Exhibit 4
$130,000,000
DATED AS OF MAY 18, 2011
AMONG
THE LENDERS,
JPMORGAN CHASE BANK, N.A.,
AS ADMINISTRATIVE AGENT
AND
BANK OF AMERICA, N.A., KEYBANK NATIONAL ASSOCIATION,
U.S. BANK NATIONAL ASSOCIATION AND XXXXX FARGO BANK, N.A.
AS CO-SYNDICATION AGENTS
X.X. XXXXXX SECURITIES LLC,
AS SOLE LEAD ARRANGER AND SOLE BOOKRUNNER
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS |
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1 |
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ARTICLE II THE CREDITS |
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20 |
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2.1. Commitment |
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20 |
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2.2. Required Payments; Termination |
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20 |
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2.3. Ratable Loans |
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20 |
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2.4. Types of Advances |
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20 |
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2.5. Swing Line Loans |
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21 |
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2.6. Commitment Fee; Reductions and Increases in Aggregate Commitment |
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22 |
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2.7. Minimum Amount of Each Advance |
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24 |
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2.8. Optional Principal Payments |
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24 |
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2.9. Method of Selecting Types and Interest Periods for New Advances |
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24 |
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2.10. Conversion and Continuation of Outstanding Advances |
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25 |
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2.11. Changes in Interest Rate, etc |
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25 |
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2.12. Rates Applicable After Default |
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26 |
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2.13. Method of Payment |
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26 |
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2.14. Noteless Agreement; Evidence of Indebtedness |
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26 |
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2.15. Telephonic Notices |
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27 |
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2.16. Interest Payment Dates; Interest and Fee Basis |
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27 |
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2.17. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions |
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28 |
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2.18. Lending Installations |
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28 |
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2.19. Non-Receipt of Funds by the Administrative Agent |
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28 |
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2.20. Facility LCs |
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29 |
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2.21. Replacement of Lenders |
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34 |
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2.22. Defaulting Lenders |
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34 |
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ARTICLE III INCREASED COSTS; TAXES |
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36 |
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3.1. Increased Costs |
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36 |
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3.2. Availability of Types of Advances |
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37 |
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3.3. Funding Indemnification |
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37 |
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3.4. Taxes |
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37 |
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ARTICLE IV CONDITIONS PRECEDENT |
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41 |
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4.1. Effectiveness and Initial Advance |
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41 |
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4.2. Each Credit Extension |
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43 |
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ARTICLE V REPRESENTATIONS AND WARRANTIES |
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44 |
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5.1. Existence and Standing |
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44 |
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5.2. Authorization and Validity |
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44 |
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5.3. No Conflict; Government Consent |
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44 |
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5.4. Financial Statements |
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45 |
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5.5. Material Adverse Change |
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45 |
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5.6. Taxes |
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45 |
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5.7. Litigation and Contingent Obligations |
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45 |
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5.8. Subsidiaries |
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45 |
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5.9. ERISA |
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46 |
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5.10. Accuracy of Information |
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46 |
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5.11. Regulation U |
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46 |
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5.12. Material Agreements |
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46 |
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5.13. Compliance With Laws |
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46 |
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5.14. Ownership of Properties |
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46 |
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5.15. Plan Assets; Prohibited Transactions |
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47 |
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5.16. Environmental Matters |
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47 |
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5.17. Investment Company Act |
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47 |
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5.18. Insurance |
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47 |
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5.19. Solvency |
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47 |
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5.20. Collateral Documents |
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48 |
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5.21. Subordinated Debt |
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48 |
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ARTICLE VI COVENANTS |
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49 |
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6.1. Financial Reporting |
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49 |
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6.2. Use of Proceeds |
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50 |
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6.3. Notice of Default |
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51 |
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6.4. Conduct of Business |
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51 |
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6.5. Taxes |
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51 |
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6.6. Insurance |
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51 |
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6.7. Compliance with Laws |
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51 |
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6.8. Maintenance of Properties |
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51 |
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6.9. Inspection |
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52 |
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6.10. Restricted Payments |
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52 |
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6.11. Indebtedness |
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52 |
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6.12. Merger |
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53 |
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6.13. Sale of Assets |
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53 |
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6.14. Investments and Acquisitions |
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54 |
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6.15. Liens |
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55 |
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6.16. Affiliates |
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56 |
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6.17. Amendments to Agreements |
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56 |
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6.18. Contingent Obligations |
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56 |
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6.19. Financial Contracts |
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56 |
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6.20. Inconsistent Agreements |
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57 |
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6.21. Subsidiary Guaranties and Personal Property Pledges |
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57 |
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6.22. Subsidiary Stock Pledge |
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57 |
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6.23. Financial Covenants |
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58 |
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ARTICLE VII DEFAULTS |
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58 |
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ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES |
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61 |
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8.1. Acceleration; Facility LC Collateral Account |
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61 |
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8.2. Amendments |
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62 |
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8.3. Preservation of Rights |
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63 |
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-ii-
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ARTICLE IX GENERAL PROVISIONS |
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63 |
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9.1. Survival of Representations |
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9.2. Governmental Regulation |
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63 |
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9.3. Headings |
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63 |
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9.4. Entire Agreement |
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9.5. Several Obligations; Benefits of this Agreement |
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64 |
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9.6. Expenses; Indemnification |
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9.7. Numbers of Documents |
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65 |
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9.8. Accounting |
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9.9. Severability of Provisions |
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9.10. Nonliability of Lenders |
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9.11. Confidentiality |
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66 |
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9.12. Nonreliance |
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67 |
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9.13. Disclosure |
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67 |
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9.14. USA PATRIOT Act |
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9.15. Exiting Lender Payment |
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9.16. Amendment and Restatement |
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67 |
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ARTICLE X THE ADMINISTRATIVE AGENT |
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10.1. Appointment; Nature of Relationship |
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10.2. Powers |
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68 |
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10.3. General Immunity |
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69 |
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10.4. No Responsibility for Loans, Recitals, etc |
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69 |
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10.5. Action on Instructions of Lenders |
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69 |
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10.6. Employment of Agents and Counsel |
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10.7. Reliance on Documents; Counsel |
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70 |
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10.8. Administrative Agent’s Reimbursement and Indemnification |
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70 |
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10.9. Notice of Default |
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10.10. Rights as a Lender |
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71 |
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10.11. Lender Credit Decision |
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71 |
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10.12. Successor Administrative Agent |
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71 |
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10.13. Administrative Agent and Arranger Fees |
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72 |
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10.14. Delegation to Affiliates |
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72 |
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10.15. Execution of Collateral Documents |
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72 |
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10.16. Collateral Releases |
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72 |
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10.17. Syndication Agents |
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72 |
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ARTICLE XI SETOFF; RATABLE PAYMENTS |
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73 |
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11.1. Setoff |
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73 |
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11.2. Ratable Payments |
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73 |
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ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS |
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73 |
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12.1. Successors and Assigns |
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73 |
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12.2. Dissemination of Information |
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77 |
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ARTICLE XIII NOTICES |
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77 |
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13.1. Notices; Effectiveness; Electronic Communication |
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77 |
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ARTICLE XIV COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION |
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14.1. Counterparts; Effectiveness |
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78 |
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14.2. Electronic Execution of Assignments |
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79 |
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ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL |
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79 |
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15.1. CHOICE OF LAW |
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79 |
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15.2. CONSENT TO JURISDICTION |
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79 |
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15.3. WAIVER OF JURY TRIAL |
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80 |
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Exhibit A |
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Form of Note |
Exhibit B |
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Compliance Certificate |
Exhibit C |
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Subordination Terms |
Exhibit D |
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Form of Assignment and Assumption Agreement |
Exhibit E |
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Form of U.S. Tax Certificate |
Pricing Schedule
Commitment Schedule
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Schedule I |
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Exiting Lenders |
Schedule 2.20.1 |
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Existing Letters of Credit |
Schedule 5.8 |
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Subsidiaries |
Schedule 5.14 |
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Ownership of Properties |
Schedule 5.18 |
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Insurance |
Schedule 5.20 |
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Collateral |
Schedule 6.11 |
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Indebtedness |
Schedule 6.14 |
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Investments |
Schedule 6.15 |
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Liens |
-iv-
This Amended and Restated
Credit Agreement, dated as of May 18, 2011, is among
Viad Corp, a
Delaware corporation, the Lenders and JPMorgan Chase Bank, N.A., a national banking association, as
LC Issuer, as Swing Line Lender and as Administrative Agent.
RECITALS
A. The Borrower, the Administrative Agent, the financial institutions designated as existing
lenders on the Commitment Schedule (“Existing Lenders”) and the financial institutions listed on
Schedule I hereto (“Exiting Lenders”) are party to that certain Amended and Restated
Credit
Agreement, dated as of June 15, 2006 (as amended up to but not including the date hereof, the
“Existing
Credit Agreement”).
B. The Borrower, the Administrative Agent and the Existing Lenders wish to amend and restate
the Existing
Credit Agreement on the terms and conditions set forth below to, among other things,
extend the Facility Termination Date, increase and reallocate the Commitments and modify various
covenants and pricing terms.
NOW, THEREFORE, in consideration of the premises and of the mutual agreements made herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that the Existing
Credit Agreement is amended and restated
in its entirety as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
“Acquired Company” is defined in Section 6.14.
“Acquisition” means any transaction, or any series of related transactions, consummated on or
after the date of this Agreement, by which the Borrower or any of its Subsidiaries (i) acquires any
going business or all or substantially all of the assets of any firm, corporation or limited
liability company, or division thereof, whether through purchase of assets, merger or otherwise or
(ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the securities of a corporation
which have ordinary voting power for the election of directors (other than securities having such
power only by reason of the happening of a contingency) or a majority (by percentage or voting
power) of the outstanding ownership interests of a partnership or limited liability company.
“Administrative Agent” means JPMCB in its capacity as administrative agent of the Lenders
pursuant to Article X, and not in its individual capacity as a Lender, and any successor
Administrative Agent appointed pursuant to Article X.
“Administrative Questionnaire” means an administrative questionnaire in a form supplied by the
Administrative Agent.
“Advance” means a borrowing hereunder, (i) made by the Lenders on the same Borrowing Date, or
(ii) converted or continued by the Lenders on the same date of conversion or continuation,
consisting, in either case, of the aggregate amount of the several Loans of the same Type and, in
the case of Eurodollar Loans, for the same Interest Period. The term “Advance” shall include Swing
Line Loans unless otherwise expressly provided.
“Affected Lender” is defined in Section 2.21.
“Affiliate” of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of voting securities (or
other ownership interests) of the controlled Person or possesses, directly or indirectly, the power
to direct or cause the direction of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.
“Affirmation” means that certain Affirmation and Amendment of Collateral Documents dated as of
the date hereof executed by the Borrower and each Guarantor in favor of the Administrative Agent,
for the ratable benefit of the Lenders, as it may be amended or modified and in effect from time to
time.
“Aggregate Commitment” means the aggregate of the Commitments of all the Lenders, as increased
or reduced from time to time pursuant to the terms hereof. The initial Aggregate Commitment is
$130,000,000.
“Aggregate Outstanding Credit Exposure” means, at any time, the aggregate of the Outstanding
Credit Exposure of all the Lenders.
“Agreement” means this amended and restated
credit agreement, as it may be amended, restated
or modified and in effect from time to time.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1% and (c) the Eurodollar Rate (calculated exclusive of the Applicable Margin)
for a one month Interest Period on such day (or if such day is not a Business Day, the immediately
preceding Business Day) plus 1%, provided that, for the avoidance of doubt, for purposes of this
definition the Eurodollar Rate for any day shall be based on the rate appearing on the Reuters
Screen LIBOR01 page 1 (or on any successor or substitute page of such Service, or any successor or
substitute for such Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time to
time for purposes of providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m. London time on such day. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the
Eurodollar Rate shall be effective from and including the effective date of such change in the
Prime Rate, the Federal Funds Effective Rate or the Eurodollar Rate, respectively.
-2-
“Applicable Fee Rate” means, at any time, the percentage rate per annum at which commitment
fees are accruing on the unused portion of the Aggregate Commitment at such time as set forth in
the Pricing Schedule.
“Applicable Margin” means, with respect to Advances of any Type at any time, the percentage
rate per annum which is applicable at such time with respect to Advances of such Type as set forth
in the Pricing Schedule.
“Approved Fund” is defined in Section 12.1(ii).
“Arranger” means X.X. Xxxxxx Securities LLC and its successors, in its capacities as Sole Lead
Arranger and Sole Bookrunner.
“Article” means an article of this Agreement unless another document is specifically
referenced.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an
assignee (with the consent of any party whose consent is required by Section 12.1) and accepted by
the Administrative Agent, in the form of Exhibit D or any other form approved by the Administrative
Agent.
“Authorized Officer” means any of the Chairman, Chief Executive Officer, President, Chief
Financial Officer or Treasurer of the Borrower, acting singly.
“Available Aggregate Commitment” means, at any time, the Aggregate Commitment then in effect
minus the Aggregate Outstanding Credit Exposure at such time.
“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator,
custodian, assignee for the benefit of creditors or similar Person charged with the reorganization
or liquidation of its business appointed for it, or, in the good faith determination of the
Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy
Event shall not result solely by virtue of any ownership interest, or the acquisition of any
ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Person.
-3-
“Borrower” means
Viad Corp, a Delaware corporation, and its successors and assigns.
“Borrowing Date” means a date on which an Advance is made hereunder.
“Borrowing Notice” is defined in Section 2.9.
“Business Day” means (i) with respect to any borrowing, payment or rate selection of
Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks generally are open in
Chicago and
New York City for the conduct of substantially all of their commercial lending
activities, interbank wire transfers can be made on the Fedwire system and dealings in United
States dollars are carried on in the London interbank market and (ii) for all other purposes, a day
(other than a Saturday or Sunday) on which banks generally are open in Chicago and
New York City
for the conduct of substantially all of their commercial lending activities and interbank wire
transfers can be made on the Fedwire system.
