EXECUTION COPY
Published CUSIP Number: _________
CREDIT AGREEMENT
Dated as of December 22, 2005
among
INTEGRA LIFESCIENCES HOLDINGS CORPORATION,
a Delaware corporation,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
CITIBANK FSB
and
SUNTRUST BANK,
as Co-Syndication Agents,
ROYAL BANK OF CANADA
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents
and
THE OTHER LENDERS PARTY HERETO
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Book Manager
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS............................1
Section 1.01 Defined Terms.............................................1
Section 1.02 Other Interpretive Provisions............................28
Section 1.03 Accounting Terms..........................................28
Section 1.04 Rounding..................................................29
Section 1.05 Times of Day..............................................29
Section 1.06 Letter of Credit Amounts..................................29
ARTICLE II THE LOANS...................................................30
Section 2.01 The Loans.................................................30
Section 2.02 Borrowings, Conversions and Continuations of Loans........30
Section 2.03 Letters of Credit.........................................32
Section 2.04 Swing Line Loans..........................................40
Section 2.05 Prepayments...............................................43
Section 2.06 Termination or Reduction of Commitments...................44
Section 2.07 Repayment of Loans........................................44
Section 2.08 Interest..................................................44
Section 2.09 Fees......................................................45
Section 2.10 Computation of Interest and Fees..........................46
Section 2.11 Evidence of Debt..........................................46
Section 2.12 Payments Generally; Administrative Agent's Clawback.......47
Section 2.13 Sharing of Payments by Lenders............................48
Section 2.14 Increase in Aggregate Commitments.........................49
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY......................50
Section 3.01 Taxes.....................................................50
Section 3.02 Illegality................................................52
Section 3.03 Inability to Determine Rates..............................53
Section 3.04 Increased Costs; Reserves on Eurodollar Rate Loans........53
Section 3.05 Compensation for Losses...................................55
Section 3.06 Mitigation Obligations; Replacement of Lenders............55
Section 3.07 Survival..................................................56
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TABLE OF CONTENTS
(continued)
Section Page
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS...................56
Section 4.01 Conditions to Closing.....................................56
Section 4.02 Conditions to all Credit Extensions.......................60
ARTICLE V REPRESENTATIONS AND WARRANTIES..............................61
Section 5.01 Existence, Qualification and Power........................61
Section 5.02 Authorization; No Contravention...........................61
Section 5.03 Governmental Authorization; Other Consents................62
Section 5.04 Binding Effect............................................62
Section 5.05 Financial Statements; No Material Adverse Effect; No
Internal Control Event....................................62
Section 5.06 Litigation................................................63
Section 5.07 No Default................................................63
Section 5.08 Subsidiaries and Equity Investments.......................63
Section 5.09 Ownership.................................................63
Section 5.10 Ownership of Personal Property; Liens.....................64
Section 5.11 Intellectual Property; Licenses, Etc......................64
Section 5.12 Real Estate, Lease........................................64
Section 5.13 Environmental Matters.....................................65
Section 5.14 Security Documents........................................65
Section 5.15 Insurance.................................................66
Section 5.16 Transactions with Affiliates..............................66
Section 5.17 Taxes.....................................................66
Section 5.18 ERISA Compliance..........................................67
Section 5.19 Purpose of Loans and Letters of Credit....................67
Section 5.20 Margin Regulations; Investment Company Act; Public
Utility Holding Company Act...............................67
Section 5.21 Disclosure................................................68
Section 5.22 Compliance with Laws......................................68
Section 5.23 Labor Matters.............................................68
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TABLE OF CONTENTS
(continued)
Section Page
Section 5.24 Solvency..................................................69
Section 5.25 Material Contracts........................................69
Section 5.26 Nature of Business........................................69
ARTICLE VI AFFIRMATIVE COVENANTS.......................................69
Section 6.01 Financial Statements......................................70
Section 6.02 Certificates; Other Information...........................70
Section 6.03 Notices...................................................73
Section 6.04 Payment of Obligations....................................73
Section 6.05 Preservation of Existence, Etc............................73
Section 6.06 Maintenance of Properties.................................74
Section 6.07 Maintenance of Insurance; Certain Proceeds................74
Section 6.08 Compliance with Laws......................................75
Section 6.09 Books and Records.........................................75
Section 6.10 Inspection Rights.........................................75
Section 6.11 Further Assurances with Respect to Additional
Loan Parties..............................................75
Section 6.12 Further Assurances with Respect to Additional
Collateral................................................76
Section 6.13 Performance of Material Contracts, etc....................76
Section 6.14 Use of Proceeds...........................................76
Section 6.15 Environmental.............................................76
ARTICLE VII NEGATIVE COVENANTS..........................................77
Section 7.01 Liens.....................................................77
Section 7.02 Investments...............................................78
Section 7.03 Indebtedness..............................................80
Section 7.04 Fundamental Changes and Acquisitions......................82
Section 7.05 Dispositions..............................................83
Section 7.06 Restricted Payments.......................................84
Section 7.07 Amendment, Etc............................................85
Section 7.08 Change in Nature of Business..............................85
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TABLE OF CONTENTS
(continued)
Section Page
Section 7.09 Transactions with Affiliates..............................86
Section 7.10 Limitations on Restricted Actions.........................86
Section 7.11 Sale-Leasebacks; Off-Balance Sheet Obligation.............86
Section 7.12 Use of Proceeds...........................................86
Section 7.13 Impairment of Security Interests..........................86
Section 7.14 Ownership of Foreign Subsidiaries.........................87
Section 7.15 Fiscal Year...............................................87
Section 7.16 Partnerships, etc.........................................87
Section 7.17 Financial Covenants.......................................87
Section 7.18 Independent of Covenants..................................87
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES..............................87
Section 8.01 Events of Default.........................................87
Section 8.02 Remedies Upon Event of Default............................90
Section 8.03 Application of Funds......................................90
ARTICLE IX ADMINISTRATIVE AGENT........................................92
Section 9.01 Appointment and Authority.................................92
Section 9.02 Rights as a Lender........................................92
Section 9.03 Exculpatory Provisions....................................92
Section 9.04 Reliance by Administrative Agent..........................93
Section 9.05 Delegation of Duties......................................93
Section 9.06 Resignation of Administrative Agent.......................93
Section 9.07 Non-Reliance on Administrative Agent and Other Lenders....94
Section 9.08 No Other Duties, Etc......................................95
Section 9.09 Administrative Agent May File Proofs of Claim.............95
Section 9.10 Collateral and Guaranty Matters...........................95
ARTICLE X MISCELLANEOUS...............................................96
Section 10.01 Amendments, Etc...........................................96
Section 10.02 Notices; Effectiveness; Electronic Communication..........97
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TABLE OF CONTENTS
(continued)
Section Page
Section 10.03 No Waiver; Cumulative Remedies............................99
Section 10.04 Expenses; Indemnity; Damage Waiver.......................100
Section 10.05 Payments Set Aside.......................................101
Section 10.06 Successors and Assigns...................................102
Section 10.07 Treatment of Certain Information; Confidentiality........106
Section 10.08 Right of Setoff..........................................107
Section 10.09 Interest Rate Limitation.................................107
Section 10.10 Counterparts; Integration; Effectiveness.................108
Section 10.11 Survival of Representations and Warranties...............108
Section 10.12 Severability.............................................108
Section 10.13 Replacement of Lenders...................................108
Section 10.14 Governing Law; Jurisdiction; Etc.........................109
Section 10.15 Waiver of Jury Trial.....................................110
Section 10.16 USA Patriot Act Notice...................................110
Section 10.17 Time of the Essence......................................110
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SCHEDULES
2.01.....Commitments and Applicable Percentages
5.03.....Approvals and Consents
5.08.....Subsidiaries and Other Equity Investments
5.13.....Environmental Matters
5.16.....Transactions with Affiliates
5.23.....Labor Matters
5.25.....Material Contracts
7.01.....Existing Liens
7.02.....Existing Investments
7.03.....Existing Indebtedness
10.02....Administrative Agent's Office, Certain Addresses for Notices
10.06....Processing and Recordation Fees
EXHIBITS
Exhibit A Form of Loan Notice
Exhibit B Form of Swing Line Loan Notice
Exhibit C Form of Note
Exhibit D Form of Compliance Certificate
Exhibit E Form of Assignment of Assumption
Exhibit F Subsidiary Guaranty Agreement
Exhibit G Form of Joinder Agreement
Exhibit H Opinion Matters
Exhibit I Form of Pledge Agreement
Exhibit J Form of Security Agreement
Exhibit K Form of Subordination Agreement
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement") is entered into as of December
22, 2005 among INTEGRA LIFESCIENCES HOLDINGS CORPORATION, a Delaware corporation
(the "Borrower"), each lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender"), BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer, Citibank FSB and
SunTrust Bank, as Co-Syndication Agents, and Royal Bank of Canada and Wachovia
Bank, National Association, as Co-Documentation Agents. Capitalized terms used
herein shall have the meanings assigned thereto in Section 1.01 of this
Agreement.
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders provide a
revolving credit facility to the Borrower in the aggregate principal amount of
$200 million and the Lenders are willing to do so on the terms and conditions
set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquisition", by any Person, means the purchase or acquisition in a
single transaction or a series of transactions by any such Person, individually
or together with its Affiliates, of (a) any Equity Interest of another Person
(other than a Loan Party) sufficient to cause such Person to become a direct or
indirect Subsidiary of the Borrower or (b) all or a substantial portion of the
Property of another Person (other than a Loan Party), including, without
limitation, all or a substantial portion of the Property comprising a division,
business unit or line of business, whether involving a merger or consolidation
with such other Person. "Acquire" has a meaning correlative thereto.
"Administrative Agent" means Bank of America in its capacity as
administrative agent and collateral agent, as applicable, under any of the Loan
Documents, or any successor administrative agent and collateral agent, as
provided in Section 9.06.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as to which the Administrative Agent may from time to
time notify the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Credit Agreement, as amended, amended and
restated, supplemented or otherwise modified from time to time.
"Applicable Percentage" means with respect to any Lender at any time,
the percentage (carried out to the ninth decimal place) of the Aggregate
Commitments represented by such Lender's Commitment at such time. If the
Commitment of each Lender to make Loans and the obligation of the L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if
the Aggregate Commitments have expired, then the Applicable Percentage of each
Lender shall be determined based on the Applicable Percentage of such Lender
most recently in effect, giving effect to any subsequent assignments. The
initial Applicable Percentage of each Lender is set forth opposite the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable.
"Applicable Rate" means, from time to time, the following percentages
per annum, based upon the Pricing Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to Section
6.02(b):
APPLICABLE RATE
Loans, Swing Line Loans and Letters of Credit
Eurodollar Base Rate
Rate Loans and
Pricing Pricing Loans and Letters Swing Line Commitment
Level Ratio of Credit Loans Fees
I => 2.50 to 1.0 1.50% .50% .25%
II <2.50 to 1.0 but 1.25% .25% .20%
=> 1.75 to 1.0
III < 1.75 to 1.0 but 1.125% .125% .20%
=> 1.0 to 1.0
IV < 1.0 to 1.0 .75% 0% .15%
Any increase or decrease in the Applicable Rate resulting from a change
in the Pricing Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to
Section 6.02(b); provided, however, that if a Compliance Certificate is not
delivered within 5 Business Days of its becoming due in accordance with such
Section 6.02(b), then Pricing Level I will be applicable until the date five
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Business Days after the appropriate Compliance Certificate is delivered,
whereupon the Applicable Rate shall be adjusted based on the information
contained in the Compliance Certificate. The Applicable Rate in effect during
the period from the Closing Date until the quarterly Compliance Certificate is
delivered for the period ending March 31, 2006 shall be determined based upon
Pricing Level II.
"Approved Bank" has the meaning specified in the definition of "Cash
Equivalents".
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc of America Securities, in its capacity as sole
lead arranger and sole book manager.
"Assignee Group" means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b), and accepted by the Administrative
Agent, in substantially the form of Exhibit E or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capitalized Lease of any Person, the capitalized amount thereof that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP, and (b) in respect of any Off-Balance Sheet Obligation, the
capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a Capitalized Lease.
"Audited Financial Statements" means (a) the audited consolidated
balance sheets of the Borrower and its Consolidated Subsidiaries for the fiscal
year ended December 31, 2004, and (b) the related consolidated statements of
income or operations, shareholders' equity and cash flows for such fiscal year
of the Borrower and its Consolidated Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Maturity Date, (b) the date of termination of
the Aggregate Commitments pursuant to Section 2.06, and (c) the date of
termination of the Commitment of each Lender to make Loans and of the obligation
of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Banc of America Securities" means Banc of America Securities LLC and
its successors.
"Bank of America" means Bank of America, N.A. and its successors.
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"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by the
Administrative Agent as its "prime rate." The "prime rate" is a rate set by the
Administrative Agent based upon various factors including the Administrative
Agent's costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate. Any change in such rate announced by the
Administrative Agent shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means a borrowing consisting of simultaneous Loans of the
same Type and, in the case of Eurodollar Rate Loans, having the same Interest
Period made by each of the Lenders pursuant to Section 2.01 or a Swing Line
Borrowing, as the context may require.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office is located or
the State of New York and, if such day relates to any Eurodollar Rate Loan,
means any such day on which dealings in Dollar deposits are conducted by and
between banks in the London interbank eurodollar market.
"Businesses" has the meaning specified in Section 5.13(a).
"Capital Assets" means, with respect to any Person, all equipment,
fixed assets and real property or improvements of such Person, or replacements
or substitutions therefor or additions thereto, that, in accordance with GAAP,
have been or should be reflected as additions to property, plant or equipment on
the balance sheet of such Person.
"Capitalized Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is or should be accounted for as a capital lease on the
balance sheet of such Person.
"Cash Collateral" and "Cash Collateralize" have the meanings specified
in Section 2.03(g).
"Cash Equivalents" means:
(a) securities issued or directly and fully guaranteed or
insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having
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maturities of not more than thirty-six (36) months from the date of
acquisition;
(b) marketable obligations issued by any State of the United
States of America or any local government or other political
subdivision thereof rated (at the time of acquisition of such security)
at least "AA" by S&P, or the equivalent thereof by Xxxxx'x, having
maturities of not more than three years from the date of acquisition;
(c) time deposits (including eurodollar time deposits),
certificates of deposit (including eurodollar certificates of deposit)
and bankers' acceptances of (i) any Lender or any Affiliate of any
Lender, (ii) any commercial bank of recognized standing either
organized under the laws of the United States (or any State or
territory thereof) having capital and surplus in excess of $250,000,000
or (iii) any bank whose short term commercial paper rating (at the time
of acquisition of such security) by S&P is at least "A-1" or the
equivalent thereof (any such bank, an "Approved Bank"), in each case
with maturities of not more than six months from the date of
acquisition;
(d) commercial paper and variable or fixed rate notes issued
by any Lender or Approved Bank or by the parent company of any Lender
or Approved Bank and commercial paper and variable rate notes issued
by, or guaranteed by, any industrial or financial company with a short
term commercial paper rating (at the time of acquisition of such
security) of at least "A-1" or the equivalent thereof by S&P or at
least "P-1" or the equivalent thereof by Xxxxx'x, or guaranteed by any
industrial company with a long term unsecured debt rating (at the time
of acquisition of such security) of at least "Aa" or the equivalent
thereof by Xxxxx'x and in each case maturing within three years after
the date of acquisition; and
(e) repurchase agreements with any Lender or any primary
dealer maturing within one year from the date of acquisition that are
fully collateralized by investment instruments that would otherwise be
Cash Equivalents; provided that the terms of such repurchase agreements
comply with the guidelines set forth in the "Federal Financial
Institutions Examinations Council Supervisory Policy Repurchase
Agreements of Depository Institutions With Securities Dealers and
Others, as adopted by the Comptroller of the Currency in October 31,
1985".
"Cash Management Bank" means any party to a Cash Management Services
Agreement with the Borrower or any of its Subsidiaries which party was a Lender
or an Affiliate of a Lender under this Agreement at the time it entered into
such Cash Management Services Agreement.
"Cash Management Services Agreement" means any agreement to provide
management services, including treasury, depository, overdraft, credit or debit
card, electronic funds transfer and other cash management services that is
entered into by and between a Loan Party and any Cash Management Bank.
"Casualty" means any casualty or other loss, damage or destruction.
"Change in Law" means the occurrence, after the date of this Agreement,
of any of the following: (a) the adoption or taking effect of any law, rule,
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regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means, an event or series of events by which:
(a) during any period of 24 consecutive months, a majority of
the members of the board of directors or other equivalent governing
body of the Borrower cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of
such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in
clause (i) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of
an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any Person or group
other than a solicitation for the election of one or more directors by
or on behalf of the board of directors); or
(b) any Person or two or more Persons acting in concert, shall
have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation thereof, will result in
its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of
the Borrower, or control over Voting Securities of the Borrower on a
fully-diluted basis assuming the conversion and/or exercise of all
outstanding Equity Interests of the Borrower owned by such Person or
Persons representing 30% or more of the combined voting power of such
Voting Securities.
"Closing Date" means December 22, 2005.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all the "Collateral" referred to in the Collateral
Documents and any other assets and property that are or are intended under the
terms of the Collateral Documents to be subject to Liens in favor of the
Administrative Agent for the benefit of the Secured Parties; provided, that, the
parties acknowledge that assets and property acquired after the Closing Date, as
permitted herein or otherwise, of the type described in the Collateral Documents
are and shall be pledged to the Administrative Agent for the benefit of the
Secured Parties as contemplated by Sections 6.11 and 6.12.
"Collateral Documents" means, collectively, the Security Agreement, the
Pledge Agreement and any other security agreements, pledge agreements or similar
instruments delivered to the Administrative Agent as collateral agent from time
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to time pursuant to Sections 6.11 and 6.12, and each other agreement, instrument
or document that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties.
"Commitment" means, as to each Lender, its obligation to (a) make Loans
to the Borrower pursuant to Section 2.01, and (b) purchase participations in L/C
Obligations, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement and "Commitments" means the Commitments of all
the Lenders.
"Commitment Fee" has the meaning specified in Section 2.09(a).
"Commitment Letter" means the commitment letter agreement dated
November 2, 2005 among the Borrower, Bank of America, and the Arranger.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D hereto.
"Condemnation" means any taking of Property, or any part thereof or
interest therein, for public or quasi-public use under the power of eminent
domain, by reason of any public improvement or condemnation proceeding, or in
any other manner.
"Condemnation Award" means all proceeds of any Condemnation or transfer
in lieu thereof.
"Consolidated Capital Expenditures" means, for any period for any
Person and its Subsidiaries determined on a consolidated basis, without
duplication (a) all expenditures made directly or indirectly during such period
for Capital Assets (whether paid in cash or other consideration or accrued as a
liability and including, without limitation, all expenditures for maintenance
and repairs which are required, in accordance with GAAP, to be capitalized on
the books of such Person) and (b) solely to the extent not otherwise included in
clause (a) of this definition, the aggregate principal amount of all
Indebtedness (including, without limitation, obligations in respect of
Capitalized Leases) assumed or incurred during such period in connection with
any such expenditures for Capital Assets. For purposes of this definition, (i)
Permitted Acquisitions shall not be included in Consolidated Capital
Expenditures, and (ii) the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment or with Insurance
Proceeds shall be included in Consolidated Capital Expenditures only to the
extent of the gross amount by which such purchase price exceeds the credit
granted by the seller of such equipment for the equipment being traded in at
such time or the amount of such Insurance Proceeds, as the case may be.
"Consolidated Cash Interest Charges" means for any period, for any
Person and its Subsidiaries determined on a consolidated basis, Consolidated
Interest Charges for such period; provided that all non-cash interest expense
shall be excluded.
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"Consolidated Cash Taxes" means, for any period, for any Person and its
Subsidiaries determined on a consolidated basis, the aggregate amount of all
income taxes of such Person, determined on a consolidated basis to the extent
the same are paid in cash by such Person during such period.
"Consolidated EBITDA" means, for any period, for any Person and its
Subsidiaries determined on a consolidated basis, an amount equal to Consolidated
Net Income for such period, plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: (i) Consolidated Interest Charges for
such period; (ii) the provision for federal, state, local and foreign income
taxes payable for such period; (iii) depreciation and amortization expense; and
(iv) other expenses and all equity compensation charges reducing Consolidated
Net Income which do not represent a cash item in such period or any future
period and minus (b) the following to the extent included in calculating such
Consolidated Net Income: (i) Federal, state, local and foreign income tax
credits of the Borrower and its Subsidiaries for such period and (ii) all
non-cash items increasing Consolidated Net Income for such period. Consolidated
EBITDA is subject to calculation on a Pro Forma Basis in accordance with the
provisions in Section 1.03.
"Consolidated EBITDAR" means, for any period, for any Person and its
Subsidiaries determined on a consolidated basis, an amount equal to Consolidated
EBITDA for such period, plus, to the extent deducted in calculating Consolidated
Net Income for such period, Rental Expense for such period.
"Consolidated Fixed Charge Coverage Ratio" means, for any period, the
ratio of (a) Consolidated EBITDAR, minus Consolidated Capital Expenditures for
such period (other than any thereof financed by Indebtedness), to (b)
Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges" means, for any period for any Person and
its Subsidiaries on a consolidated basis, the sum of (a) Consolidated Cash
Interest Charges for such period plus (b) Consolidated Scheduled Debt Payments
for such period plus (c) Consolidated Cash Taxes for such period plus (d) Rental
Expense for such period. Consolidated Fixed Charges are subject to calculation
on a Pro Forma Basis in accordance with the provisions of Section 1.03.
