actuarial
present value of the accumulated benefits under the Plan as of the close of its most recent plan
year each exceeds the fair market value of the assets allocable thereto, each determined in
accordance with Statement of Financial Accounting Standards No. 87, based upon the actuarial
assumptions used by the Plan’s actuary in the most recent annual valuation of the Plan.
“United States” and “U.S.” shall each mean the United States of America.
“Unpaid Drawing” shall have the meaning provided for in Section 2.05(a).
“Unutilized Commitment” with respect to any Lender, at any time, shall mean such Lender’s
Commitment at such time less the sum of (i) the aggregate outstanding principal
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amount of Revolving Loans made by such Lender and (ii) such Lender’s Percentage of the Letter
of Credit Outstandings at such time.
“VIE Transaction” shall mean a transaction between the Borrower or any Subsidiary and a Person
where such Person is, because of the nature of such transaction and the relationship of the
parties, a variable interest entity under FIN 46(r).
“Wholly-Owned Domestic Subsidiary” of any Person shall mean each Wholly-Owned Subsidiary of
such Person which is also a Domestic Subsidiary.
“Wholly-Owned Subsidiary” shall mean, as to any Person, (i) any corporation 100% of whose
capital stock (other than director’s qualifying shares) is at the time owned by such Person and/or
one or more Wholly-Owned Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such
Person has a 100% Equity Interest at such time.
“Withholding Taxes” shall have the meaning provided in Section 4.04(a).
11.02 Other Definitional Provisions. (a) Unless otherwise specified therein, all
terms defined in this Agreement shall have the defined meanings when used in the other Credit
Documents or any certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Credit Documents, and any certificate or other document
made or delivered pursuant hereto or thereto, (i) accounting terms not defined in Section 1.01
shall have the respective meanings given to them under GAAP, (ii) the words “include”, “includes”
and “including” shall be deemed to be followed by the phrase “without limitation”, (iii) the word
“will” shall be construed to have the same meaning and effect as the word “shall”, and (iv) unless
the context otherwise requires, any reference herein (A) to any Person shall be construed to
include such Person’s successors and assigns and (B) the Borrower or any other Credit Party shall
be construed to include the Borrower or such Credit Party as debtor and debtor-in-possession and
any receiver or trustee the Borrower or any other Credit Party, as the case may be, in any
insolvency or liquidation proceeding.
(c) The words “hereof”, “herein” and “hereunder” and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
SECTION 12. The Agents.
12.01 Appointment. The Lenders hereby irrevocably designate and appoint (i) DBAG as Administrative Agent, (ii)
DBSI as Lead Arranger, (iii) Bank of America, N.A. as Syndication Agent and (iv) each of
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “Rabobank Nederland”, New York Branch, Branch
Banking and Trust Company, and Regions Bank, as Co-Documentation Agents, in each case to act as
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specified herein and in the other Credit Documents. Each Lender hereby irrevocably authorizes, and
each holder of any Note by the acceptance of such Note shall be deemed irrevocably to authorize,
each Agent to take such action on its behalf under the provisions of this Agreement, the other
Credit Documents and any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of such Agent by the terms hereof and thereof and such other powers as are
reasonably incidental thereto. Each Agent may perform any of its duties hereunder by or through
its respective officers, directors, agents, employees or affiliates.
12.02 Nature of Duties. No Agent shall have any duties or responsibilities except
those expressly set forth in this Agreement and in the other Credit Documents. No Agent nor any of
its officers, directors, agents, employees or affiliates shall be liable for any action taken or
omitted by it or them hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct (as determined by a
court of competent jurisdiction in a final and non-appealable decision). The duties of each Agent
shall be mechanical and administrative in nature; no Agent shall have by reason of this Agreement
or any other Credit Document a fiduciary relationship in respect of any Lender or the holder of any
Note; and nothing in this Agreement or any other Credit Document, expressed or implied, is intended
to or shall be so construed as to impose upon any Agent any obligations in respect of this
Agreement or any other Credit Document except as expressly set forth herein or therein.
12.03 Lack of Reliance on the Agents. Independently and without reliance upon any
Agent, each Lender and the holder of each Note, to the extent it deems appropriate, has made and
shall continue to make (i) its own independent investigation of the financial condition and affairs
of the Borrower and its Subsidiaries in connection with the making and the continuance of the Loans
and the taking or not taking of any action in connection herewith and (ii) its own appraisal of the
creditworthiness of the Borrower and its Subsidiaries and, except as expressly provided in this
Agreement, no Agent shall have any duty or responsibility, either initially or on a continuing
basis, to provide any Lender or the holder of any Note 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. No Agent nor any of its affiliates or any of its officers, directors, agents,
or employees shall be responsible to any Lender or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in any document, certificate or
other writing delivered in connection herewith or for the execution, effectiveness, genuineness,
validity, enforceability, perfection, collectibility, priority or sufficiency of this Agreement or
any other Credit Document or the financial condition of the Borrower and its Subsidiaries or be
required to make any inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or the financial
condition of the Borrower and its Subsidiaries or the existence or possible existence of any
Default or Event of Default.
12.04 Certain Rights of the Agents. If any Agent shall request instructions from the
Required Lenders with respect to any act or action (including any failure to act) in connection
with this Agreement or any other Credit Document, such Agent shall be entitled to refrain from such
act or taking such action unless and until such Agent shall have received instructions from the
Required Lenders; and such Agent shall not incur liability to any Person by reason of so
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refraining. Without limiting the foregoing, no Lender or holder of any Note shall have any right
of action whatsoever against any Agent as a result of such Agent acting or refraining from acting
hereunder or under any other Credit Document in accordance with the instructions of the Required
Lenders.
12.05 Reliance. Each Agent shall be entitled to rely, and shall be fully protected
in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent
or made by any Person that such Agent believed to be the proper Person, and, with respect to all
legal matters pertaining to this Agreement and any other Credit Document and its duties hereunder
and thereunder, upon advice of counsel selected by such Agent (which may be counsel for the Credit
Parties).
12.06 Indemnification. To the extent any Agent (or any affiliate thereof) is not
reimbursed and indemnified by the Borrower, the Lenders will reimburse and indemnify such Agent
(and any affiliate thereof), in proportion to their respective “percentages” as used in determining
the Required Lenders (determined as if there were no Defaulting Lenders), for and against any and
all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or
incurred by such Agent (or any affiliate thereof) in performing its duties hereunder or under any
other Credit Document or in any way relating to or arising out of this Agreement or any other
Credit Document; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent’s (or such affiliate’s) gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision).
12.07 The Agent in its Individual Capacity. With respect to its obligation to make
Loans and participate in Letters of Credit under this Agreement (if any), each Agent shall have the
rights and powers specified herein for a “Lender” and may exercise the same rights and powers as
though it were not performing the duties specified herein; and the term “Lenders,” “Required
Lenders,” “holders of Notes” or any similar terms shall, unless the context clearly otherwise
indicates, include such Agent in its individual capacity. Each Agent and its affiliates may accept
deposits from, lend money to, and
generally engage in any kind of banking, investment banking, trust or other business with, or
provide debt financing, equity capital or other services (including financial advisory services) to
any Credit Party or any Affiliate of any Credit Party (or any Person engaged in a similar business
with any Credit Party or any Affiliate thereof) as if they were not performing the duties specified
herein, and may accept fees and other consideration from any Credit Party or any Affiliate of any
Credit Party for services in connection with this Agreement and otherwise without having to account
for the same to the Lenders.
12.08 Holders. The Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until a written notice of the assignment,
transfer or endorsement thereof, as the case may be, shall have been filed with the Administrative
Agent. Any request, authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be
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conclusive and binding on any
subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.