“Capital Expenditures” means, without duplication, any expenditures for any purchase or other
acquisition of any asset which would be classified as a fixed or capital asset on a consolidated
balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP excluding (i)
the cost of assets acquired with Capitalized Lease Obligations, (ii) expenditures of insurance
proceeds to rebuild or replace any asset after a casualty or condemnation loss and (iii) leasehold
improvement expenditures for which the Borrower or a Subsidiary is reimbursed promptly by the
lessor.
“Capitalized Lease” of a Person means any lease of Property by such Person as lessee which
would be capitalized on a balance sheet of such Person prepared in accordance with GAAP (provided
that with respect to the accounting for leases as either operating leases or capital leases and the
impact of such accounting on the definitions and covenants herein, GAAP as in effect on the Closing
Date shall be applied).
“Capitalized Lease Obligations” of a Person means the amount of the obligations of such Person
under Capitalized Leases which would be shown as a liability on a balance sheet of such Person
prepared in accordance with GAAP.
“Capital Stock” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person other than a corporation and any and all warrants, rights or options to purchase any of
the foregoing.
-4-
“Cash Equivalent Investments” means (i) demand deposit and savings accounts maintained in the
ordinary course of business; (ii) marketable direct obligations issued or unconditionally
guaranteed by the United States or Canadian government and backed by the full faith and credit of
the United States or Canadian government; (iii) certificates of deposit, time deposits, bankers’
acceptances and floating rate certificates of deposit issued by commercial banks (whether domestic
or foreign) having capital and surplus in excess of $100,000,000; (iv) commercial paper rated A-2
or better by S&P or P-2 or better by Xxxxx’x; (v) shares of money
market, mutual or similar funds having assets in excess of $100,000,000 and at least 95% of the
investments of which are limited to investment grade securities (i.e., securities rated at least
Baa by Xxxxx’x or at least BBB by S&P); (vi) repurchase obligations of any commercial bank
organized under the laws of the United States, any state thereof, the District of Columbia, any
foreign bank, or its branches or agencies having a term not more than thirty (30) days, with
respect to securities issued or fully guaranteed or insured by the United States or Canadian
government; provided in the case of each of clauses (ii) through (vi) above the same provides for
payment of both principal and interest (and not principal alone or interest alone) and is not
subject to any contingency regarding the payment of principal or interest. The maturity of Cash
Equivalent Investments described in clauses (ii) through (v) above shall not exceed 365 days.
“Change in Control” means the acquisition by any Person, or two or more Persons acting in
concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 30% or more of the outstanding shares of
voting stock of the Borrower.
“Change in Law” means the occurrence, after the date of this Agreement (or with respect to any
Lender, if later, the date on which such Lender becomes a Lender), of any of the following (i) the
adoption of any applicable law, rule, regulation or treaty, (ii) any change in any applicable law,
rule, regulation or treaty or in the interpretation or application thereof by any Governmental
Authority having jurisdiction over such Person or (iii) compliance by any Lender or the LC Issuer
(or, for purposes of Section 3.1(ii), by any lending office of such Lender or by such Lender’s or
the LC Issuer’s holding company, if any) with any applicable request, guideline or directive
(whether or not having the force of law) of any Governmental Authority having jurisdiction over
such Person made or issued after the date of this Agreement; provided that notwithstanding anything
herein to the contrary, (A) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all
requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith
or in implementation thereof, and (B) all requests, rules, guidelines, requirements and directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities, in
each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless
of the date enacted, adopted or issued.
“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified
from time to time.
“Collateral” collectively refers to the term “Collateral” as defined in the Security Agreement
and the Subsidiary Security Agreement.
“Collateral Documents” means, collectively, the Affirmation, the Guaranty, the Security
Agreement, the Subsidiary Security Agreement, any intellectual property assignments and all other
security documents hereafter delivered to the Administrative Agent granting a Lien or purporting to
xxxxx x Xxxx on any property of any Person to secure the obligations and liabilities of the
Borrower or any of its Subsidiaries under any Loan Document.
“Collateral Shortfall Amount” is defined in Section 8.1.
-5-
“Commitment” means, for each Lender, the obligation of such Lender to make Revolving Loans to,
and participate in Facility LCs issued upon the application of, the Borrower in an aggregate amount
not exceeding the amount set forth opposite its name on the Commitment Schedule, as it may be
modified as a result of any assignment that has become effective pursuant to Section 12.1 or as
otherwise modified from time to time pursuant to the terms hereof.
“Commitment Schedule” means the Schedule attached hereto identified as such.
“Concession Agreement” means that certain Contract No. CX 0000-0-0000 between Glacier Park,
Inc. and the United States of America as amended or supplemented from time to time.
“Consolidated Capital Expenditures” means, with reference to any period, the Capital
Expenditures of the Borrower and its Subsidiaries (exclusive of any Capital Expenditures in respect
of assets acquired in an acquisition permitted by Section 6.14(v)) calculated on a consolidated
basis for such period.
“Consolidated EBITDA” means Consolidated Net Income plus, to the extent deducted from revenues
in determining Consolidated Net Income and without duplication, (i) Consolidated Interest Expense,
(ii) expense for income taxes paid or accrued, (iii) depreciation, (iv) amortization, (v)
extraordinary or non-recurring losses, (vi) restructuring expenses not to exceed $10,000,000 during
any twelve month period, and $20,000,000 in the aggregate for all such computation periods ending
after the date hereof and before the Facility Termination Date, (vii) non-cash losses, (viii)
goodwill impairment losses, and (ix) any Stock Compensation Expense, minus, (i) to the extent
included in Consolidated Net Income, extraordinary or non-recurring gains realized other than in
the ordinary course of business and (ii) non-cash gains, all calculated for the Borrower and its
Subsidiaries on a consolidated basis. For any computation period during which (i) an Acquired
Company is acquired or (ii) a Disposed Company is sold, Consolidated EBITDA shall be calculated on
a pro forma basis as if such Acquired Company or Disposed Company, as the case may be, had been
acquired (and any related Indebtedness incurred) or sold (and any related Indebtedness disposed
of), as the case may be, on the first day of such computation period.
“Consolidated Indebtedness” means at any time the Indebtedness of the Borrower and its
Subsidiaries calculated on a consolidated basis as of such time.
“Consolidated Interest Expense” means, with reference to any period, the interest expense of
the Borrower and its Subsidiaries calculated on a consolidated basis for such period. For any
computation period during which an Acquired Company is acquired, Consolidated Interest Expenses
shall be calculated on a pro forma basis as if any Indebtedness incurred in connection with the
acquisition of such Acquired Company had been incurred on the first day of such computation period.
“Consolidated Net Income” means, with reference to any period, the net income (or loss) of the
Borrower and its Subsidiaries calculated on a consolidated basis for such period.
-6-
“Consolidated Net Worth” means at any time the consolidated stockholders’ equity (including
minority interests) of the Borrower and its Subsidiaries calculated on a consolidated basis as of
such time.
“Consolidated Rentals” means, with reference to any period, the Rentals of the Borrower and
its Subsidiaries calculated on a consolidated basis for such period.
“Contingent Obligation” of a Person means any agreement, undertaking or arrangement by which
such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any
other Person, or agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person against loss,
including, without limitation, any operating agreement, take-or-pay contract or the obligations of
any such Person as general partner of a partnership with respect to the liabilities of the
partnership.
“Controlled Group” means all members of a controlled group of corporations or other business
entities and all trades or businesses (whether or not incorporated) under common control which,
together with the Borrower or any of its Subsidiaries, are treated as a single employer under
Section 414 of the Code.
“Conversion/Continuation Notice” is defined in Section 2.10.
“Credit Extension” means the making of an Advance or the issuance of a Facility LC hereunder.
“Credit Extension Date” means the Borrowing Date for an Advance or the issuance date for a
Facility LC hereunder.
“Credit Party” means the Borrower and each Guarantor.
“Default” means an event described in Article VII.
“Defaulting Lender” means any Lender that (i) has failed, within two Business Days of the date
required to be funded or paid, to (A) fund any portion of its Loans, (B) fund any portion of its
participations in Facility LCs or Swing Line Loans or (C) pay over to the Borrower or any Specified
Party any other amount required to be paid by it hereunder, unless, in the case of clause (A)
above, such Lender notifies the Administrative Agent in writing that such failure is the result of
such Lender’s good faith determination that a condition precedent to funding (specifically
identified and including the particular default, if any) has not been satisfied, (ii) has notified
the Borrower or any Specified Party in writing, or has made a public statement to the effect, that
it does not intend or expect to comply with any of its funding obligations under this Agreement
(unless such writing or public statement indicates that such position is based on such Lender’s
good faith determination that a condition precedent (specifically identified and including the
particular default, if any) to funding a Loan cannot be satisfied) or generally under
other agreements in which it commits to extend credit, (iii) has failed, within three Business Days
after request by any Specified Party, acting in good faith, to provide a certification in writing
from an authorized officer of such Lender that it will comply with its obligations (and is
financially able to meet such obligations) to fund prospective Loans and participations in then
outstanding Facility LCs and Swing Line Loans under this Agreement, provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (iii) upon such Specified Party’s receipt
of such certification in form and substance satisfactory to it and the Administrative Agent, or
(iv) has become the subject of a Bankruptcy Event.
-7-
“Disposed Company” means an entity or going business sold by the Borrower or any of its
Subsidiaries by way of sale of equity or substantially all of the assets of such entity and
otherwise permitted by this Agreement.
“Dollars” means lawful currency of the United States of America.
“Domestic Subsidiary” means any Subsidiary of the Borrower organized under the laws of any
jurisdiction within the United States.
“Effective Date” is defined in Section 4.1.
“Environmental Laws” means any and all federal, state, local and foreign statutes, laws,
judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions,
permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions
relating to (i) the protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants, hazardous substances
or wastes into surface water, ground water or land, or (iv) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants,
hazardous substances or wastes or the clean-up or other remediation thereof.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any rule or regulation issued thereunder.
“Eurodollar Advance” means an Advance which, except as otherwise provided in Section 2.11,
bears interest at the applicable Eurodollar Rate.
“Eurodollar Base Rate” means, with respect to any Eurodollar Advance for any Interest Period,
the rate appearing on the Reuters Screen LIBOR01 Page 1 (or on any successor or substitute page of
such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the “Eurodollar Base Rate” with respect to such
Eurodollar Advance for such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of
such Interest Period.
-8-
“Eurodollar Loan” means a Loan which, except as otherwise provided in Section 2.11, bears
interest at the applicable Eurodollar Rate.
“Eurodollar Rate” means, with respect to any Eurodollar Advance for any Interest Period, an
interest rate per annum equal to the sum of (i) (a) the Eurodollar Base Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate (rounded upwards, if necessary, to the next
1/16 of 1%) plus (ii) the Applicable Margin.
“Excluded Taxes” means, with respect to any payment made by or on account of any obligation of
the Borrower under any Loan Document, any of the following Taxes imposed on or with respect to a
Recipient: (i) income or franchise Taxes imposed on (or measured by) net income by the United
States of America, or by the jurisdiction 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, (ii) any branch profits Taxes imposed by the United States of America or
any similar Taxes imposed by any other jurisdiction in which the Borrower is located and (iii) in
the case of a Non U.S. Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.21), any U.S. Federal withholding Taxes resulting from any law in effect (including
FATCA) on the date such Non U.S. Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Non U.S. Lender’s failure to comply with Section
3.4(vi), except to the extent that such Non U.S. 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 Taxes pursuant to Section 3.4(i).
“Exhibit” refers to an exhibit to this Agreement, unless another document is specifically
referenced.
“Existing Agent” means JPMorgan Chase Bank, N.A. in its role as administrative agent pursuant
to the Existing
Credit Agreement.
“Existing Lenders” is defined in the Recitals hereto.
“Existing Letters of Credit” means the Letters of Credit identified on Schedule 2.20.1 hereto.
“Exiting Lenders” is defined in the Recitals hereto.
“Facility LC” is defined in Section 2.20.1.
“Facility LC Application” is defined in Section 2.20.3.
-9-
“Facility LC Collateral Account” is defined in Section 2.20.11.
“Facility Termination Date” means the earlier of (i) May 18, 2016 or (ii) any earlier date on
which the Aggregate Commitment is reduced to zero or otherwise terminated pursuant to the terms
hereof.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement and any
regulations or official interpretations thereof.
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so
published for any day which is a Business Day, the average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent.
“Financial Contract” of a Person means (i) any exchange-traded or over-the-counter futures,
forward, swap or option contract or other financial instrument with similar characteristics or (ii)
any Rate Management Transaction.
“Floating Rate” means, for any day, a rate per annum equal to (i) the Alternate Base Rate for
such day plus (ii) the Applicable Margin, changing when and as the Alternate Base Rate changes.
“Floating Rate Advance” means an Advance which, except as otherwise provided in Section 2.11,
bears interest at the Floating Rate.
“Floating Rate Loan” means a Loan which, except as otherwise provided in Section 2.11, bears
interest at the Floating Rate.
“Foreign Subsidiary” means any Subsidiary of the Borrower that is not a Domestic Subsidiary.
“GAAP” means generally accepted accounting principles as in effect from time to time in the
United States, applied in a manner consistent with that used in preparing the financial statements
referred to in Section 5.4; provided, however, that, except as provided in Section 9.8, with
respect to the calculation of financial ratios and other financial tests required by this
Agreement, GAAP means generally accepted accounting principles as in effect from time to time in
the United States as of the date of this Agreement, applied in a manner consistent with that used
in preparing financial statements of the Borrower referred to in Section 5.4 hereof.
-10-
“Governmental Authority” means the government of the United States of America, any other
nation or 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.