"Consolidated Funded Indebtedness" means, for any Person and its
Subsidiaries determined on a consolidated basis, as of any date of
determination, the sum of (a) the outstanding principal amount of all
obligations, whether current or long-term, for borrowed money (including
Obligations hereunder) and all obligations evidenced by bonds, debentures,
notes, loan agreements or other similar instruments, (b) all purchase money
Indebtedness (except as provided in clause (d) below), (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar instruments, (d)
all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business),
(e) Attributable Indebtedness in respect of Capitalized Leases and Off-Balance
Sheet Obligations, (f) without duplication all Guarantees with respect to
outstanding Indebtedness of the types specified in clauses (a) through (e)
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above, and (g) all Indebtedness of the types referred to in clauses (a) through
(f) above of any partnership or joint venture (other than a joint venture that
is itself a corporation or limited liability company) in which such Person is a
general partner or joint venturer, unless such Indebtedness is expressly made
non-recourse (except for customary exceptions to non-recourse provisions such as
fraud, misappropriation of funds and environmental liabilities) to such Person
or any such Subsidiary.
"Consolidated Interest Charges" means, for any period, for any Person
and its Subsidiaries determined on a consolidated basis, the sum of (a) all
interest, premium payments, debt discount, loan fees, charges and related
expenses in connection with Indebtedness (including capitalized interest), in
each case to the extent treated as interest in accordance with GAAP, and (b) the
portion of rent expense with respect to such period under Capitalized Leases
that is treated as interest in accordance with GAAP.
"Consolidated Net Income" means, for any period, for any Person and its
Subsidiaries determined on a consolidated basis, the net income (excluding
extraordinary gains but including extraordinary cash losses other than losses
related to the Permitted Swap Termination and fees related to the Convertible
Note Exchange) of such Person for that period.
"Consolidated Scheduled Debt Payments" means, for any period for any
Person and its Subsidiaries determined on a consolidated basis, the sum of all
scheduled payments of principal on Consolidated Funded Indebtedness (including,
without limitation, the principal component of Capitalized Leases paid or
payable during such period, but excluding payments due on Loans during such
period); provided that Consolidated Scheduled Debt Payments for any period shall
not include (i) voluntary prepayments of Consolidated Funded Indebtedness, (ii)
mandatory prepayments of Consolidated Funded Indebtedness, or (iii) any balloon,
bullet or similar final payment.
"Consolidated Senior Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness less the
outstanding principal amount of the Convertible Notes and all Indebtedness that
is expressly subordinated to such person's indebtedness, obligations and
liabilities to the Lenders under the Loan Documents in form and substance
reasonably acceptable to the Administrative Agent as of such date to (b)
Consolidated EBITDA for the period of the four consecutive fiscal quarters most
recently ended.
"Consolidated Subsidiary" means with respect to any Person at any date
any Subsidiary of such Person or other entity the accounts of which would be
consolidated with those of such Person in its consolidated financial statements
if such statements were prepared as of such date in accordance with GAAP.
"Consolidated Total Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness as of such date
to (b) Consolidated EBITDA for the period of the four consecutive fiscal
quarters most recently ended.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person, or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
-9-
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Convertible Note Exchange" means a transaction exchanging the
Convertible Notes for substantially similar securities (i) permitting net share
settlement, (ii) in an aggregate principal amount no greater than that of the
Convertible Notes as of the date of exchange, and (iii) containing only those
incentives to induce holders thereof to participate in such exchange as are
commercially reasonable.
"Convertible Notes" means those certain 2.5% Contingent Convertible
Subordinated Notes due March 2008, issued by the Borrower pursuant to the
Indenture, dated as of March 31, 2003, between the Borrower and Xxxxx Fargo
Bank, Minnesota National Association, as Trustee, in the principal amount of
$120 million, and any securities issued in exchange therefor in accordance with
this Agreement.
"Credit Extension" means each of the following: (a) a Borrowing; and
(b) an L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means an interest rate equal to (a) in the case of
Eurodollar Rate Loans, the sum of (i) the Eurodollar Rate for such Loans, plus
(ii) the Applicable Rate applicable to such Loans, plus (iii) 2% per annum, (b)
in the case of the Letter of Credit Fees, a rate equal to (i) the Applicable
Rate plus 2% per annum, (c) in the case of Base Rate Loans and for all other
Obligations, the sum of (i) the Base Rate plus (ii) the Applicable Rate, if any,
applicable to Base Rate Loans, plus (iii) 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of a Borrowing or participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease,
Casualty or Condemnation or other disposition (including any Sale and Leaseback
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Transaction or any sale of any Equity Interest of any Subsidiary) of any
property by any Person, including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes issued by any other Person or
accounts receivable or any rights and claims associated therewith or any capital
stock of, or other Equity Interests in, any other Person; provided that the
foregoing shall not be deemed to imply that any such disposition is permitted
under this Agreement. The term "Disposition" shall not include any Equity
Issuance.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means a Subsidiary that is organized under the
Laws of a political subdivision of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any of its Subsidiaries directly
or indirectly resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means, with respect to any Person, all of the shares
of capital stock of (or other ownership or profit interests in) such Person, all
of the warrants, options or other rights for the purchase or acquisition from
such Person of shares of capital stock of (or other ownership or profit
interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all
of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting,
and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
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"Equity Issuance" means (i) any issuance by the Borrower or any of its
Subsidiaries of any capital stock or other Equity Interests to any Person or
receipt by the Borrower or any of its Subsidiaries of a capital contribution
from any Person, including the issuance of Equity Interests pursuant to the
exercise of options or warrants and the conversion of any Indebtedness to
equity; provided that the foregoing shall not be deemed to imply that any such
issuance is permitted under this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower or any of its Subsidiaries
within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and
(o) of the Code for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any of its Subsidiaries or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations that is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower
or any of its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a
notice of intent to terminate, the treatment of a Plan amendment as a
termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Borrower or any of its Subsidiaries or any ERISA
Affiliate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by the Administrative Agent and with a term
equivalent to such Interest Period would be offered by the Administrative
Agent's London Branch to major banks in the London interbank eurodollar market
at their request at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based
on the Eurodollar Rate.
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"Event of Default" has the meaning specified in Section 8.01.
"Excluded Subsidiaries" means all Foreign Subsidiaries and those
Domestic Subsidiaries with aggregate assets at any time not greater than
$5,000,000 that are designated by the Borrower as "Excluded Subsidiaries". As of
the Closing Date, Newdeal Inc., a Texas corporation, is designated as an
Excluded Subsidiary.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender, any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.01(a).
"Executive Officer" means (i) with respect to the Borrower, those
officers with titles of president, chief executive officer, executive
vice-president and senior vice-president, and (ii) with respect to any other
Loan Party, those officers with titles of president, chief executive officer and
vice president.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the
Administrative Agent on such day on such transactions as determined by the
Administrative Agent.
"Fee Letter" means the fee letter agreement dated November 2, 2005
among the Borrower, Bank of America, and the Arranger.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
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"Foreign Subsidiary" means a Subsidiary that is not organized under the
Laws of a political subdivision of the United States or a state thereof.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or
any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"Granting Lender" has the meaning specified in Section 10.06(h).
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien); provided, that, the
term Guarantee shall not include (i) endorsements of instruments for collection
in the ordinary course, (ii) customary exceptions to non-recourse provisions
such as fraud, misappropriation of funds and environmental liabilities or (iii)
assurances relating to environmental matters. The amount of any Guarantee shall
be deemed to be an amount equal to the stated or determinable amount of the
related primary obligation, or portion thereof, in respect of which such
-14-
Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith. The term "Guarantee" as a verb has a corresponding
meaning.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Honor Date" has the meaning specified in Section 2.03(c)(i).
"Increase Effective Date" has the meaning specified in Section 2.14.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person
arising under letters of credit, bankers' acceptances, bank guaranties,
surety bonds and similar instruments;
(c) net payment obligations of such Person under any Swap
Contract;
(d) all obligations of such Person to pay the deferred
purchase price of property or services (other than trade accounts
payable in the ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon) secured
by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;
(f) Capitalized Leases and Off-Balance Sheet Obligations;
(g) all obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any Equity
Interest in such Person or any other Person, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends;
(h) all Indebtedness in respect of any of the foregoing of
another Person secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any
Lien on the property, including, without limitation, accounts and
-15-
contract rights owned by such Person, even though such Person has not
assumed or become liable for such Indebtedness; and
(i) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer in an amount proportionate to such
Person's interest therein, unless such Indebtedness is expressly made
non-recourse to such Person (subject to customary exceptions to non-recourse
provisions such as fraud, misappropriation of funds and environmental
liabilities) or except to the extent such Indebtedness is owed by such
partnership or joint venture to such Person. The amount of any net obligation
under any Swap Contract on any date shall be deemed to be the Swap Termination
Value thereof as of such date. The amount of any Capitalized Lease or
Off-Balance Sheet Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Information" has the meaning specified in Section 10.07.
"Insurance Proceeds" means all insurance proceeds (other than business
interruption insurance proceeds), damages, awards, claims and rights of action
with respect to any Casualty.
"Intercompany Notes" means the promissory notes issued as contemplated
by Section 7.02(d), substantially in the form of Exhibit A to the Pledge
Agreement.
"Interest Payment Date" means (a) as to any Eurodollar Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date;
provided, however, that if any Interest Period for a Eurodollar Rate Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates, and
(b) as to any Base Rate Loan (including a Swing Line Loan), the last Business
Day of each March, June, September and December and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in the Loan Notice; provided
that:
(a) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day unless, in the case of a Eurodollar Rate Loan, such Business Day
falls in another calendar month, in which case such Interest Period
shall end on the immediately preceding Business Day;
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(b) any Interest Period pertaining to a Eurodollar Rate Loan
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(c) no Interest Period shall extend beyond the Maturity Date
for the applicable Loan.
"Internal Control Event" means a material weakness in, or fraud that
involves officers who have a significant role in and involving, the Borrower's
internal control over financial reporting, in each case as described in the
Securities Laws.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of capital stock or other securities of another Person, (b)
a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of, any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a division, business unit or line of business.
For purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"IP Rights" has the meaning specified in Section 5.11.
"IRS" means the United States Internal Revenue Service.
"ISP" means with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the
Letter of Credit Application and any other document, agreement and instrument
entered into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor
of the L/C Issuer and relating to any such Letter of Credit.
"Joinder Agreement" means a joinder agreement executed and delivered in
accordance with the provisions of Section 6.11, substantially in the form of
Exhibit G hereto.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes,
administrative or judicial precedents or authorities and executive orders,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental
-17-
Authority, in each case whether or not having the force of law (including,
without limitation, under the Federal Food, Drug and Cosmetic Act, the Safe
Medical Devices Act of 1990, the FDA Modernization Act of 1997, and additional
laws and regulations relating to medical devices promulgated by various
governments and governmental agencies, the International Standards
Organization's regulations and registration requirements and the European
Medical Device Directives).
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Applicable
Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed by the Borrower on the
Honor Date or refinanced as a Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters
of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount
remaining to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes each Lender with a commitment to make
Loans as designated in Section 2.01 or in an Assignment and Assumption pursuant
to which such Lender becomes a party hereto; provided that references to
"Lenders" shall include Bank of America in its capacity as the Swing Line
Lender; for purposes of clarification only, to the extent that the Swing Line
Lender may have rights and obligations in addition to those of the other Lenders
due to its status as Swing Line Lender, its status as such will be specifically
referenced.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as to which a Lender may from time to time notify the
Borrower and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to time in
use by the L/C Issuer (modified to the extent that the terms thereof are
inconsistent with the terms hereof).
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"Letter of Credit Expiration Date" means the day that is thirty days
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, the immediately preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.03(i).
"Letter of Credit Sublimit" means an amount equal to the lesser of (a)
$10 million and (b) the Aggregate Commitments. The Letter of Credit Sublimit is
part of, and not in addition to, the Aggregate Commitments.
"License" means any license, certification, accreditation, consent,
permit or other authorization or approval which is required to be obtained from
any Governmental Authority in connection with the operation of the Borrower and
its Subsidiaries, including the development, testing, marketing, manufacturing
and pricing and sale of medical devices.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any easement, right of way or other encumbrance on title to real
property and any financing lease having substantially the same economic effect
as any of the foregoing).
"Liened Property" has the meaning specified in Section 6.11.
"Liquidity" means, as of any date, an amount which equals the sum of
(i) the amount of cash and Cash Equivalents as of such date of the Loan Parties
that is not subject to any restriction regarding the use or investment thereof
(except as provided in customary investment account agreements) and (ii) the
Aggregate Commitments minus the Outstanding Amount as of such date.
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a loan made pursuant to Section 2.01, Swing Line Loan
or L/C Advance. Each Loan may be divided into tranches which are Base Rate Loans
or Eurodollar Rate Loans (each a "Type" of Loan).
"Loan Documents" means this Agreement, the Notes, each Issuer Document,
each Secured Swap Contract, each Secured Cash Management Services Agreement, the
Fee Letter, the Subsidiary Guaranty, and the Collateral Documents and all other
documents delivered to the Administrative Agent, the L/C Issuer or any Lender in
connection herewith or therewith relating specifically to the Obligations.
"Loan Notice" means a notice of (a) a Borrowing, (b) a conversion of
Loans from one Type to the other, or (c) a continuation of Eurodollar Rate
Loans, pursuant to Section 2.02(a), which, in each case, if in writing, shall be
substantially in the form of Exhibit A hereto.
"Loan Party" means, the Borrower and each Subsidiary Guarantor, and
"Loan Parties" means any combination of the foregoing.
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"Master Agreement" has the meaning specified in the definition of "Swap
Contract".
"Material Adverse Effect" means (a) a material adverse effect upon, the
operations, business, properties, liabilities (actual or contingent) or
financial condition of the Borrower and its Subsidiaries taken as a whole, (b) a
material adverse effect on the ability of any Loan Party to perform its
obligations under any Loan Document to which it is a party, (c) a material
adverse effect upon the legality, validity or binding effect of any Loan
Document, or (d) a material adverse effect upon the Lien of any Collateral
Document or a material adverse effect on the rights, powers, or remedies of the
Administrative Agent or any Lender under any Loan Document.
"Material Contract" means, with respect to the Borrower and its
Subsidiaries, (a) each credit agreement, capital lease or other agreement
related to any Indebtedness of the Borrower or any of its Subsidiaries in a face
amount greater than $5,000,000 (other than the Loan Documents), (b) each Swap
Contract to which the Borrower or any of its Subsidiaries is a party where the
notional amount of such Swap Contract exceeds $5,000,000, and (c) any voting or
shareholder's agreement related to the Equity Interest in any Person to which
the Borrower or any of its Subsidiaries is a party.
"Maturity Date" means December 22, 2010.
"Maximum Rate" has the meaning specified in Section 10.10.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor in
interest.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower or any of its
Subsidiaries or any ERISA Affiliate makes or is obligated to make contributions,
or during the preceding five plan years, has made or has been obligated to make
contributions.
"Note" means a promissory note made by the Borrower in favor of a
Lender evidencing Loans made by such Lender, substantially in the form of
Exhibit C hereto.
"Obligations" means all advances to, and debts, liabilities,
obligations, indemnities, covenants and duties of, any Loan Party arising under
any Loan Document (including any Secured Swap Contract and any Secured Cash
Management Services Agreement entered into after the date of this Agreement) or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding. Without limiting the generality of
the foregoing, the Obligations of any Loan Party under the Loan Documents
include (a) the obligation to pay principal, interest, Letter of Credit
commissions, charges, expenses, fees, attorney fees and disbursements,
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indemnities and other amounts payable by any Loan Party under any Loan Document
and (b) the obligations of any Loan Party to reimburse any amount in respect of
any of the foregoing that any Lender, in its sole discretion, may elect to pay
or advance on behalf of any Loan Party. The Obligations shall be "Designated
Senior Indebtedness" pursuant to and for purposes of the Indenture in respect of
the Convertible Notes.
"Off-Balance Sheet Obligation" means the monetary obligation of a
Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property creating
obligations that do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the lessee at
any time) of any Property that is not a Capitalized Lease other than any such
lease in which that Person is the lessor.
"Organization Documents" means (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws, (b) with respect to any
limited liability company, the certificate or articles of formation or
organization and operating agreement, and (c) with respect to any partnership,
joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any
agreement, instrument, filing or notice with respect thereto filed in connection
with its formation or organization with the applicable Governmental Authority in
the jurisdiction of its formation or organization and, if applicable, any
certificate or articles of formation or organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (a) with respect to Loans and Swing Line
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Loans, as the
case may be, occurring on such date, and (b) with respect to any L/C Obligations
on any date, the amount of such L/C Obligations on such date after giving effect
to any L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result
of any reimbursements by the Borrower of Unreimbursed Amounts.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any of its Subsidiaries or any ERISA Affiliate or to which the Borrower or any
of its Subsidiaries or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.
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"Permitted Acquisitions" means any Acquisition by any Loan Party;
provided that (a) the Property acquired (or the Property of the Person acquired)
in such Acquisition shall be used or useful in the same or similar line of
business as the Loan Parties on the Closing Date, including activities
ancillary, related or complementary thereto, (b) after giving effect to any
Acquisition on a Pro Forma Basis, the total equity and debt investments of the
Borrower and its Domestic Subsidiaries in the Foreign Subsidiaries does not
exceed fifty percent (50%) of the aggregate book value of the total assets of
the Borrower and its Domestic Subsidiaries, all as determined in accordance with
GAAP, (c) in the case of an Acquisition of the Equity Interests of another
Person, the board of directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition, (d) no Event of Default
has occurred and is continuing or would result therefrom, (e) the Borrower and
its Consolidated Subsidiaries shall be in compliance with Section 7.17 on a Pro
Forma Basis after giving effect to such Acquisition, (f) the Acquisition shall
not involve an interest in a general partnership or joint venture or have a
requirement that any Loan Party be a general or joint venture partner other than
in compliance with Section 7.16, (g) the Loan Parties shall, and shall cause the
party that is the subject of the Acquisition to, execute and deliver such
joinder and pledge agreements, security agreements and intercompany notes and
take such other actions as may be necessary for compliance with the provisions
of Sections 6.11 and 6.12, (h) if, after giving effect to such Acquisition on a
Pro Forma Basis, (1) there will be no Loans outstanding, the aggregate
consideration (including cash and non-cash consideration) for each Acquisition
(or a series of related Acquisitions) is less than or equal to $200 million or
(2) there will be Loans outstanding, the aggregate consideration (including cash
and non-cash consideration) for each Acquisition (or a series of related
Acquisitions) is less than or equal to (A) $150 million if the Borrower's
Consolidated Senior Leverage Ratio is less than 1.50 to 1.00 or (B) $75 million
if the Borrower's Consolidated Senior Leverage Ratio is greater than or equal to
1.50 to 1.00; provided, that, for purposes of the limits set forth in this
clause (h), contingent consideration (i.e., consideration for an Acquisition
that is to be paid after the closing of an Acquisition but which at the time of
such closing is not numerically quantifiable) shall be added to such limits at
the time such consideration first becomes numerically determinable; and (i) the
Borrower shall have delivered to the Administrative Agent (1) with respect to
any Acquisition in excess of $20 million, a Compliance Certificate signed by a
Responsible Officer of the Borrower demonstrating compliance with the financial
covenants hereunder after giving effect to the subject Acquisition on a Pro
Forma Basis, and reaffirming that the representations are true and correct in
all material respects as of such date, except those representations and
warranties made as of a date certain, which shall remain true and correct in all
material respects as of such date and providing supplements to the Schedules as
required by the Compliance Certificate, (2) with respect to any Acquisition in
excess of $75 million, all financial statements for the full fiscal year
preceding acquisition, as well as the most recent interim statements of the
party that is the subject of the Acquisition, and (3) a certificate of a
Responsible Officer of the Borrower describing the Person to be acquired,
including, without limitation, the location and type of operations and key
management.
"Permitted Liens" has the meaning specified in Section 7.01.
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"Permitted Swap Termination" means the termination of the Swap Contract
to which Borrower is a party on the Closing Date.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established or sponsored by the Borrower or any of its
Subsidiaries or, with respect to any such plan that is subject to Section 412 of
the Code or Title IV of ERISA, any ERISA Affiliate.
"Platform" has the meaning specified in Section 6.02.
"Pledge Agreement" means the Pledge Agreement executed by the Borrower,
the Subsidiary Guarantors and the Administrative Agent in accordance with the
provisions of this Agreement, which Pledge Agreement shall be substantially in
the form of Exhibit I hereto.
"Pricing Ratio" means, as of any date of determination, the ratio of
(a) an amount equal to the difference between (i) Consolidated Funded
Indebtedness as of such date and (ii) the amount of cash and Cash Equivalents of
the Borrower and its Subsidiaries in excess of $40 million as of such date that
is not subject to any restriction regarding the use or investment thereof other
than this Agreement and customary account agreements, to (b) Consolidated EBITDA
for the period of the four consecutive fiscal quarters most recently ended.
"Pro Forma Basis" means for purposes of calculating any financial ratio
for any Reference Period for the purpose specified in Section 1.03(c), and each
such transaction actually consummated in such Reference Period, that such
financial ratio or financial amount shall be calculated on a pro forma basis
based on the following assumptions: (A) each such transaction shall be deemed to
have occurred on the first day of such Reference Period; (B) any funds to be
used by any Person in consummating any such transaction will be assumed to have
been used for that purpose as of the first day of such Reference Period; (C) any
Indebtedness to be incurred or repaid by any Person in connection with the
consummation of any such transaction will be assumed to have been incurred or
repaid on the first day of such Reference Period; (D) the gross interest
expenses, determined in accordance with GAAP, with respect to such Indebtedness
assumed to have been incurred on the first day of such Reference Period that
bears interest at a floating rate shall be calculated at the current rate (as of
the date of such calculation) under the agreement governing such Indebtedness
(including this Agreement if the Indebtedness is incurred hereunder); and (E)
any gross interest expense, determined in accordance with GAAP, with respect to
Indebtedness outstanding during such Reference Period that was or is to be
refinanced with proceeds of a transaction assumed to have been incurred as of
the first day of the Reference Period will be excluded from such calculations.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Public Lender" has the meaning specified in Section 6.02.