12.09 Resignation by the Agents. (a) The Administrative Agent may resign from the
performance of all its functions and duties hereunder and/or under the other Credit Documents at
any time by giving 15 Business Days’ prior written notice to the Lenders. Any such resignation by
an Administrative Agent hereunder shall also constitute its resignation as an Issuing Lender and
the Swingline Lender, in which case the resigning Administrative Agent (x) shall not be required to
issue any further Letters of Credit or make any additional Swingline Loans hereunder and (y) shall
maintain all of its rights as Issuing Lender or Swingline Lender, as the case may be, with respect
to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such
resignation. Such resignation shall take effect upon the appointment of a successor Administrative
Agent (which successor Administrative Agent shall assume the roles of Issuing Lender and Swingline
Lender) pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Lenders shall, with the consent of the
Borrower (which consent shall not be unreasonably withheld or delayed and shall not be required at
any time when an Event of Default exists), appoint a successor Administrative Agent (which
successor Administrative Agent shall assume the roles of Issuing Lender and Swingline Lender)
hereunder or thereunder who shall be a commercial bank or trust company.
(c) If a successor Administrative Agent shall not have been so appointed within such 15
Business Day period, the Administrative Agent, with the consent of the Borrower (which consent
shall not be unreasonably withheld or delayed and shall not be required at any time when an Event
of Default exists), shall then appoint a successor Administrative Agent (which successor
Administrative Agent shall assume the roles of Issuing Lender and Swingline Lender) who shall serve
as Administrative Agent hereunder or thereunder until such time, if any, as the Required Lenders
appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant to clause (b) or (c)
above by the 20th Business Day after the date such notice of resignation was given by the
Administrative Agent, the Administrative Agent’s resignation shall become effective and the
Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder
and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above.
(f) Each of the other Agents may resign from the performance of all of their respective
functions and duties hereunder and/or under the other Credit Documents at any time by giving five
Business Day’s prior written notice to the Administrative Agent. Such resignation shall take
effect at the end of such five Business Day period after the respective notice is given to the
Administrative Agent.
(g) Upon a resignation of any Agent pursuant to this Section 12.09, such Agent shall remain
indemnified to the extent provided in this Agreement and the other Credit Documents and the
provisions of this Section 12 (and the analogous provisions of the other
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Credit Documents) shall
continue in effect for the benefit of such Agent for all of its actions and inactions while serving
as an Agent.
12.10 Delivery of Information. The Administrative Agent shall not be required to
deliver to any Lender originals or copies of any documents, instruments, notices, communications or
other information received by the Administrative Agent from any Credit Party, any Subsidiary of the
Borrower, the Required Lenders, any Lender or any other Person under or in connection with this
Agreement or any other Credit Document except (i) as specifically provided in this Agreement or any
other Credit Document, (ii) the information provided to the Administrative Agent by the Borrower
under Section 8.01 and (iii) as specifically requested from time to time in writing by any Lender
with respect to a specific document, instrument, notice or other written communication received by
and in the possession of the Administrative Agent at the time of receipt of such request and then
only in accordance with such specific request.
12.11 The Syndication Agent, the Co-Documentation Agents and the Lead Arranger.
Notwithstanding any other provision of this Agreement or any provision of any other Credit
Document, the Syndication Agent, each Co-Documentation Agent, and the Lead Arranger are named as
such for recognition purposes only, and in their respective capacities as such shall have no
powers, duties, responsibilities or liabilities with respect to this Agreement or the other Credit
Documents or the transactions contemplated hereby and thereby; it being understood and agreed that
(x) the Syndication Agent, each Co-Documentation Agent and the Lead Arranger shall be entitled to
all indemnification and reimbursement rights in favor of “Agents” as provided for under Sections
12.06 and 13.01 and (y) the Agents shall have all approval rights specifically provided in this
Agreement. Without limitation of the foregoing, none of the Syndication Agent, the
Co-Documentation Agents or the Lead Arranger shall, solely by reason of this Agreement or any other
Credit Documents, have any fiduciary relationship in respect of any Lender or any other Person.
12.12 Nature of Duties. The Administrative Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement and in the other Credit
Documents. Neither the Administrative Agent nor any of its officers, directors, agents, employees
or affiliates shall be liable for any action taken or omitted by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, unless caused by its or their gross
negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision). The duties of the Administrative Agent shall be mechanical and
administrative in nature; the Administrative Agent shall not have by reason of this Agreement or
any other Credit Document a fiduciary relationship in respect of any Lender or the holder of any
Note; and nothing in this Agreement or in any other Credit Document, expressed or implied, is
intended to or shall be so construed as to impose upon the Administrative Agent any obligations in
respect of this Agreement or any other Credit Document except as expressly set forth herein or
therein.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower shall: (i) whether or not the
transactions herein contemplated are consummated, pay all reasonable out-of-pocket costs and
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expenses of (w) the Administrative Agent and the Lead Arranger (including, without limitation, the
reasonable fees and disbursements of White & Case LLP) in connection with the preparation,
execution and delivery of this Agreement and the other Credit Documents and the documents and
instruments referred to herein and therein and any amendment, waiver or consent relating hereto or
thereto, (x) each of the Administrative Agent and the Lead Arranger in connection with its
syndication efforts with respect to this Agreement, (y) the Administrative Agent, each Issuing
Lender and the Swingline Lender in connection with the Back-Stop Arrangements entered into by such
Persons and (z) each of the Administrative Agent and the Lead Arranger and, following and during
the continuation of an Event of Default, each of the Issuing Lenders and Lenders in connection with
the enforcement of this Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein (including, without limitation, the reasonable fees and
disbursements of counsel and consultants for the Administrative Agent and the Lead Arranger and,
following and during the continuation of an Event of Default, for each of the Lenders) in each case
promptly following receipt of a reasonably detailed invoice therefor; (ii) pay and hold each of the
Lenders harmless from and against any and all present and future stamp, documentary, transfer,
sales and use, value added, excise and other similar taxes with respect to the foregoing matters
and hold each of the Lenders harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to such Lender) to pay
such taxes; and (iii) indemnify each Agent and each Lender (including in its capacity as an Issuing
Lender), and each of their respective officers, directors, employees, representatives, affiliates,
advisors and agents from and hold each of them harmless against any and all liabilities,
obligations (including removal or remedial actions), losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses and disbursements
(including reasonable attorneys’ and consultants’ fees and disbursements) incurred by, imposed
on or assessed against any of them as a result of, or arising out of, or in any way related to, or
by reason of, (a) any investigation, litigation or other proceeding (whether or not any Agent or
any Lender is a party thereto) related to the entering into and/or performance of this Agreement or
any other Credit Document or the use of any Letter of Credit or the proceeds of any Loans hereunder
or the consummation of any transactions contemplated herein or in any other Credit Document or the
exercise of any of their rights or remedies provided herein or in the other Credit Documents, or
(b) the actual or alleged presence of Hazardous Materials in the air, surface water or groundwater
or on the surface or subsurface of any Real Property owned or at any time operated by the Borrower
or any of its Subsidiaries, the generation, storage, transportation, handling or disposal of
Hazardous Materials at any location, whether or not owned or operated by the Borrower or any of its
Subsidiaries, the non-compliance of any Real Property with foreign, federal, state and local laws,
regulations, and ordinances (including applicable permits thereunder) applicable to any Real
Property, or any Environmental Claim asserted against the Borrower, any of its Subsidiaries, or any
Real Property owned or at any time operated by the Borrower or any of its Subsidiaries, including,
in each case, without limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or other proceeding (but
excluding any losses, liabilities, claims, damages or expenses to the extent incurred by reason of
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xxxx negligence or willful misconduct of the Person to be indemnified (as determined by a
court of competent jurisdiction in a final and non-appealable decision)). To the extent that the
undertaking to indemnify, pay or hold harmless any Agent or any Lender set forth in the preceding
sentence may be unenforceable because it is violative of any law or public policy, the Borrower
shall make the maximum
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contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.