“Guarantor” means a Domestic Subsidiary which is a party to the Guaranty.
“Guaranty” means that certain Guaranty dated as of June 30, 2004 executed by the Material
Domestic Subsidiaries of the Borrower in favor of the Administrative Agent, for the ratable benefit
of the Lenders, as it may be amended or modified and in effect from time to time.
“Indebtedness” of a Person means such Person’s (i) obligations for borrowed money, (ii)
obligations representing the deferred purchase price of Property or services (other than accounts
payable arising in the ordinary course of such Person’s business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens or payable out of the proceeds
or production from Property now or hereafter owned or acquired by such Person, (iv) obligations
which are evidenced by notes, acceptances, or other instruments, (v) obligations of such Person to
purchase securities or other Property arising out of or in connection with the sale of the same or
substantially similar securities or Property, (vi) Capitalized Lease Obligations, (vii) Letters of
Credit, (viii) Contingent Obligations, (ix) Rate Management Obligations and (x) any other
obligation for borrowed money or other financial accommodation which in accordance with GAAP would
be shown as a liability on the consolidated balance sheet of such Person. For purposes hereof
(including the computation of the Leverage Ratio), the amount of any Contingent Obligation 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 Contingent Obligation 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; provided that for purposes of computing the
Leverage Ratio (i) the amount of any Contingent Obligation of the Borrower or a Subsidiary in
respect of obligations of the Borrower or a Subsidiary and (ii) the amount of any Contingent
Obligation in respect of an obligation not itself constituting Indebtedness shall be zero.
Notwithstanding the foregoing, Rate Management Obligations (to the extent related to the Loans or
otherwise incurred in the ordinary course of business and not for speculative purposes) shall not
constitute Indebtedness.
“Indemnified Taxes” means (i) Taxes (other than Excluded Taxes) imposed on or with respect to
any payment made by any Credit Party under any Loan Document and (ii) Other Taxes.
“Interest Period” means, with respect to a Eurodollar Advance, a period of one, two, three or
six months commencing on a Business Day selected by the Borrower pursuant to this Agreement. Such
Interest Period shall end on the day which corresponds numerically to such date one, two, three or
six months thereafter, provided, however, that if there is no such numerically corresponding day in
such next, second, third or sixth succeeding month, such Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month. If an Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said
next succeeding Business Day falls in a new calendar month, such Interest Period shall end on the
immediately preceding Business Day.
-11-
“Investment” of a Person means any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses and similar items arising in the
ordinary course of business and other than commission, travel and similar advances to officers and
employees made in the ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the trade) or
contribution of capital by such Person; stocks, bonds, mutual funds, partnership interests, notes,
debentures or other securities owned by such Person; any deposit accounts and certificate of
deposit owned by such Person; and structured notes, derivative financial instruments and other
similar instruments or contracts owned by such Person.
“IRS” means the United States Internal Revenue Service.
“JPMCB” means JPMorgan Chase Bank, N.A., a national banking association, in its individual
capacity, and its successors.
“LC Disbursement” means a payment made by the LC Issuer pursuant to a Facility LC.
“LC Exposure” means, at any time, the sum of (i) the aggregate undrawn amount of all
outstanding Facility LCs at such time plus (ii) the aggregate amount of all LC Disbursements that
have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any
Lender at any time shall be its Pro Rata Share of the total LC Exposure at such time.
“LC Fee” is defined in Section 2.20.4.
“LC Issuer” means JPMCB (or any subsidiary or affiliate of JPMCB designated by JPMCB) in its
capacity as issuer of Facility LCs hereunder.
“LC Obligations” means, at any time, the sum, without duplication, of (i) the aggregate
undrawn stated amount under all Facility LCs outstanding at such time plus (ii) the aggregate
unpaid amount at such time of all Reimbursement Obligations.
“LC Payment Date” is defined in Section 2.20.5.
“Lenders” means the lending institutions listed on the signature pages of this Agreement, any
Person becoming a lender hereunder pursuant to Section 2.6.3 and their respective successors and
assigns. Unless otherwise specified, the term “Lenders” includes JPMCB in its capacity as Swing
Line Lender.
“Lending Installation” means, with respect to a Lender or the Administrative Agent, the
office, branch, subsidiary or affiliate of such Lender or the Administrative Agent listed on the
signature pages hereof or on a Schedule or otherwise selected by such Lender or the Administrative
Agent pursuant to Section 2.18.
-12-
“Letter of Credit” of a Person means a letter of credit or similar instrument which is issued
upon the application of such Person or upon which such Person is an account party or for which such
Person is in any way liable.
“Leverage Ratio” means, as of any date of calculation, the ratio of (i) Consolidated
Indebtedness outstanding on such date to (ii) Consolidated EBITDA for the Borrower’s then
most-recently ended four fiscal quarters.
“Lien” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without limitation, the
interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement).
“Liquidity” means, as of any date of determination, an amount equal to the sum of unrestricted
cash and Cash Equivalent Investments of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such date.
“Loan” means a Revolving Loan or a Swing Line Loan.
“Loan Documents” means this Agreement, the Facility LC Applications, any Notes issued pursuant
to Section 2.14 and the Collateral Documents.
“Material Adverse Effect” means a material adverse effect on (i) the business, Property,
condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries
taken as a whole, (ii) the ability of the Borrower to perform its obligations under the Loan
Documents to which it is a party in any material respect, or (iii) the enforceability in any
material respect of any of the Loan Documents or the material rights or remedies of the
Administrative Agent or the Lenders thereunder.
“Material Domestic Subsidiary” means a Domestic Subsidiary (other than Glacier Park, Inc.
unless and until such time as it becomes a Wholly-Owned Subsidiary) having an amount in excess of
the lesser of (i) 5% of assets (valued at the greater of book or fair market value) of the
Borrower and its Subsidiaries on a consolidated basis or (ii) 5% of Consolidated Net Income for the
preceding four fiscal quarter period, in each case determined as of the most recent fiscal quarter
end for which financials have been delivered by the Borrower pursuant to Section 6.1.
“Material Foreign Subsidiary” means a Foreign Subsidiary having an amount in excess of the
lesser of (i) 5% of assets (valued at the greater of book or fair market value) of the Borrower and
its Subsidiaries on a consolidated basis or (ii) 5% of Consolidated Net Income for the preceding
four fiscal quarter period, in each case determined as of the most recent fiscal quarter end for
which financials have been delivered by the Borrower pursuant to Section 6.1.
-13-
“Material Indebtedness” means Indebtedness in an outstanding principal amount of $15,000,000
or more in the aggregate (or the equivalent thereof in any currency other than U.S. dollars).
“Material Indebtedness Agreement” means any agreement under which any Material Indebtedness
was created or is governed or which provides for the incurrence of Indebtedness in an amount which
would constitute Material Indebtedness (whether or not an amount of Indebtedness constituting
Material Indebtedness is outstanding thereunder).
“Modify” or “Modification” is defined in Section 2.20.1.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means a Plan maintained pursuant to a collective bargaining agreement to
which the Borrower or any member of the Controlled Group is a party and to which more than one
employer is obligated to make contributions.
“Non-Equity Consideration” means, with respect to any Acquisition, consideration paid and debt
assumed in consideration thereof exclusive of (i) any common stock of the Borrower included in such
consideration and (ii) any cash payments included in such consideration to the extent such cash
payments are made from the traceable cash proceeds received from the issuance and sale of the
Capital Stock of the Borrower specifically in connection with such Acquisition.
“Non-U.S. Lender” means a Lender that is not a U.S. Person.
“Note” is defined in Section 2.14(iv).
“Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all
Reimbursement Obligations, all accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Borrower to the Lenders, or to the Administrative Agent or
any indemnified party arising under the Loan Documents.
“Operating Lease” of a Person means any lease of Property (other than a Capitalized Lease) by
such Person as lessee which has an original term (including any required renewals and any renewals
effective at the option of the lessor) of one year or more.
“Operating Lease Obligations” means, as at any date of determination, the amount obtained by
aggregating the present values, determined in the case of each particular Operating Lease by
applying a discount rate (which discount rate shall equal the discount rate which would be applied
under GAAP if such Operating Lease were a Capitalized Lease) from the date on which each fixed
lease payment is due under such Operating Lease to such date of determination, of all fixed lease
payments due under all Operating Leases of the Borrower and its Subsidiaries.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a
present or former connection between such Recipient and the jurisdiction imposing such Taxes (other
than a connection arising from such Recipient having executed, delivered,
enforced, become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, or engaged in any other transaction pursuant to, or enforced,
under any Loan Document, or sold or assigned an interest in any Loan Document).
-14-
“Other Taxes” means any present or future stamp, court, documentary, intangible, recording,
filing or similar excise or property Taxes that arise from any payment made under, from the
execution, delivery, performance, enforcement or registration of, or from the registration, receipt
or perfection of a security interest under, or otherwise with respect to, any Loan Document, except
any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an
assignment under Section 2.21).
“Outstanding Credit Exposure” means, as to any Lender at any time, the sum of (i) the
aggregate principal amount of its Revolving Loans outstanding at such time, plus (ii) an amount
equal to its Pro Rata Share of the LC Exposure at such time, plus (iii) an amount equal to its Pro
Rata Share of the Swing Line Exposure at such time.
“Participants” is defined in Section 12.1(iii)(A).
“Participant Register” has the meaning set forth in Section 12.1(iii)(A).
“Payment Date” means the last day of each calendar year quarter.
“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.
“Person” means any natural person, corporation, firm, joint venture, partnership, limited
liability company, association, enterprise, trust or other entity or organization, or any
government or political subdivision or any agency, department or instrumentality thereof.
“Plan” means an employee pension benefit plan which is covered by Title IV of ERISA or subject
to the minimum funding standards under Section 412 of the Code as to which the Borrower or any
member of the Controlled Group may have any liability other than the
Viad Corp Retirement Income
Plan.
“Pricing Schedule” means the Schedule attached hereto identified as such.
“Prime Rate” means the rate of interest per annum publicly announced from time to time by
JPMCB as its prime rate in effect at its principal office in
New York City; each change in the
Prime Rate shall be effective from and including the date such change is publicly announced as
being effective.
“Proceeds” is defined in the Uniform Commercial Code.
“Property” of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
-15-
“Pro Rata Share” means, with respect to a Lender, a portion equal to a fraction the numerator
of which is such Lender’s Commitment (or, if the Aggregate Commitment has expired or been
terminated, its Outstanding Credit Exposure) and the denominator of which is the Aggregate
Commitment (or, if the Aggregate Commitment has expired or been terminated, the Aggregate
Outstanding Credit Exposure); provided that in the case of Section 2.22, when a Defaulting Lender
shall exist, Pro Rata Share shall mean a portion equal to a fraction the numerator of which is such
Lender’s Commitment (or, if the Aggregate Commitment has expired or been terminated, its
Outstanding Credit Exposure) and the denominator of which is the Aggregate Commitment (or, if the
Aggregate Commitment has expired or been terminated, the Aggregate Outstanding Credit Exposure)
disregarding any Defaulting Lender’s Commitment.
“Rate Management Transaction” means any transaction (including an agreement with respect
thereto) now existing or hereafter entered into by the Borrower or any Subsidiary which is a rate
swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction, forward transaction, currency
swap transaction, cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions) or any combination
thereof, whether linked to one or more interest rates, foreign currencies, commodity prices, equity
prices or other financial measures.
“Rate Management Obligations” of a Person means any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), under
(i) any and all Rate Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
“Recipient” means, as applicable, (i) the Administrative Agent, (ii) any Lender and (iii) the
LC Issuer.
“Register” is defined in Section 12.1(ii)(D).
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor or other regulation or official interpretation of
said Board of Governors relating to the extension of credit by banks for the purpose of purchasing
or carrying margin stocks applicable to member banks of the Federal Reserve System.
-16-
“Reimbursement Obligations” means, at any time, the aggregate of all obligations of the
Borrower then outstanding under Section 2.20 to reimburse the LC Issuer for amounts paid by the LC
Issuer in respect of any one or more drawings under Facility LCs.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and
the respective directors, officers, employees, agents and advisors of such Person and such Person’s
Affiliates.
“Rentals” of a Person means the aggregate fixed amounts payable by such Person under any
Operating Lease.
“Reportable Event” means a reportable event as defined in Section 4043 of ERISA and the
regulations issued under such section, with respect to a Plan, excluding, however, such events as
to which the PBGC has by regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event, provided, however, that a failure to meet
the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the notice requirement in
accordance with either Section 4043(a) of ERISA or Section 412(c) of the Code.
“Required Lenders” means Lenders in the aggregate having at least 51% of the Aggregate
Commitment or, if the Aggregate Commitment has expired or been terminated, Lenders in the aggregate
holding at least 51% of the Aggregate Outstanding Credit Exposure.
“Revolving Loan” means, with respect to a Lender, such Lender’s loan made pursuant to its
commitment to lend set forth in Section 2.1.
“S&P” means Standard and Poor’s Ratings Services, a division of The McGraw Hill Companies,
Inc.
“Sale and Leaseback Transaction” means any sale or other transfer of Property by any Person
with the intent to lease such Property as lessee.
“Schedule” refers to a specific schedule to this Agreement, unless another document is
specifically referenced.
“Section” means a numbered section of this Agreement, unless another document is specifically
referenced.
“Security Agreement” means that certain Pledge and Security Agreement dated as of June 30,
2004 executed by the Borrower in favor of the Administrative Agent, for the ratable benefit of the
Lenders (and, to the extent provided therein, their Affiliates), as it may be amended or modified
and in effect from time to time.
“Single Employer Plan” means a Plan maintained by the Borrower or any member of the Controlled
Group for employees of the Borrower or any member of the Controlled Group other than the
Viad Corp
Retirement Income Plan.