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"Qualified Equity Interest" means (i) with respect to the Borrower, any
Equity Interest other than Equity Interests (x) that constitute Indebtedness or
are convertible or exchangeable into, or are redeemable for, Equity Interests
that constitute Indebtedness; provided, that, the foregoing shall not exclude
Equity Interests that accrue dividends that are not payable until the
indefeasible payment in cash in full of all Obligations and the termination of
all Commitments hereunder or (y) that otherwise, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (A) matures or is
mandatorily redeemable or subject to any mandatory repurchase requirement,
pursuant to a sinking fund obligation or otherwise (other than by virtue of a
liquidation preference that would be entitled to payments or distributions only
after Obligations have been indefeasibly repaid in full in cash and all
Commitments have been terminated), (B) is convertible into or exchangeable or
exercisable for Indebtedness or any other Equity Interest that is not a
Qualified Equity Interest, or (C) is redeemable or subject to any mandatory
repurchase requirement at the option of the holder thereof, in whole or in part,
other than redemption or repurchase after the Obligations have been indefeasibly
repaid in full in cash and all Commitments have been terminated and (ii) with
respect to any Subsidiary of the Borrower, common stock or other common Equity
Interests.
"Real Property Assets" means all interest (including leasehold
interests) of the Borrower or any of its Subsidiaries in any real property.
"Reference Period" means (a) for purposes of calculating compliance
with any financial covenant or test on any date on which a Compliance
Certificate is required to be delivered hereunder, the four consecutive fiscal
quarters most recently ended prior to such date and (b) for purposes of
determining whether the conditions precedent have been satisfied for a proposed
transaction, the four consecutive fiscal quarters most recently ended prior to
date of such proposed transaction for which annual or quarterly financial
statements and a Compliance Certificate shall have been delivered in accordance
with the provisions hereof.
"Register" has the meaning specified in Section 10.06(c).
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed by the
Securities Laws.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Rental Expense" means, for any period, for any Person and its
Subsidiaries determined on a consolidated basis, the gross rental expenses for
Operating Leases.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
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"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application and (c) with respect to a Swing
Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the sum of (a) the Total Outstandings (with the
aggregate amount of each Lender's risk participation and funded participation in
L/C Obligations and Swing Line Loans being deemed "held" by such Lender for
purposes of this definition) and (b) the aggregate unused Commitments; provided
if any Lender shall be a Defaulting Lender at such time, there shall be excluded
for purposes of making a determination of Required Lenders at such time the
aggregate principal amount of the unused Commitments of, and the portion of the
Total Outstandings held or deemed to be held by, any Defaulting Lender.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, treasurer or assistant treasurer, corporate controller,
any vice president or executive vice president of any Loan Party to the extent
each such officer shall have been duly authorized by all necessary corporate,
partnership or other action on the part of such Person to act on behalf of such
Person. Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock or
other Equity Interest of the Borrower or any of its Subsidiaries (including,
without limitation, any payment in connection with any dissolution, merger,
consolidation or disposition involving Subsidiaries), or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity Interest
or of any option, warrant or other right to acquire any such capital stock or
other Equity Interest or on account of any return of capital to the Borrower's
or such Subsidiary's stockholders, partners or members (or the equivalent
Persons thereof) or the issuance of any Equity Interest or acceptance of any
capital contributions.
"RLL Maintenance Period" means the period beginning on the date that is
three months prior to the maturity date of the Convertible Notes to and
including the maturity date of the Convertible Notes.
"Sale and Leaseback Transaction" means any arrangement pursuant to
which the Borrower or any of its Subsidiaries, directly or indirectly, becomes
liable as lessee, guarantor or other surety with respect to any lease, whether
an Operating Lease or a Capitalized Lease, of any Property that the Borrower or
any of its Subsidiaries (a) has sold or transferred (or is to sell or transfer)
to, or arranged the purchase by, a Person other than the Borrower or any of its
Subsidiaries or (b) intends to use for substantially the same purpose as any
other Property that has been sold or is transferred (or is to be sold or
transferred) by the Borrowers or such Subsidiary to a Person other than the
Borrower or any of its Subsidiaries in connection with such lease.
-25-
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc., and any successor in interest.
"Xxxxxxxx-Xxxxx" means the Xxxxxxxx-Xxxxx Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Cash Management Services Agreement" means any Cash Management
Services Agreement that is entered into by and between any Loan Party and any
Cash Management Bank.
"Secured Party" means the Administrative Agent, each Lender, the L/C
Issuer, each Swap Bank and each Cash Management Bank.
"Secured Swap Contract" means any Swap Contract required or permitted
under this Agreement that is entered into by and between any Loan Party and any
Swap Bank.
"Securities Laws" means the Securities Act of 1933, the Securities
Exchange Act of 1934, Xxxxxxxx-Xxxxx and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date hereunder.
"Security Agreement" means the Security Agreement executed by the
Borrower, the Subsidiary Guarantors and the Administrative Agent substantially
in the form of Exhibit J hereto.
"Shareholders' Equity" means, as of the date of determination,
consolidated shareholders' equity of any Person and its Subsidiaries on a
consolidated basis as of that date determined in accordance with GAAP.
"SPC" has the meaning specified in Section 10.06(h).
"Subject Properties" has the meaning specified in Section 5.13(a).
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Borrower.
-26-
"Subsidiary Guarantor" means each Domestic Subsidiary of the Borrower
on the Closing Date and each other Subsidiary of the Borrower that joins as a
Subsidiary Guarantor pursuant to Section 6.11, together with their successors
and permitted assigns, in each case, other than the Excluded Subsidiaries.
"Subsidiary Guaranty" means the Subsidiary Guaranty Agreement duly
executed by each Subsidiary Guarantor and the Administrative Agent,
substantially in the form of Exhibit F hereto.
"Swap Bank" means any Lender or an Affiliate of a Lender in its
capacity as a party to a Swap Contract entered into on or after the date of this
Agreement.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant
to Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
-27-
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.04(b), which, if in writing, shall be substantially in the
form of Exhibit B hereto.
"Swing Line Sublimit" means an amount equal to the lesser of (a) $10
million and (b) the Aggregate Commitments. The Swing Line Sublimit is part of,
and not in addition to, the Aggregate Commitments.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Threshold Amount" means $10,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all
Loans and L/C Obligations.
"Type" has the meaning specified in the definition of "Loan".
"UCC" means the Uniform Commercial Code as from time to time in effect
in the State of New York or, with respect to any Collateral located in any state
or jurisdiction other than the State of New York, the Uniform Commercial Code as
from to time in effect in such state or jurisdiction.
"Unaudited Financial Statements" means (a) the unaudited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries for the
fiscal quarter ended September 30, 2005 and (b) the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date, subject to normal year-end adjustments.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
"Voting Securities" means, with respect to any Person, securities or
other ownership interests having by the terms thereof ordinary voting power to
elect the board of directors or other persons performing similar functions of
such Person (irrespective of whether or not at the time securities or other
ownership interests of any other class or classes of such Person shall have or
might have voting power by reason of the happening of any contingency).
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Section 1.02 Other Interpretive Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation." The word "will" shall be
construed to have the same meaning and effect as the word "shall." Unless the
context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person's successors and assigns, (iii) the words
"herein," "hereof" and "hereunder," and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its entirety
and not to any particular provision thereof, (iv) all references in a Loan
Document to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any Law shall
include all statutory and regulatory provisions consolidating, amending,
replacing or interpreting such Law and any reference to any Law or regulation
shall, unless otherwise specified, refer to such Law or regulation as amended,
modified or supplemented from time to time, and (vi) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
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(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
Section 1.03 Accounting Terms.
(a) Generally. All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect
the computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.
(c) Pro Forma Calculations. Any calculation of any financial ratios
for any Reference Period for purposes of determining whether the conditions
precedent have been satisfied for a proposed transaction shall be made on a Pro
Forma Basis.
(d) Consolidation of Variable Interest Entities. All references herein
to consolidated financial statements of the Borrower and its Subsidiaries or to
the determination of any amount for the Borrower and its Subsidiaries on a
consolidated basis or any similar reference shall, in each case, be deemed to
include each variable interest entity that the Borrower is required to
consolidate pursuant to FASB Interpretation No. 46 - Consolidation of Variable
Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such
variable interest entity were a Subsidiary as defined herein.
Section 1.04 Rounding. Any financial ratios required to be maintained
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such ratio is expressed herein and rounding the result
up or down to the nearest number (with a rounding-up if there is no nearest
number).
Section 1.05 Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).
Section 1.06 Letter of Credit Amounts. Unless otherwise specified herein,
the amount of a Letter of Credit at any time shall be deemed to be the stated
amount of such Letter of Credit in effect at such time; provided, however, that
with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in
the stated amount thereof, the amount of such Letter of Credit shall be deemed
to be the maximum stated amount of such Letter of Credit after giving effect to
all increases, whether or not such maximum stated amount is in effect at such
time.
ARTICLE II
THE LOANS
Section 2.01 The Loans. (a) Subject to the terms and conditions set forth
herein, each Lender severally agrees to make Loans to the Borrower from time to
time, on any Business Day during the Availability Period, in an aggregate amount
not to exceed at any time outstanding the amount of such Lender's Commitment;
provided, however, that after giving effect to any Borrowing, (i) the Total
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Outstandings shall not exceed the Aggregate Commitments, and (ii) subject to
Section 2.04(a) with respect to the Swing Line Lender, the aggregate Outstanding
Amount of the Loans of any Lender, plus such Lender's Applicable Percentage of
the Outstanding Amount of all L/C Obligations plus, such Lender's Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment. Within the limits of each Lender's Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.01(a), prepay under Section 2.05, and reborrow under this Section
2.01(a).
(b) Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
Section 2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type to the
other, and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower's irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to, or continuation of, Eurodollar Rate Loans or of any
conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the
requested date of any Borrowing of Base Rate Loans. Each telephonic notice by
the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing
of, conversion to, or continuation of, Eurodollar Rate Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of
or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or
a whole multiple of $500,000 in excess thereof. Each Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
Borrowing, a conversion of Loans from one Type to the other, or a continuation
of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion
or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Loans to be borrowed, converted or continued, as applicable,
(iv) the Type of Loans to be borrowed or to which existing Loans are to be
converted or continued, and (v) if applicable, the duration of the Interest
Period with respect thereto. If the Borrower fails to specify a Type of Loan in
a Loan Notice or if the Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Loans shall be made as, or
converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans
shall be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurodollar Rate Loans. If the Borrower requests a
Borrowing of, conversion to, or continuation of, Eurodollar Rate Loans in any
such Loan Notice, but fails to specify an Interest Period, the Borrower will be
deemed to have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage of the
applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
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preceding subsection (a). In the case of a Borrowing, each Lender shall make
the amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00 p.m.
on the Business Day specified in the applicable Loan Notice. Upon satisfaction
of the applicable conditions set forth in Section 4.02 (and, if such Borrowing
is the initial Credit Extension, Section 4.01), the Administrative Agent shall
make all funds so received available to the Borrower in like funds as received
by the Administrative Agent either by (i) crediting an account of the Borrower
on the books of the Administrative Agent with the amount of such funds or (ii)
wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative Agent by the
Borrower; provided, however, that if, on the date a Loan Notice with respect
to a Borrowing is given by the Borrower, there are L/C Borrowings outstanding,
then the proceeds of such Borrowing shall be applied, first, to the payment in
full of any such L/C Borrowings, and second shall be made available to the
Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of an Event of Default, no Loans may
be requested as, converted to, or continued as, Eurodollar Rate Loans without
the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and
the applicable Lenders of the interest rate applicable to any Interest Period
for Eurodollar Rate Loans upon determination of such interest rate. At any time
that Base Rate Loans are outstanding, the Administrative Agent shall notify the
Borrower and the Lenders of any change in the Administrative Agent's prime rate
used in determining the Base Rate promptly following the public announcement of
such change.
(e) After giving effect to all Borrowings, all conversions of Loans
from one Type to the other, and all continuations of Loans as the same Type,
there shall not be more than seven (7) Interest Periods in effect with respect
to Loans at any time.
(f) The failure of any Lender to make any Loan to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Loan on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make any Loan to be
made by such other Lender on the date of any Borrowing.
Section 2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the Lenders set
forth in this Section 2.03, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue standby Letters of Credit for the account of
the Borrower or its Subsidiaries, and to amend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and
(2) to honor drafts under the Letters of Credit, and (B) the Lenders
severally agree to participate in Letters of Credit issued for the
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account of the Borrower or its Subsidiaries; provided that after
giving effect to any L/C Credit Extension with respect to any Letter
of Credit, (x) the Total Outstandings shall not exceed the Aggregate
Commitments, (y) the aggregate Outstanding Amount of the Loans of any
Lender, plus such Lender's Applicable Percentage of the Outstanding
Amount of all L/C Obligations plus such Lender's Applicable Percentage
of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each
request by the Borrower for the issuance or amendment of a Letter of
Credit shall be deemed a representation by the Borrower that the L/C
Credit Extension so requested complies with the conditions set forth
in the proviso to the preceding sentence. Within the foregoing limits,
and subject to the terms and conditions hereof, the Borrower's ability
to obtain Letters of Credit shall be fully revolving, and accordingly
the Borrower may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have
been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months
after the date of issuance or last renewal, unless the Required
Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue
any Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or
any Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit,
or request that the L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in
particular or shall impose upon the L/C Issuer with respect to
such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which
the L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one
or more policies of the L/C Issuer generally applicable to all
borrowers of the L/C Issuer;
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(C) except as otherwise agreed by the Administrative Agent
and the L/C Issuer, such Letter of Credit is in an initial stated
amount less than $500,000;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars;
(E) such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
(F) a default of any Lender's obligations to fund under
Section 2.03(c) exists or any Lender is at such time a Defaulting
Lender hereunder, unless the L/C Issuer has entered into
reasonably satisfactory arrangements with the Borrower or such
Lender to eliminate the L/C Issuer's risk with respect to such
Lender.
(iv) [intentionally deleted]
(v) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at
such time to issue such Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent in
Article IX with respect to any acts taken or omissions suffered by the
L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term "Administrative Agent" as
used in Article IX included the L/C Issuer with respect to such acts
or omissions, and (B) as additionally provided herein with respect to
the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto
Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Borrower delivered to the L/C Issuer
(with a copy to the Administrative Agent) in the form of a Letter of
Credit Application, appropriately completed and signed by a
Responsible Officer of the Borrower. Such Letter of Credit Application
must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m. at least two Business Days (or such later date
and time as the L/C Issuer may agree in a particular instance in its
sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the L/C Issuer the
following: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount
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thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as the L/C Issuer may
require. In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in
form and detail satisfactory to the L/C Issuer the following: (A) the
Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may
require. Additionally, the Borrower shall furnish to the L/C Issuer
and the Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or amendment,
including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application,
the L/C Issuer will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received a
copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy
thereof. Unless the L/C Issuer has received written confirmation from
any Lender, the Administrative Agent or any Loan Party, at least one
Business Day prior to the requested issuance or amendment of the
applicable Letter of Credit, that one or more of the applicable
conditions contained in Article IV shall not have been satisfied
(other than matters previously waived), then, subject to the terms and
conditions hereof, the L/C Issuer shall, on the requested date, issue
a Letter of Credit for the account of the Borrower (or the applicable
Loan Party) or enter into the applicable amendment, as the case may
be, in each case in accordance with the L/C Issuer's usual and
customary business practices. Immediately upon the issuance of each
Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount
equal to the product of such Lender's Applicable Percentage times the
amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer shall issue a Letter of Credit that
has automatic extension provisions (each, an "Auto-Extension Letter of
Credit"); provided that any such Auto-Extension Letter of Credit must
permit the L/C Issuer to prevent any such extension at least once in
each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof
and the Borrower not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued. Unless otherwise directed by the L/C
Issuer, the Borrower shall not be required to make a specific request
to the L/C Issuer for any such extension. Once an Auto-Extension
Letter of Credit has been issued, the Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to permit the
extension of such Letter of Credit at any time to an expiry date not
later than the Letter of Credit Expiration Date; provided, however,
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that the L/C Issuer shall not permit any such extension if (A) the L/C
Issuer has determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised
form (as extended) under the terms hereof (by reason of the provisions
of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or
before the day that is five Business Days before the Non-Extension
Notice Date (1) from the Administrative Agent that the Required
Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Borrower that one or more of
the applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing the L/C Issuer not to
permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also
deliver to the Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any notice of a drawing under such Letter of Credit, the L/C Issuer
shall notify the Borrower and the Administrative Agent thereof and
shall state the date payment shall be made by the L/C Issuer under a
Letter of Credit (each such date, an "Honor Date"). Not later than
11:00 a.m. on the Honor Date, the Borrower shall reimburse the L/C
Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. If the Borrower fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify
each Lender of the Honor Date, the amount of the unreimbursed drawing
(the "Unreimbursed Amount"), and the amount of such Lender's
Applicable Percentage thereof. In such event, the Borrower shall be
deemed to have requested a Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but subject
to the amount of the unutilized portion of the Aggregate Commitments
and the conditions set forth in Section 4.02 (other than the delivery
of a Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given
by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section
2.03(c)(i) make funds available to the Administrative Agent for the
account of the L/C Issuer at the Administrative Agent's Office in an
amount equal to its Applicable Percentage of the Unreimbursed Amount
not later than 1:00 p.m. on the Business Day specified in such notice
by the Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii), each Lender that so makes funds available shall
be deemed to have made a Base Rate Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to
the L/C Issuer.
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(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Base Rate Loans, the Borrower shall be
deemed to have incurred from the L/C Issuer an L/C Borrowing in the
amount of the Unreimbursed Amount that is not so refinanced, which L/C
Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each
Lender's payment to the Administrative Agent for the account of the
L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until each Lender funds its Loan or L/C Advance pursuant to
this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn
under any Letter of Credit, interest in respect of such Lender's
Applicable Percentage of such amount shall be solely for the account
of the L/C Issuer.
(v) Each Lender's obligation to make Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against the L/C Issuer, the Administrative Agent,
the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender's obligation to make Loans
pursuant to this Section 2.03(c) is subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set
forth in Section 4.02 (other than delivery by the Borrower of a Loan
Notice). No such making of an L/C Advance shall relieve or otherwise
impair the obligation of the Borrower to reimburse the L/C Issuer for
the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid
by such Lender pursuant to the foregoing provisions of this Section
2.03(c) by the time specified in Section 2.03(c)(ii), the L/C Issuer
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on
which such payment is immediately available to the L/C Issuer at a
rate per annum equal to the greater of the Federal Funds Rate and a
rate determined by the L/C Issuer in accordance with banking industry
rules on interbank compensation. A certificate of the L/C Issuer
submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section
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2.03(c), if the Administrative Agent receives for the account of the
L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by
the Administrative Agent), the Administrative Agent will distribute to
such Lender its Applicable Percentage thereof (appropriately adjusted,
in the case of interest payments, to reflect the period of time during
which such Lender's L/C Advance was outstanding) in the same funds as
those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required
to be returned under any of the circumstances described in Section
10.05 (including pursuant to any settlement entered into by the L/C
Issuer in its discretion), each Lender shall pay to the Administrative
Agent for the account of the L/C Issuer its Applicable Percentage
thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned by
such Lender, at a rate per annum equal to the Federal Funds Rate from
time to time in effect. The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the
termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse
the L/C Issuer for each drawing under each Letter of Credit and to repay each
L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document or any other
agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or
any Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect; or any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under
such Letter of Credit;
(iv) any payment made in good faith by the L/C Issuer under such
Letter of Credit against presentation of a draft or certificate that
does not strictly comply with the terms of such Letter of Credit; or
any payment made by the L/C Issuer under such Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession,
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assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee
of such Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law;
(v) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to the departure from
any Guarantee, for all or any of the Obligations of the Borrower in
respect of any Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, the Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it, and, in the event of any claim
of noncompliance with the Borrower's instructions or other irregularity, the
Borrower will promptly notify the L/C Issuer. The Borrower shall be conclusively
deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable, (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct, or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Borrower pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer, shall
be liable or responsible for any of the matters described in clauses (i) through
(vi) of Section 2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in
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limitation of the foregoing, the L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and
the L/C Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. (i) Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding and partially or wholly undrawn, the Borrower shall, in each
case, immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations. Sections 2.05 and 8.02(c) set forth certain additional requirements
to deliver Cash Collateral hereunder. For purposes of this Section 2.03, Section
2.05 and Section 8.02(c), "Cash Collateralize" means to pledge and deposit with
or deliver to the Administrative Agent, for the benefit of the L/C Issuer and
the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash Collateral
shall be maintained in blocked, non-interest bearing deposit accounts with the
Administrative Agent. Cash Collateral shall be released from the pledge and
returned to the Borrower promptly following satisfaction of the applicable L/C
Obligation.
(h) Applicability of ISP98. Unless otherwise expressly agreed by the
L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of ISP
shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its
Applicable Percentage a Letter of Credit fee (the "Letter of Credit Fee") for
each Letter of Credit equal to the Applicable Rate times the daily amount
available to be drawn under such Letter of Credit. For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of
such Letter of Credit shall be determined in accordance with Section 1.06. Such
Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and
(ii) due and payable on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. If there is any change in the Applicable Rate during any quarter, the
daily amount available to be drawn under each Letter of Credit shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Required Lenders, while any
Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit, at the rate per annum
specified in the Fee Letter, computed on the daily amount available to be
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drawn under such Letter of Credit and on a quarterly basis in arrears. Such
fronting fee shall be due and payable on the tenth Business Day after the end
of each March, June, September and December in respect of the most
recently-ended quarterly period (or portion thereof, in the case of the first
payment), commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter
on demand. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.06. In addition, the Borrower shall
pay directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs
and charges, of the L/C Issuer relating to letters of credit as from time to
time in effect. Such customary fees and standard costs and charges are due and
payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, or otherwise will benefit, a
Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer
hereunder for any and all drawings under such Letter of Credit. The Borrower
hereby acknowledges that the issuance of Letters of Credit for the benefit of
Subsidiaries inures to the account of the Borrower, and that the Borrower's
business derives substantial benefits from the businesses of such Subsidiaries.