13.02 Right of Setoff. In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence
and during the continuance of an Event of Default, the Administrative Agent, each Issuing Lender
and each Lender is hereby authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Credit Party or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by the Administrative
Agent, such Issuing Lender or such Lender (including, without limitation, by branches and agencies
of the Administrative Agent, such Issuing Lender or such Lender wherever located) to or for the
credit or the account of any Credit Party against and on account of the Obligations and liabilities
of all Credit Parties to the Administrative Agent, such Issuing Lender or such Lender under this
Agreement or under any of the other Credit Documents, including, without limitation, all interests
in Obligations purchased by such Lender pursuant to Section 13.06(b), and all other claims of any
nature or description arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not the Administrative Agent, such Issuing Lender or such Lender shall
have made any demand hereunder and although said Obligations, liabilities or claims, or any of
them, shall be contingent or unmatured.
13.03 Notices. (a) Except as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telegraphic, telex, telecopier or cable
communication) and mailed, telegraphed, telexed, telecopied, cabled or delivered: if to the
Borrower, at the Borrower’s address specified opposite its signature below; if to any other Credit
Party, at such Credit Party’s address set forth in the Subsidiaries Guaranty; if to any Lender, at
its address specified on Schedule II below; and if to the Administrative Agent, at the Notice
Office; or, as to any Credit Party or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties hereto and, as to each Lender, at
such other address as shall be designated by such Lender in a written notice to the Borrower and
the Administrative Agent. All such notices and communications shall, when mailed, telegraphed,
telexed, telecopied, or cabled or sent by overnight courier, be effective when deposited in the
mails, delivered to the telegraph company, cable company or overnight courier, as the case may be,
or sent by telex or telecopier, except that notices and communications to the Administrative Agent
and the Borrower shall not be effective until received by the Administrative Agent or the Borrower,
as the case may be.
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Section 1 unless otherwise agreed by the
Administrative Agent and the applicable Lender. Each of the Administrative Agent and the Borrower
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.
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13.04 Benefit of Agreement. (a) This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and assigns of the parties
hereto; provided, however, that the Borrower may not assign or transfer any of its
rights, obligations or interest hereunder or under any other Credit Document without the prior
written consent of all of the Lenders and, provided further, that although any Lender may
transfer, assign or grant participations in its rights hereunder, such Lender shall remain a
“Lender” for all purposes hereunder (and may not transfer or assign all or any portion of its
Commitment hereunder except as provided in Section 13.04(b)) and the transferee, assignee or
participant, as the case may be, shall not constitute a “Lender” hereunder and, provided
further, that no Lender shall transfer or grant any participation under which the participant
shall have rights to approve any amendment to or waiver of this Agreement or any other Credit
Document except to the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Revolving Loan or Note or extend the expiry date of any Letter of Credit beyond the
Maturity Date, or reduce the rate or extend the time of payment of interest or Fees thereon (except
in connection with a waiver of applicability of any post-default increase in interest rates) or
reduce the principal amount thereof, or increase the amount of the participant’s participation over
the amount thereof then in effect (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Total
Commitment shall not constitute a change in the terms of such participation, and that an increase
in any Commitment shall be permitted without the consent of any participant if the participant’s
participation is not increased as a result thereof) or (ii) consent to the assignment or transfer
by the Borrower of any of their rights and obligations under this Agreement. In the case of any
such participation, the participant shall not have any rights under this Agreement or any of the
other Credit Documents (the participant’s rights against such Lender in respect of such
participation to be those set forth in the agreement executed by such Lender in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined
as if such Lender had not sold such participation. Notwithstanding anything in this Section
13.04(a) to the contrary, any bank or other lending institution that is a member of the Farm Credit
System that (A) has purchased a participation or sub-participation in the minimum amount of
$10,000,000 on or after the Restatement Effective Date, (B) is, by written notice to the Borrower
and the Administrative Agent (“Voting Participant Notification”), designated by the selling Lender
as being entitled to be accorded the rights of a Voting Participant hereunder (any bank or other
lending institution that is a member of the Farm Credit System so designated being called a “Voting
Participant”) and (C) receives the prior written consent of the Borrower and the Administrative
Agent to become a Voting Participant, shall be entitled to vote (and the voting rights of the
selling Lender shall be correspondingly reduced), on a dollar for dollar basis, as if such
participant or sub-participant were a Lender, on any matter requiring or allowing a Lender to
provide or withhold its consent, or to otherwise vote on any proposed action. To be effective, each
Voting Participant Notification shall, with respect to any Voting Participant, (1) state the full
name, as well as all contact information required of an assignee in any Assignment and Assumption
Agreement and (2) state the dollar amount of the participation or sub-participation purchased. The
Borrower and the Administrative Agent shall be entitled to conclusively rely on information
contained in notices delivered pursuant to this paragraph. Notwithstanding the foregoing, each bank
or other lending institution that is a member of the Farm Credit System designated as a Voting
Participant in Schedule VII hereto
shall be a Voting Participant without
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delivery of a Voting Participant Notification and
without the prior written consent of the Borrower and the Administrative Agent.