-17-
“Specified Party” means the Administrative Agent or any Lender.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is
the number one and the denominator of which is the number one minus the aggregate of the maximum
reserve percentage (including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board of Governors of the Federal Reserve System to which the
Administrative Agent is subject with respect to the Eurodollar Rate, for eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D). Such reserve percentage
shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements without benefit of
or credit for proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Stock Compensation Expense” means expenses accounted for in accordance with the provisions of
FASB Accounting Standards Codification Topic 718 — Compensation — Stock Compensation.
“Subsidiary” of a Person (the “parent”) means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time be owned or
controlled, directly or indirectly, by the parent or by one or more of its Subsidiaries or by the
parent and one or more of its Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a
Subsidiary of the Borrower.
“Subsidiary Security Agreement” means that certain Subsidiary Pledge and Security Agreement
dated as of June 30, 2004 executed by each Material Domestic Subsidiary in favor of the
Administrative Agent, for the ratable benefit of the Lenders (and, to the extent provided therein,
their Affiliates), as it may be amended or modified and in effect from time to time.
“Substantial Portion” means, with respect to the Property of the Borrower and its
Subsidiaries, Property which represents more than 10% of the consolidated assets of the Borrower
and its Subsidiaries or property which is responsible for more than 10% of the consolidated net
sales or of the consolidated net income of the Borrower and its Subsidiaries, in each case, as
would be shown in the consolidated financial statements of the Borrower and its Subsidiaries as at
the beginning of the twelve-month period ending with the month in which such determination is made
(or if financial statements have not been delivered hereunder for that month which begins the
twelve-month period, then the financial statements delivered hereunder for the quarter ending
immediately prior to that month).
“Swing Line Borrowing Notice” is defined in Section 2.5.2.
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“Swing Line Exposure” means, at any time, the aggregate principal amount of all Swing Line
Loans outstanding at such time. The Swing Line Exposure of any Lender at any time shall be its Pro
Rata Share of the total Swing Line Exposure at such time.
“Swing Line Lender” means JPMCB or such other Lender which may succeed to its rights and
obligations as Swing Line Lender pursuant to the terms of this Agreement.
“Swing Line Loan” means a Loan made available to the Borrower by the Swing Line Lender
pursuant to Section 2.5.
“Syndication Agents” means Bank of America, N.A., KeyBank National Association, U.S. Bank
National Association and Xxxxx Fargo Bank, N.A., in their capacity as Syndication Agents, and not
in their individual capacities as Lenders, and any successors.
“Taxes” means any and 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.
“Transferee” is defined in Section 12.2.
“Type” means, with respect to any Advance, its nature as a Floating Rate Advance or a
Eurodollar Advance and with respect to any Loan, its nature as a Floating Rate Loan or a Eurodollar
Loan.
“Unfunded Liabilities” means the amount (if any) of the excess of the funding target (as
defined by Section 430(d) of the Code) over the value of assets as determined under Section 430 of
the Code as of a valuation date within the last twelve (12) months for all Single Employer Plans.
“Uniform Commercial Code” means the Uniform Commercial Code as in effect on the date hereof
and from time to time in the State of
New York;
provided that if by reason of mandatory provisions
of law, the perfection or the effect of perfection or non-perfection of the security interests in
any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial
Code as in effect on or after the date hereof in any other jurisdiction, “Uniform Commercial Code”
means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the
provisions hereof relating to such perfection or effect of perfection or non-perfection or
availability of such remedy.
“Unmatured Default” means an event which but for the lapse of time or the giving of notice, or
both, would constitute a Default.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the
Code.
“U.S. Tax Certificate” has the meaning assigned to such term in Section 3.4(v)(B)(4)(b).
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“Wholly-Owned Subsidiary” of a Person means (i) any Subsidiary all of the outstanding voting
securities of which (other than qualifying shares required to be owned by directors) shall at the
time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such
Person, or (ii) any partnership, limited liability company, association, joint venture or similar
business organization 100% of the ownership interests having ordinary voting power of which shall
at the time be so owned or controlled.
“Withholding Agent” means the Borrower and the Administrative Agent.
The foregoing definitions shall be equally applicable to both the singular and plural forms of
the defined terms.
ARTICLE II
THE CREDITS
2.1. Commitment. From and including the Effective Date and prior to the Facility
Termination Date, each Lender severally agrees, on the terms and conditions set forth in this
Agreement, to (i) make or continue Revolving Loans to the Borrower and (ii) participate in Facility
LCs issued upon the request of the Borrower, provided that, after giving effect to the making of
each such Revolving Loan and the issuance of each such Facility LC, such Lender’s Outstanding
Credit Exposure shall not exceed in the aggregate at any one time the amount of its Commitment.
Subject to the terms of this Agreement, the Borrower may borrow, repay and reborrow at any time
prior to the Facility Termination Date. The Commitments to extend credit hereunder shall expire on
the Facility Termination Date. The LC Issuer will issue Facility LCs hereunder on the terms and
conditions set forth in Section 2.20.
2.2. Required Payments; Termination. Any outstanding Advances and all other unpaid
Obligations shall be paid in full by the Borrower on the Facility Termination Date.
2.3. Ratable Loans. Each Advance hereunder (other than any Swing Line Loan) shall
consist of Revolving Loans made from the several Lenders ratably according to their Pro Rata
Shares.
2.4. Types of Advances. The Advances may be Floating Rate Advances or Eurodollar
Advances, or a combination thereof, selected by the Borrower in accordance with Sections 2.9 and
2.10, or Swing Line Loans selected by the Borrower in accordance with Section 2.5.
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2.5. Swing Line Loans.
2.5.1 Amount of Swing Line Loans. Upon the satisfaction of the conditions
precedent set forth in Section 4.2 and, if such Swing Line Loan is to be made on the
date of the initial Advance hereunder, the satisfaction of the conditions
precedent set forth in Section 4.1 as well, from and including the Effective Date
and prior to the Facility Termination Date, the Swing Line Lender may, in its sole
discretion, on the terms and conditions set forth in this Agreement, make Swing Line
Loans to the Borrower from time to time in an aggregate outstanding principal amount
not to exceed $15,000,000 provided that the Aggregate Outstanding Credit Exposure
shall not at any time exceed the Aggregate Commitment, and provided further that at
no time shall the sum of (i) the Swing Line Lender’s Pro Rata Share of the Swing
Line Loans, plus (ii) the outstanding Revolving Loans made by the Swing Line Lender
exceed the Swing Line Lender’s Commitment at such time. Subject to the terms of
this Agreement, the Borrower may borrow, repay and reborrow Swing Line Loans at any
time prior to the Facility Termination Date.
2.5.2 Borrowing Notice. The Borrower shall deliver to the Administrative
Agent and the Swing Line Lender irrevocable notice (a “Swing Line Borrowing Notice”)
not later than Noon (Chicago time) on the Borrowing Date of each Swing Line Loan,
specifying (i) the applicable Borrowing Date (which date shall be a Business Day),
and (ii) the aggregate amount of the requested Swing Line Loan which shall be an
amount not less than $500,000. The Swing Line Loans shall bear interest at the
Floating Rate.
2.5.3 Making of Swing Line Loans. Promptly after receipt of a Swing Line
Borrowing Notice, the Administrative Agent shall notify each Lender by fax, or other
similar form of transmission, of the requested Swing Line Loan. If the Swing Line
Lender elects to make the requested Swing Line Loan, then not later than 1:00 p.m.
(Chicago time) on the applicable Borrowing Date, the Swing Line Lender shall make
available the Swing Line Loan, in funds immediately available in Chicago, to the
Administrative Agent at its address specified pursuant to Article XIII. The
Administrative Agent will promptly make the funds so received from the Swing Line
Lender available to the Borrower on the Borrowing Date at the Administrative Agent’s
aforesaid address.
2.5.4 Repayment of Swing Line Loans. Each Swing Line Loan shall be paid in
full by the Borrower on or before the fifth (5th) Business Day after the Borrowing
Date for such Swing Line Loan. In addition, the Swing Line Lender (i) may at any
time in its sole discretion with respect to any outstanding Swing Line Loan, or (ii)
shall on the fifth (5th) Business Day after the Borrowing Date of any Swing Line
Loan, require each Lender (including the Swing Line Lender) to make a Revolving Loan
in the amount of such Lender’s Pro Rata Share of such Swing Line Loan (including,
without limitation, any interest accrued and unpaid thereon), for the purpose of
repaying such Swing Line Loan. Not later than Noon (Chicago time) on the date of
any notice received pursuant to this Section 2.5.4, each Lender shall make available
its required Revolving Loan, in funds immediately available in Chicago to the
Administrative Agent at its address specified pursuant to Article XIII. Revolving
Loans made pursuant to this Section 2.5.4 shall initially be Floating Rate Loans and
thereafter may be continued
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as Floating Rate Loans or converted into Eurodollar
Loans in the
manner provided in Section 2.10 and subject to the other conditions and limitations
set forth in this Article II. Unless a Lender shall have notified the Swing Line
Lender, prior to its making any Swing Line Loan, that any applicable condition
precedent set forth in Sections 4.1 or 4.2 had not then been satisfied, such
Lender’s obligation to make Revolving Loans pursuant to this Section 2.5.4 to repay
Swing Line Loans shall be unconditional, continuing, irrevocable and absolute and
shall not be affected by any circumstances, including, without limitation, (A) any
set-off, counterclaim, recoupment, defense or other right which such Lender may have
against the Administrative Agent, the Swing Line Lender or any other Person, (B) the
occurrence or continuance of a Default or Unmatured Default, (C) any adverse change
in the condition (financial or otherwise) of the Borrower, or (D) any other
circumstances, happening or event whatsoever. In the event that any Lender fails to
make payment to the Administrative Agent of any amount due under this Section 2.5.4,
the Administrative Agent shall be entitled to receive, retain and apply against such
obligation the principal and interest otherwise payable to such Lender hereunder
until the Administrative Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied. In addition to the foregoing, if for any
reason any Lender fails to make payment to the Administrative Agent of any amount
due under this Section 2.5.4, such Lender shall be deemed, at the option of the
Administrative Agent, to have unconditionally and irrevocably purchased from the
Swing Line Lender, without recourse or warranty, an undivided interest and
participation in the applicable Swing Line Loan in the amount of such Revolving
Loan, and such interest and participation may be recovered from such Lender together
with interest thereon at the Federal Funds Effective Rate for each day during the
period commencing on the date of demand and ending on the date such amount is
received. On the Facility Termination Date, the Borrower shall repay in full the
outstanding principal balance of the Swing Line Loans.
2.6. Commitment Fee; Reductions and Increases in Aggregate Commitment.
2.6.1 The Borrower agrees to pay to the Administrative Agent for the account of each
Lender according to its Pro Rata Share a commitment fee at a per annum rate equal to
the Applicable Fee Rate on the daily unused portion of such Lender’s Commitment
(regardless of whether any condition set forth in Article II is then satisfied) from
the date hereof to and including the Facility Termination Date, payable in arrears
on each Payment Date hereafter and on the Facility Termination Date. Swing Line
Loans shall not count as usage of any Lender’s Commitment for the purposes of
calculating the commitment fee due hereunder.
2.6.2 The Borrower may permanently reduce the Aggregate Commitment in whole, or in
part ratably among the Lenders in a minimum aggregate amount of $10,000,000 or any
integral multiple of $1,000,000 in excess thereof, upon at least three Business
Days’ written notice to the Administrative Agent, which notice shall specify the
amount of any such reduction, provided, however, that the amount of the Aggregate
Commitment may not be reduced below the Aggregate
Outstanding Credit Exposure. All accrued commitment fees shall be payable on the
effective date of any termination of the obligations of the Lenders to make Credit
Extensions hereunder.
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2.6.3 The Borrower at its option may, from time to time, seek to increase the
Aggregate Commitment by up to an aggregate amount of $50,000,000 (resulting in a
maximum Aggregate Commitment of $180,000,000) upon at least three (3) Business Days’
prior written notice to the Administrative Agent, which notice shall specify the
amount of any such increase (which shall not be less than $10,000,000) and shall
certify that no Default has occurred and is continuing. After delivery of such
notice, the Administrative Agent or the Borrower, in consultation with the
Administrative Agent, may offer the increase (which may be declined by any Lender in
its sole discretion) in the Aggregate Commitment on either a ratable basis to the
Lenders or on a non pro-rata basis to one or more Lenders and/or to other Lenders or
entities reasonably acceptable to the Administrative Agent and the Borrower. No
increase in the Aggregate Commitment shall become effective until the existing or
new Lenders extending such incremental Commitment amount and the Borrower shall have
delivered to the Administrative Agent a document in form and substance reasonably
satisfactory to the Administrative Agent pursuant to which (i) any such existing
Lender agrees to the amount of its Commitment increase, (ii) any such new Lender
agrees to its Commitment amount and agrees to assume and accept the obligations and
rights of a Lender hereunder, (iii) the Borrower accepts such incremental
Commitments, (iv) the effective date of any increase in the Commitments is specified
and (v) the Borrower certifies that on such date the conditions for a new Loan set
forth in Section 4.2 are satisfied. Upon the effectiveness of any increase in the
Aggregate Commitment pursuant hereto, (i) each Lender (new or existing) shall be
deemed to have accepted an assignment from the existing Lenders, and the existing
Lenders shall be deemed to have made an assignment to each new or existing Lender
accepting a new or increased Commitment, of an interest in each then outstanding
Revolving Loan (in each case, on the terms and conditions set forth in the
Assignment and Assumption) and (ii) the Swing Line Exposure and LC Exposure of the
existing and new Lenders shall be automatically adjusted such that, after giving
effect to such assignments and adjustments, the Aggregate Outstanding Credit
Exposure hereunder is held ratably by the Lenders in proportion to their respective
Commitments. Assignments pursuant to the preceding sentence shall be made in
exchange for, and substantially contemporaneously with the payment to the assigning
Lenders of, the principal amount assigned plus accrued and unpaid interest and
commitment and Facility LC fees. Payments received by assigning Lenders pursuant to
this Section in respect of the principal amount of any Eurodollar Loan shall, for
purposes of Section 3.3 be deemed prepayments of such Loan. Any increase of the
Aggregate Commitment pursuant to this Section shall be subject to receipt by the
Administrative Agent from the Borrower of such supplemental opinions, resolutions,
certificates and other documents as the Administrative Agent may reasonably request.