Section 2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender, in reliance upon the agreements of the other
Lenders set forth in this Section 2.04 agrees to make loans (each such loan, a
"Swing Line Loan") to the Borrower from time to time on any Business Day during
the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of Loans and L/C Obligations of the Lender acting as Swing
Line Lender, may exceed the amount of such Lender's Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the Total
Outstandings shall not exceed the Aggregate Commitments, and (ii) except as
provided above with respect to the Swing Line Lender, the aggregate Outstanding
Amount of the Loans of any Lender, plus such Lender's Applicable Percentage of
the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment, and provided, further, that the Borrower shall not use
the proceeds of any Swing Line Loan to refinance any outstanding Swing Line
Loan. Within the foregoing limits, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.04, prepay under Section
2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base
Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall
be deemed to, and hereby irrevocably and
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unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of
such Lender's Applicable Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon
the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $500,000 or a whole multiple of
$100,000 in excess thereof, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the first proviso to the first sentence of Section
2.04(a), or (B) that one or more of the applicable conditions specified in
Article IV (other than matters previously waived) is not then satisfied, then,
subject to the terms and conditions hereof, the Swing Line Lender will, not
later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Borrower at its
office by crediting the account of the Borrower designated on the books of the
Swing Line Lender in immediately available funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender make a Base Rate Loan in an amount equal to
such Lender's Applicable Percentage of the amount of Swing Line Loans
then outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Loan Notice for purposes hereof) and
in accordance with the requirements of Section 2.02, without regard to
the minimum and multiples specified therein for the principal amount
of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02.
The Swing Line Lender shall furnish the Borrower with a copy of the
applicable Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its
Applicable Percentage of the amount specified in such Loan Notice
available to the Administrative Agent in immediately available funds
for the account of the Swing Line Lender at the Administrative Agent's
Office not later than 1:00 p.m. on the day specified in such Loan
Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that
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so makes funds available shall be deemed to have made a Base Rate
Loan to the Borrower in such amount. The Administrative Agent shall
remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Borrowing in accordance with Section 2.04(c)(i), the request
for Base Rate Loans submitted by the Swing Line Lender as set forth
herein shall be deemed to be a request by the Swing Line Lender that
each of the Lenders fund its risk participation in the relevant Swing
Line Loan and each Lender's payment to the Administrative Agent for
the account of the Swing Line Lender pursuant to Section 2.04(c)(i)
shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to
be paid by such Lender pursuant to the foregoing provisions of this
Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing
Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required
to the date on which such payment is immediately available to the
Swing Line Lender at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the Swing Line Lender in
accordance with banking industry rules on interbank compensation. A
certificate of the Swing Line Lender submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this
Section 2.04(c)(iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Loans or to purchase and
fund risk participations in Swing Line Loans pursuant to this Section
2.04(c) shall be absolute and unconditional and shall not be affected
by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of
the foregoing; provided, however, that each Lender's obligation to
make Loans pursuant to this Section 2.04(c) is subject to the amount
of the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided
herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives
any payment on account of such Swing Line Loan, the Swing Line Lender
will distribute to such Lender its Applicable Percentage of such
payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's risk
participation was funded) in the same funds as those received by the
Swing Line Lender.
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(ii) If any payment received by the Swing Line Lender in respect
of principal or interest on any Swing Line Loan is required to be
returned by the Swing Line Lender under any of the circumstances
described in Section 10.05 (including pursuant to any settlement
entered into by the Swing Line Lender in its discretion), each Lender
shall pay to the Swing Line Lender its Applicable Percentage thereof
on demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned, at a rate per
annum equal to the Federal Funds Rate. The Administrative Agent will
make such demand upon the request of the Swing Line Lender. The
obligations of the Lenders under this clause shall survive the payment
in full of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing Line
Loans. Until each Lender funds its Base Rate Loan or risk participation pursuant
to this Section 2.04 to refinance such Lender's Applicable Percentage of any
Swing Line Loan, interest in respect of such Applicable Percentage shall be
solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make
all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
Section 2.05 Prepayments.
(a) The Borrower may upon notice to the Administrative Agent, at any
time or from time to time, voluntarily prepay Loans in whole or in part without
premium or penalty; provided that (A) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (x) three Business Days prior to
any date of prepayment of Eurodollar Rate Loans and (y) on the date of
prepayment of Base Rate Loans, (B) any prepayment of Eurodollar Rate Loans shall
be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof, and (C) any prepayment of Base Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof
or, in each case, if less, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such prepayment and the
Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of the amount of such
Lender's Applicable Percentage of such prepayment. If such notice is given by
the Borrower, the Borrower shall irrevocably make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied
by all accrued interest on the amount prepaid, together with any additional
amounts required pursuant to Section 3.05. Each such prepayment shall be applied
to the Loans of the Lenders in accordance with their respective Applicable
Percentages; provided that, in each case first to Base Rate Loans and then to
Eurodollar Rate Loans specified in such notice in direct order of Interest
Period maturities.
(b) The Borrower may upon notice to the Swing Line Lender (with a copy
to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided
that (a) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and
(b) any such prepayment shall be in a minimum principal amount of $100,000.
Each such notice shall specify the date and amount of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date
specified therein.
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(c) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, the Borrower shall immediately prepay the
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal
to such excess for so long as such condition shall exist; provided, however,
that subject to the provisions of Section 2.03(g)(ii), the Borrower shall not be
required to Cash Collateralize the L/C Obligations pursuant to this Section
2.05(c) unless, after the prepayment in full of the Loans and Swing Line Loans,
the Total Outstandings exceed the Aggregate Commitments then in effect.
Section 2.06 Termination or Reduction of Commitments. The Borrower may,
upon notice to the Administrative Agent, terminate the Aggregate Commitments, or
from time to time permanently reduce the Aggregate Commitments; provided that
(i) any such notice shall be received by the Administrative Agent not later than
11:00 a.m. five Business Days prior to the date of termination or reduction,
(ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or
any whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments, and (iv) if, after giving effect to any reduction of
the Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be
automatically reduced by the amount of any such excess. The Administrative Agent
will promptly notify the Lenders of any such notice of termination or reduction
of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall
be applied to the Commitment of each Lender according to its Applicable
Percentage. All commitment fees accrued until the effective date of any
termination of the Aggregate Commitments shall be paid on the effective date of
such termination.
Section 2.07 Repayment of Loans. (a) The Borrower shall repay to the
Lenders on the Maturity Date the Outstanding Amount of Loans on such date.
(b) The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date ten (10) Business Days after such Swing Line Loan is made,
if requested by the Administrative Agent on behalf of the Swing Line Lender and
(ii) the Maturity Date.
Section 2.08 Interest.
(a) Subject to the provisions of subsection (b) below (and without
duplication), (i) each Eurodollar Rate Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the Applicable
Rate; (ii) each Base Rate Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate.
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(b) (i) If any amount of principal of any Loan is not paid when due
(after any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount thereafter shall bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by
the Borrower under any Loan Document is not paid when due (without
regard to any applicable grace periods), whether at stated maturity,
by acceleration or otherwise, then upon the request of the Required
Lenders, such amount shall thereafter bear interest at the fluctuating
interest rate per annum equal at all times to the Default Rate to the
fullest extent permitted by applicable Law.
(iii) Upon the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the principal
amount of all outstanding Obligations hereunder at a fluctuating
interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment and before and after the commencement
of any proceeding under any Debtor Relief Law.
Section 2.09 Fees. In addition to certain fees described in subsections
(i) and (j) of Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Applicable Percentage, a
commitment fee (the "Commitment Fee") equal to the Applicable Rate times the
actual daily amount by which the Aggregate Commitments exceed the sum of (i) the
Outstanding Amount of Loans and (ii) the Outstanding Amount of L/C Obligations;
provided that for purposes of calculating the Commitment Fee, Swing Line Loans
will not be deemed to be utilized. The Commitment Fee shall accrue at all times
during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date. The Commitment Fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter,
the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect.
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(b) Other Fees. (i) The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Commitment Letter and the Fee Letter. Such fees
shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have
been separately agreed upon in writing in the amounts and at the times
so specified. Such fees shall be fully earned when paid and shall not
be refundable for any reason whatsoever.
Section 2.10 Computation of Interest and Fees. All computations of
interest for Base Rate Loans when the Base Rate is determined by the
Administrative Agent's "prime rate" shall be made on the basis of a year of 365
or 366 days, as the case may be, and actual days elapsed. All other computations
of fees and interest shall be made on the basis of a 360-day year and actual
days elapsed (which results in more fees or interest, as applicable, being paid
than if computed on the basis of a 365-day year). Interest shall accrue on each
Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid;
provided that any Loan that is repaid on the same day on which it is made shall,
subject to Section 2.12(a), bear interest for one day. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.
Section 2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender of the amount of the
Credit Extensions made by the Lenders to the Borrower and the interest and
payments thereon shall be conclusive absent manifest error. Any failure to so
record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrower hereunder to pay any amount owing with respect to
the Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender's Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a) above, each Lender and the Administrative Agent shall maintain in accordance
with its usual practice accounts or records evidencing the purchases and sales
by such Lender of participations in Letters of Credit and Swing Line Loans. In
the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
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(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsections (a) and (b) above, and by each Lender in its
accounts pursuant to subsections (a) and (b) above, shall be prima facie
evidence of the amount of principal and interest due and payable or to become
due and payable from the Borrower to, in the case of the Register each Lender
and, in the case of such account or accounts, such Lender, under this Agreement
and the other Loan Documents, absent manifest error; provided that the failure
of the Administrative Agent or such Lender to make any entry, or any finding
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of the Borrower under this
Agreement and the other Loan Documents.
Section 2.12 Payments Generally; Administrative Agent's Clawback.
(a) General. All payments to be made by the Borrower shall be made
without condition or deduction for any counterclaim, defense, recoupment or
setoff, but without waiver thereof. Except as otherwise expressly provided
herein, all payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the Administrative Agent's Office in Dollars and in
immediately available funds not later than 2:00 p.m. on the date specified
herein. The Administrative Agent will promptly distribute to each Lender its
Applicable Percentage (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day (unless otherwise expressly provided
herein), and such extension of time shall be reflected in computing interest or
fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent.
Unless the Administrative Agent shall have received notice from a Lender prior
to the proposed date of any Borrowing that such Lender will not make available
to the Administrative Agent such Lender's share of such Borrowing of Eurodollar
Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00
noon on the date of such Borrowing), the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with
Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such
Lender has made such share available in accordance with and at the time required
by Section 2.02) and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case of
a payment to be made by such Lender, the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation and (B) in the case of a payment to be made by
the Borrower, the interest rate applicable to the applicable Borrowing. If the
Borrower and such Lender shall pay such interest to the Administrative Agent for
the same or an overlapping period, the Administrative Agent shall promptly remit
to the Borrower the amount of such interest paid by the Borrower for such
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period. If such Lender pays its share of the applicable Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender's
Loan included in such Borrowing. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the L/C Issuer, as the
case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the L/C Issuer, as
the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in immediately available funds with interest thereon, for
each day from and including the date such amount is distributed to it
to but excluding the date of payment to the Administrative Agent, at
the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation.
A notice of the Administrative Agent to any Lender or the
Borrower with respect to any amount owing under this subsection (b)
shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes
available to the Administrative Agent funds for any Loan to be made by such
Lender as provided in the foregoing provisions of this Article II, and such
funds are not made available to the Borrower by the Administrative Agent because
the conditions to the applicable Credit Extension set forth in Article IV are
not satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest, if returned within one Business Day, and with
interest at the Federal Funds Rate for each day thereafter until returned.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters of Credit and Swing
Line Loans and to make payments pursuant to Section 10.04(c) are several and not
joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any payment under Section 10.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Loan, to purchase its participation or to make its
payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any
Lender to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
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Section 2.13 Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of the Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in
such Lender's receiving payment of a proportion of the aggregate amount of such
Loans or participations and accrued interest thereon greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b)
purchase (for cash at face value) participations in the Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them; provided that:
(i) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be rescinded
and the purchase price restored to the extent of such recovery,
without interest; and
(ii) the provisions of this Section shall not be construed to
apply to (x) any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or subparticipations in L/C
Obligations or Swing Line Loans to any assignee or participant, other
than to the Borrower or any Subsidiary thereof (as to which the
provisions of this Section shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable Law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
Section 2.14 Increase in Aggregate Commitments.
(a) Request for Increase. Provided there exists no Default or Event of
Default, upon notice to the Administrative Agent (which shall promptly notify
the Lenders), the Borrower may from time to time, request an increase in the
Aggregate Commitments by an aggregate amount (for all such requests) not
exceeding $50,000,000; provided that (i) any such request for an increase shall
be in a minimum amount of $10,000,000 and (ii) the Borrower may make a maximum
of three such requests. At the time of sending such notice, the Borrower (in
consultation with the Administrative Agent) shall specify the time period within
which each Lender is requested to respond (which shall in no event be less than
ten Business Days from the date of delivery of such notice to the Lenders).
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(b) Lender Elections to Increase. Each Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to, greater than,
or less than its Applicable Percentage of such requested increase. Any Lender
not responding within such time period shall be deemed to have declined to
increase its Commitment. Any Lender's decision to increase its Commitment
pursuant hereto may be made by Lender in its sole and absolute discretion.
(c) Notification by Administrative Agent; Additional Lenders. The
Administrative Agent shall notify the Borrower and each Lender of the Lenders'
responses to each request made hereunder. To achieve the full amount of a
requested increase and subject to the approval of the Administrative Agent and
the L/C Issuer (which approvals shall not be unreasonably withheld), the
Borrower may also invite additional Eligible Assignees to become Lenders
pursuant to a joinder agreement in form and substance reasonably satisfactory to
the Administrative Agent and its counsel.
(d) Effective Date and Allocations. If the Aggregate Commitments are
increased in accordance with this Section 2.14, the Administrative Agent and the
Borrower shall determine the effective date (the "Increase Effective Date") and
the final allocation of such increase. The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such increase and
the Increase Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition precedent
to such increase, the Borrower shall deliver to the Administrative Agent a
certificate of each Loan Party dated as of the Increase Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of such Loan
Party (i) certifying and attaching the resolutions adopted by such Loan Party
approving or consenting to such increase, and (ii) in the case of the Borrower,
certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other Loan
Documents are true and correct on and as of the Increase Effective Date, except
to the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and except that for purposes of this Section 2.14, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed
to refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 6.01, and (B) no Default exists. The Borrower
shall prepay with proceeds from the increased Commitments any Loans outstanding
on the Increase Effective Date (and pay any additional amounts required pursuant
to Section 3.05) to the extent necessary to keep the outstanding Loans ratable
with any revised Applicable Percentages arising from any nonratable increase in
the Aggregate Commitments under this Section 2.14.
(f) Conflicting Provisions. This Section 2.14 shall supersede any
provisions in Sections 2.13 or 10.01 to the contrary. Minimum prepayment amounts
in Section 2.05 shall not apply to prepayments pursuant to this Section.
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ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of any Loan Party hereunder or under any other Loan Document
shall be made free and clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes; provided that if any Loan Party shall be
required by applicable Law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
or other applicable Loan Party shall make such deductions and (iii) the Borrower
or other applicable Loan Party, jointly and severally, shall timely pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable Law.
(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of subsection (a) above, any Loan Party shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable Law.
(c) Indemnification by the Borrower. The Borrower or other applicable
Loan Party, jointly and severally, shall indemnify the Administrative Agent,
each Lender and the L/C Issuer, within 10 days after demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) paid by the Administrative Agent, such Lender or the L/C Issuer,
as the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate certifying the amount of such payment or
liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy
to the Administrative Agent), or by the Administrative Agent on its own behalf
or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest
error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower or other applicable Loan Party
to a Governmental Authority, the Borrower shall deliver to the Administrative
Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the Law of the jurisdiction
in which the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
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Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable Law or
reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable Law as will permit
such payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable Law or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information
reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is a resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable (and shall in any event deliver at least one of the
following):
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form
W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x)
a certificate to the effect that such Foreign Lender is not (A) a
"bank" within the meaning of section 881(c)(3)(A) of the Code, (B) a
"10 percent shareholder" of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable Law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable Law to permit the
Borrower to determine the withholding or deduction required to be
made.
(f) Treatment of Certain Refunds. If the Administrative Agent, any
Lender or the L/C Issuer determines that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by the Borrower or any other
applicable Loan Party or with respect to which the Borrower or any other
applicable Loan Party has paid additional amounts pursuant to this Section, it
shall pay to the Borrower or such other Loan Party an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower or such Loan Party under this Section with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or the L/C Issuer, as the case
may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided
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that the Borrower or other applicable Loan Party, jointly and severally, upon
the request of the Administrative Agent, such Lender or the L/C Issuer, agrees
to repay the amount paid over to the Borrower or such Loan Party (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent, any Lender or the L/C Issuer to
make available its tax returns (or any other information relating to its taxes
that it deems confidential) to the Borrower, any other applicable Loan Party
or any other Person.
Section 3.02 Illegality. If any Lender determines that any Law has made
it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund Eurodollar Rate Loans, or to determine or charge rates based upon the
Eurodollar Rate or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, or to determine or charge interest rates
based upon the Eurodollar Rate, then, on notice thereof by such Lender to the
Borrower through the Administrative Agent, any obligation of such Lender to make
or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar
Rate Loans shall be suspended until such Lender notifies the Administrative
Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrower shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay or, if
applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans,
either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted.
Section 3.03 Inability to Determine Rates. If the Required Lenders
determine that for any reason in connection with any request for a Eurodollar
Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits
are not being offered to banks in the London interbank eurodollar market for the
applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate
and reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan or
that (c) the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans, or
failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
Section 3.04 Increased Costs; Reserves on Eurodollar Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
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(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve
requirement contemplated by Section 3.04(e)) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Rate Loan made
by it, or change the basis of taxation of payments to such Lender or
the L/C Issuer in respect thereof (except for Indemnified Taxes or
Other Taxes covered by Section 3.01 and the imposition of, or any
change in the rate of, any Excluded Tax payable by such Lender or the
L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London
interbank market any other condition, cost or expense affecting this
Agreement or Eurodollar Rate Loans made by such Lender or any Letter
of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, and provided such
Lender or L/C Issuer is generally charging its other borrowers therefor, the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer,
as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender's or the L/C Issuer's holding company, if
any, regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the L/C Issuer's capital or on the capital of
such Lender's or the L/C Issuer's holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer or
such Lender's or the L/C Issuer's holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the
L/C Issuer delivered to the Borrower certifying the amount or amounts necessary
to compensate such Lender or the L/C Issuer or its holding company, as the case
may be, as specified in subsection (a) or (b) of this Section and setting
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forth in reasonable detail the basis thereof, and delivered to the Borrower
shall be conclusive absent manifest error. The Borrower shall pay such Lender
or the L/C Issuer, as the case may be, the amount shown as due on any such
certificate within 10 Business Days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or
the L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender's or the L/C Issuer's
right to demand such compensation; provided that the Borrower shall not be
required to compensate a Lender or the L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions
suffered more than nine months prior to the date that such Lender or the L/C
Issuer, as the case may be, notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender's or the L/C
Issuer's intention to claim compensation therefor (except that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period of
retroactive effect thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall
be due and payable on each date on which interest is payable on such Loan;
provided the Borrower shall have received at least 10 Business Days' prior
notice (with a copy to the Administrative Agent) of such additional interest
from such Lender. If a Lender fails to give notice 10 Business Days' prior to
the relevant Interest Payment Date, such additional interest shall be due and
payable 10 Business Days' from receipt of such notice.
Section 3.05 Compensation for Losses. Upon demand of any Lender (with a
copy to the Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 10.13.
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including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.
Section 3.06 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 3.04, or the
Borrower is required to pay any additional amount to any Lender of any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall
use reasonable efforts to designate a different Lending Office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or
eliminate the need for the notice pursuant to Section 3.02. as applicable, and
(ii) in each case, would not subject such Lender to any reimbursed cost or
expense and would not otherwise be materially disadvantageous to such Lender.
The Borrower hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01 or notice is given pursuant to Section 3.02, the Borrower may
replace such Lender in accordance with Section 10.13.