(b) Notwithstanding the foregoing, any Lender (or any Lender together with one or more other
Lenders) may (x) assign all or a portion of its Commitment and related outstanding Obligations
hereunder (or, if the Commitments have terminated, its outstanding Obligations) to (i)(A) its
parent company and/or any affiliate of such Lender which is at least 50% owned by such Lender or
its parent company or (B) to one or more other Lenders or any affiliate of such Lender which is at
least 50% owned by such other Lender or its parent company, provided, that no such assignment may
be made to any such Person that is, or would at such time constitute, a Defaulting Lender or (ii)
in the case of any Lender that is a fund that invests in bank loans, any other fund that invests in
bank loans and is managed by the same investment advisor of any Lender or by an Affiliate of such
investment advisor or (y) assign all, or if less than all, a portion equal to at least $5,000,000
in the aggregate for the assigning Lender or assigning Lenders, of such Commitments and related
outstanding Obligations hereunder (or, if the Commitments have terminated, its outstanding
Obligations) to one or more Eligible Transferees (treating any fund that invests in bank loans and
any other fund that invests in bank loans and is managed or advised by the same investment advisor
of such fund or by an Affiliate of such investment advisor as a single Eligible Transferee), each
of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment
and Assumption Agreement, provided that (i) at such time Schedule I shall be deemed
modified to reflect the Commitment of such new Lender and of the existing Lenders, (ii) at the
request of the assignee Lender, and upon surrender of the relevant Revolving Notes or the provision
of a customary lost note indemnification agreement from the assignor or assignee Lender, as the
case may be, new Revolving Notes will be issued, at the Borrowers’ expense, to such new Lender and
to the assigning Lender, such new Revolving Notes to be in conformity with the requirements of
Section 1.05 (with appropriate modifications) to the extent needed to reflect the revised
Commitments, (iii) the consent of the Administrative Agent, each Issuing Lender and, at any time
when no Default or Event of Default is in existence, the Borrower shall be required in connection
with any such assignment pursuant to clause (y) above (each of which consents shall not be
unreasonably withheld or delayed), provided that the Borrower shall be deemed to have consented to
any such assignment unless it shall object thereto by written notice to the Administrative Agent
within ten (10) Business Days after having received notice thereof, and (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption
Agreement via an electronic settlement system acceptable to the Administrative Agent (or, if
previously agreed with the Administrative Agent, manually), and shall pay to the Administrative
Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole
discretion of the Administrative Agent) and, provided further, that such transfer or
assignment will not be effective until recorded by the Administrative Agent on the Register
pursuant to Section 13.17 hereof. To the extent of any assignment pursuant to this Section
13.04(b), the assigning Lender shall be relieved of its obligations hereunder with respect to its
assigned Commitments and related assigned Obligations (it being understood that, in the event that
an assigning Lender assigns all of its Commitments and related outstanding Obligations hereunder,
the indemnification provisions under this Agreement (including, without limitation, Section 1.10,
1.11, 2.06, 4.04, 13.01 and 13.06) shall, in any event, survive as to such assigning Lender). At
the time of each assignment pursuant to this Section 13.04(b) to a Person which is not already a
Lender hereunder and which is not a United States person (as such term is
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defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective
assignee Lender shall provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable a Section 4.04(b)(ii) Certificate) described in Section
4.04(b). To the extent that an assignment of all or any portion of a Lender’s Commitments and
related outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would, at the
time of such assignment, result in increased costs under Section 1.10, 1.11, 2.06 or 4.04 greater
than those being charged by the respective assigning Lender prior to such assignment, then the
Borrower shall not be obligated to pay such greater increased costs (although the Borrower shall be
obligated to pay any other increased costs of the type described above resulting from changes after
the date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Lender from pledging its Loans and
Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank and, with prior notification to the Administrative Agent (but without the
consent of either the Borrower or the Administrative Agent), any Lender which is a fund may pledge
all or any portion of its Notes or Loans to its trustee or to a collateral agent providing credit
or credit support to such Lender in support of its obligations to its trustee or such collateral
agent, as the case may be. No pledge pursuant to this clause (c) shall release the transferor
Lender from any of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent
or any Lender or any holder of any Note in exercising any right, power or privilege hereunder or
under any other Credit Document and no course of dealing between the Borrower or any other Credit
Party and any Agent, any Issuing Lender or any Lender or the holder of any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights, powers and remedies
herein or in any other Credit Document expressly provided are cumulative and not exclusive of any
rights, powers or remedies which any Agent, any Issuing Lender or any Lender or the holder of any
Note would otherwise have. No notice to or demand on any Credit Party in any case shall entitle
any Credit Party to any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of any Agent, any Issuing Lender or any Lender or the holder of
any Note to any other or further action in any circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in this Agreement, the
Administrative Agent agrees that promptly after its receipt of each payment from or on behalf of
the Borrower in respect of any Obligations hereunder, it shall distribute such payment to the
Lenders (other than any Lender that has consented in writing to waive its pro rata
share of any such payment) pro rata based upon their respective shares, if any, of
the Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount hereunder (whether by
voluntary payment, by realization upon security, by the exercise of the right of
setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any right
under the Credit Documents, or otherwise), which is applicable to the payment of the principal of,
or interest on, the Loans, Unpaid Drawings, Facility Fees or other Fees, of a sum which with
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respect to the related sum or sums received by other Lenders is in a greater proportion than the
total of such Obligation then owed and due to such Lender bears to the total of such Obligation
then owed and due to all of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or warranty from the other
Lenders an interest in the Obligations of the Borrower to such Lenders in such amount as shall
result in a proportional participation by all the Lenders in such amount; provided that if
all or any portion of such excess amount is thereafter recovered from such Lender, such purchase
shall be rescinded and the purchase price restored to the extent of such recovery, but without
interest.
(c) Notwithstanding anything to the contrary contained herein, the provisions of the preceding
Sections 13.06(a) and (b) shall be subject to the express provisions of this Agreement which
require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to
Defaulting Lenders.
13.07 Calculations; Computations. (a) The financial statements to be furnished to
the Lenders pursuant hereto shall be made and prepared in accordance with generally accepted
accounting principles in the United States consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing by the Borrower to
the Lenders), provided that except as otherwise specifically provided herein, all
computations of the Applicable Facility Fee Percentage and the Applicable Margin, and all
computations and all definitions (including accounting terms) used in determining compliance with
Sections 9.07 and 9.08, shall utilize accounting principles and policies in conformity with those
used to prepare the historical financial statements referred to in Section 7.05(a).
(b) All computations of interest on Eurodollar Loans and computations of Fees hereunder shall
be made on the basis of a year of 360 days for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest or Fees are payable.
All computations of interest on Base Rate Loans shall be made on the basis of a year of 365/366
days for the actual number of days (including the first day but excluding the last day) occurring
in the period for which such interest is payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL. (a)
THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE
STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE
LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. THE BORROWER HEREBY FURTHER
IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER IT, AND AGREES
NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
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THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL
JURISDICTION OVER IT. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF
BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH OPPOSITE
ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. THE BORROWER
HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER
CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF ANY AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
BORROWER IN ANY OTHER JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a)
ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT
ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on the date (the
“Restatement Effective Date”) on which (i) the Borrower, each Lender and each Agent shall have
signed a counterpart hereof (whether the same or different counterparts) and shall have delivered
(including by way of facsimile) the same to the Administrative Agent at the Notice Office or, in
the case of the Lenders, shall have given the Administrative Agent telephonic (confirmed in
writing), written or telex notice (actually received) at such office that same has been signed and
mailed to it and (ii) the conditions contained in Section 5 are met to the reasonable satisfaction
of the Administrative Agent and the Required Lenders. Unless the Administrative Agent has received
actual notice from the Required Lenders that the conditions
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contained in Section 5 have not been
met to its reasonable satisfaction, upon the satisfaction of the condition described in clause (i)
of the immediately preceding sentence and upon the Administrative Agent’s good faith determination
that the conditions described in clause (ii) of the immediately preceding sentence have been met,
then the Restatement Effective Date shall have been deemed to have occurred, regardless of any
subsequent determination that one or more of the conditions thereto had not been met (although the
occurrence of the Restatement Effective Date shall not release the Borrower from any liability for
failure to satisfy one or more of the applicable conditions contained in Section 5). The
Administrative Agent will give the Borrower and each Lender prompt written notice of the occurrence
of the Restatement Effective Date.