No consent of any Lender (other
than the Lenders agreeing to new or increased Commitments) shall be required for any
incremental Commitment provided or Loan made pursuant to this Section 2.6.
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2.7. Minimum Amount of Each Advance. Each Eurodollar Advance (other than an Advance
to repay Swing Line Loans) shall be in the minimum amount of $2,500,000 (and in multiples of
$100,000 if in excess thereof), and each Floating Rate Advance shall be in the minimum amount of
$2,500,000 (and in multiples of $100,000 if in excess thereof), provided, however, that any
Floating Rate Advance may be in the amount of the unused Aggregate Commitment.
2.8. Optional Principal Payments. The Borrower may from time to time pay, without
penalty or premium, all outstanding Floating Rate Advances (other than Swing Line Loans), or, in a
minimum aggregate amount of $1,000,000 or any integral multiple of $1,000,000 in excess thereof,
any portion of the outstanding Floating Rate Advances (other than Swing Line Loans) upon one
Business Day’s prior notice to the Administrative Agent. The Borrower may at any time pay, without
penalty or premium, all outstanding Swing Line Loans, or, in a minimum amount of $500,000 and
increments of $100,000 in excess thereof, any portion of the outstanding Swing Line Loans, with
notice to the Administrative Agent and the Swing Line Lender by 11:00 a.m. (Chicago time) on the
date of repayment. The Borrower may from time to time pay, subject to the payment of any funding
indemnification amounts required by Section 3.4 but without penalty or premium, all outstanding
Eurodollar Advances, or, in a minimum aggregate amount of $5,000,000 or any integral multiple of
$1,000,000 in excess thereof, any portion of the outstanding Eurodollar Advances upon three
Business Days’ prior notice to the Administrative Agent.
2.9. Method of Selecting Types and Interest Periods for New Advances. The Borrower
shall select the Type of Advance and, in the case of each Eurodollar Advance, the Interest Period
applicable thereto from time to time. The Borrower shall give the Administrative Agent irrevocable
notice (a “Borrowing Notice”) not later than 1:00 p.m. (Chicago time) at least one Business Day
before the Borrowing Date of each Floating Rate Advance (other than a Swing Line Loan) and three
Business Days before the Borrowing Date for each Eurodollar Advance, specifying:
|
(i) |
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the Borrowing Date, which shall be a Business Day, of such Advance, |
|
|
(ii) |
|
the aggregate amount of such Advance, |
|
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(iii) |
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the Type of Advance selected, and |
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(iv) |
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in the case of each Eurodollar Advance, the Interest Period applicable thereto. |
Not later than Noon (Chicago time) on each Borrowing Date, each Lender shall make available its
Revolving Loan or Revolving Loans in funds immediately available in Chicago to the Administrative
Agent at its address specified pursuant to Article XIII. The Administrative Agent
will make the funds so received from the Lenders available to the Borrower at the Administrative
Agent’s aforesaid address.
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2.10. Conversion and Continuation of Outstanding Advances. Floating Rate Advances
(other than Swing Line Loans) shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Eurodollar Advances pursuant to this Section 2.10 or are
repaid in accordance with Section 2.8. Each Eurodollar Advance shall continue as a Eurodollar
Advance until the end of the then applicable Interest Period therefor, at which time such
Eurodollar Advance shall be automatically converted into a Floating Rate Advance unless (x) such
Eurodollar Advance is or was repaid in accordance with Section 2.8 or (y) the Borrower shall have
given the Administrative Agent a Conversion/Continuation Notice (as defined below) requesting that,
at the end of such Interest Period, such Eurodollar Advance continue as a Eurodollar Advance for
the same or another Interest Period. Subject to the terms of Section 2.7, the Borrower may elect
from time to time to convert all or any part of a Floating Rate Advance (other than Swing Line
Loans) into a Eurodollar Advance. The Borrower shall give the Administrative Agent irrevocable
notice (a “Conversion/Continuation Notice”) of each conversion of a Floating Rate Advance into a
Eurodollar Advance or continuation of a Eurodollar Advance not later than 10:00 a.m. (Chicago time)
at least three Business Days prior to the date of the requested conversion or continuation,
specifying:
|
(i) |
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the requested date, which shall be a Business Day, of such conversion or
continuation, |
|
(ii) |
|
the aggregate amount and Type of the Advance which is to be converted or continued,
and |
|
(iii) |
|
the amount of such Advance which is to be converted into or continued as a Eurodollar
Advance and the duration of the Interest Period applicable thereto. |
2.11. Changes in Interest Rate, etc. Each Floating Rate Advance (other than Swing
Line Loans) shall bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a Eurodollar Advance
into a Floating Rate Advance pursuant to Section 2.10, to but excluding the date it is paid or is
converted into a Eurodollar Advance pursuant to Section 2.10 hereof, at a rate per annum equal to
the Floating Rate for such day. Each Swing Line Loan shall bear interest on the outstanding
principal amount thereof, for each day from and including the day such Swing Line Loan is made to
but excluding the date it is paid hereof, at a rate per annum equal to the Floating Rate for such
day. Changes in the rate of interest on that portion of any Advance maintained as a Floating Rate
Advance will take effect simultaneously with each change in the Alternate Base Rate. Each
Eurodollar Advance shall bear interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto to (but not including) the last
day of such Interest Period at the interest rate determined by the Administrative Agent as
applicable to such Eurodollar Advance based upon the Borrower’s selections under Sections 2.9 and
2.10 and otherwise in accordance with the terms hereof. No Interest Period may end after the
Facility Termination Date.
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2.12. Rates Applicable After Default. Notwithstanding anything to the contrary
contained in Section 2.4, 2.8, 2.9, 2.10 or 2.11, during the continuance of a Default or Unmatured
Default the Required Lenders may, at their option, by notice to the Borrower (which notice may be
revoked at the option of the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in interest rates), declare that no Advance
may be made as, converted into or continued as a Eurodollar Advance. During the continuance of a
Default, unless waived by the Required Lenders, (i) each Eurodollar Advance shall bear interest
for the remainder of the applicable Interest Period at the rate otherwise applicable to such
Interest Period plus 2% per annum, (ii) each Floating Rate Advance shall bear interest at a rate
per annum equal to the Floating Rate in effect from time to time plus 2% per annum, (iii) the LC
Fee shall be increased by 2% per annum and (iv) all overdue interest, other fees and other amounts
shall bear interest at a rate per annum equal to the Floating Rate then in effect plus 2% per
annum, in each case without any election or action on the part of the Administrative Agent or any
Lender.
2.13. Method of Payment. All payments of the Obligations hereunder shall be made,
without setoff, deduction, or counterclaim, in immediately available funds to the Administrative
Agent at the Administrative Agent’s address specified pursuant to Article XIII, or at any other
Lending Installation of the Administrative Agent specified in writing by the Administrative Agent
to the Borrower, by Noon (local time) on the date when due and shall (except with respect to
repayments of Swing Line Loans and except in the case of Reimbursement Obligations for which the LC
Issuer has not been fully indemnified by the Lenders, or as otherwise specifically required
hereunder) be applied ratably by the Administrative Agent among the Lenders. Each payment
delivered to the Administrative Agent for the account of any Lender shall be delivered promptly by
the Administrative Agent to such Lender in the same type of funds that the Administrative Agent
received at its address specified pursuant to Article XIII or at any Lending Installation specified
in a notice received by the Administrative Agent from such Lender. The Administrative Agent is
hereby authorized to charge the account of the Borrower maintained with JPMCB for each payment of
principal, interest and fees as it becomes due hereunder. Each reference to the Administrative
Agent in this Section 2.13 shall also be deemed to refer, and shall apply equally, to the LC
Issuer, in the case of payments required to be made by the Borrower to the LC Issuer pursuant to
Section 2.20.6.
2.14. Noteless Agreement; Evidence of Indebtedness. (i) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(ii) The Administrative Agent shall also maintain the Register as set forth in Section
12.1(ii)(D).
(iii) The entries maintained in the accounts maintained pursuant to paragraphs (i) and (ii)
above shall be prima facie evidence of the existence and amounts of the Obligations therein
recorded; provided, however, that the failure of the Administrative Agent or any Lender to
maintain such accounts or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Obligations in accordance with their terms.
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(iv) Any Lender may request that its Loans be evidenced by a promissory note or, in the case
of the Swing Line Lender, promissory notes representing its Revolving Loans and Swing Line Loans,
respectively (each in the form of Exhibit A (a “Note”)). In such event, the Borrower shall
prepare, execute and deliver to such Lender such Note payable to such Lender. Thereafter, the
Loans evidenced by such Note and interest thereon shall at all times (prior to any assignment
pursuant to Section 12.1) be represented by one or more Notes payable to the payee named therein,
except to the extent that any such Lender subsequently returns any such Note for cancellation and
requests that such Loans once again be evidenced as described in paragraphs (i) and (ii) above.
2.15. Telephonic Notices. The Borrower hereby authorizes the Lenders and the
Administrative Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be acting on behalf of the Borrower,
it being understood that the foregoing authorization is specifically intended to allow Borrowing
Notices and Conversion/Continuation Notices to be given telephonically. The Borrower agrees to
deliver promptly to the Administrative Agent a written confirmation, if such confirmation is
requested by the Administrative Agent or any Lender, of each telephonic notice signed by an
Authorized Officer. If the written confirmation differs in any material respect from the action
taken by the Administrative Agent and the Lenders, the records of the Administrative Agent and the
Lenders shall govern absent manifest error.
2.16. Interest Payment Dates; Interest and Fee Basis. Interest accrued on each
Floating Rate Advance shall be payable on each Payment Date, commencing with the first such date to
occur after the Effective Date, on any date on which the Floating Rate Advance is prepaid, whether
due to acceleration or otherwise, and at maturity. Interest accrued on that portion of the
outstanding principal amount of any Floating Rate Advance converted into a Eurodollar Advance on a
day other than a Payment Date shall be payable on the date of conversion. Interest accrued on each
Eurodollar Advance shall be payable on the last day of its applicable Interest Period, on any date
on which the Eurodollar Advance is prepaid, whether by acceleration or otherwise, and at maturity.
Interest accrued on each Eurodollar Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such Interest Period.
Interest on Eurodollar Advances, commitment fees and LC Fees shall be calculated for actual days
elapsed on the basis of a 360-day year. Interest on Floating Rate Advances shall be calculated for
actual days elapsed on the basis of a 365-day year. Interest shall be payable for the day an
Advance is made but not for the day of any payment on the amount paid if payment is received prior
to Noon (local time) at the place of payment. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day, such payment shall be made on the
next succeeding Business Day and, in the case of a principal payment, such extension of time shall
be included in computing interest in connection with such payment.
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2.17. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions.
Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents
of each Aggregate Commitment reduction notice, Borrowing Notice, Swing Line Borrowing Notice,
Conversion/Continuation Notice, and repayment notice received by it hereunder. Promptly after
notice from the LC Issuer, the Administrative Agent will notify each Lender of the contents of each
request for issuance of a Facility LC hereunder. The Administrative Agent will notify each Lender
of the interest rate applicable to each Eurodollar Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.
2.18. Lending Installations. Each Lender may book its Loans and its participation in
any LC Obligations and the LC Issuer may book the Facility LCs at any Lending Installation selected
by such Lender or the LC Issuer, as the case may be, and may change its Lending Installation from
time to time. All terms of this Agreement shall apply to any such Lending Installation and the
Loans, Facility LCs, participations in LC Obligations and any Notes issued hereunder shall be
deemed held by each Lender or the LC Issuer, as the case may be, for the benefit of any such
Lending Installation. Each Lender and the LC Issuer may, by written notice to the Administrative
Agent and the Borrower in accordance with Article XIII, designate replacement or additional Lending
Installations through which Loans will be made by it or Facility LCs will be issued by it and for
whose account Loan payments or payments with respect to Facility LCs are to be made.
2.19. Non-Receipt of Funds by the Administrative Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is
scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the proceeds
of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to the
Administrative Agent for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been made. The Administrative Agent may,
but shall not be obligated to, make the amount of such payment available to the intended recipient
in reliance upon such assumption. If such Lender or the Borrower, as the case may be, has not in
fact made such payment to the Administrative Agent, the recipient of such payment shall, on demand
by the Administrative Agent, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the period commencing on the date such
amount was so made available by the Administrative Agent until the date the Administrative Agent
recovers such amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and, thereafter, the interest
rate applicable to the relevant Loan or (y) in the case of payment by the Borrower, the interest
rate applicable to the relevant Loan.
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2.20. Facility LCs.
2.20.1 Issuance. The LC Issuer hereby agrees, on the terms and conditions
set forth in this Agreement, to issue standby letters of credit denominated in
Dollars (each, a “Facility LC”) and to renew, extend, increase, decrease or
otherwise modify each Facility LC (“Modify,” and each such action a “Modification”),
from time to time from and including the Effective Date and prior to the Facility
Termination Date upon the request of and for the account of the Borrower; provided
that immediately after each such Facility LC is issued or Modified, (i) the
aggregate amount of the outstanding LC Obligations shall not exceed $50,000,000 and
(ii) the Aggregate Outstanding Credit Exposure shall not exceed the Aggregate
Commitment. No Facility LC shall have an expiry date later than the earlier of (x)
the fifth Business Day prior to the Facility Termination Date and (y) one year after
its issuance; provided that any Facility LC with a one-year period may provide for
the renewal thereof for additional one-year periods but in no event shall the expiry
date of such Facility LCs extend beyond the period in clause (x) hereof.