Section 3.07 Survival. All of the Borrower's obligations under this
Article III shall survive termination of the Aggregate Commitments and repayment
of all other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01 Conditions to Closing. The obligation of the L/C Issuer and
each Lender hereunder is subject to satisfaction of the following conditions
precedent on the Closing Date:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of
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governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) executed counterparts of this Agreement, each Collateral
Document and the Subsidiary Guaranty, sufficient in number for
distribution to the Administrative Agent, each Lender and the
Borrower;
(ii) an original Note executed by the Borrower in favor of each
Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as the Administrative Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act on behalf of such Loan Party in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party;
(iv) such documents and certifications as the Administrative Agent
may reasonably require to evidence that each of the Loan Parties is
duly organized or formed, validly existing, in good standing and
qualified to engage in business in each jurisdiction where its
ownership, lease or operation of properties or the conduct of its
business requires such qualification, except to the extent that
failure to do so could not reasonably be expected to have a Material
Adverse Effect, including, certified copies of the Organization
Documents of the Loan Parties, certificates of good standing and/or
qualification to engage in business and tax clearance certificates of
the Loan Parties;
(v) favorable opinions of special counsel for the Loan Parties,
addressed to the Administrative Agent and each Lender, as to the
matters set forth in Exhibit H hereto and such other matters
concerning the Loan Parties and the Loan Documents as the Required
Lenders may reasonably request and including, among other things,
opinions regarding the enforceability of the security interests
created thereby;
(vi) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all consents, licenses and approvals of
Governmental Authorities, shareholders and other Persons required in
connection with the execution, delivery and performance by such Loan
Party and the validity against such Loan Party of the Loan Documents
to which it is a party and required in connection with the Loan
Documents and the transactions contemplated thereby (including,
without limitation, the expiration, without imposition of conditions,
of all applicable waiting periods in connection with the transactions
contemplated by the Loan Documents), and such consents, licenses and
approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;
(vii) copies of the financial statements referred to in Sections
5.05(a) and (b), and a certificate signed by a Responsible Officer of
the Borrower and evidence satisfactory to the Administrative Agent
with respect thereto certifying (A) that the conditions specified in
Sections 4.02(a) and (b) have been satisfied and (B) that there has
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been no event or circumstance since the date of the most recent
Audited Financial Statements that has had or could be reasonably
expected to have, either individually or in the aggregate, a Material
Adverse Effect;
(viii) evidence that all insurance required to be maintained
pursuant to the Loan Documents has been obtained and is in full force;
(ix) original certificates evidencing all of the issued and
outstanding shares of capital stock or other Equity Interest required
to be pledged pursuant to the terms of the Pledge Agreement, which
certificates shall be accompanied by undated stock powers duly
executed in blank by each relevant pledgor in favor of the
Administrative Agent;
(x) the original Intercompany Notes required to be pledged
pursuant to the terms of the Pledge Agreement, duly endorsed in blank
by each relevant pledgor in favor of the Administrative Agent;
(xi) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11) or similar search reports
certified by a party acceptable to the Administrative Agent, dated a
date reasonably near (but prior to) the Closing Date, listing all
effective UCC financing statements, tax liens and judgment liens which
name any Loan Party, as the debtor, and which are filed in the
jurisdictions in which such Loan Parties are organized, together with
copies of such financing statements (none of which (other than
financing statements filed pursuant to the terms hereof in favor of
the Administrative Agent, if such Form UCC-11 or search report, as the
case may be, is current enough to list such financing statements)
shall cover any of the Collateral, other than Liens existing on the
Closing Date or permitted by Section 7.01(b), (c) or (j));
(xii) acknowledgment copies of UCC financing statements (or
delivery in proper form for filing) naming the Borrower and each other
Loan Party as the debtor and the Administrative Agent as the secured
party, which such UCC financing statements have been filed, or have
been delivered for filing, under the UCC of all jurisdictions as may
be necessary or, in the opinion of the Administrative Agent, desirable
to perfect the first priority security interest of the Administrative
Agent pursuant to the Security Agreement and the Pledge Agreement;
(xiii) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to perfect and protect
the first priority liens and security interests created under the
Collateral Documents has been taken (including, without limitation,
receipt of duly executed payoff letters, UCC-3 termination
statements);
(xiv) certified copies of all Material Contracts of each Loan
Party;
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(xv) evidence of appointment of Corporation Service Company as
agent for service of process for the Borrower and the Subsidiary
Guarantors;
(xvi) a duly completed Compliance Certificate as of the last day
of the fiscal quarter of the Borrower on September 30, 2005, signed by
a Responsible Officer of the Borrower; and
(xvii) such other assurances, certificates, documents, consents
and waivers, estoppel certificates, or opinions as the Administrative
Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders
reasonably may require.
(b) Such financial, business and legal due diligence and information
regarding the Borrower and its Subsidiaries as the Administrative Agent and its
legal counsel shall have requested.
(c) The Lenders shall be satisfied that, concurrently with the Closing
Date, all existing Indebtedness of the Borrower and its Subsidiaries has been
repaid, redeemed or defeased in full or otherwise satisfied and extinguished,
except the Indebtedness permitted by Section 7.03 hereof, which Indebtedness
shall be on terms and conditions satisfactory to the Lenders and all Liens
securing such obligations have been or concurrently with the Closing Date are
being released, other than Liens permitted by Section 7.01.
(d) The Lenders shall be satisfied with the amount, terms and
conditions of all intercompany Indebtedness.
(e) The Administrative Agent shall be satisfied that (A) the Borrower
and its Subsidiaries will be able to meet their obligations under all employee
and retiree welfare plans, (B) the employee benefit plans of the Borrower and
its ERISA Affiliates are, in all material respects, funded in accordance with
minimum statutory requirements, (C) no Reportable Event, but excluding events
for which reporting has been waived, has occurred as to any such employee
benefit plan and (D) no termination of, or withdrawal from, any such employee
benefit plan has occurred or is contemplated that could reasonably be expected
to result in any material liability.
(f) There shall exist (i) no order, decree, judgment, ruling,
injunction, writ, temporary restraining order or other order of any nature
issued by any court or Governmental Authority or (ii) no action, suit,
proceeding, investigation, litigation, claim, dispute or proceeding, pending,
threatened or contemplated, at law or in equity, in arbitration or before any
Governmental Authority by or against or affecting the Borrower or any of its
Subsidiaries or against any of their respective properties or revenues, in each
case, that (A) purports to affect, pertain to or enjoin or restrain the
execution, delivery and performance of the Loan Documents or any transactions
contemplated hereby or thereby, (B) either individually or in the aggregate, if
determined adversely, could reasonably be expected to have a Material Adverse
Effect or (C) purports to affect the legality, validity or enforceability of any
Loan Document or the consummation of the transactions contemplated hereby or
thereby.
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(g) No Law shall be applicable, in the judgment of the Administrative
Agent, in each case that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated by the Loan Documents or the
rights of the Loan Parties to freely transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired by any of
them.
(h) The Administrative Agent and the Lenders shall be reasonably
satisfied with the corporate, capital and ownership structure (including,
without limitation, the organizational documents) and the amount, terms and
holders of Indebtedness (including intercompany Indebtedness) of the Borrower
and its Subsidiaries. The Lenders and the Administrative Agent shall be
reasonably satisfied with the corporate governance arrangements of the Borrower
and its Subsidiaries.
(i) The Commitment Letter and Fee Letter shall be in full force and
effect and the Borrower and each of the Loan Parties shall have complied with
all of their respective obligations thereunder.
(j) The Administrative Agent shall have received certification as to
the financial condition and solvency of each Loan Party from the chief financial
officer of the relevant Loan Party.
(k) Any fees and expenses required to be paid on or before the Closing
Date shall have been paid, including those fees and expenses set forth in the
Commitment Letter and Fee Letter.
(l) The Borrower shall have paid all fees, charges and disbursements
of counsel to the Administrative Agent to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of fees, charges and disbursements of
counsel to the Administrative Agent as shall constitute its reasonable estimate
of fees, charges and disbursements of counsel to the Administrative Agent
incurred or to be incurred by it through the closing proceedings (provided, that
such estimate shall not thereafter preclude a final settling of accounts between
the Borrower and the Administrative Agent).
(m) Since December 31, 2004, no changes or developments shall have
occurred, and no new or additional information shall have been received or
discovered by the Administrative Agent, the Arranger or any Lender regarding the
Borrower or its Subsidiaries that either individually or in the aggregate
constitutes or has had or could reasonably be expected to constitute or have a
Material Adverse Effect.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
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Section 4.02 Conditions to all Credit Extensions. The obligation of each
Lender and the L/C Issuer to honor any Request for Credit Extension (other than
a Loan Notice requesting only a conversion of Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of the Borrower and each other
Loan Party contained in Article V or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct on and as of the date of such Credit
Extension, (i) except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, (ii) except that for purposes of this Section
4.02, the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements furnished
pursuant to subsections (a) and (b), respectively, of Section 6.01 and (iii)
together with any additional items that will be disclosed on updated Schedules
delivered on the next scheduled delivery date, as to which the Borrower has
notified the Administrative Agent in writing.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender, shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Loan Notice requesting
only a conversion of Loans to the other Type or a continuation of Eurodollar
Rate Loans) submitted by the Borrower shall be deemed to be a representation and
warranty that the conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
Section 5.01 Existence, Qualification and Power. Each of the Borrower and
its Subsidiaries (a) is duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, accreditations, authorizations, consents and approvals to
(i) own or lease its assets and carry on its business as presently conducted,
except where a failure to have such power and authority or to have such
governmental licenses, accreditations, authorizations, consents and approvals,
individually or in the aggregate, could not reasonably be expected to result in
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a Material Adverse Effect, and (ii) execute, deliver and perform its obligations
under the Loan Documents to which it is a party, and (c) is duly qualified and
in good standing under the Laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification except in such jurisdictions where failure to so qualify or be in
good standing, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. There is no existing default
under any Organization Document of the Borrower or any of its Subsidiaries or
any event which, with the giving of notice or passage of time or both, would
constitute a default thereunder.
Section 5.02 Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action. The execution, delivery and performance by each Loan
Party of each Loan Document to which it is a party, and the consummation of the
transactions contemplated hereby with respect to each Loan Party, do not and
will not: (a) contravene the terms of any of such Person's Organization
Documents; (b) conflict with or result in any breach or contravention of, or
(except for the Liens created under the Loan Documents) the creation of any Lien
under, or require any payment to be made under (i) any Contractual Obligation to
which such Person or such Person's Affiliate is a party or affecting such Person
or the properties of such Person or any of its subsidiaries or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any Law. Each
Loan Party and each Subsidiary thereof is in compliance with all Contractual
Obligations referred to in clause (b)(i), except to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect. No
Subsidiary of the Borrower is in violation of any Law or in breach of any
Contractual Obligation, the violation or breach of which could be reasonably
likely to have a Material Adverse Effect.
Section 5.03 Governmental Authorization; Other Consents. No approval,
consent, exemption, authorization, or other action by, or notice to, or filing,
registration, qualification or accreditation with, any Governmental Authority
(including, without limitation, exchange control) or any other Person (including
any party to any contract or agreement to which the Borrower or any of its
Subsidiaries or any of their respective Affiliates is a party) is necessary or
required in connection with (a) the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan Document
(other than those that have been obtained), (b) the validity or enforceability
of any Loan Documents against the Loan Parties (except such filings or notices
as are necessary in connection with the perfection of the Liens created by such
Loan Documents), or (c) the consummation of the transactions contemplated
hereby, other than (i) the filing of financing statements in the UCC filing
offices of each jurisdiction referred to in Schedule 3.1(a)(i) to the Security
Agreement, and (ii) those listed on Schedule 5.03 hereto, all of which have been
obtained.
Section 5.04 Binding Effect. This Agreement has been, and each other Loan
Document when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document to which any Loan Party is a party when so delivered will
constitute, a legal, valid and binding obligation of such Loan Party,
enforceable against each such Person in accordance with its terms, subject to
equitable principles and Debtor Relief Laws.
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Section 5.05 Financial Statements; No Material Adverse Effect; No
Internal Control Event.
(a) The Audited Financial Statements furnished to the Administrative
Agent and each Lender (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein, (ii) fairly present the financial condition of the Borrower and
its Consolidated Subsidiaries as of the date thereof, and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (iii) show all material indebtedness and other material
liabilities (to the extent required to be shown by GAAP), direct or contingent,
of the Borrower and its Consolidated Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.
(b) The Unaudited Financial Statements furnished to the Administrative
Agent and each Lender (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present the financial condition, when read
together with the notes therein, of the Borrower and its Consolidated
Subsidiaries as of the date thereof, and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii) above, to
the absence of footnotes, required formatting, and to normal year-end audit
adjustments and (iii) show all material indebtedness and other material
liabilities (to the extent required to be shown by GAAP), direct or contingent,
of the Borrower and its Consolidated Subsidiaries as of the date of such
financial statements, including liabilities for taxes, material commitments and
Indebtedness.
(c) Since the date of the Audited Financial Statements, no Internal
Control Event has occurred which has not been corrected.
(d) Since the date of the most recent Audited Financial Statements,
there has been no event or circumstance, either individually or in the
aggregate, that has had or could reasonably be expected to have a Material
Adverse Effect.
(e) The financial statements delivered to the Administrative Agent and
each Lender pursuant to Sections 6.01(a) and (b), (i) will be prepared in
accordance with GAAP, except as otherwise noted therein and except as otherwise
permitted by Section 6.01(a) and (b) and (ii) will fairly present the financial
condition of the Borrower and its Consolidated Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP.
Section 5.06 Litigation. To the knowledge of the Borrower after due and
diligent investigation, there are no actions, suits, proceedings,
investigations, litigations, claims, disputes or proceedings, pending or
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries or
against any of their respective properties or revenues or orders, decrees,
judgments,
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rulings, injunctions, writs, temporary restraining orders or other orders of any
nature issued by any court or Governmental Authority that (a) purport to affect,
pertain to or enjoin or restrain the execution, delivery or performance of the
Loan Documents, or any of the transactions contemplated hereby or thereby, (b)
either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (c) purport to affect the legality, validity or
enforceability of the Loan Documents or the consummation of the transactions
contemplated hereby and thereby.
Section 5.07 No Default. No Default has occurred and is continuing or
would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.
Section 5.08 Subsidiaries and Equity Investments. The Borrower has no
Subsidiaries other than those specifically disclosed in Part (a) of Schedule
5.08 (including the jurisdiction of organization, classes of Equity Interests,
options, warrants, rights of subscription, conversion and exchangeability and
other similar rights, ownership and ownership percentages thereof), and neither
the Borrower nor any of its Subsidiaries has equity investments in any other
corporation or entity other than those specifically disclosed in Part (b) of
Schedule 5.08. The outstanding shares of Equity Interests shown on Part (a) of
Schedule 5.08 have been validly issued, fully-paid and are non-assessable and
owned free and clear of Liens. The outstanding shares of Equity Interests shown
are not subject to buy-sell, voting trust or other shareholder agreement, except
as specifically disclosed in Part (c) of Schedule 5.08.
Section 5.09 Ownership. The authorized Equity Interests of the Borrower
consists of 60,000,000 shares of the common stock, $0.01 par value, of which
approximately 27,400,000 shares are issued and outstanding on the Closing Date.
The outstanding shares of common stock of the Borrower have been duly and
validly authorized and issued, are fully paid and nonassessable and were not
issued in violation of the preemptive rights of any stockholder that owns more
than one percent (1%) of the issued and outstanding Equity Interests of the
Borrower. Except as set forth on Schedule 5.09 or as permitted by Section 7.06,
the Borrower has no other outstanding capital stock or Equity Interests, no
incentive units, phantom stock or similar arrangements and no calls, commitments
or claims of any character binding on the Borrower relating to its Equity
Interests.
Section 5.10 Ownership of Personal Property; Liens. Except as could not
reasonably be expected to have a Material Adverse Effect, each of the Borrower
and its Subsidiaries has good title to all of its respective personal properties
and assets, free and clear of any Liens, except for Permitted Liens. Each of the
Borrower and its Subsidiaries has obtained all permits, licenses, franchises or
other certifications, accreditations, consents, approvals and authorizations,
governmental or private, necessary to the ownership of such properties and
assets and the conduct of its business, except where any failure to do so could
not reasonably be expected to have a Material Adverse Effect.
Section 5.11 Intellectual Property; Licenses, Etc. Except as could not
reasonably be expected to have a Material Adverse Effect, each of the Borrower
and its Subsidiaries owns, or possesses the right to use, all of the trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises,
licenses and other intellectual property rights (collectively, "IP Rights") that
is reasonably necessary for the operation of its businesses as presently
conducted, without conflict with the rights of any other Person. To the best
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knowledge of the Borrower and except as could not reasonably be expected to have
a Material Adverse Effect, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Borrower or any of its Subsidiaries
infringes upon any rights held by any other Person. To the best knowledge of the
Borrower, no claim or litigation regarding any of the foregoing is pending or
threatened, which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
Section 5.12 Real Estate, Lease.
(a) Except as could not reasonably be expected to have a Material
Adverse Effect, each of the Borrower and its Subsidiaries has (i) good and
marketable fee title to all of its owned Real Property Assets and (ii) good and
valid title to the leasehold estates in all of the leased Real Property Assets,
in each case free and clear of all Liens except Permitted Liens.
(b) Except as could not reasonably be expected to have a Material
Adverse Effect, all permits, licenses, franchises or other certifications,
accreditations, consents, approvals and authorizations, governmental or private,
with respect to the Real Property Assets, necessary to enable the Borrower and
its Subsidiaries to lawfully occupy and use such property for all of the
purposes for which it is currently occupied and used have been lawfully issued
and are in full force and effect. Except as could not reasonably be expected to
have a Material Adverse Effect, all the Real Property Assets are in compliance
in all material respects with all applicable legal requirements, including the
Americans with Disabilities Act of 1990. No consent or approval of any landlord
or other third party in connection with any leased Real Property Assets is
necessary for any Loan Party to enter into and execute, or the parties thereto
to enforce, the Loan Documents.
(c) Except as could not reasonably be expected to have a Material
Adverse Effect, all easements, cross easements, licenses, air rights and
rights-of way or other similar property interests, if any, necessary for the
full utilization of the improvements for their intended purposes have been
obtained and are in full force and effect.
Section 5.13 Environmental Matters. Except as disclosed on Schedule 5.13,
(a) Except as could not reasonably be expected to have a Material
Adverse Effect, each of the facilities and properties owned, leased or operated
by any of the Borrower and its Subsidiaries (the "Subject Properties") and all
operations at the Subject Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law by the
Borrower or any of its Subsidiaries with respect to the Subject Properties or
the businesses operated by them (the "Businesses"), and there are no conditions
relating to the Businesses or Subject Properties that could give rise to
liability under any applicable Environmental Laws.
(b) None of the Borrower or any of its Subsidiaries has received any
written notice of, or inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Subject Properties or the Businesses, other than those that
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have been resolved and those which could not reasonably be expected to have a
Material Adverse Effect nor does the Borrower or any of its Subsidiaries have
knowledge or reason to believe that any such notice will be received or is being
threatened with respect to any matter the resolution of which could reasonably
be expected to have a Material Adverse Effect.
(c) Hazardous Materials have not been transported or disposed of from
the Subject Properties, or generated, treated, stored or disposed of at, on or
under any of the Subject Properties or any other location, in each case by or on
behalf of any of the Borrower or its Subsidiaries in violation of, or in a
manner that would be reasonably likely to give rise to liability under, any
applicable Environmental Law and which could reasonably be expected to have a
Material Adverse Effect.
Section 5.14 Security Documents.
(a) The Security Agreement is effective to create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable first priority security interest in the Collateral
identified therein owned by each Loan Party who is a party thereto, and, when
financing statements in appropriate form are filed as provided in Section 5.03,
the Security Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in such
Collateral that may be perfected by filing, recording or registering a financing
statement under the UCC, in each case prior and superior in right to any other
Lien on any Collateral other than Permitted Liens.
(b) The Pledge Agreement is effective to create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Pledged Equity Interests and
Pledged Notes (each as defined in the Pledge Agreement) identified therein, and,
when such Pledged Equity Interests which are certificated securities and such
Pledged Notes are delivered to the Administrative Agent (and so long as they
continue to be properly held by the Administrative Agent), the Pledge Agreement
shall constitute a fully perfected first priority Lien on, and security interest
in, all right, title and interest of the pledgors thereunder in such Pledged
Equity Interests and Pledged Notes (each as defined in the Pledge Agreement), in
each case subject to no other Lien.
Section 5.15 Insurance. Each of the Borrower and its Subsidiaries
maintains, with financially sound and reputable insurance companies not
Affiliates of the Borrower or any of its Subsidiaries, insurance (including
liability insurance and casualty insurance), with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar businesses and owning similar properties
in localities where the Borrower or any of its Subsidiaries operates, of such
types and in such amounts, with such deductibles and covering such risks, as are
customarily carried under similar circumstances by such other Persons (or
otherwise required in the Collateral Documents) or with self-insurance programs
in the ordinary course of business that are customary for companies in similar
businesses and of similar size; provided, that, with respect to general
liability or product
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liability insurance, self-insurance exposure does not exceed $2,000,000 in the
aggregate for any fiscal year. All such policies are in full force and effect,
all premiums due and payable thereon have been paid, and no notice of
cancellation or termination has been received with respect to any such policy
which has not been replaced on substantially similar terms prior to the date of
such cancellation or termination. The activities and operations of the Borrower
and its Subsidiaries have been conducted in a manner so as to conform in all
material respects to all applicable provisions of such insurance policies.
Section 5.16 Transactions with Affiliates. Except as set forth in
Schedule 5.16 or permitted by Section 7.09, none of the Borrower or any of its
Subsidiaries is a party to or engaged in any transaction with, and none of the
properties and assets of Borrower or any of its Subsidiaries will be subject to
or bound by any agreement or arrangement with, (a) any Subsidiary or Affiliate
of Borrower or any of its Subsidiaries or (b) any Affiliate of such Subsidiary
or Affiliate.
Section 5.17 Taxes. Each of the Borrower and its Subsidiaries has timely
filed all Federal, state and other material tax returns and reports required to
be filed, and have timely paid all Federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, whether or not
shown on any tax return, except those which are being contested in good faith by
appropriate actions or proceedings reasonably conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Borrower or any of its Subsidiaries that would, if made,
have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary
thereof is a party to any tax sharing agreement.
Section 5.18 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto, and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. Each of the Borrower and its Subsidiaries and
each of their respective ERISA Affiliates have made all required contributions
to each Plan subject to Section 412 of the Code, and no application for a
funding waiver or an extension of any amortization period pursuant to Section
412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) none of
the Borrower or any of its Subsidiaries nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect
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to any Pension Plan (other than premiums due and not delinquent under Section
4007 of ERISA); (iv) none of the Borrower or any of its Subsidiaries nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with
respect to a Multiemployer Plan; and (v) none of the Borrower or any of its
Subsidiaries nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
Section 5.19 Purpose of Loans and Letters of Credit. The proceeds of any
Loans made are to be used solely to pay fees and expenses incurred in connection
with the transactions contemplated hereby, to finance transactions permitted by
Section 7.04, to refinance the Convertible Notes, to provide for working capital
and for other lawful corporate purposes of the Borrower and its Subsidiaries.
Section 5.20 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act.
(a) None of the Borrower or any of its Subsidiaries is engaged and
will engage, principally or as one of its important activities, in the business
of purchasing or carrying margin stock (within the meaning of Regulation U
issued by the FRB), or extending credit for the purpose of purchasing or
carrying margin stock, and no proceeds of any Loans or drawings under any Letter
of Credit will be used to purchase or carry any margin stock or to extend credit
to others for the purpose of purchasing or carrying margin stock.
(b) None of the Borrower or any of its Subsidiaries (i) is a "holding
company," or a "subsidiary company" of a "holding company," or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company," within
the meaning of the Public Utility Holding Company Act of 1935, or (ii) is or is
required to be registered as an "investment company" under the Investment
Company Act of 1940. Neither the making of the Loans, nor the issuance of the
Letters of Credit or the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of other transactions contemplated hereunder,
will violate any provision of any such Act or any rule, regulation or order of
the SEC.