13.11 Headings Descriptive. The headings of the several sections and subsections of
this Agreement are inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any other Credit
Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless
such change, waiver, discharge or termination is in writing signed by the respective Credit Parties
party thereto and the Required Lenders (although additional parties may be added to (and annexes
may be modified to reflect such additions), and Subsidiaries of the Borrower may be released from,
the Subsidiaries Guaranty in accordance with the provisions hereof and thereof without the consent
of the other Credit Parties party thereto or the Required Lenders), provided that no such
change, waiver, discharge or termination shall, without the consent of each Lender (other than,
except with respect to following clause (i), a Defaulting Lender) (with Obligations being directly
affected thereby in the case of following clause (i)), (i) extend the final scheduled maturity of
any Loan or Note, or extend the stated maturity of, or any reimbursement obligation under, any
Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of
interest or Fees (it being understood that any amendment or modification to the financial
definitions in this Agreement or to Section 13.07(a) shall not constitute a reduction in the rate
of interest or Fees for the purposes of this clause (i)), or reduce the principal amount thereof,
or reduce any reimbursement obligations under any Letter of Credit, (ii) amend, modify or waive any
provision of this Section 13.12 (except for technical amendments with respect to additional
extensions of credit under this Agreement of the type which afford the protections to such
additional
extensions of credit provided to the Commitments on the Restatement Effective Date), (iii)
reduce the percentage specified in the definition of Required Lenders (it being understood and
agreed that, with the consent of the Required Lenders, additional extensions of credit pursuant to
this Agreement may be included in the determination of the Required Lenders on substantially the
same basis as the Commitments are included on the Restatement Effective Date) or (iv) consent to
the assignment or transfer by the Borrower of any of its rights and obligations under this
Agreement; provided further, that no such change, waiver, discharge or termination shall
(1) in the case of any such change, waiver, discharge or termination to or of any Incremental
Revolving Loan Commitment Agreement, without the consent of each Lender (other than a Defaulting
Lender) party thereto, amend, modify, waive or terminate such Incremental Revolving Loan Commitment
Agreement (it being understood and agreed that any reduction to the Commitment of any Lender that
is also party to any Incremental Revolving Loan Commitment Agreement shall not require the consent
of such Lender by operation of this clause (1) to the extent such reduction is otherwise permitted
under this Agreement), (2) increase the Commitment of any Lender over the amount thereof then in
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effect without the consent of such Lender (it being understood and agreed that waivers or
modifications of conditions precedent, covenants (including, without limitation, by means of
modifications to the financial definitions or modifications in the method of calculation of any
financial covenants), Defaults or Events of Default or of a mandatory reduction in the Total
Commitments shall not constitute an increase of the Commitment of any Lender, and that an increase
in the available portion of any Commitment of any Lender shall not constitute an increase in the
Commitment of such Lender), (3) without the consent of the respective Issuing Lender or Issuing
Lenders, amend, modify or waive any provision of Section 2 with respect to Letters of Credit issued
by it or alter its rights or obligations with respect to Letters of Credit, (4) without the consent
of the Swingline Lender, amend, modify or waive any provision of Sections 1.01(b) and (c) or alter
its rights and obligations with respect to Swingline Loans or (5) without the consent of each Agent
affected thereby, amend, modify or waive any provision of Section 12 as same applies to such Agent
or any other provision as same relates to the rights or obligations of such Agent.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the
provisions of this Agreement as contemplated by clauses (i) through (iv), inclusive, of the first
proviso to Section 13.12(a), the consent of the Required Lenders is obtained but the consent of one
or more of such other Lenders whose consent is required is not obtained, then the Borrower shall
have the right, so long as all non-consenting Lenders whose individual consent is required are
treated as described in either clauses (A) or (B) below, to either (A) replace each such
non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 1.13 so
long as at the time of such replacement, each such Replacement Lender consents to the proposed
change, waiver, discharge or termination or (B) terminate such non-consenting Lender’s Commitment
in accordance with Sections 3.02(b) and/or 4.01(b), provided that, unless the Commitments
are terminated, and Loans repaid, pursuant to the preceding clause (B) are immediately replaced in
full at such time through the addition of new Lenders or the increase of the Commitments and/or
outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in
the case of any action pursuant to preceding clause (B) the Required Lenders (determined before
giving effect to the proposed action) shall specifically consent thereto, provided further,
that in any event the Borrower shall not have the right to replace a Lender, terminate its
Commitment or repay its Loans solely as a
result of the exercise of such Lender’s rights (and the withholding of any required consent by
such Lender) pursuant to the second proviso to Section 13.12(a).
(c) Notwithstanding anything to the contrary contained in clauses (a) and (b) above of this
Section 13.12, the Borrower, the Administrative Agent and each Incremental RL Lender may, in
accordance with the provisions of Sections 1.14, enter into an Incremental Revolving Loan
Commitment Agreement, provided that after the execution, delivery and effectiveness of such
Incremental Revolving Loan Commitment Agreement, the Incremental RL Lender party thereto, and any
Incremental Revolving Loan Commitment created pursuant thereto, shall be treated for all purposes
hereunder as a Lender and as such Lender’s Commitment, respectively.
(d) Notwithstanding anything to the contrary herein any Credit Document may be waived,
amended, supplemented or modified pursuant to an agreement or agreements in writing entered into by
the Borrower and the Administrative Agent (without the consent of any
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Xxxxxx) solely to cure a
defect, ambiguity, inconsistency, obvious error or any error or omission of a technical or
immaterial nature, in each case, in any provision of the Credit Documents, (provided that prompt
notice following any such amendment, waiver, supplement or modification shall be given to the
Lenders by the Borrower and the Administrative Agent) and such amendment, waiver, supplement or
modification shall become effective without any further action or consent of any other party to any
Credit Document if the same is not objected to in writing by the Required Lenders within ten (10)
Business Days following receipt of notice thereof.
13.13 Survival. All indemnities set forth herein including, without limitation, in
Sections 1.10, 1.11, 2.06, 4.04, 12.06, 13.01 and 13.06 shall, subject to Section 13.15 (to the
extent applicable) survive the execution, delivery and termination of this Agreement and the Notes
and the making and repayment of the Loans.
13.14 Domicile of Loans. Each Lender may transfer and carry its Loans at, to or for
the account of any office, Subsidiary or Affiliate of such Lender. Notwithstanding anything to the
contrary contained herein, to the extent that a transfer of Loans pursuant to this Section 13.14
would, at the time of such transfer, result in increased costs under Section 1.10, 1.11, 2.06 or
4.04 from those being charged by the respective Lender prior to such transfer, then the Borrower
shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay
any other increased costs of the type described above resulting from changes after the date of the
respective transfer).
13.15 Limitation on Additional Amounts, etc. Notwithstanding anything to the
contrary contained in Sections 1.10, 1.11, 2.06 or 4.04 of this Agreement, unless a Lender gives
notice to the Borrower that they are obligated to pay an amount under any such Section within 180
days after the later of (x) the date the Lender incurs the respective increased costs, Taxes, loss,
expense or liability, reduction in amounts
received or receivable or reduction in return on capital or (y) the date such Lender has
actual knowledge of its incurrence of the respective increased costs, Taxes, loss, expense or
liability, reductions in amounts received or receivable or reduction in return on capital, then
such Lender shall only be entitled to be compensated for such amount by the Borrower pursuant to
said Section 1.10, 1.11, 2.06 or 4.04, as the case may be, to the extent the costs, Taxes, loss,
expense or liability, reduction in amounts received or receivable or reduction in return on capital
are incurred or suffered on or after the date which occurs 180 days prior to such Lender giving
notice to the Borrowers that it is obligated to pay the respective amounts pursuant to said Section
1.10, 1.11, 2.06 or 4.04, as the case may be. This Section 13.15 shall have no applicability to
any Section of this Agreement other than said Sections 1.10, 1.11, 2.06 and 4.04.
13.16 Confidentiality. (a) Subject to the provisions of clause (b) of this Section
13.16, each Lender agrees that it will not disclose without the prior consent of the Borrower
(other than to its officers, directors, employees, auditors, agents, advisors or counsel or to
another Lender if the Lender or such Lender’s holding or parent company in its sole discretion
determines that any such party should have access to such information, provided such Persons shall
be subject to the provisions of this Section 13.16 to the same extent as such Lender) any
information with respect to the Borrower or any of its Subsidiaries which is now or in the future
furnished pursuant to this Agreement or any other Credit Document and which is designated by
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the Borrower to the Lenders in writing as confidential, provided that any Lender may disclose
any such information (a) as has become generally available to the public, (b) as may be required or
appropriate in any report, statement or testimony submitted to any municipal, state or Federal
regulatory body having or claiming to have jurisdiction over such Lender or to the Federal Reserve
Board or the Federal Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors, (c) as may be required or appropriate in respect to any
summons or subpoena or in connection with any litigation, (d) in order to comply with any law,
order, regulation or ruling applicable to such Lender, (e) to any Agent, and (f) to any prospective
or actual transferee or participant in connection with any contemplated transfer or participation
of any of the Notes or Commitments or any interest therein by such Lender, provided that
such prospective transferee agrees to be subject to the provisions contained in this Section 13.16.