Notwithstanding the foregoing, a Facility LC shall be permitted to have an expiry
date after the date referred to in clause (x) above if the Borrower shall have, on
or prior to the date referred to in clause (x) above, (a) deposited with the
Administrative Agent cash collateral equal to the outstanding face amount of such
Facility LC or (b) delivered to the LC Issuer a “back-to-back” letter of credit
relative to such Facility LC from an issuer and in form and substance satisfactory
to each of the LC Issuer and the Administrative Agent in its sole discretion. On
the initial Borrowing Date each Existing Letter of Credit shall be deemed to be a
Facility LC issued under and governed in all respects by the terms and conditions of
this Agreement, and each Lender shall participate in each Existing Letter of Credit
in an amount equal to its Pro Rata Share of the face amount of such Existing Letter
of Credit.
2.20.2 Participations. Upon the issuance, deemed issuance or Modification
by the LC Issuer of a Facility LC in accordance with this Section 2.20, the LC
Issuer shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably sold to each Lender, and each Lender shall be
deemed, without further action by any party hereto, to have unconditionally and
irrevocably purchased from the LC Issuer, a participation in such Facility LC (and
each Modification thereof) and the related LC Obligations in proportion to its Pro
Rata Share.
2.20.3 Notice. Subject to Section 2.20.1, the Borrower shall give the LC
Issuer notice prior to 10:00 a.m. (Chicago time) at least three Business Days prior
to the proposed date of issuance or Modification of each Facility LC, specifying the
beneficiary, the proposed date of issuance (or Modification) and the expiry date of
such Facility LC, and describing the proposed terms of such Facility LC and the
nature of the transactions proposed to be supported thereby. Upon receipt of such
notice, the LC Issuer shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify each Lender, of the contents thereof and
of the amount of such Lender’s participation in such proposed Facility LC. The
issuance or Modification by the LC Issuer of any Facility LC shall, in addition to
the conditions precedent set forth in Article IV (the satisfaction of which the LC
Issuer shall have no duty to ascertain), be subject to the conditions precedent that
such Facility LC shall be satisfactory to the LC Issuer and that the Borrower shall
have executed and delivered such application agreement and/or such other instruments
and agreements relating to such Facility LC as the LC Issuer shall have reasonably
requested (each, a “Facility LC Application”). In the
event of any conflict between the terms of this Agreement and the terms of any
Facility LC Application, the terms of this Agreement shall control.
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2.20.4 Fees. The Borrower shall pay to the Administrative Agent, for the
account of the Lenders ratably in accordance with their respective Pro Rata Shares,
with respect to each Facility LC, a letter of credit fee at a per annum rate equal
to the Applicable Fee Rate on the stated amount under such Facility LC, such fee to
be payable in arrears on each Payment Date (the “LC Fee”). The Borrower shall also
pay to the LC Issuer for its own account (i) a fronting fee at a rate to be agreed
upon between the LC Issuer and the Borrower (such fee to be payable in arrears on
each Payment Date), and (ii) documentary and processing charges in connection with
the issuance or Modification of and draws under Facility LCs in accordance with the
LC Issuer’s standard schedule for such charges as in effect from time to time.
2.20.5 Administration; Reimbursement by Lenders. Upon receipt from the
beneficiary of any Facility LC of any demand for payment under such Facility LC, the
LC Issuer shall notify the Administrative Agent and the Administrative Agent shall
promptly notify the Borrower and each other Lender as to the amount to be paid by
the LC Issuer as a result of such demand and the proposed payment date (the “LC
Payment Date”). The responsibility of the LC Issuer to the Borrower and each Lender
shall be only to determine that the documents (including each demand for payment)
delivered under each Facility LC in connection with such presentment shall be in
conformity in all material respects with such Facility LC. The LC Issuer shall
endeavor to exercise the same care in the issuance and administration of the
Facility LCs as it does with respect to letters of credit in which no participations
are granted, it being understood that in the absence of any gross negligence or
willful misconduct by the LC Issuer, each Lender shall be unconditionally and
irrevocably liable without regard to the occurrence of any Default or any condition
precedent whatsoever, to reimburse the LC Issuer on demand for (i) such Lender’s Pro
Rata Share of the amount of each payment made by the LC Issuer under each Facility
LC to the extent such amount is not reimbursed by the Borrower pursuant to Section
2.20.6 below, plus (ii) interest on the foregoing amount to be reimbursed by such
Lender, for each day from the date of the LC Issuer’s demand for such reimbursement
(or, if such demand is made after 11:00 a.m. (Chicago time) on such date, from the
next succeeding Business Day) to the date on which such Lender pays the amount to be
reimbursed by it, at a rate of interest per annum equal to the Federal Funds
Effective Rate for the first three days and, thereafter, at a rate of interest equal
to the rate applicable to Floating Rate Advances.
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2.20.6 Reimbursement by Borrower. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the LC Issuer on or before the applicable LC
Payment Date for any amounts to be paid by the LC Issuer upon any drawing under any
Facility LC, without presentment, demand, protest or other formalities of any kind;
provided that neither the Borrower nor any Lender shall hereby be precluded from
asserting any claim for direct (but not consequential) damages
suffered by the Borrower or such Lender to the extent, but only to the extent,
caused by (i) the willful misconduct or gross negligence of the LC Issuer in
determining whether a request presented under any Facility LC issued by it complied
with the terms of such Facility LC or (ii) the LC Issuer’s failure to pay under any
Facility LC issued by it after the presentation to it of a request strictly
complying with the terms and conditions of such Facility LC. All such amounts paid
by the LC Issuer and remaining unpaid by the Borrower shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to (x) the rate
applicable to Floating Rate Advances for such day if such day falls on or before the
applicable LC Payment Date and (y) the sum of 2% plus the rate applicable to
Floating Rate Advances for such day if such day falls after such LC Payment Date.
The LC Issuer will pay to each Lender ratably in accordance with its Pro Rata Share
all amounts received by it from the Borrower for application in payment, in whole or
in part, of the Reimbursement Obligation in respect of any Facility LC issued by the
LC Issuer, but only to the extent such Lender has made payment to the LC Issuer in
respect of such Facility LC pursuant to Section 2.20.5. Subject to the terms and
conditions of this Agreement (including without limitation the submission of a
Borrowing Notice in compliance with Section 2.9 and the satisfaction of the
applicable conditions precedent set forth in Article IV), the Borrower may request
an Advance hereunder for the purpose of satisfying any Reimbursement Obligation.
2.20.7 Obligations Absolute. The Borrower’s obligations under this Section
2.20 shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the Borrower
may have or have had against the LC Issuer, any Lender or any beneficiary of a
Facility LC. The Borrower further agrees with the LC Issuer and the Lenders that
the LC Issuer and the Lenders shall not be responsible for, and the Borrower’s
Reimbursement Obligation in respect of any Facility LC shall not be affected by,
among other things, the validity or genuineness of documents or of any endorsements
thereon, even if such documents should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any dispute between or among the Borrower, any of
its Affiliates, the beneficiary of any Facility LC or any financing institution or
other party to whom any Facility LC may be transferred or any claims or defenses
whatsoever of the Borrower or of any of its Affiliates against the beneficiary of
any Facility LC or any such transferee. The LC Issuer shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Facility LC. The
Borrower agrees that any action taken or omitted by the LC Issuer or any Lender
under or in connection with each Facility LC and the related drafts and documents,
if done without gross negligence or willful misconduct, shall be binding upon the
Borrower and shall not put the LC Issuer or any Lender under any liability to the
Borrower. Nothing in this Section 2.20.7 is intended to limit the right of the
Borrower to make a claim against the LC Issuer for damages as contemplated by the
proviso to the first sentence of Section 2.20.6.
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2.20.8 Actions of LC Issuer. The LC Issuer shall be entitled to rely, and
shall be fully protected in relying, upon any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram,
telecopy, telex or teletype message, statement, order or other document believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the LC Issuer. The LC Issuer shall be
fully justified in failing or refusing to take any action under this Agreement
unless it shall first have received such advice or concurrence of the Required
Lenders as it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. Notwithstanding any other provision of this Section 2.20, the LC Issuer
shall in all cases be fully protected in acting, or in refraining from acting, under
this Agreement in accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon the Lenders and any future holders of a participation in any Facility LC.
2.20.9 Indemnification. The Borrower hereby agrees to indemnify and hold
harmless each Lender, the LC Issuer and the Administrative Agent, and their
respective directors, officers, agents and employees from and against any and all
claims and damages, losses, liabilities, costs or expenses which such Lender, the LC
Issuer or the Administrative Agent may incur (or which may be claimed against such
Lender, the LC Issuer or the Administrative Agent by any Person whatsoever) by
reason of or in connection with the issuance, execution and delivery or transfer of
or payment or failure to pay under any Facility LC or any actual or proposed use of
any Facility LC, including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which the LC Issuer may incur by reason of or in
connection with (i) the failure of any other Lender to fulfill or comply with its
obligations to the LC Issuer hereunder (but nothing herein contained shall affect
any rights the Borrower may have against any defaulting Lender) or (ii) by reason of
or on account of the LC Issuer issuing any Facility LC which specifies that the term
“Beneficiary” included therein includes any successor by operation of law of the
named Beneficiary, but which Facility LC does not require that any drawing by any
such successor Beneficiary be accompanied by a copy of a legal document,
satisfactory to the LC Issuer, evidencing the appointment of such successor
Beneficiary; provided that the Borrower shall not be required to indemnify any
Lender, the LC Issuer or the Administrative Agent for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, caused by (x)
the willful misconduct or gross negligence of the LC Issuer in determining whether a
request presented under any Facility LC complied with the terms of such Facility LC
or (y) the LC Issuer’s failure to pay under any Facility LC after the presentation
to it of a request strictly complying with the terms and conditions of such Facility
LC. Nothing in this Section 2.20.9 is intended to limit the obligations of the
Borrower under any other provision of this Agreement.
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2.20.10 Lenders’ Indemnification. Each Lender shall, ratably in accordance
with its Pro Rata Share, indemnify the LC Issuer, its affiliates and their
respective directors, officers, agents and employees (to the extent not reimbursed
by the Borrower) against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result from
such indemnitees’ gross negligence or willful misconduct or the LC Issuer’s failure
to pay under any Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of the Facility LC) that such indemnitees
may suffer or incur in connection with this Section 2.20 or any action taken or
omitted by such indemnitees hereunder.
2.20.11 Facility LC Collateral Account. The Borrower agrees that it will,
upon the request of the Administrative Agent or the Required Lenders and until the
final expiration date of any Facility LC and thereafter as long as any amount is
payable to the LC Issuer or the Lenders in respect of any Facility LC, maintain a
special collateral account pursuant to arrangements satisfactory to the
Administrative Agent (the “Facility LC Collateral Account”) at the Administrative
Agent’s office at the address specified pursuant to Article XIII, in the name of
such Borrower but under the sole dominion and control of the Administrative Agent,
for the benefit of the Lenders and in which such Borrower shall have no interest
other than as set forth in Section 8.1. The Borrower hereby pledges, assigns and
grants to the Administrative Agent, on behalf of and for the ratable benefit of the
Lenders and the LC Issuer, a security interest in all of the Borrower’s right, title
and interest in and to all funds which may from time to time be on deposit in the
Facility LC Collateral Account to secure the prompt and complete payment and
performance of the Obligations. The Administrative Agent will invest any funds on
deposit from time to time in the Facility LC Collateral Account in certificates of
deposit of JPMCB having a maturity not exceeding 30 days. Nothing in this Section
2.20.11 shall require the Borrower to deposit any funds in the Facility LC
Collateral Account, obligate the Administrative Agent to require the Borrower to
deposit any funds in the Facility LC Collateral Account or limit the right of the
Administrative Agent to release any funds held in the Facility LC Collateral Account
in each case other than as required by Section 2.22(iii)(B) or 8.1.
2.20.12 Rights as a Lender. In its capacity as a Lender, the LC Issuer
shall have the same rights and obligations as any other Lender.
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2.21. Replacement of Lenders. If the Borrower is required pursuant to Section 3.1 or
3.4 to make any additional payment to any Lender or if any Lender’s obligation to make or continue,
or to convert Floating Rate Advances into, Eurodollar Advances shall be suspended pursuant to
Section 3.2 or if any Lender becomes a Defaulting Lender (any Lender so affected an “Affected
Lender”), the Borrower may elect, if such amounts continue to be charged or such suspension is
still effective, to replace such Affected Lender as a Lender party to this Agreement, provided that
no Default or Unmatured Default shall have occurred and be continuing at the time of such
replacement, and provided further that, concurrently with such replacement, (i) another
bank or other entity which is reasonably satisfactory to the Borrower and the Administrative
Agent shall agree, as of such date, to purchase for cash the Advances and other Obligations due to
the Affected Lender pursuant to an assignment substantially in the form of Exhibit D and to become
a Lender for all purposes under this Agreement and to assume all obligations of the Affected Lender
to be terminated as of such date and to comply with the requirements of Section 12.1 applicable to
assignments, and (ii) the Borrower shall pay to such Affected Lender in same day funds on the day
of such replacement (A) all interest, fees and other amounts then accrued but unpaid to such
Affected Lender by the Borrower hereunder to and including the date of termination, including
without limitation payments due to such Affected Lender under Sections 3.1 and 3.4, and (B) an
amount, if any, equal to the payment which would have been due to such Lender on the day of such
replacement under Section 3.3 had the Loans of such Affected Lender been prepaid on such date
rather than sold to the replacement Lender.