Section 5.21 Disclosure. Each of the Borrower and its Subsidiaries has
disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its
Subsidiaries is subject, and all other matters known to it, that, individually
or in the aggregate, are material to the business of the Borrower and its
Subsidiaries or could reasonably be expected to result in a Material Adverse
Effect. No written report, financial statement, certificate or other information
furnished by or, to the knowledge of Borrower, on behalf of the Borrower or any
of its Subsidiaries to the Administrative Agent or any Lender in connection with
the transactions contemplated hereby and the negotiation of this Agreement and
the other Loan Documents or delivered hereunder or thereunder or under any other
Loan Document (in each case, as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that with
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respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
Section 5.22 Compliance with Laws. Each of the Borrower and its
Subsidiaries is in compliance in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to
its properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate actions or proceedings reasonably conducted or (b) the failure to
comply therewith, either individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
Section 5.23 Labor Matters.
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) There are no strikes or lockouts against the Borrower or any of
its Subsidiaries pending or, to the best knowledge of the Borrower, threatened.
(b) The hours worked by and payments made to employees of the Borrower
and its Subsidiaries have not been in violation of the Fair Labor Standards Act
or any other applicable federal, state, local or foreign Law dealing with such
matters in any case where a Material Adverse Effect would reasonably be expected
to occur as a result of the violation thereof.
(c) All payments due from the Borrower or any of its Subsidiaries, or
for which any claim may be made against the Borrower or any of its Subsidiaries,
on account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of the Borrower
or such Subsidiary to the extent required by GAAP.
(d) Except as set forth on Schedule 5.23, none of the Borrower or any
of its Subsidiaries is a party to a collective bargaining agreement.
Set forth on Schedule 5.23 is a summary of all material labor matters
to the best knowledge of the Borrower pending before any Governmental Authority
or threatened by or against the Borrower or any of its Subsidiaries, and none of
such labor matters, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
Section 5.24 Solvency. Immediately after giving effect to the initial
Credit Extension made on the Closing Date and any other transactions occurring
on the Closing Date, (a) the fair value of the assets of each Loan Party will
exceed its debts and liabilities, subordinated, contingent or otherwise, (b) the
present fair saleable value of the property of each Loan Party will be greater
than the amount that will be required to pay the probable liability of its debts
and other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured and (c) each Loan Party will not
have unreasonably small capital with which to conduct its business in which it
is engaged as such business is now conducted and is proposed to be conducted
following the Closing Date. For purposes of this Section 5.24, the amount of any
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contingent liabilities of any Loan Party (including liabilities in respect of
litigation, guaranties and pension plans) shall be calculated as the maximum
reasonably anticipated liability in respect thereof as determined by such Loan
Party in good faith, in light of all the facts and circumstances existing at the
time.
Section 5.25 Material Contracts. Set forth on Schedule 5.25 is a complete
and accurate list of all Material Contracts of each of the Borrower and its
Subsidiaries, showing as of the date hereof, the name thereof, the parties, the
subject matter and the term. Each such Material Contract has been duly
authorized, executed and delivered by the Borrower or applicable Subsidiary (and
to Borrower's knowledge, by the other parties thereto), is in full force and
effect and is binding upon and enforceable against the Borrower and its
Subsidiaries that are parties thereto (and to Borrower's knowledge, against the
other parties thereto) in accordance with its terms.
Section 5.26 Nature of Business. As of the Closing Date, the Borrower and
its Subsidiaries, other than inactive Subsidiaries that are Excluded
Subsidiaries, are engaged in the business of developing, manufacturing and
marketing medical devices, implants and biomaterials for use in surgery or other
medical treatment, or activities related, ancillary or complementary thereto.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.14) cause
each Subsidiary to:
Section 6.01 Financial Statements. Deliver to the Administrative Agent
(for further distribution to each Lender), in form and detail satisfactory to
the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within ninety (90) days
after the end of each fiscal year thereafter of the Borrower and its
Consolidated Subsidiaries (or, if earlier, the date that is five (5) days after
the reporting date for such information required by the SEC), a consolidated
(but not consolidating) balance sheet of the Borrower and its Consolidated
Subsidiaries as at the end of such fiscal year, and the respective related
consolidated (but not consolidating) statements of income or operations,
shareholders' equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, such consolidated
balance sheet and statements to be audited and accompanied by (i) a report and
opinion of a Registered Public Accounting Firm of nationally recognized
standing, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and applicable Securities Laws and shall
not be subject to any "going concern" or like qualification or exception or any
qualification or exception as to the scope of such audit and (ii) if required by
applicable law, an attestation report of such Registered Public Accounting Firm
as to the Borrower's internal controls pursuant to Section 404 of
Xxxxxxxx-Xxxxx; and
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(b) as soon as available, but in any event within forty-five (45) days
after the end of each of the first three fiscal quarters of each fiscal year of
the Borrower and its Consolidated Subsidiaries (or, if earlier, the date that is
five (5) days after the reporting date for such information required by the
SEC), a consolidated (but not consolidating) balance sheet of the Borrower and
its Consolidated Subsidiaries as at the end of such fiscal quarter, and the
related consolidated (but not consolidating) statements of income or operations,
shareholders' equity and cash flows for such fiscal quarter and for the portion
of such fiscal year then ended, setting forth in comparative form the figures
for the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year or in the case of the balance
sheet, the end of the previous fiscal year, all in reasonable detail, such
consolidated balance sheet and statements to be certified by a Responsible
Officer of the Borrower as fairly presenting the financial condition, results of
operations, shareholders' equity and cash flows of the Borrower and its
Consolidated Subsidiaries on a consolidated (but not consolidating) basis in
accordance with GAAP, subject only to normal year-end audit adjustments,
formatting requirements, and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section
6.02(d), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
Section 6.02 Certificates; Other Information. Deliver to the
Administrative Agent (for further distribution to each Lender), in form and
detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified
public accountants certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default under the financial covenants set forth in Section 7.17 or, if such
knowledge was obtained, stating the nature and status of such Default setting
forth the details of such Default and the action of the Borrower has taken or
proposes to take with respect thereto;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate
signed by a Responsible Officer of the Borrower. In connection with the delivery
by the Borrower of each Compliance Certificate pursuant to this Section 6.02(b),
the Borrower shall deliver to the Administrative Agent supplements to Schedules
5.08, 5.23, and 5.25 and the supplements required by Section 4.15 of the
Security Agreement and Section 4.16 of the Pledge Agreement, together with a
statement of a Responsible Officer executing the Compliance Certificate,
certifying that, as of the date thereof, after giving effect to the supplements
to such Schedules and such report delivered therewith, the representations and
warranties in Article V hereof are true and correct in all material respects,
except those representations and warranties made as of a date certain which
remain true and correct in all material respects as of such date;
(c) [intentionally deleted]
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(d) promptly after the same are available to the public, (i) copies of
management discussion and analysis in relationship to the financial statements
delivered pursuant to Sections 6.01(a) and 6.01(b), (ii) copies of each annual
report, proxy or financial statement or other report or communication sent to
the stockholders of the Borrower or any of its Subsidiaries, and copies of all
annual, regular, periodic and special reports and registration statements which
the Borrower or any of its Subsidiaries may file or be required to file with the
SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not
otherwise required to be delivered to the Administrative Agent pursuant hereto,
and (iii) upon the request of the Administrative Agent, all written reports and
information concerning material matters to and from the United States
Environmental Protection Agency, or any state or local agency responsible for
environmental matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health and safety
matters, or any successor or other agencies or authorities concerning
environmental, health or safety matters;
(e) within forty-five (45) days following the end of each fiscal year
of the Borrower, an annual business plan and forecasts and budget of the
Borrower and its Subsidiaries containing, among other things, summary pro forma
financial information for the next fiscal year with respect to each fiscal
quarter;
(f) promptly, upon receipt thereof, copies of all notices of default
or termination received by any Loan Party or any of its Subsidiaries under or
pursuant to any Material Contract and, from time to time upon request by the
Administrative Agent, such information and reports regarding the Material
Contracts as the Administrative Agent may reasonably request; and
(g) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any of its Subsidiaries, or
compliance with the terms of the Loan Documents, as the Administrative Agent or
any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Sections 6.01(a) or (b)
or Section 6.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 10.02, or (ii)
on which such documents are posted on the Borrower's behalf on an Internet or
intranet website, if any, to which each Lender, the L/C Issuer and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that, (i) the Borrower
shall deliver paper copies of such documents to the Administrative Agent, the
L/C Issuer or any Lender upon receipt by Borrower of a written request from the
Administrative Agent, the L/C Issuer or such Lender, and (ii) the Borrower shall
notify the Administrative Agent, the L/C Issuer and each Lender (by telecopier
or electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Notwithstanding anything contained herein, in every instance
the Borrower shall be required to provide paper copies of the Compliance
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Certificates required by Section 6.02(a) to the Administrative Agent. Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies, of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.
The Borrower hereby acknowledges that (a) the Administrative Agent
and/or the Arranger will make available to the Lenders and the L/C Issuer
materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, "Borrower Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "Platform") and (b) certain
of the Lenders may be "public-side" Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to the Borrower or its
securities) (each, a "Public Lender"). The Borrower hereby agrees that (i) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that
the word "PUBLIC" shall appear prominently on the first page thereof; (ii) by
marking Borrower Materials "PUBLIC," the Borrower shall be deemed to have
authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat the Borrower Materials as not containing any material
non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent the Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (iii) all Borrower Materials marked
"PUBLIC" are permitted to be made available through a portion of the Platform
designated "Public Investor;" and (iv) the Administrative Agent and the Arranger
shall be entitled to treat any Borrower Materials that are not marked "PUBLIC"
as being suitable only for posting on a portion of the Platform not designated
"Public Investor." Notwithstanding the foregoing, the Borrower shall be under no
obligation to xxxx any Borrower Materials "PUBLIC."
Section 6.03 Notices. Promptly notify the Administrative Agent upon
knowledge of an Executive Officer of any Loan Party:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) breach or non-performance of,
or any default under, a Material Contract of the Borrower or any of its
Subsidiaries, (ii) any dispute, action, litigation, investigation, proceeding or
suspension between the Borrower or any of its Subsidiaries and any Governmental
Authority, or (iii) the commencement of, or any material development in, any
action, litigation, investigation or proceeding affecting the Borrower or any of
its Subsidiaries, including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) of a determination by the Borrower or its auditor of the
occurrence of any Internal Control Event; and
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(e) of any material change in accounting policies or financial
reporting practices by the Borrower or any of its Subsidiaries that are not
generally applicable to other companies.
Each notice pursuant to this Section 6.03 shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto.
Section 6.04 Payment of Obligations. Pay and discharge, as the same shall
become due and payable, all its obligations and liabilities, including (a) all
Federal, state and other material tax liabilities, fees, assessments and
governmental charges or levies upon it or its properties or assets, unless the
same are being contested in good faith by appropriate actions or proceedings
reasonably conducted and adequate reserves in accordance with GAAP are being
maintained, (b) all lawful claims which, if unpaid, would by Law become a Lien
(other than a Permitted Lien) upon its property, and (c) all Indebtedness (other
than Indebtedness the non-payment of which would not result in an Event of
Default under Section 8.01(e)), as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
Section 6.05 Preservation of Existence, Etc. (a) Preserve, renew and
maintain, in full force and effect its legal existence, legal structure, legal
name and good standing under the Laws of the jurisdiction of its incorporation
or organization, except in a transaction permitted by Sections 7.04 or 7.05; (b)
take all reasonable action to maintain all rights, privileges, permits,
licenses, approvals and franchises in each case which are necessary or desirable
in the normal conduct of its business, except in a transaction permitted by
Sections 7.04 and 7.05; (c) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation or non-renewal
of which could reasonably be expected to have a Material Adverse Effect; and (d)
do all things necessary to maintain, renew, extend or continue in effect all
Licenses which may at any time and from time to time be necessary for the
Borrower or any of its Subsidiaries to operate its business in compliance with
all Laws, except, in each case, where the failure to do so, either individually
or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
Section 6.06 Maintenance of Properties. (a) Maintain, preserve and
protect all of its material properties and equipment necessary in the operation
of its business in good working order and condition except to the extent the
failure to do so could not reasonably be expected to have a material adverse
impact on the operations or business of any Loan Party, ordinary wear and tear
and Casualty and Condemnation excepted; (b) make all necessary repairs thereto
and renewals and replacements thereof except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (c) use the
standard of care typical in the industry in the operation and maintenance of its
facilities.
Section 6.07 Maintenance of Insurance; Certain Proceeds. (a) Maintain
with financially sound and reputable insurance companies, insurance (including
liability insurance and casualty insurance), with respect to its properties and
business against loss or damage of the kinds customarily insured against by
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Persons engaged in the same or similar businesses and owning similar properties
in localities where such Borrower or such Subsidiary operates, of such types and
in such amounts, with such deductibles and covering such risks, as are
customarily carried under similar circumstances by such other Persons (or
otherwise required in the Collateral Documents) or with self-insurance programs
in the ordinary course of business that are customary for companies in similar
businesses and of similar size; provided, that, with respect to general
liability or product liability insurance, self-insurance exposure will not
exceed $2,000,000 in the aggregate in any fiscal year. The Administrative Agent
shall be named as additional insured with respect to any such liability
insurance providing coverage in respect of any Collateral, and each provider of
any such insurance shall agree, by endorsement upon the policy or policies
issued by it or by independent instruments furnished to the Administrative
Agent, that it will give the Administrative Agent thirty (30) days prior written
notice before any such policy or policies shall be altered or canceled, and that
no act or default of the Borrower or any of its Subsidiaries or any other Person
shall affect the rights of the Administrative Agent or the Lenders under such
policy or policies.
(b) In connection with the covenants set forth in this Section
6.07, it is understood and agreed that except for gross negligence or
intentional misconduct, none of the Administrative Agent, the Lenders or their
respective agents or employees shall be liable for any loss or damage insured by
the insurance policies required to be maintained under this Section 6.07, it
being understood that (A) except for gross negligence or intentional misconduct,
the Borrower and its Subsidiaries shall look solely to their insurance companies
or any other parties other than the aforesaid parties for the recovery of such
loss or damage and (B) to the extent provided in such policies, such insurance
companies shall have no rights of subrogation against the Administrative Agent,
the Lenders or their agents or employees. If, however, the insurance policies do
not provide waiver of subrogation rights against such parties, as required
above, then the Borrower shall, and shall cause each Subsidiary to, waive its
right of recovery, if any, against the Administrative Agent, the Lenders and
their agents and employees, to the extent permitted by Law.
Section 6.08 Compliance with Laws. Comply in all material respects with
the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate actions or proceedings reasonably
conducted or (b) the failure to comply therewith could not be reasonably
expected to have a Material Adverse Effect.
Section 6.09 Books and Records. (a) Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Borrower and its Subsidiaries, as the
case may be; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over the Borrower and its Subsidiaries.
Section 6.10 Inspection Rights. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
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and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants, all at the expense of Administrative Agent or such Lender and at
such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower provided,
however, that when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors)
may do any of the foregoing at the expense of the Borrower at any time during
normal business hours and without advance notice. The Borrower agrees that the
Administrative Agent and its representatives may conduct an annual audit of the
Collateral, at the expense of the Borrower. Administrative Agent, Lenders and
such contractors shall comply with any safety or confidentiality rules adopted
by Borrower.
Section 6.11 Further Assurances with Respect to Additional Loan Parties.
(a) Notify the Administrative Agent at the time that any Person becomes a direct
or indirect Subsidiary of a Loan Party, (b) promptly thereafter (and in any
event within thirty (30) days), cause such Person, unless such Person is an
Excluded Subsidiary, to execute and deliver a Joinder Agreement and such other
documents as the Administrative Agent shall deem appropriate for such purpose,
(c) promptly thereafter (and in any event within thirty (30) days), unless such
Person is an Excluded Subsidiary, pledge and maintain a pledge of one hundred
percent (100%) of the Equity Interests of such Subsidiary (subject to no Liens),
and (d) promptly thereafter (and in any event within thirty (30) days), unless
such Person is an Excluded Subsidiary, deliver, and cause such Person to
deliver, to the Administrative Agent documents of the types referred to in
clauses (iii), (iv), (vi), (ix), (x), (xi), (xii), (xiii), and (xiv) of Section
4.01(a) and favorable opinions of counsel to the Borrower and such Subsidiary
(which shall cover, among other things, the legality, validity, binding effect
and enforceability of the documentation referred to in subsection (a) of Section
4.01), all in form, content and scope reasonably satisfactory to the
Administrative Agent. It is understood and agreed that Property acquired (i) in
a Permitted Acquisition that secures Indebtedness permitted pursuant to Section
7.03(g)(x) and (ii) with purchase money Indebtedness permitted pursuant to
Section 7.03(g)(y) (collectively, "Liened Property"), that is of the same type
as the Collateral securing the Obligations, is not required to be Collateral for
the Obligations until the date that is ten (10) Business Days following the date
the Indebtedness that the Liened Property secures is repaid. Any UCC financing
statements required to be delivered pursuant to Section 4.01(a)(xii) shall not
cover any Liened Property until required by the terms of this Section 6.11 and
Section 6.12.
Section 6.12 Further Assurances with Respect to Additional Collateral.
Execute, any and all further documents, financing statements, agreements and
instruments, and take all such further actions (including the filing and
recording of financing statements and other documents), which may be required
under any applicable Law, or which the Administrative Agent or the Required
Lenders may reasonably request, to comply with the terms of this Agreement and
the other Loan Documents, including causing, to the fullest extent permitted by
Law, (i) the Collateral to be subject to a first priority security interest in
favor of the Administrative Agent (subject, in the case of non-possessory
security interests, to the Permitted Liens) and (ii) the pledge of the Equity
Interests of the Borrower and its Subsidiaries which is subject to a pledge
pursuant to the Pledge Agreement, in each case to secure all the Obligations,
all at the expense of the Borrower. The Borrower also agrees to provide to the
Administrative Agent, from time to time upon the Administrative Agent's
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reasonable request, evidence reasonably satisfactory to the Administrative Agent
as to the validity, perfection and priority of the Liens created or intended to
be created by the Loan Documents. It is understood and agreed that Liened
Property that is of the same type as the Collateral securing the Obligations is
not required to be Collateral for the Obligations until the date that is ten
(10) Business Days following the date the Indebtedness that the Liened Property
secures is repaid.
Section 6.13 Performance of Material Contracts, etc.. Do the following:
(a) perform and observe all the terms and provisions of each Material Contract
to be performed or observed by it; and (b) maintain each such Material Contract
in full force and effect and enforce each such Material Contract in accordance
with its terms, except, in the case of either (a) or (b), where the failure to
do so, either individually or in the aggregate, and after giving effect to any
replacement thereof, could not be reasonably likely to have a Material Adverse
Effect.
Section 6.14 Use of Proceeds. Use the proceeds of the Loans solely for
the purposes set forth in Section 5.19. Use the proceeds of the Swing Line Loans
solely to provide for the working capital requirements of the Borrower and its
Subsidiaries and for the general corporate purposes of the Borrower and its
Subsidiaries not in contravention of Laws or any Loan Document. Use the Letters
of Credit only for or in connection with appeal bonds, reimbursement obligations
arising in connection with surety and reclamation bonds, reinsurance, trade
transactions and other obligations relating to transactions entered into by the
Borrower and its Subsidiaries in the ordinary course of business.
Section 6.15 Environmental. (a) Upon the reasonable written request of
the Administrative Agent following the occurrence of any event or the discovery
of any condition that the Administrative Agent or the Required Lenders
reasonably believe has caused (or could be reasonably expected to cause) the
representations and warranties set forth in Section 5.13 to be untrue in any
material respect, furnish or cause to be furnished to the Administrative Agent,
at the Borrower's expense, a report of an environmental assessment of reasonable
scope, form and depth, (including, where required by applicable Laws, invasive
soil or groundwater sampling) by a consultant reasonably acceptable to the
Administrative Agent as to the nature and extent of the presence of Hazardous
Materials on the applicable Subject Property and as to the compliance by the
Borrower and its Subsidiaries with Environmental Laws at such Subject Property;
provided that if Borrower is in the process of working with a Governmental
Authority to address such event or condition, Borrower shall provide
Administrative Agent with copies of all assessments, reports and other materials
being provided to such Governmental Authority in lieu of the environmental
assessments required above.
(b) Conduct and complete all investigations, studies, sampling, and
testing and all remedial, removal, and other actions necessary to address all
Hazardous Materials on, from or affecting any of the Subject Properties to the
extent necessary to be in compliance with all Environmental Laws and with the
validly issued orders and directives of all Governmental Authorities with
jurisdiction over such Subject Properties to the extent any failure could have a
Material Adverse Effect.
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ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall not, directly or indirectly,
nor shall it permit any Subsidiary to, directly or indirectly:
Section 7.01 Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following (with such Liens described below being
referred to herein as "Permitted Liens"):
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the Closing Date and listed on Schedule 7.01 and
any renewals or extensions thereof; provided that (i) the property covered
thereby is not broadened, (ii) the amount secured or benefited thereby is not
increased, (iii) the direct or any contingent obligor with respect thereto is
not changed, and (iv) any renewal or extension of the obligations secured or
benefited thereby is permitted by Section 7.03(k);
(c) Liens for taxes, fees, assessments or other governmental charges
that (i) do not exceed, when added to the Liens existing pursuant to clause
(d)(i) below, $5,000,000 in the aggregate at any time or (ii) are not yet due or
which are not delinquent or remain payable without penalty, or to the extent
non-payment thereof is permitted by Section 6.04; provided, that, no notice of
lien has been filed or recorded under the Code or other applicable Law;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlord's or other like Liens arising in the ordinary course of business that
(i) do not exceed, when added to the Liens existing pursuant to clause (c)(i)
above, $5,000,000 in the aggregate at any time or (ii) which are not delinquent
or which are being contested in good faith and by appropriate actions or
proceedings which proceedings have the effect of preventing the forfeiture or
sale of the property subject thereto and for which adequate reserves with
respect thereto are maintained on the books of the applicable person in
accordance with GAAP;
(e) pledges or deposits made by the Borrower or any of its
Subsidiaries in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other social security legislation,
other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and
leases (other than Indebtedness, excluding balancing payments), commercial
letters of credit, letters of credit for the account of a Foreign Subsidiary
(where the amount of such deposits do not exceed, when added to the amount of
all Guarantees issued and outstanding at such time pursuant to Section
7.03(c)(ii), $5,000,000), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
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(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property of the Borrower or any of its Subsidiaries
which do not materially interfere with the ordinary conduct of the business of
the applicable Person;
(h) Liens securing judgments for the payment of money not constituting
an Event of Default under Section 8.01(h); provided that enforcement of such
Liens is effectively stayed;
(i) Liens securing Indebtedness permitted under Section 7.03(d) and
(g);
(j) Liens arising from precautionary UCC financing statement filings
with respect to operating leases entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business; and
(k) Customary rights of lien and setoff with respect to deposits with
banks or other depository institutions and with respect to securities and cash
held by brokers and dealers.