(b) The Borrower hereby acknowledges and agrees that each Lender may share with any of its
Affiliates any information related to the Borrower or any of its Subsidiaries (including, without
limitation, any nonpublic customer information regarding the creditworthiness of the Borrower and
its Subsidiaries), provided such Persons shall be subject to the provisions of this Section 13.16
to the same extent as such Lender.
13.17 Register. The Borrower hereby designates the Administrative Agent to serve as
the Borrower’s agent, solely for purposes of this Section 13.17, to maintain a register (the
“Register”) on which it will record the Commitments from time to time of each of the Lenders, the
Loans made by each of the Lenders and each repayment in respect of the principal amount of the
Loans of each Lender. The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower’s obligations in respect of such Loans. With
respect to any Lender, the transfer of the Commitments of such Lender and the rights to the
principal of, and interest on, any Revolving Loan made pursuant to such Commitments shall not be
effective until such transfer is recorded on the Register maintained by the Administrative Agent
with respect to ownership of such Commitments and Revolving Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commitments and Revolving Loans shall remain
owing to the transferor. The registration of assignment or transfer of all or part of any
Commitments and Revolving Loans shall be recorded by the Administrative Agent on the Register only
upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 13.04(b). Coincident with the delivery of such an
Assignment and Assumption Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Revolving Loan, or as soon thereafter as practicable,
the assigning or transferor Lender shall surrender the Note evidencing such Revolving Loan, and
thereupon one or more new Revolving Notes in the same aggregate principal amount shall be issued to
the assigning or transferor Lender and/or the new Lender. The registration of any provision of
Incremental Revolving Loan Commitments pursuant to Sections 1.14 shall be recorded by the
Administrative Agent on the Register only upon the acceptance of the Administrative Agent of a
properly executed and delivered Incremental Revolving Loan Commitment Agreement. Coincident with
the delivery of such Incremental Revolving Loan Commitment Agreement for acceptance and
registration of the provision of an Incremental Revolving Loan Commitment, or as soon thereafter as
practicable, new Revolving Notes, as the case may be, shall be issued to the respective Incremental
RL Lender at the request of such Incremental RL
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Lender. The Borrower agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or incurred by the Administrative Agent
in performing its duties under this Section 13.17.
13.18 USA Patriot Act Notice. Each Lender subject to the USA PATRIOT Improvement and
Reauthorization Act, Pub. L. 109-177 (signed into law March 9, 2009) (as amended from time to time,
the “Patriot Act”) hereby notifies the Borrower that pursuant to the requirements of the Patriot
Act, it is required to obtain, verify and record information that identifies the Borrower and the
other Credit Parties and other information that will allow such Lender to identify the Borrower and
the other Credit Parties in accordance with the Patriot Act and the Borrower agrees to provide such
information from time to time to any Lender.
13.19 Post-Closing Actions. Notwithstanding anything to the contrary contained in
this Agreement or the other Credit Documents (including Sections 5.03 and 5.04), the parties hereto
acknowledge and agree that no later than 45 days following the Restatement Effective Date (with it
being understood and agreed that such actions shall not be required to be taken until such time),
so long as the Subsidiary Guaranty has not been released in accordance with the terms of the Credit
Documents (including pursuant to Section 8.10 hereof and Section 21(b) of the Subsidiaries
Guaranty), the Administrative Agent shall have received (x) a certificate, dated as of the date of
delivery thereof, signed by an Authorized Representative of each Subsidiary Guarantor, and
attested to by another Authorized Representative of such Subsidiary Guarantor, in the form of
Exhibit F with appropriate insertions, together with copies of the certificate of incorporation and
by-laws (or equivalent organizational documents) of such Subsidiary Guarantor, and the resolutions
of such Subsidiary Guarantor referred to in such certificate and (y) legal opinions in respect of
the Subsidiary Guarantors from outside counsel (with respect to opinions rendered, as applicable,
under New York law, Georgia law, Delaware law, and the law of each other applicable jurisdiction in
which such outside counsel is licensed and qualified to render financing opinions) and internal
counsel (with respect to all other applicable jurisdictions), with all of the foregoing to be in
form and substance reasonably acceptable to the Administrative Agent.
All conditions precedent and representations contained in this Agreement and the other Credit
Documents shall be deemed modified to the extent necessary to effect the foregoing (and to permit
the taking of the actions described above within the time periods required above, rather than as
elsewhere provided in the Credit Documents), provided that to the extent any representation
and warranty would not be true because the foregoing actions were not taken on the Restatement
Effective Date, the respective representation and warranty shall be required to be true and correct
in all material respects at the time the respective action is taken (or was required to be taken)
in accordance with the foregoing provisions of this Section 13.19. The acceptance of the benefits
of each Credit Event shall constitute a representation, warranty and covenant by the Borrower to
each of the Lenders that the actions required pursuant to this Section 13.19 will be, or have been,
taken within the relevant time periods referred to in this Section 13.19 and that, at such time,
all representations and warranties contained in this Agreement and the other Credit Documents shall
then be true and correct without any modification pursuant to this Section 13.19, and the parties
hereto acknowledge and agree that
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the failure to take any of the actions required above, within the
relevant time periods required above, shall give rise to an immediate Event of Default pursuant to
this Agreement.
13.20 Interest Rate Limitation. Notwithstanding anything to the contrary contained
in any Credit Document, the interest paid or agreed to be paid under the Credit Documents shall not
exceed the maximum rate of non-usurious interest permitted by applicable law (the “Maximum Rate”).
If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to the Borrower. In determining whether the interest contracted
for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such
Person may, to the extent permitted by applicable law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts
the total amount of interest throughout the contemplated term of the Obligations hereunder.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute
and deliver this Agreement as of the date first above written.