Section 7.02 Investments. Make or hold any Investments in any Person,
except:
(a) Investments by the Borrower or any Subsidiary Guarantor held in
the form of Cash Equivalents;
(b) Investments made prior to the Closing Date set forth in Schedule
7.02;
(c) Advances to directors, officers, employees and consultants of the
Borrower or any other Subsidiary for payroll, travel and to cover similar
matters, each of which is expected at the time of such advance to be treated as
an expense for accounting purposes and that are made in the ordinary course of
business and loans to directors, officers, employees and consultants of the
Borrower or any Subsidiary Guarantor in the ordinary course of business as
presently conducted, such advances and loans in an aggregate principal amount
not to exceed $2,000,000 in the aggregate at any one time outstanding; provided,
however that any such advances or loans to directors or executive officers shall
only be permitted to the extent allowable under Xxxxxxxx-Xxxxx;
(d) Investments by any Loan Party in and to the Borrower or any other
Loan Party in the form of contributions to capital or loans or advances;
provided that (i) immediately before and after giving effect thereto, no Event
of Default exists or would result therefrom, (ii) each such item of intercompany
Indebtedness shall be unsecured and (iii) each such item of intercompany
Indebtedness owed to the Borrower from another Loan Party shall be evidenced by
an Intercompany Note which shall be pledged as security for the Obligations of
the holder thereof under the Loan Documents and delivered to the Administrative
Agent pursuant to the terms of the Collateral Documents;
(e) Investments by any Excluded Subsidiary in and to the Borrower or
any other Subsidiary of the Borrower;
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(f) Other than Investments permitted pursuant to clause (g) below,
Investments by any Loan Party in and to Excluded Subsidiaries of up to
$5,000,000 in the aggregate in each fiscal year; provided, that, within any
fiscal year if any portion of an Investment made pursuant to this clause (f) is
repaid to a Loan Party, then such repaid amount may be reinvested under this
clause (f) during such fiscal year as long as the aggregate amount of
Investments to Excluded Subsidiaries in such fiscal year does not exceed
$5,000,000;
(g) Investments that constitute Permitted Acquisitions (including
Investments in Foreign Subsidiaries for the purpose of effecting a Permitted
Acquisition);
(h) Investments in Swap Contracts permitted under Section 7.03(d);
(i) Guarantees permitted by Section 7.03;
(j) Investments made as a result of the receipt of non-cash
consideration from a Disposition that was made pursuant to and in compliance
with this Agreement; provided, however, that at no time shall Investments of
this type exceed $5,000,000 in the aggregate;
(k) Extensions of credit to customers in the ordinary course of
business;
(l) Investments made out of the proceeds of an issuance of Qualified
Equity Interests of the Borrower substantially concurrent with such issuance;
provided, that, (A) the Property acquired (or the Property of the Person
acquired) in such transaction shall be used or useful in the same or similar
line of business as the Loan Parties on the Closing Date, including activities
ancillary, related or complementary thereto, (B) after giving effect to such
transaction on a Pro Forma Basis, the total equity and debt investments of the
Borrower and its Domestic Subsidiaries in the Foreign Subsidiaries does not
exceed fifty percent (50%) of the aggregate book value of the total assets of
the Borrower and its Domestic Subsidiaries, all as determined in accordance with
GAAP, (C) in the case of an Acquisition of the Equity Interests of another
Person, (i) the board of directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition and (ii) with respect to
any Acquisition in excess of $20 million, the Borrower shall have delivered to
the Administrative Agent, a Compliance Certificate signed by a Responsible
Officer of the Borrower demonstrating compliance with the financial covenants
hereunder after giving effect to the transaction on a Pro Forma Basis, and
reaffirming that the representations are true and correct in all material
respects as of such date, except those representations and warranties made as of
a date certain, which shall remain true and correct in all material respects as
of such date and providing supplements to the Schedules as required by the
Compliance Certificate, (D) no Event of Default has occurred and is continuing
or would result therefrom; (E) the Borrower and its Consolidated Subsidiaries
shall be in compliance on a Pro Forma Basis with Section 7.17 after giving
effect to such transaction, (F) the transaction shall not involve the
acquisition of an interest in a general partnership or joint venture or have a
requirement that any Loan Party be a general or joint venture partner other than
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in compliance with Section 7.16, and (G) the Loan Parties shall, and shall cause
the party that is the subject of the transaction to, execute and deliver such
joinder and pledge agreements, security agreements and intercompany notes and
take such other actions as may be necessary for compliance with the provisions
of Sections 6.11 and 6.12; and
(m) Investments of a nature not contemplated in the foregoing
subsections in an amount not to exceed $10,000,000 in the aggregate at any time
outstanding.
Section 7.03 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness listed on Schedule 7.03 that is outstanding on the
Closing Date;
(c) Guarantees of the Borrower or any of its Subsidiaries in respect
of Indebtedness of the Borrower or any of its Subsidiaries otherwise permitted
hereunder; provided that Loan Parties may (i) issue Guarantees under this clause
only in respect of Indebtedness of other Loan Parties and (ii) issue Guarantees
of Indebtedness of Excluded Subsidiaries that does not exceed, when added to the
amount of all deposits to secure letters of credit for the account of a Foreign
Subsidiary under Section 7.01(f), $5,000,000 in the aggregate at any time
outstanding;
(d) obligations (contingent or otherwise) existing or arising under
any Swap Contract; provided that (i) such obligations are (or were) entered into
by such Person for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person, and not for purposes of speculation or taking a "market view," and (ii)
such Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party;
(e) intercompany Indebtedness constituting an Investment that is
permitted under Sections 7.02(d) and (e);
(f) so long as (i) no Event of Default has occurred and is continuing
or would result therefrom and (ii) the Borrower and its Consolidated
Subsidiaries shall be in compliance on a Pro Forma Basis with Section 7.17 after
giving effect to such transaction, subordinated Indebtedness that (A) (x) if
such subordinated Indebtedness is not a public debt issue, is expressly
subordinated to the Obligations on terms substantially as set forth on Exhibit K
hereto or otherwise satisfactory to the Administrative Agent, and (y) if such
subordinated Indebtedness is a public debt issue, is expressly subordinated on
terms that are customary for public subordinated debt transactions at the time
of issue for companies of similar credit standing and size and has a maturity
date that is no earlier than 5-1/2 years after the Closing Date, (B) contains
representations, warranties, covenants, terms and provisions that are no more
restrictive, taken as a whole, than those contained in this Agreement and (C)
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when added to the outstanding amount of the Convertible Notes and any
outstanding Indebtedness incurred pursuant to clauses (g) and (h) of this
Section 7.03, does not exceed $200 million in the aggregate at any time
outstanding;
(g) so long as (i) no Event of Default has occurred and is continuing
or would result therefrom and (ii) the Borrower and its Consolidated
Subsidiaries shall be in compliance on a Pro Forma Basis with Section 7.17 after
giving effect to such transaction, secured Indebtedness in an aggregate
principal amount not to exceed $25 million at any time outstanding; provided,
that, such Indebtedness is not contractually senior in right of payment to the
payment of the Indebtedness arising under this Agreement and the Loan Documents
and either (x) was assumed or existed in connection with a Permitted Acquisition
and the Liens securing such Indebtedness do not at any time encumber any
Property other than the Property acquired in such Permitted Acquisition, or (y)
is purchase money Indebtedness (including Capitalized Leases or Off-Balance
Sheet Obligations) so long as (i) such Indebtedness, when incurred, shall not
exceed 100% of the cost or fair market value, whichever is lower, of the
Property being acquired on the date of acquisition plus fees and expenses
reasonably incurred in connection with such acquisition, (ii) such Indebtedness
is created and any Lien attaches to such Property concurrently with or within
forty-five (45) days of the acquisition thereof, and (iii) such Lien does not at
any time encumber any Property other than the Property financed by such
Indebtedness; provided, that, as provided in clause (f) above, any Indebtedness
incurred and outstanding under this clause (g) and clause (h) of this Section
7.03 shall reduce, dollar for dollar, the amount of Indebtedness available to be
incurred under clause (f) of this Section 7.03;
(h) so long as (i) no Event of Default has occurred and is continuing
or would result therefrom and (ii) the Borrower and its Consolidated
Subsidiaries shall be in compliance on a Pro Forma Basis with Section 7.17 after
giving effect to such transaction, unsecured Indebtedness (including
reimbursement obligations under letters of credit and obligations in respect of
performance bonds and completion guarantees) in an aggregate principal amount
not to exceed $50 million at any time outstanding provided that such
Indebtedness is not contractually senior in right of payment to the payment of
the Indebtedness arising under this Agreement and the Loan Documents; provided,
that, as provided in clause (f) above, any Indebtedness incurred and outstanding
under this clause (h) and clause (g) of this Section 7.03 shall reduce, dollar
for dollar, the amount of Indebtedness available to be incurred under clause (f)
of this Section 7.03;
(i) Indebtedness arising from any agreement entered into by the
Borrower or any Subsidiary providing for customary indemnification, purchase
price adjustment, contingent consideration or similar obligations, in each case,
incurred or assumed in connection with an Acquisition or Disposition permitted
hereunder;
(j) Securities issued in the Convertible Note Exchange; and
(k) Indebtedness representing a refinancing, refunding, renewal or
extension of Indebtedness (x) permitted by clause (b), (f) or (j) above;
provided, that (i) the amount of such Indebtedness is not increased at the time
of such refinancing, refunding, renewal or extension, (ii) the terms relating to
principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing,
refunding, renewing or extending Indebtedness, and of any agreement entered into
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and of any instrument issued in connection therewith, are no less favorable in
any material respect to the Loan Parties or the Lenders than the terms of any
agreement or instrument governing the Indebtedness being refinanced, refunded,
renewed or extended and the interest rate applicable to any such refinancing,
refunding, renewing or extending Indebtedness does not exceed the then
applicable market interest rate, (iii) with respect to the Convertible Notes and
any subordinated debt incurred pursuant to Section 7.03(f) or (j), the maturity
date is no earlier than 5 1/2 years after the Closing Date, and (iv) with
respect to any Indebtedness incurred pursuant to Section 7.03(f) above as long
as the conditions to the incurrence thereof as set forth in clause (f) remain
true and correct at the time of and after giving effect to such refinancing,
renewal or extension, and (y) permitted by clause (h) above, as long as the
conditions to the incurrence thereof remain true and correct at the time of and
after giving effect to such refinancing, renewal or extension .
Section 7.04 Fundamental Changes and Acquisitions.
(a) Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as (x) no
Default or Event of Default has occurred and is continuing or would result
therefrom and (y) the Borrower and its Consolidated Subsidiaries shall be in
compliance with Section 7.17 after giving effect to such transaction on a Pro
Forma Basis:
(i) the Borrower may merge or consolidate with any of its
wholly-owned Subsidiaries; provided that (A) the Borrower shall be the
continuing or surviving Person, and (B) the Loan Parties shall cause
to be delivered such documents, instruments and certificates as to
cause the Loan Parties to be in compliance with the terms of Sections
6.11 and 6.12;
(ii) any wholly-owned Subsidiary of the Borrower may be party to a
transaction of merger or consolidation with a wholly-owned Subsidiary
of the Borrower; provided that the Loan Parties shall cause to be
delivered such documents, instruments and certificates as to cause the
Loan Parties to be in compliance with the terms of Sections 6.11 and
6.12;
(iii) a Subsidiary may be a party to a transaction of merger or
consolidation with a Person other than the Borrower or any Subsidiary
of the Borrower; provided that (A) the surviving entity shall be a
wholly-owned Subsidiary of the Borrower, and (B) the transaction shall
otherwise constitute a Permitted Acquisition;
(iv) the Borrower may be a party to a transaction of merger or
consolidation with a Person other than a Subsidiary of the Borrower in
order to effect an Acquisition; provided, that, (A) the surviving
entity shall be the Borrower and (B) such Acquisition shall otherwise
comply with clauses (a), (b), (c), (d), (e), (f), (g) and (i)(1) of
the definition of "Permitted Acquisition".
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(v) a Subsidiary may enter into a Disposition permitted under
Sections 7.05(d), (e) and (f);
(vi) the Borrower may enter into a Disposition permitted under
Sections 7.05(d) and (e);
(vii) an Excluded Subsidiary may be voluntarily dissolved or
liquidated into any other Subsidiary; and
(viii) Integra Neurosciences PR, Inc. may merge into Integra CI,
Inc.
(b) Make or permit any Subsidiary to make any Acquisition other than
(i) a Permitted Acquisition, (ii) an Acquisition permitted by Section 7.04(a),
(iii) an Investment permitted by Section 7.02(l) that constitutes an Acquisition
or (iv) the acquisition of intellectual property in the ordinary course of
business that constitutes an Acquisition.
Section 7.05 Dispositions. Make any Disposition (other than any Casualty
or Condemnation) or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned
or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property in the ordinary course
of business to the extent that (i) such property is exchanged for credit against
the purchase price of similar replacement property or (ii) the proceeds of such
Disposition are reasonably applied to the purchase price of similar replacement
property within 90 days of such Disposition;
(d) Dispositions of property (i) by the Borrower or a Subsidiary of
the Borrower to the Borrower or a Subsidiary Guarantor and (ii) by an Excluded
Subsidiary to the Borrower or another Subsidiary;
(e) Dispositions that constitute Investments permitted by Sections
7.02 and Dispositions made in connection with transactions permitted by Section
7.04;
(f) other Dispositions (including charitable donations) as long as the
aggregate proceeds of all such Dispositions made pursuant to this clause (f) by
the Borrower and its Subsidiaries during the term of this Agreement does not
exceed, in the aggregate, an amount equal to ten percent (10%) of the aggregate
book value of all tangible assets of the Borrower and its Subsidiaries as of the
date of such Disposition;
(g) licensing (including sublicensing) of intellectual property in the
ordinary course of business,
(h) the lease or sublease of real property in the ordinary course of
business;
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(i) exchanges of Cash Equivalents for other Cash Equivalents;
(j) assignments of contract rights in the ordinary course of business;
and
(k) other Dispositions not exceeding $500,000 in the aggregate during
the term of this Agreement.
provided, that, any Disposition pursuant to subsections (a) through (k) shall be
for fair market value (other than charitable donations made pursuant to clause
(f) above).
Section 7.06 Restricted Payments. Declare or make any Restricted Payment
or incur any obligation contingent or otherwise to do so, or issue or sell any
Equity Interests, except that so long as no Event of Default shall have occurred
and be continuing at the time of any action described below or would result
therefrom:
(a) the Borrower or any of its Subsidiaries may declare and pay
dividends and distributions payable solely in Qualified Equity Interests of the
Borrower or such Subsidiary;
(b) any Subsidiary of the Borrower may declare and pay dividends to
the Borrower or any Subsidiary of the Borrower;
(c) the Borrower may repay the Convertible Notes if (i) in the event
the Convertible Notes remain outstanding on the first day of the RLL Maintenance
Period, then the Borrower maintains Liquidity of at least $160 million at all
times during the RLL Maintenance Period until the earlier of (x) the expiration
of the RLL Maintenance Period and (y) the date the Convertible Notes have been
repaid or refinanced as permitted hereby and (ii) after giving effect to any
proposed repayment of the Convertible Notes, irrespective of when paid, the
Borrower has Liquidity of at least $40 million;
(d) the Borrower may at any time, and from time to time after the
Closing Date, make Restricted Payments if, after giving effect to such
Restricted Payment, (x) there will be no Loans outstanding or (y) there will be
Loans outstanding (i) not to exceed $35 million in any fiscal year if, at the
time of such Restricted Payment, the Borrower's Senior Leverage Ratio is greater
than or equal to 1.50 to 1.00 and (ii) not to exceed $75 million in any fiscal
year if, at the time of such Restricted Payment, the Borrower's Senior Leverage
Ratio is less than 1.50 to 1.00; provided, that, it is understood that this
Section 7.06(d) does not apply to payments made in respect of the Convertible
Notes, which is governed by the terms of Section 7.06(c) above;
(e) the Borrower may issue or sell Qualified Equity Interests so long
as such issuance or sale does not result in a Change of Control;
(f) the Borrower and its Subsidiaries may issue Qualified Equity
Interests in connection with a transaction permitted by Section 7.04 or 7.05;
and
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(g) the Borrower may repurchase or refinance its outstanding Equity
Interests out of the proceeds of a substantially concurrent issuance of, or an
exchange for, Qualified Equity Interests.
Section 7.07 Amendment, Etc. of Indebtedness, Other Material Contracts
and Constitutive Documents and Payments in respect of Indebtedness.
(a) After the issuance thereof, amend or modify (or permit the
amendment or modification of (including any waivers of)), the terms of any
subordinated Indebtedness (including the Convertible Notes and any Indebtedness
issued pursuant to the terms of Section 7.03(f)) in a manner adverse to the
interests of the Lenders (including, without limitation, specifically shortening
any maturity or average life to maturity or requiring any payment sooner than
previously scheduled or increasing the interest rate or fees applicable
thereto); provided, however, the Convertible Notes may be amended to permit the
Convertible Note Exchange.
(b) Subject to Section 7.07(a), cancel or terminate any Material
Contract (other than the Permitted Swap Termination) or consent to or accept any
cancellation or termination thereof by any Consolidated Party, amend or modify
(or permit the amendment or modification of (including any waivers of)), any
Material Contract, waive any default under or breach of any Material Contract,
or take any other action in connection with any Material Contract, unless, in
each case, any such cancellation, termination, amendment or modification, or
consent, waiver or approval thereunder, could not reasonably be expected to have
a Material Adverse Effect.
(c) Amend its Organization Documents, unless, in each case, any such
amendment is not adverse in any material respect to the Lenders.
(d) Make any payment in contravention of the terms of any
subordination with respect to any Indebtedness.
(e) Make any prepayment, redemption, defeasance or acquisition for
value (including, without limitation, by way of depositing money or securities
with the trustee with respect thereto before due for the purpose of paying when
due), or refund, refinance or exchange of any subordinated Indebtedness
permitted under Sections 7.03(b), 7.03(f), and 7.03(j) (including any
refinancing thereof pursuant to Section 7.03(k)) other than regularly scheduled
payments of principal and interest on such Indebtedness, refinancings thereof
permitted pursuant to Section 7.03(k) and prepayments of such Indebtedness with
the proceeds of a substantially concurrent issuance of Qualified Equity
Interests; provided, that, the Borrower may repay the Convertible Notes on the
terms set forth in Section 7.06(c) and may exchange the Convertible Notes in the
Convertible Note Exchange.
Section 7.08 Change in Nature of Business. Make any material change in
the nature of its business as carried on at the Closing Date; provided that the
Borrower and its Subsidiaries may engage in activities ancillary, related or
complementary to the business currently carried on at the Closing Date.
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Section 7.09 Transactions with Affiliates. Engage in any transaction or
series of transactions with (a) any Subsidiary or Affiliate of the Borrower or
any of its Subsidiaries, or (b) any Affiliate of any such Subsidiary or
Affiliate, whether or not in the ordinary course of business, other than on fair
and reasonable terms substantially as favorable to the Borrower or such
Subsidiary as would be obtainable by the Borrower or such Subsidiary at the time
in a comparable arm's length transaction with a Person other than an Affiliate;
provided, that this Section 7.09 shall not restrict (i) transactions between
Loan Parties, (ii) transactions between Excluded Subsidiaries, (iii)
transactions whereby the Borrower or a Subsidiary provides management or
administrative services to a Subsidiary, or (iv) customary indemnities of
officers and directors consistent with Law, payment of reasonable fees to
directors and the customary issuance of directors' shares.
Section 7.10 Limitations on Restricted Actions. Enter into or create or
otherwise cause to exist (other than by Law) or become effective any agreement
or arrangement that: (a) limits the ability (i) of any Consolidated Party to
make Restricted Payments to any Loan Party, (ii) of the Borrower or any of its
Subsidiaries to act as a guarantor and pledge its assets pursuant to the Loan
Documents or (iii) of any Consolidated Party to create, incur, assume or suffer
to exist Liens on property of such Person; provided, however, that this clause
(iii) shall not prohibit (A) any negative pledge incurred or provided in favor
of any holder of Liens permitted under Section 7.01 (but such negative pledge
must be limited to the asset that is the subject of such Permitted Lien) and in
favor of any holder of Indebtedness permitted under Section 7.03(g) solely to
the extent any such negative pledge relates to the property financed by or the
subject of such Indebtedness, (B) restrictions incurred or assumed in connection
with the Acquisition of a Foreign Subsidiary, or (C) customary non-assignment
provisions in licenses, sublicenses, leases and subleases entered into in the
ordinary course of business and consistent with past practices; or (b) requires
the grant of a Lien to secure an obligation of such Person if a Lien is granted
to secure another obligation of such Person.
Section 7.11 Sale-Leasebacks; Off-Balance Sheet Obligation. Enter into
any Sale and Leaseback Transaction or Off-Balance Sheet Obligation, unless such
Sale and Leaseback Transaction or Off-Balance Sheet Obligation constitutes
Indebtedness permitted by Section 7.03(g).
Section 7.12 Use of Proceeds. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of Regulation
U of the FRB) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund indebtedness originally incurred for such
purpose.
Section 7.13 Impairment of Security Interests. Take or omit to take any
action which action or omission might or would materially impair the security
interests in favor of the Secured Parties with respect to the Collateral.