Address:
| 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxx, XX 00000 |
FLOWERS FOODS, INC. | |||||
| By: | /s/ R. Xxxxx Xxxxxx | |||||
Telephone: (000) 000-0000
|
||||||
Facsimile: (000) 000-0000
|
Title: Executive Vice President and | |||||
Attention: Secretary and
General Counsel
|
Chief Financial Officer | |||||
| DEUTSCHE BANK AG NEW YORK BRANCH, Individually and as Administrative Agent |
||||
| By: | /s/ Xxxxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxxxx X. Xxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Director | |||
| BANK OF AMERICA, N.A., Individually and as Syndication Agent |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Senior Vice President | |||
| COÖPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH, Individually and as Co-Documentation Agent |
||||
| By: | /s/ Xxxxxxxx X. Xxx | |||
| Name: | Xxxxxxxx X. Xxx | |||
| Title: | Executive Director | |||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Executive Director | |||
| BRANCH BANKING AND TRUST COMPANY, Individually and as Co-Documentation Agent |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Assistant Vice President | |||
| REGIONS BANK, Individually and as Co-Documentation Agent |
||||
| By: | /s/ | |||
| Name: | ||||
| Title: | Executive Vice President | |||
| SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF OCTOBER 24, 2003 AND AMENDED AND RESTATED AS OF OCTOBER 29, 2004 AND FURTHER AMENDED AND RESTATED AS OF JUNE 6, 2006 AND FURTHER AMENDED AND RESTATED AS OF MAY 20, 2011, AMONG FLOWERS FOODS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT NAME OF INSTITUTION: PNC BANK, NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Assistant Vice President | |||
| SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF OCTOBER 24, 2003 AND AMENDED AND RESTATED AS OF OCTOBER 29, 2004 AND FURTHER AMENDED AND RESTATED AS OF JUNE 6, 2006 AND FURTHER AMENDED AND RESTATED AS OF MAY 20, 2011, AMONG FLOWERS FOODS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT NAME OF INSTITUTION: NORTHERN TRUST COMPANY |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Senior Vice President — Division Manager | |||
| SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF OCTOBER 24, 2003 AND AMENDED AND RESTATED AS OF OCTOBER 29, 2004 AND FURTHER AMENDED AND RESTATED AS OF JUNE 6, 2006 AND FURTHER AMENDED AND RESTATED AS OF MAY 20, 2011, AMONG FLOWERS FOODS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT NAME OF INSTITUTION: XXXXX FARGO BANK, N.A. |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Senior Vice President | |||
| SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF OCTOBER 24, 2003 AND AMENDED AND RESTATED AS OF OCTOBER 29, 2004 AND FURTHER AMENDED AND RESTATED AS OF JUNE 6, 2006 AND FURTHER AMENDED AND RESTATED AS OF MAY 20, 2011, AMONG FLOWERS FOODS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT NAME OF INSTITUTION: ROYAL BANK OF CANADA |
||||
| By: | /s/ Xxxxxx XxxXxxxxx | |||
| Name: | Xxxxxx XxxXxxxxx | |||
| Title: | Authorized Signatory | |||
| SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF OCTOBER 24, 2003 AND AMENDED AND RESTATED AS OF OCTOBER 29, 2004 AND FURTHER AMENDED AND RESTATED AS OF JUNE 6, 2006 AND FURTHER AMENDED AND RESTATED AS OF MAY 20, 2011, AMONG FLOWERS FOODS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT NAME OF INSTITUTION: RBC BANK (USA) |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Senior Vice President | |||
| SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF OCTOBER 24, 2003 AND AMENDED AND RESTATED AS OF OCTOBER 29, 2004 AND FURTHER AMENDED AND RESTATED AS OF JUNE 6, 2006 AND FURTHER AMENDED AND RESTATED AS OF MAY 20, 2011, AMONG FLOWERS FOODS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT NAME OF INSTITUTION: AGFIRST FARM CREDIT BANK |
||||
| By: | /s/ Xxxx X. Xxxxxxxx Xx. | |||
| Name: | Xxxx X. Xxxxxxxx Xx. | |||
| Title: | Vice President | |||
| SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF OCTOBER 24, 2003 AND AMENDED AND RESTATED AS OF OCTOBER 29, 2004 AND FURTHER AMENDED AND RESTATED AS OF JUNE 6, 2006 AND FURTHER AMENDED AND RESTATED AS OF MAY 20, 2011, AMONG FLOWERS FOODS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT NAME OF INSTITUTION: COBANK, ACB |
||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | Vice President | |||
| SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF OCTOBER 24, 2003 AND AMENDED AND RESTATED AS OF OCTOBER 29, 2004 AND FURTHER AMENDED AND RESTATED AS OF JUNE 6, 2006 AND FURTHER AMENDED AND RESTATED AS OF MAY 20, 2011, AMONG FLOWERS FOODS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT NAME OF INSTITUTION: FARM CREDIT SERVICES OF AMERICA PCA |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Vice President | |||
| SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF OCTOBER 24, 2003 AND AMENDED AND RESTATED AS OF OCTOBER 29, 2004 AND FURTHER AMENDED AND RESTATED AS OF JUNE 6, 2006 AND FURTHER AMENDED AND RESTATED AS OF MAY 20, 2011, AMONG FLOWERS FOODS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT NAME OF INSTITUTION: GREENSTONE FARM CREDIT SERVICES, ACA/FLCA |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Senior Vice President/Managing Director | |||
| SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF OCTOBER 24, 2003 AND AMENDED AND RESTATED AS OF OCTOBER 29, 2004 AND FURTHER AMENDED AND RESTATED AS OF JUNE 6, 2006 AND FURTHER AMENDED AND RESTATED AS OF MAY 20, 2011, AMONG FLOWERS FOODS, INC., THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT NAME OF INSTITUTION: SUNTRUST BANK |
||||
| By: | /s/ M. Xxxx Xxxxxxxx | |||
| Name: | M. Xxxx Xxxxxxxx | |||
| Title: | Vice President | |||
Schedule I
COMMITMENTS
| Lender | Commitment | |||
Deutsche Bank AG New York Branch |
$ | 51,000,000 | ||
Bank of America, N.A. |
$ | 45,000,000 | ||
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
“Rabobank Nederland”, New York Branch |
$ | 45,000,000 | ||
Branch Banking and Trust Company |
$ | 45,000,000 | ||
Regions Bank |
$ | 45,000,000 | ||
PNC Bank, National Association |
$ | 36,000,000 | ||
Northern Trust Company |
$ | 36,000,000 | ||
Xxxxx Fargo Bank, National Association |
$ | 36,000,000 | ||
Royal Bank of Canada |
$ | 19,000,000 | ||
RBC Bank (USA) |
$ | 17,000,000 | ||
AgFirst Farm Credit Bank |
$ | 25,000,000 | ||
CoBank, ACB |
$ | 25,000,000 | ||
Farm Credit Services of America, PCA |
$ | 25,000,000 | ||
GreenStone Farm Credit Services, FLCA/ACA |
$ | 25,000,000 | ||
SunTrust Bank |
$ | 25,000,000 | ||
Total |
$ | 500,000,000 | ||
TABLE OF CONTENTS
| Page | ||||
SECTION 1. Amount and Terms of Credit |
1 | |||
1.01 Commitments |
1 | |||
1.02 Minimum Amount of Each Borrowing |
3 | |||
1.03 Notice of Borrowing |
3 | |||
1.04 Disbursement of Funds |
4 | |||
1.05 Notes |
5 | |||
1.06 Conversions |
6 | |||
1.07 Pro Rata Borrowings |
7 | |||
1.08 Interest |
7 | |||