Section 7.14 Ownership of Foreign Subsidiaries. Notwithstanding any other
provision of this Agreement, permit any Foreign Subsidiary to be a direct
Subsidiary of the Borrower.
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Section 7.15 Fiscal Year. Change its fiscal year unless such change is
not adverse in any respect to the Lenders.
Section 7.16 Partnerships, etc. Become a general partner or joint venture
partner of any Person unless (i) such partnership or joint venture interest
represents at least 50% of the voting power of such entity and (ii) the Borrower
will be in compliance with Section 7.17 after giving effect to the incurrence of
the liabilities of such partnership or joint venture on a Pro Forma Basis.
Section 7.17 Financial Covenants.
(a) Maximum Consolidated Total Leverage Ratio. Permit the Consolidated
Total Leverage Ratio of the Borrower and its Consolidated Subsidiaries at any
time during any period of four consecutive fiscal quarters to be greater than
3.25 to 1.0.
(b) Maximum Consolidated Senior Leverage Ratio. Permit the
Consolidated Senior Leverage Ratio of the Borrower and its Consolidated
Subsidiaries at any time during any period of four consecutive fiscal quarters
to be greater than 2.25 to 1.0.
(c) Minimum Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio of the Borrower and its Consolidated
Subsidiaries at any time during any period of four consecutive fiscal quarters
to be less than 2.0 to 1.0.
(d) Liquidity. During the RLL Maintenance Period and until such time
as the Convertible Notes have been repaid or refinanced as permitted in this
Agreement, permit the Liquidity of the Borrower and its Consolidated
Subsidiaries to be less than $160 million.
Section 7.18 Independent of Covenants. All covenants contained in Article
VI and Article VII of this Agreement shall be given independent effect so that
if a particular action or condition is not permitted by one covenant, the fact
that such action or condition would be permitted by another covenant shall not
avoid the occurrence of a Default if such action is taken or condition exists.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01 Events of Default. Any of the following shall constitute an
Event of Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, any amount of principal of any Loan or
any L/C Obligation, or (ii) within three Business Days after the same becomes
due, any interest on any Loan or on any L/C Obligation, or any commitment or
other fee due hereunder, or (iii) within five Business Days after the same
becomes due, any other amount payable hereunder or under any other Loan
Document; or
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(b) Specific Covenants. The Borrower or any other Loan Party fails to
perform or observe any term, covenant or agreement contained in any Section
6.03, 6.05(a), 6.10, 6.11, 6.12, 6.14, or Article VII or any Guarantor fails to
perform or observe any term, covenant or agreement contained in Section 4.1 of
the Guaranty; or
(c) Other Defaults. The Borrower or any other Loan Party fails to
perform or observe any other covenant or agreement (not specified in subsection
(a) or (b) above) contained in any Loan Document on its part to be performed or
observed and such failure continues for 30 days; provided, that, if Borrower or
such other Loan Party has commenced a cure for such failure during the initial
30-day cure period and is diligently and continuously pursuing such cure, such
initial 30-day cure period may be extended for up to 90 days; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) Any Loan Party (A) fails to make any payment
when due, after giving effect to all applicable grace and cure periods, (whether
by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
the Threshold Amount, or (B) fails to observe or perform any other agreement or
condition, after giving effect to all applicable grace and cure periods,
relating to any such Indebtedness or Guarantee or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs,
the effect of which default or other event is to cause the holder or holders of
such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries), to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable; (ii) any Loan Party fails in the
performance or observance (beyond the applicable grace period with respect
thereto, if any) of any Material Contract (other than those covered in clauses
(i) and (iii) hereof) and such default together with any other such defaults,
could reasonably be expected to have a Material Adverse Effect; or (iii) there
occurs under any Swap Contract an Early Termination Date (as defined in such
Swap Contract) resulting from (A) any event of default under such Swap Contract
as to which any Loan Party is the Defaulting Party (as defined in such Swap
Contract) or (B) except for the Permitted Swap Termination, any Termination
Event (as defined in such Swap Contract) under such Swap Contract as to which
any Loan Party is an Affected Party (as defined in such Swap Contract) and, in
either event, the Swap Termination Value owed by such Loan Party as a result
thereof is greater than the Threshold Amount; or
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(f) Insolvency Proceedings, Etc. Any Loan Party (i) institutes or
consents to the institution of any proceeding under any Debtor Relief Law, or
makes a general assignment for the benefit of creditors or (ii) applies for or
consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Loan Party becomes
unable or admits in writing its inability or fails generally to pay its debts as
they become due, or (ii) any writ or warrant of attachment or execution or
similar process is issued or levied against all or any material part of the
property of any such Person and is not released, vacated or fully bonded within
30 days after its issue or levy; or
(h) Judgments. There is entered against any Loan Party (i) a final
judgment or order for the payment of money in an aggregate amount exceeding the
Threshold Amount (to the extent (x) not covered by independent third-party
insurance as to which the insurer does not dispute coverage or (y) the full
amount of which judgment is not reserved by the Borrower in cash), or (ii) any
one or more non-monetary final judgments that have, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 10 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower or any of its Subsidiaries under Title IV of ERISA
to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount, or (ii) the Borrower or any of its Subsidiaries
or any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any provision of any Loan Document,
at any time after its execution and delivery and for any reason other than as
expressly permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or the Borrower, any of its
Subsidiaries or any of their respective Affiliates contests in any manner the
validity or enforceability of any provision of any Loan Document; or any Loan
Party denies that it has any or further liability or obligation under any
provision of any Loan Document, or purports to revoke, terminate or rescind any
provision of any Loan Document, or in the case of any Lien granted pursuant to
any Collateral Document (including any Lien granted after the Closing Date in
accordance with Section 6.11 or 6.12) in favor of the Administrative Agent, such
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Lien ceases to have the priority purported to be granted under such Collateral
Document or is declared by a court of competent jurisdiction to be null and
void, invalid or unenforceable in any respect; or
(k) Subsidiary Guaranty. The Subsidiary Guaranty given by any
Subsidiary Guarantors (including any Person that becomes a Subsidiary Guarantor
after the Closing Date in accordance with Section 6.11) or any provision thereof
shall cease to be in full force and effect, or any Subsidiary Guarantor
(including any Person that becomes a Subsidiary Guarantor after the Closing Date
in accordance with Section 6.11) or any Person acting by or on behalf of such
Subsidiary Guarantor shall deny or disaffirm such Subsidiary Guarantor's
obligations under the Subsidiary Guaranty; or
(l) Change of Control. There occurs any Change of Control; or
(m) Material Adverse Effect. There occurs a Material Adverse Effect.
Section 8.02 Remedies Upon Event of Default. If any Event of Default
occurs and is continuing, the Administrative Agent shall, at the request of, or
may, with the consent of, the Required Lenders, take any or all of the following
actions:
(a) declare the Commitments of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such Commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Loan Parties;
(c) require that the Borrower Cash Collateralize the L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents, including,
without limitation, all rights and remedies existing under the Collateral
Documents and all rights and remedies against any Subsidiary Guarantor;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Loan Party under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
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Section 8.03 Application of Funds. After the exercise of remedies
provided for in Section 8.02 (or after the Loans have automatically become
immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 8.02),
any amounts received by the Administrative Agent on account of the Obligations
shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III hereof and Section 2.5 of the Subsidiary Guaranty) payable to the
Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal, interest, Letter of
Credit Fees and Commitment Fees) payable to the Lenders and the L/C Issuer
(including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer and amounts payable under Article III hereof and Section 2.5
of the Subsidiary Guaranty), ratably among them in proportion to the respective
amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid Letter of Credit Fees, Commitment Fees and interest on the
Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the
L/C Issuer in proportion to the respective amounts described in this clause
Third payable to them;
Fourth, ratably (i) to payment of that portion of the Obligations
constituting unpaid principal of the Loans and the L/C Borrowings, ratably among
the Lenders in proportion to the respective amounts described in this subclause
(i) to this clause Fourth held by them and (ii) to payment of that portion of
the Obligations constituting amounts owing under or in respect of Secured Swap
Contracts and Secured Cash Management Services Agreements, ratably among the
Swap Banks and Cash Management Banks in proportion to the respective amounts
described in this subclause (ii) to this clause Fourth held by them.
Fifth, to the Administrative Agent for the account of the L/C Issuer,
to Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
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ARTICLE IX
ADMINISTRATIVE AGENT
Section 9.01 Appointment and Authority.
(a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints
Bank of America to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article
are solely for the benefit of the Administrative Agent, the Lenders and the L/C
Issuer, and neither the Borrower nor any other Loan Party shall have rights as a
third party beneficiary of any of such provisions.
Section 9.02 Rights as a Lender. The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
Section 9.03 Exculpatory Provisions. The Administrative Agent shall not
have any duties or obligations except those expressly set forth herein and in
the other Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents); provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable Law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
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The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the Administrative Agent shall believe in good faith shall be necessary, under
the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
Section 9.04 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document
or other writing (including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or the L/C
Issuer, the Administrative Agent may presume that such condition is satisfactory
to such Lender or the L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or the L/C Issuer prior to the
making of such Loan or the issuance of such Letter of Credit. The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
Section 9.05 Delegation of Duties. The Administrative Agent may perform
any and all of its duties and exercise its rights and powers hereunder or under
any other Loan Document by or through any one or more sub-agents appointed by
the Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
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Section 9.06 Resignation of Administrative Agent. The Administrative
Agent may at any time give notice of its resignation to the Lenders, the L/C
Issuer and the Borrower. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which shall be a bank with an office in the United States,
or an Affiliate of any such bank with an office in the United States. If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders or
the L/C Issuer under any of the Loan Documents, the retiring Administrative
Agent shall continue to hold such collateral security until such time as a
successor Administrative Agent is appointed) and (b) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the retiring Administrative Agent's resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender. Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line
Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged
from all of their respective duties and obligations hereunder or under the other
Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangements satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
Section 9.07 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender and the L/C Issuer acknowledges that it has, independently and without
reliance
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upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Section 9.08 No Other Duties, Etc. Anything herein to the contrary
notwithstanding, none of the Book Managers or Arrangers listed on the cover page
hereof shall have any powers, duties or responsibilities under this Agreement or
any of the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the L/C Issuer hereunder.
Section 9.09 Administrative Agent May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and all
other Obligations that are owing and unpaid and to file such other documents as
may be necessary or advisable in order to have the claims of the Lenders, the
L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.09
and 10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment
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or composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
Section 9.10 Collateral and Guaranty Matters. The Lenders and the L/C
Issuer irrevocably authorize the Administrative Agent, at its option and in its
discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration, termination or Cash
Collateralization of all Letters of Credit, (ii) that is sold or to be sold as
part of or in connection with any sale permitted hereunder or under any other
Loan Document, or (iii) subject to Section 10.01, if approved, authorized or
ratified in writing by the Required Lenders; and
(b) to release any Subsidiary Guarantor from its obligations under the
Guaranty and release the pledge of its assets, stock, and indebtedness if such
Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to release
or subordinate its interest in particular types or items of property, or to any
release pursuant to this Section 9.10.
ARTICLE X
MISCELLANEOUS
Section 10.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
the Borrower or any other Loan Party therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Required Lenders and the
Borrower and the applicable Loan Party, as the case may be, and acknowledged by
the Administrative Agent, and each such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall
(a) waive any condition set forth in Section 4.01(a) without the
written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due to
the Lenders (or any of them) hereunder (other than late fees and default
interest) or under any other Loan Document without the written consent of each
Lender directly affected thereby;
(d) reduce or subordinate the principal of, or the rate of interest
specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of
the second proviso to this Section 10.01) any fees or other amounts payable
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hereunder or under any other Loan Document; provided, however, that only the
consent of the Required Lenders shall be necessary (i) to amend the definition
of "Default Rate" or to waive any obligation of the Borrower to pay interest or
Letter of Credit Fees at the Default Rate or (ii) to amend any financial
covenant hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or L/C Borrowing
or to reduce any fee payable hereunder;
(e) change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender;
(g) release all or substantially all of the value of the Subsidiary
Guaranty, or release all or substantially all of the Collateral in any
transaction or series of related transactions except as specifically permitted
by the Loan Documents without the written consent of each Lender;
provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it, (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement, (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document, and (iv)
each of the Fee Letter and the Commitment Letter may be amended and (v) Section
10.06(h) may not be amended, waived or otherwise modified without the consent of
each Granting Lender all or part of whose loans are being funded by an SPC at
the time of such amendment, waiver or other modification;, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender. Upon delivery by the Borrower of each
Compliance Certificate of a Responsible Officer certifying supplements to the
Schedules to this Agreement pursuant to Section 6.02(b), the schedule
supplements attached to each such certificate shall be incorporated into and
become a part of and supplement Schedules 5.08, 5.23 and 5.25 hereto, as
applicable, and the Administrative Agent may attach such schedule supplements to
such Schedules, and each reference to such Schedules shall mean and be a
reference to such Schedules, as supplemented pursuant thereto.
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Section 10.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) the Borrower, the Administrative Agent, the L/C Issuer or the
Swing Line Lender, to the address, telecopier number, electronic mail
address or telephone number specified for such Person on Schedule
10.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the 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.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement); provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE."
THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
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OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to the Borrower, any Lender, the L/C Issuer
or any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of the Borrower's or
the Administrative Agent's transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing
Line Lender. In addition, each Lender agrees to notify the Administrative Agent
from time to time to ensure that the Administrative Agent has on record (i) an
effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.
e) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower. All telephonic notices
to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
Section 10.03 No Waiver; Cumulative Remedies. No failure by any Lender,
the L/C Issuer or the Administrative Agent to exercise, and no delay by any such
Person in exercising, any right, remedy, power or privilege hereunder shall
operate as
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a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by Law.
Section 10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and reasonable disbursements of counsel
for the Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender (after
the occurrence of a Default) or the L/C Issuer (including the fees, charges and
reasonable disbursements of any counsel for the Administrative Agent, any Lender
or the L/C Issuer), in connection with the enforcement or protection of its
rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans
made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities, penalties and related expenses
(including the reasonable fees, charges and disbursements of any counsel for any
Indemnitee; provided, that, as long as no Default exists Borrower shall engage
and pay for defense counsel that is reasonably acceptable to the Required
Lenders in connection with claims brought by third parties and Lenders may
engage separate counsel under such circumstances at their own expense (it being
understood that upon the occurrence of an Event of Default, all counsel shall be
at the cost and expense of Borrower)), incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by the Borrower or any other Loan
Party arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
of their respective obligations hereunder, thereunder or the consummation of the
transactions contemplated hereby or thereby or, in the case of the
Administrative Agent (and any sub-agent thereof) and its Related Parties only,
the administration of this Agreement and the other Loan Documents, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
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or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory, whether brought by a third party or by the Borrower or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto,
in all cases, whether or not caused by or arising, in whole or in part, out of
the comparative, contributory or sole negligence of the Indemnitee; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Borrower or any other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if the Borrower or such
Loan Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable Law, no party hereto shall assert, and hereby waives,
any claim against any other party hereto, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
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(f) Survival. The agreements in this Section shall survive the
resignation of the Administrative Agent and the L/C Issuer, the replacement of
any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
Section 10.05 Payments Set Aside. To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or
any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.
Section 10.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder (except pursuant to a transaction expressly
permitted hereunder) without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of subsection (b) of this Section 10.06, (ii) by way of
participation in accordance with the provisions of subsection (d) of this
Section 10.06, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section 10.06 (and any
other attempted assignment or transfer by any party hereto shall be null and
void) or (iv) to an SPC in accordance with the provisions of subsection (h) of
this Section 10.06. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section 10.06 and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
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(including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an
aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the Commitment is not then in
effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified
in the Assignment and Assumption, as of the Trade Date, shall not be
less than $5 million and, so long as no Event of Default has occurred
and is continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group will be treated
as a single assignment for purposes of determining whether such
minimum amount has been met; provided, however, that concurrent
assignments to members of an Assignee Group and concurrent assignments
from members of an Assignee Group to a single Eligible Assignee (or to
an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether
such minimum amount has been met;
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the
Commitment assigned, except that this clause (ii) shall not apply to
rights in respect of Swing Line Loans;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent, the L/C Issuer and the Swing Line Lender unless
the Person that is the proposed assignee is itself a Lender (whether
or not the proposed assignee would otherwise qualify as an Eligible
Assignee); and
(iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount, if any, required as set
forth on Schedule 10.06, and the Eligible Assignee, if it shall not be
a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section 10.06, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
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to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section 10.06.
(c) Register. The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at the Administrative Agent's Office
a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Borrower and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or other substantive
change to the Loan Documents is pending, any Lender may request and receive from
the Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent
of, or notice to, the Borrower or the Administrative Agent, sell participations
to any Person (other than a natural person or the Borrower or any of the
Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or a
portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Lender's participations in L/C Obligations and/or Swing Line Loans) owing to
it); provided that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower,
the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, waiver or other modification described in the first
proviso to Section 10.01 that affects such Participant. Subject to subsection
(e) of this Section 10.06, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section 10.06. To the extent permitted by Law, each
Participant also shall be entitled to the benefits of Section 10.08 as though it
were a Lender; provided such Participant agrees to be subject to Section 2.13 as
though it were a Lender.
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(e) Limitations On Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.01(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable Law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state Laws based on the Uniform Electronic Transactions
Act.
(h) Special Purpose Funding Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower (an "SPC")
the option to provide all or any part of any Loan that such Granting Lender
would otherwise be obligated to make pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to make
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof or, if it fails to do so, to make such
payment to the Administrative Agent as is required under Section 2.12(b)(ii).
Each party hereto hereby agrees that (i) neither the grant to any SPC nor the
exercise by any SPC of such option shall increase the costs or expenses or
otherwise increase or change the obligations of the Borrower under this
Agreement (including its obligations under Section 3.04), (ii) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement for
which a Lender would be liable, and (iii) the Granting Lender shall for all
purposes, including the approval of any amendment, waiver or other modification
of any provision of any Loan Document, remain the lender of record hereunder.
The making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior debt of any SPC, it will not
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institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the Laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to, but
without prior consent of the Borrower and the Administrative Agent and with the
payment of a processing fee in the amount of $2,500, assign all or any portion
of its right to receive payment with respect to any Loan to the Granting Lender
and (ii) disclose on a confidential basis any non-public information relating to
its funding of Loans to any rating agency, commercial paper dealer or provider
of any surety or Guarantee or credit or liquidity enhancement to such SPC.
(i) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon 30 days' notice to the Borrower and the
Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to the Borrower,
resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, (i) that no failure by the Borrower to appoint any such successor shall
affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be and (ii) no Lender shall be required to accept the appointment
as a successor L/C Issuer or Swing Line Lender, as the case may be. If Bank of
America resigns as L/C Issuer, it shall retain all the rights, powers,
privileges and duties of the L/C Issuer hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as L/C Issuer and
all L/C Obligations with respect thereto (including the right to require the
Lenders to make Base Rate Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C
Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring L/C
Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C
Issuer shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank of
America with respect to such Letters of Credit.
Section 10.07 Treatment of Certain Information; Confidentiality. Each of
the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable Law or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
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action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section 10.07, to
(i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section 10.07 or
(y) becomes available to the Administrative Agent, any Lender or the L/C Issuer
or any of their respective Affiliates on a nonconfidential basis from a source
other than the Borrower.
For purposes of this Section, "Information" means all information
received from the Borrower or any Subsidiary relating to the Borrower or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the L/C
Issuer on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary, provided that, in the case of information received from the Borrower
or any Subsidiary after the Closing Date, such information either consists of
customer lists or customer or product-specific sales information or is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrower or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
Section 10.08 Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable Law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, the L/C Issuer or any such Affiliate to or for the
credit or the account of the Borrower or any other Loan Party against any and
all of the obligations of the Borrower or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the
L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall
have made any demand under this Agreement or any other Loan Document and
although such obligations of the Borrower or such Loan Party may be contingent
or unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may
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have. Each Lender and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application; provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
Section 10.09 Interest Rate Limitation. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the 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.
Section 10.10 Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
Section 10.11 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
Section 10.12 Severability. If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
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unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 10.13 Replacement of Lenders. If any Lender requests compensation
under Section 3.04, or if the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.01, if any Lender is a Defaulting Lender or if any other
circumstances exists hereunder that gives the Borrower the right to replace a
Lender as a party hereto, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 10.06), all of its
interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
Section 10.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
(b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN XXX XXXX XXXX XXX
XX XXX XXXXXX XXXXXX DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND
ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
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UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN
ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT,
ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY
COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING
IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
Section 10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.16 USA Patriot Act Notice. Each Lender subject thereto and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it is required
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to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to
identify the Borrower in accordance with such Act.
Section 10.17 Time of the Essence. Time is of the essence of the Loan
Documents.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
INTEGRA LIFESCIENCES HOLDINGS CORPORATION,
a Delaware corporation, as the Borrower
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President, Finance
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Citibank, FSB, as Co-Syndication Agent
and as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxxxxx
Title: Vice President
Suntrust Bank, as Co-Syndication Agent
and as a Lender
By: /s/ W. Xxxxxx Xxxxxxx
-------------------------------
Name: W. Xxxxxx Xxxxxxx
Title: Director
Royal Bank of Canada, as Co-Documentation
Agent and as a Lender
By: /s/ Xxxxxx XxxXxxxxx
--------------------------------
Name: Xxxxxx XxxXxxxxx
Title: Authorized Signatory
Wachovia Bank, National Association as
Co-Documentation Agent and as a Lender
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Director
Citizens Bank PA, as a Lender
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
PNC Bank National Association,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Sovereign Bank, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
The Bank of New York, as a Lender
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Dresdner Bank AG, New York and
Grand Cayman Branches, as a Lender
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
HSBC Bank USA, NA, as a Lender
By: /s/ Xxxxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
Commerce Bank, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
People's Bank, as a Lender
By: /s/ Xxxxxx X. Xxxx
---------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
Xxxxx Brothers Xxxxxxxx & Co,
as a Lender
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Comerica Bank, as a Lender
By: /s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Vice President