1.09 Interest Periods |
7 | |||
1.10 Increased Costs, Illegality, etc. |
8 | |||
1.11 Compensation |
11 | |||
1.12 Change of Lending Office |
11 | |||
1.13 Replacement of Lenders |
11 | |||
1.14 Incremental Revolving Loan Commitments |
12 | |||
1.15 Defaulting Lenders |
14 | |||
SECTION 2. Letters of Credit |
16 | |||
2.01 Letters of Credit |
16 | |||
2.02 Minimum Stated Amount |
17 | |||
2.03 Letter of Credit Requests |
17 | |||
2.04 Letter of Credit Participations |
18 | |||
2.05 Agreement to Repay Letter of Credit Drawings |
20 | |||
2.06 Increased Costs |
20 | |||
SECTION 3. Facility Fee; Other Fees; Reductions of Commitment |
21 | |||
3.01 Fees |
21 | |||
3.02 Optional Commitment Reductions |
22 | |||
3.03 Mandatory Reduction of Commitments |
23 | |||
3.04 Commitment Extensions. |
23 | |||
SECTION 4. Prepayments; Payments; Taxes |
24 | |||
4.01 Voluntary Prepayments |
24 | |||
4.02 Mandatory Repayments and Cash Collateralizations |
24 | |||
4.03 Method and Place of Payment |
25 | |||
4.04 Net Payments; Taxes |
25 | |||
SECTION 5. Conditions Precedent to the Restatement Effective Date |
28 | |||
5.01 Execution of Agreement; Notes |
28 | |||
5.02 Officer’s Certificate |
28 | |||
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TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||
5.03 Opinions of Counsel |
28 | |||
5.04 Corporate Documents; Proceedings; etc. |
28 | |||
5.05 Existing Credit Agreement |
29 | |||
5.06 Guaranties |
29 | |||
5.07 Outstanding Indebtedness; Preferred Stock |
29 | |||
5.08 Adverse Change; Governmental Approvals; etc. |
29 | |||
5.09 Litigation |
30 | |||
5.10 Financial Statements |
30 | |||
5.11 Solvency Certificate; Leverage Ratio Certificate |
30 | |||
5.12 Fees, etc. |
30 | |||
SECTION 6. Conditions Precedent to All Credit Events |
30 | |||
6.01 Restatement Effective Date |
31 | |||
6.02 No Default; Representations and Warranties |
31 | |||
6.03 Notice of Borrowing; Letter of Credit Request |
31 | |||
6.04 The Existing Credit Agreement |
31 | |||
SECTION 7. Representations, Warranties and Agreements |
32 | |||
7.01 Corporate Status |
32 | |||
7.02 Corporate Power and Authority |
32 | |||
7.03 No Violation |
33 | |||
7.04 Governmental Approvals |
33 | |||
7.05 Financial Statements; Financial Condition;
Undisclosed Liabilities;
Projections; etc. |
33 | |||
7.06 Litigation |
34 | |||
7.07 True and Complete Disclosure |
34 | |||
7.08 Use of Proceeds; Margin Regulations |
35 | |||
7.09 Tax Returns and Payments |
35 | |||
7.10 Compliance with ERISA |
35 | |||
7.11 Properties |
36 | |||
7.12 Subsidiaries |
36 | |||
7.13 Compliance with Statutes, etc. |
36 | |||
7.14 Investment Company Act |
36 | |||
7.15 [Reserved] |
36 | |||
7.16 Environmental Matters |
36 | |||
7.17 Labor Relations |
37 | |||
7.18 Patents, Licenses, Franchises and Formulas |
37 | |||
7.19 Scheduled Existing Indebtedness, etc. |
37 | |||
SECTION 8. Affirmative Covenants |
37 | |||
8.01 Information Covenants |
38 | |||
-ii-
TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||
8.02 Books, Records and Inspections |
40 | |||
8.03 Maintenance of Property; Insurance |
40 | |||
8.04 Corporate Franchises |
40 | |||
8.05 Compliance with Statutes, etc. |
41 | |||
8.06 Compliance with Environmental Laws |
41 | |||
8.07 ERISA |
41 | |||
8.08 End of Fiscal Years; Fiscal Quarters |
42 | |||
8.09 Payment of Taxes |
42 | |||
8.10 Subsidiaries Guaranty; Additional Subsidiary Guarantors |
42 | |||
8.11 Use of Proceeds |
43 | |||
SECTION 9. Negative Covenants |
43 | |||
9.01 Liens |
43 | |||
9.02 Consolidations, Mergers, Sales of Assets and Acquisitions |
45 | |||
9.03 Dissolution, etc. |
47 | |||
9.04 Restricted Payments |
47 | |||
9.05 Indebtedness |
47 | |||
9.06 Transactions with Affiliates |
47 | |||
9.07 Maximum Leverage Ratio |
48 | |||
9.08 Minimum Interest Coverage Ratio |
48 | |||
9.09 Business |
48 | |||
9.10 Limitation on Certain Restrictions on Subsidiaries |
48 | |||
9.11 Limitation on Issuance of Capital Stock |
48 | |||
SECTION 10. Events of Default |
49 | |||
10.01 Payments |
49 | |||
10.02 Representations, etc. |
49 | |||
10.03 Covenants |
49 | |||
10.04 Default Under Other Agreements |
49 | |||
10.05 Bankruptcy, etc. |
50 | |||
10.06 ERISA |
50 | |||
10.07 Subsidiaries Guaranty |
50 | |||
10.08 Judgments |
51 | |||
10.09 Change of Control |
51 | |||
SECTION 11. Definitions and Accounting Terms |
51 | |||
11.01 Defined Terms |
51 | |||
11.02 Other Definitional Provisions |
75 | |||
-iii-
TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||
SECTION 12. The Agents |
75 | |||
12.01 Appointment |
75 | |||
12.02 Nature of Duties |
76 | |||
12.03 Lack of Reliance on the Agents |
76 | |||
12.04 Certain Rights of the Agents |
76 | |||
12.05 Reliance |
77 | |||
12.06 Indemnification |
77 | |||
12.07 The Agent in its Individual Capacity |
77 | |||
12.08 Holders |
77 | |||
12.09 Resignation by the Agents |
78 | |||
12.10 Delivery of Information |
79 | |||
12.11 The Syndication Agent, the Co-Documentation Agents and the Lead Arranger |
79 | |||
12.12 Nature of Duties |
79 | |||
SECTION 13. Miscellaneous |
79 | |||
13.01 Payment of Expenses, etc. |
79 | |||
13.02 Right of Setoff |
81 | |||
13.03 Notices |
81 | |||
13.04 Benefit of Agreement |
82 | |||
13.05 No Waiver; Remedies Cumulative |
84 | |||
13.06 Payments Pro Rata |
84 | |||
13.07 Calculations; Computations |
85 | |||
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL |
85 | |||
13.09 Counterparts |
86 | |||
13.10 Effectiveness |
86 | |||
13.11 Headings Descriptive |
87 | |||
13.12 Amendment or Waiver; etc. |
87 | |||
13.13 Survival |
89 | |||
13.14 Domicile of Loans |
89 | |||
13.15 Limitation on Additional Amounts, etc. |
89 | |||
13.16 Confidentiality |
89 | |||
13.17 Register |
90 | |||
13.18 USA Patriot Act Notice |
91 | |||
13.19 Post-Closing Actions |
91 | |||
13.20 Interest Rate Limitation |
92 | |||
-iv-
SCHEDULE I
|
Commitments | |
SCHEDULE II
|
Lender Addresses | |
SCHEDULE III
|
Existing Letters of Credit and Existing Swingline Loans | |
SCHEDULE IV
|
Subsidiaries | |
SCHEDULE V
|
Existing Liens | |
SCHEDULE VI
|
Scheduled Existing Indebtedness | |
SCHEDULE VII
|
Voting Participants | |
EXHIBIT A-1
|
Notice of Borrowing | |
EXHIBIT A-2
|
Notice of Conversion/Continuation | |
EXHIBIT B-1
|
Revolving Note | |
EXHIBIT B-2
|
Swingline Note | |
EXHIBIT C
|
Letter of Credit Request | |
EXHIBIT D
|
Section 4.04(b)(ii) Certificate | |
EXHIBIT E-1
|
Opinion of Xxxxx Day, counsel to the Credit Parties | |
EXHIBIT E-2
|
Opinion of Xxxxxxx X. Xxxxx, general counsel of the Borrower and special counsel to the other Credit Parties | |
EXHIBIT F
|
Officers’ Certificate | |
EXHIBIT G
|
Subsidiaries Guaranty | |
EXHIBIT H
|
Solvency Certificate | |
EXHIBIT I
|
Assignment and Assumption Agreement | |
EXHIBIT J
|
Compliance Certificate | |
EXHIBIT K
|
Joinder Agreement | |
EXHIBIT L
|
Incremental Revolving Loan Commitment Agreement |
-i-