2.22. Defaulting Lenders. Notwithstanding any provision of this Agreement to the
contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for
so long as such Lender is a Defaulting Lender:
(i) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting
Lender pursuant to Section 2.6.1;
(ii) the Commitments, LC Exposure and Outstanding Credit Exposure of such Defaulting Lender
shall not be included in determining whether the Required Lenders have taken or may take any action
hereunder (including any consent to any amendment or waiver pursuant to Section 8.2), provided that
this clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment,
waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(iii) if any Swing Line Exposure or LC Exposure exists at the time a Lender becomes a
Defaulting Lender then:
(A) all or any part of such Swing Line Exposure and LC Exposure shall be
reallocated among the non-Defaulting Lenders in accordance with their respective Pro
Rata Shares but only to the extent the sum of all non-Defaulting Lenders’
Outstanding Credit Exposures plus such Defaulting Lender’s Swing Line Exposure and
LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;
(B) if the reallocation described in clause (A) above cannot, or can only
partially, be effected, the Borrower shall within one Business Day following notice
by the Administrative Agent (x) first, prepay such Swing Line Exposure and (y)
second, cash collateralize for the benefit of the LC Issuer only the Borrower’s
obligations corresponding to such Defaulting Lender’s LC Exposure (after giving
effect to any partial reallocation pursuant to clause (A) above) for so long as such
LC Exposure is outstanding;
(C) if the Borrower cash collateralizes any portion of such Defaulting Lender’s
LC Exposure pursuant to clause (B) above, the Borrower shall not be required to pay
any fees to such Defaulting Lender pursuant to Section 2.20.4
with respect to such Defaulting Lender’s LC Exposure during the period such
Defaulting Lender’s LC Exposure is cash collateralized;
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(D) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to
clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6.1 and
Section 2.20.4 shall be adjusted in accordance with such non-Defaulting Lenders’ Pro
Rata Shares; or
(E) if all or any portion of such Defaulting Lender’s LC Exposure is neither
cash collateralized nor reallocated pursuant to clause (A) or (B) above, then,
without prejudice to any rights or remedies of the LC Issuers or any other Lender
hereunder, all facility fees that otherwise would have been payable to such
Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s
Commitment that was utilized by such LC Exposure) and letter of credit fees payable
under Section 2.20.4 with respect to such Defaulting Lender’s LC Exposure shall be
payable to the LC Issuer until such LC Exposure is cash collateralized and/or
reallocated; and
(iv) so long as such Lender is a Defaulting Lender, the Swing Line Lender shall not be
required to fund any Swing Line Loan and the LC Issuer shall not be required to issue, amend or
increase any Facility LC, unless it is satisfied that the related exposure and the Defaulting
Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting
Lenders and/or cash collateral will be provided by the Borrower and participating interests in any
such newly issued or increased Facility LC or newly made Swing Line Loan shall be allocated among
non-Defaulting Lenders in a manner consistent with Section 2.22(iii)(A) (and such Defaulting Lender
shall not participate therein).
(v) If (i) a Bankruptcy Event with respect to a parent (as defined in the definition of
“Subsidiary”) of any Lender shall occur following the date hereof and for so long as such event
shall continue or (ii) the Swing Line Lender or the LC Issuer has a good faith belief that any
Lender has defaulted in fulfilling its obligations under one or more other agreements in which such
Lender commits to extend credit, the Swing Line Lender shall not be required to fund any Swing Line
Loan and the LC Issuer shall not be required to issue, amend or increase any Facility LC, unless
the Swing Line Lender or the LC Issuer, as the case may be, shall have entered into arrangements
with the Borrower or such Lender, satisfactory to the Swing Line Lender or the LC Issuer, as the
case may be, to defease any risk to it in respect of such Lender hereunder.
(vi) In the event that the Administrative Agent, the Borrower, the Swing Line Lender and LC
Issuer each agrees that a Defaulting Lender has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then the Swing Line Exposure and LC Exposure of the Lenders shall
be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender
shall purchase at par such of the Loans of the other Lenders (other than Swing Line Loans) as the
Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans
in accordance with its Pro Rata Share.
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ARTICLE III
INCREASED COSTS; TAXES
3.1. Increased Costs. (i) If any Change in Law shall:
|
(A) |
|
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended
by, any Lender (except any such reserve requirement reflected in the Eurodollar Rate)
or the LC Issuer; |
|
(B) |
|
impose on any Lender or the LC Issuer or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or any
Facility LC or participation therein; or |
|
(C) |
|
subject any Recipient to any Taxes on its loans, loan principal, letters of
credit, commitments, or other obligations, or its deposits, reserves, other liabilities
or capital attributable thereto (other than (1) Indemnified Taxes and (2) Other
Connection Taxes on gross or net income, profits or revenue (including value-added or
similar Taxes)); |
and the result of any of the foregoing shall be to increase the cost to such Lender or such other
Recipient of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make
any such Loan) or to increase the cost to such Lender, the LC Issuer or such other Recipient of
participating in, issuing or maintaining any Facility LC or to reduce the amount of any sum
received or receivable by such Lender, the LC Issuer or such other Recipient hereunder (whether of
principal, interest or otherwise), then the Borrower will pay to such Lender, the LC Issuer or such
other Recipient, as the case may be, such additional amount or amounts as will compensate such
Lender, the LC Issuer throughout or such other Recipient, as the case may be, for such additional
costs incurred or reduction suffered.
(ii) If any Lender or the LC Issuer determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s or the LC
Issuer’s capital or on the capital of such Lender’s or the LC Issuer’s holding company, if any, as
a consequence of this Agreement or the Loans made by, or participations in Facility LCs held by,
such Lender, or the Facility LCs issued by the LC Issuer, to a level below that which such Lender
or the LC Issuer or such Lender’s or the LC Issuer’s holding company could have achieved but for
such Change in Law (taking into consideration such Lender’s or the LC Issuer’s policies and the
policies of such Lender’s or the LC Issuer’s holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender or the LC Issuer, as the case may be,
such additional amount or amounts as will compensate such Lender or the LC Issuer or such Lender’s
or the LC Issuer’s holding company for any such reduction suffered.
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(iii) A certificate of a Lender or the LC Issuer setting forth the amount or amounts necessary
to compensate such Lender or the LC Issuer or its holding company, as the case may be, as specified
in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the LC Issuer, as the case may be,
the amount shown as due on any such certificate within 30 days after receipt thereof.
(iv) Failure or delay on the part of any Lender or the LC Issuer to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the LC Issuer’s right to
demand such compensation; provided that the Borrower shall not be required to compensate a Lender
or the LC Issuer pursuant to this Section for any increased costs or reductions incurred more than
225 days prior to the date that such Lender or the LC 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 LC Issuer’s intention to claim compensation therefor; provided
further that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 225-day period referred to above shall be extended to include the period of
retroactive effect thereof.
3.2. Availability of Types of Advances. If any Lender determines that maintenance of
its Eurodollar Loans at a suitable Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, or if the Required Lenders
determine that (i) deposits of a type and maturity appropriate to match fund Eurodollar Advances
are not available or (ii) the interest rate applicable to Eurodollar Advances does not accurately
reflect the cost of making or maintaining Eurodollar Advances, then the Administrative Agent shall
suspend the availability of Eurodollar Advances and require any affected Eurodollar Advances to be
repaid or converted to Floating Rate Advances, subject to the payment of any funding
indemnification amounts required by Section 3.3.
3.3. Funding Indemnification. If any payment of a Eurodollar Advance occurs on a date
which is not the last day of the applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a Eurodollar Advance is not made, continued or converted on the date
specified by the Borrower for any reason other than default by the Lenders, the Borrower will
indemnify each Lender for any loss or cost incurred by it resulting therefrom, including, without
limitation, any loss or cost in liquidating or employing deposits acquired to fund or maintain such
Eurodollar Advance, but excluding any loss of margin. The indemnity under this Section 3.3 shall
be paid within 30 days after the Lender delivers to the Borrower a certificate attested to by an
authorized officer of such Lender stating the amount of such loss or cost incurred by it resulting
therefrom and describing the basis for the indemnification claim. Such certificate shall be
conclusive of the amount so paid or payable absent manifest error.
3.4. Taxes. (i) Withholding of Taxes; Gross-Up. Each payment by any Credit
Party under any Loan Document shall be made without withholding for any Taxes, unless such
withholding is required by any law. If any Withholding Agent determines, in its sole discretion
exercised in good faith, that it is so required to withhold Taxes, then such Withholding Agent may
so withhold and shall timely pay the full amount of withheld Taxes to the relevant
Governmental Authority in accordance with applicable law. If such Taxes are Indemnified
Taxes, then the amount payable by such Credit Party shall be increased as necessary so that, net of
such withholding (including such withholding applicable to additional amounts payable under this
Section), the applicable Recipient receives the amount it would have received had no such
withholding been made.
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(ii) Payment of Other Taxes by the Borrower. The Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(iii) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes by any Credit Party to a Governmental Authority, such Credit Party 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.
(iv) Indemnification by the Borrower. The Borrower shall indemnify each Recipient for
any Indemnified Taxes (not withheld pursuant to Section 3.4(i)) that are withheld or deducted on
payments to, or paid or payable by, such Recipient in connection with any Loan Document (including
amounts paid or payable under this Section 3.4(iv)) and any reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. The indemnity under this Section 3.4(iv) shall be
paid within 15 days after the Recipient delivers to the Borrower a certificate attested to by an
authorized officer of the Recipient stating the amount of any Indemnified Taxes so paid or payable
by such Recipient and describing the basis for the indemnification claim including any
documentation supporting the imposition of the Indemnified Taxes from the relevant Governmental
Authority and a reasonably detailed list of expenses. Such certificate shall be conclusive of the
amount so paid or payable absent manifest error. Such Recipient shall deliver a copy of such
certificate to the Administrative Agent.
(v) Indemnification by the Lenders. Each Lender shall severally indemnify the
Administrative Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the extent
that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes
and without limiting the obligation of the Borrower to do so) attributable to such Lender that are
paid or payable by the Administrative Agent in connection with any Loan Document and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. The indemnity under this
Section 3.4(v) shall be paid within 10 days after the Administrative Agent delivers to the
applicable Lender a certificate stating the amount of Taxes so paid or payable by the
Administrative Agent. Such certificate shall be conclusive of the amount so paid or payable absent
manifest error.
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(vi) Status of Lenders. (A) Any Lender that is entitled to an exemption from, or
reduction of, any applicable withholding Tax with respect to any payments under any Loan Document
shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably
requested by the Borrower or the Administrative Agent, such properly completed and executed
documentation reasonably requested by the Borrower or the Administrative Agent as
will permit such payments to be made without, 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 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 any withholding (including backup withholding) or information reporting
requirements. Notwithstanding anything to the contrary in the preceding two sentences, the
completion, execution and submission of such documentation (other than such documentation set forth
in Section 3.4(vi)(B)(1) through (5) below) shall not be required if in the Lender’s judgment such
completion, execution or submission would subject such Lender to any material unreimbursed cost or
expense or would materially prejudice the legal or commercial position of such Lender. Upon the
reasonable request of such Borrower or the Administrative Agent, any Lender shall update any form
or certification previously delivered pursuant to this Section 3.4(vi). If any form or
certification previously delivered pursuant to this Section expires or becomes obsolete or
inaccurate in any respect with respect to a Lender, such Lender shall promptly (and in any event
within 10 days after such expiration, obsolescence or inaccuracy) notify such Borrower and the
Administrative Agent in writing of such expiration, obsolescence or inaccuracy and update the form
or certification if it is legally eligible to do so.
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(B) |
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Without limiting the generality of the foregoing, if the Borrower is a U.S.
Person, any Lender with respect to such Borrower shall, if it is legally eligible to do
so, deliver to such Borrower and the Administrative Agent (in such number of copies
reasonably requested by such Borrower and the Administrative Agent) on or prior to the
date on which such Lender becomes a party hereto, duly completed and executed copies of
whichever of the following is applicable: |
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(1) |
|
in the case of a Lender that is a U.S. Person, IRS Form W-9
certifying that such Lender is exempt from U.S. Federal backup withholding tax; |
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(2) |
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in the case of a Non-U.S. Lender claiming the benefits of an
income tax treaty to which the United States is a party (1) with respect to
payments of interest under any Loan Document, IRS Form W-8BEN establishing an
exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the
“interest” article of such tax treaty and (2) with respect to any other
applicable payments under this Agreement, IRS Form W-8BEN establishing an
exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the
“business profits” or “other income” article of such tax treaty; |
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(3) |
|
in the case of a Non-U.S. Lender for whom payments under this
Agreement constitute income that is effectively connected with such Lender’s
conduct of a trade or business in the United States, IRS Form W-8ECI; |
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|
(4) |
|
in the case of a Non-U.S. Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Code both (a) IRS
Form W-8BEN and (b) a certificate substantially in the form of Exhibit E (a
“U.S. Tax Certificate”) to the effect that such Lender is not (i) a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, (ii) a “10 percent
shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of
the Code (iii) a “controlled foreign corporation” described in Section
881(c)(3)(C) of the Code and (iv) conducting a trade or business in the
United States with which the relevant interest payments are effectively
connected; |
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(5) |
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in the case of a Non-U.S. Lender that is not the beneficial
owner of payments made under this Agreement (including a partnership or a
participating Lender) (a) an IRS Form W-8IMY on behalf of itself and (b) the
relevant forms prescribed in clauses (1), (2), (3), (4) and (6) of this
paragraph (vi)(B) that would be required of each such beneficial owner or
partner of such partnership if such beneficial owner or partner were a Lender;
provided, however, that if the Lender is a partnership and one or more of its
partners are claiming the exemption for portfolio interest under Section 881(c)
of the Code, such Lender may provide a U.S. Tax Certificate on behalf of such
partners; or |
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(6) |
|
any other form prescribed by law as a basis for claiming
exemption from, or a reduction of, U.S. Federal withholding Tax together with
such supplementary documentation necessary to enable the Borrower or the
Administrative Agent to determine the amount of Tax (if any) required by law to
be withheld. |
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(C) |
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If a payment made to a Lender under any Loan Document would be subject to U.S.
Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in Section
1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the
Withholding Agent, at the time or times prescribed by law and at such time or times
reasonably requested by the Withholding Agent, such documentation prescribed by
applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and
such additional documentation reasonably requested by the Withholding Agent as may be
necessary for the Withholding Agent to comply with its obligations under FATCA, to
determine that such Lender has or has not complied with such Lender’s obligations under
FATCA and, as necessary, to determine the amount to deduct and withhold from such
payment. Solely for purposes of this Section 3.4(vi)(C), “FATCA” shall include any
amendments made to FATCA after the date of this Agreement. |
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(vii) Treatment of Certain Refunds. If any party determines, in its sole discretion
exercised in good faith, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this Section 3.4 (including additional amounts paid pursuant to this
Section 3.4), it shall pay to the indemnifying party an amount equal to such refund (but only to
the extent of indemnity payments made under this Section with respect to the Taxes giving rise to
such refund), net of all out-of-pocket expenses (including any Taxes) of such indemnified
party and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund). Such indemnifying party, upon the request of such
indemnified party, shall repay to such indemnified party the amount paid to such indemnified party
pursuant to the previous sentence (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) in the event such indemnified party is required to repay such
refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section
3.4(vii), in no event will any indemnified party be required to pay any amount to any indemnifying
party pursuant to this Section 3.4(vii) if such payment would place such indemnified party in a
less favorable position (on a net after-Tax basis) than such indemnified party would have been in
if the indemnification payments or additional amounts giving rise to such refund had never been
paid. This Section 3.4(vii) shall not be construed to require any indemnified party to make
available its Tax returns (or any other information relating to its Taxes which it deems
confidential) to the indemnifying party or any other Person.
(viii) Survival. Each party’s obligations under this Section 3.4 shall survive any
assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and
the repayment, satisfaction or discharge of all other obligations under any Loan Document.
(ix) LC Issuer. For purposes of Section 3.4(v) and (vi), the term “Lender” includes
any LC Issuer.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Effectiveness and Initial Advance. This Agreement shall not become effective and
the Lenders shall not be required to make the initial Advances hereunder unless (i) the Borrower
has satisfied the conditions precedent set forth in Section 4.2, (ii) the Borrower has furnished to
the Administrative Agent with sufficient copies for the Lenders each of the following documents and
(iii) each of the following events shall have occurred, as applicable (such date being the
“Effective Date”):
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(i) |
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Copies of the articles or certificate of incorporation of the Borrower and each
Material Domestic Subsidiary, together with all amendments, and a certificate of good
standing, each certified by the appropriate governmental officer in its jurisdiction of
incorporation and each other jurisdiction as requested by Administrative Agent, as well
as any other information required by Section 326 of the USA PATRIOT ACT or necessary for
the Administrative Agent or any Lender to verify the identity of Borrower as required by
Section 326 of the USA PATRIOT Act. |
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(ii) |
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Copies, certified by the Secretary or Assistant Secretary of the Borrower and each
Material Domestic Subsidiary, of its by-laws and of the resolutions of its Board of
Directors or executive committee as the case may be and of resolutions or actions
of any other body authorizing the execution of the Loan Documents to which the
Borrower and such Material Domestic Subsidiary is a party. |
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|
(iii) |
|
An incumbency certificate, executed by the Secretary or Assistant Secretary of the
Borrower and each Material Domestic Subsidiary, which shall identify by name and title and
bear the signatures of the Authorized Officers and any other officers of the Borrower and
each Material Domestic Subsidiary authorized to sign the Loan Documents to which the
Borrower and such Material Domestic Subsidiary is a party, upon which certificate the
Administrative Agent and the Lenders shall be entitled to rely until informed of any change
in writing by the Borrower. |
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(iv) |
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A certificate, signed by the chief financial officer of the Borrower, stating that on
the Effective Date, (A) both immediately before and immediately after the effectiveness of
this Agreement, no Default or Unmatured Default (as such terms are defined in either the
Existing Credit Agreement or this Agreement) has occurred and is continuing and (B) there
are no unreimbursed drawings under Existing Letters of Credit. |
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(v) |
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A written opinion of counsel to the Credit Parties, addressed to the Administrative
Agent and the Lenders in form and substance reasonably acceptable to the Administrative
Agent. |
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(vi) |
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Any Notes requested by a Lender pursuant to Section 2.14 payable to each such
requesting Lender. |
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(vii) |
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This Agreement executed by the Borrower. |
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(viii) |
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The Affirmation executed by the Borrower and each Guarantor. |
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(ix) |
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All accrued Facility LC fees and commitment fees and all outstanding Loans under the
Existing Credit Agreement shall have been paid, there shall be no unreimbursed drawings
under any Existing Letters of Credit and all separately agreed amounts owing from the
Borrower to the Administrative Agent or the Arranger shall have been paid (it being
understood that such payments may be made out of Advances hereunder made on the Effective
Date). |
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(x) |
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Insurance certificates for all insurance required to be maintained pursuant to
Section 4.3.2 of the Security Agreement and the Subsidiary Security Agreement naming the
Administrative Agent, on behalf of the Lenders, as loss payee for any casualty policies
and additional insured for any liability policies, all in form and substance reasonably
satisfactory to the Administrative Agent. |
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(xi) |
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A solvency certificate with respect to the Borrower and its Subsidiaries signed by an
Authorized Officer of Borrower in form and substance reasonably acceptable to the
Administrative Agent. |
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|
(xii) |
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Audited consolidated financial statements of the Borrower for fiscal years 2009 and
2010 and unaudited consolidated financial statements of the Borrower for each fiscal
quarter thereafter for which such financial statements are publicly available, in each case
satisfactory to the Administrative Agent. |
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(xiii) |
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Projections for the Borrower and its Subsidiaries for fiscal years 2011 through 2015,
together with such information as the Administrative Agent may reasonably request to confirm
the tax, legal and business assumptions made in such projections. |
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(xiv) |
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Copies of searches of financing statements filed under the Uniform Commercial Code with
respect to the assets of the Borrower and its Domestic Subsidiaries in such jurisdictions as
the Administrative Agent may request. |
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(xv) |
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A consent from each Exiting Lender in form satisfactory to the Administrative Agent. |
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(xvi) |
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Evidence reasonably satisfactory to the Administrative Agent that Liens creating a first
priority security interest (subject only to Liens expressly permitted by Section 6.15) in
the Collateral shall have been perfected. |
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(xvii) |
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Such other documents as any Lender or its counsel may have reasonably requested. |
4.2. Each Credit Extension. The Lenders shall not be required to make any Credit
Extension unless on the applicable Borrowing Date:
|
(i) |
|
At the time of and immediately after giving effect to such Credit Extension, there
exists no Default or Unmatured Default. |
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(ii) |
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The representations and warranties contained in Article V are true and correct in all
material respects as of such Credit Extension Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in which case
such representation or warranty shall have been true and correct on and as of such earlier
date. |
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(iii) |
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All legal matters incident to the making of such Credit Extension shall be reasonably
satisfactory to the Lenders and their counsel. |
Each Borrowing Notice, Swing Line Borrowing Notice, or request for issuance of a Facility LC,
as the case may be, with respect to each such Credit Extension shall constitute a representation
and warranty by the Borrower that the conditions contained in Sections 4.2(i) and (ii) have been
satisfied. Any Lender may require a duly completed compliance certificate in substantially the
form of Exhibit B as a condition to making a Credit Extension.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders as of the date hereof (solely with respect
to Sections 5.1 and 5.2), as of the Effective Date and as of each Credit Extension Date thereafter,
that:
5.1. Existence and Standing. Each of the Borrower and its Subsidiaries is a
corporation, partnership (in the case of Subsidiaries only) or limited liability company duly and
properly incorporated or organized, as the case may be, validly existing and (to the extent such
concept applies to such entity) in good standing under the laws of its jurisdiction of
incorporation or organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted, except where the failure to be in good standing or
qualified to do business could not reasonably be expected to result in a Material Adverse Effect.
5.2. Authorization and Validity. Each of the Borrower and its Subsidiaries has the
power and authority and legal right to execute and deliver the Loan Documents to which it is a
party and to perform its obligations thereunder. The execution and delivery by each of the
Borrower and its Subsidiaries of the Loan Documents to which it is a party and the performance of
its obligations thereunder have been duly authorized by proper corporate proceedings, and the Loan
Documents to which each of the Borrower and its Subsidiaries is a party constitute legal, valid and
binding obligations of each of the Borrower and its Subsidiaries enforceable against each of the
Borrower and its Subsidiaries in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights
generally.
5.3. No Conflict; Government Consent. Neither the execution and delivery by each of
the Borrower and its Subsidiaries of the Loan Documents to which it is a party, nor the
consummation of the transactions therein contemplated, nor compliance with the provisions thereof
will (i) violate any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any of its Subsidiaries or (ii) violate the Borrower’s or any
Subsidiary’s articles or certificate of incorporation, partnership agreement, certificate of
partnership, articles or certificate of organization, by-laws, or operating agreement or limited
liability company agreement, as the case may be, (iii) violate the provisions of any indenture,
instrument or agreement to which the Borrower or any of its Subsidiaries is a party or is subject,
or by which it, or its Property, is bound, or conflict with or constitute a default thereunder,
except where such violation, conflict or default could not reasonably be expected to result in a
Default under Section 7.5 or a Material Adverse Effect, or (iv) result in, or require, the creation
or imposition of any Lien in, of or on the Property of the Borrower or a Subsidiary pursuant to the
terms of any material indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property is bound. No order,
consent, adjudication, approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any governmental or public body
or authority, or any subdivision thereof, which has not been obtained by the Borrower or any of its
Subsidiaries or the absence of which could reasonably be expected to result in a Material
Adverse Effect, is required to be obtained by the Borrower or any of its Subsidiaries in
connection with the execution and delivery of the Loan Documents, the borrowings under this
Agreement, the payment and performance by the Borrower of the Obligations or the legality,
validity, binding effect or enforceability of any of the Loan Documents.
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5.4. Financial Statements. The December 31, 2010 consolidated financial statements of
the Borrower and its Subsidiaries heretofore delivered to the Lenders were prepared in accordance
with generally accepted accounting principles in effect on the date such statements were prepared
and fairly present, in all material respects, the consolidated financial condition and operations
of the Borrower and its Subsidiaries at such date and the consolidated results of their operations
for the period then ended.
5.5. Material Adverse Change. Since December 31, 2010 there has been no change in the
business, Property, condition (financial or otherwise) or results of operations of the Borrower and
its Subsidiaries, taken as a whole, which could reasonably be expected to have a Material Adverse
Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United States federal
tax returns and all other material tax returns which are required to be filed and have paid all
taxes due pursuant to said returns or pursuant to any assessment received by the Borrower or any of
its Subsidiaries, except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with GAAP. The United States income tax returns
of the Borrower and its Subsidiaries have been audited by the Internal Revenue Service through the
fiscal year ended December 31, 2004. No material tax liens have been filed and no material claims
are being asserted with respect to any such taxes. The charges, accruals and reserves on the books
of the Borrower and its Subsidiaries in respect of any taxes or other governmental charges are
adequate.
5.7. Litigation and Contingent Obligations. There is no litigation, arbitration,
governmental investigation, proceeding or inquiry pending or, to the knowledge of any of their
officers, threatened against or affecting the Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect or which seeks to prevent, enjoin or delay
the making of any Credit Extensions. Other than any liability incident to any litigation,
arbitration or proceeding which could not reasonably be expected to have a Material Adverse Effect,
neither the Borrower nor any of its Subsidiaries has any material contingent obligations not
provided for or disclosed in the financial statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule 5.8 contains an accurate list of all Subsidiaries of the
Borrower as of the Effective Date, setting forth their respective jurisdictions of organization and
the percentage of their respective Capital Stock or other ownership interests owned by the Borrower
or other Subsidiaries. All of the issued and outstanding shares of Capital Stock or other
ownership interests of such Subsidiaries have been (to the extent such concepts are relevant with
respect to such ownership interests) duly authorized and issued and are fully paid and
non-assessable.
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5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do not in the
aggregate exceed $10,000,000. Neither the Borrower, any of its Subsidiaries, nor any other member
of the Controlled Group has incurred, or is reasonably expected to incur, any withdrawal liability
to Multiemployer Plans in excess of $10,000,000 in the aggregate. Each Single Employer Plan and,
to the knowledge of the Borrower, each Multiemployer Plan complies in all material respects with
all applicable requirements of law and regulations except where the failure to so comply could not
reasonably be expected to have a Material Adverse Effect. No Reportable Event has occurred with
respect to any Plan which could reasonably be expected to have a Material Adverse Effect. Neither
the Borrower, any of its Subsidiaries nor any other member of the Controlled Group has withdrawn
from any Multiemployer Plan or initiated steps to do so, and no steps have been taken to reorganize
or terminate any Plan to the extent such action could reasonably be expected to result in aggregate
liability to the Borrower in excess of $10,000,000.
5.10. Accuracy of Information. No information, exhibit or report furnished by the
Borrower or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with
the negotiation of, or compliance with, the Loan Documents contained any material misstatement of
fact or omitted to state a material fact or any fact necessary to make the statements contained
therein, in light of the circumstances under which such statements were made, not misleading;
provided, that with respect to projected or pro-forma financial information, the Borrower
represents only that such information was prepared in good faith based on assumptions believed to
be reasonable at the time prepared.
5.11. Regulation U. Margin stock (as defined in Regulation U) constitutes less than
25% of the value of those assets of the Borrower and its Subsidiaries which are subject to any
limitation on sale, pledge, or other restriction hereunder.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary is in default in
the performance, observance or fulfillment of any of the obligations, covenants or conditions
contained in any agreement to which it is a party, which default could reasonably be expected to
have a Material Adverse Effect.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have complied with all
applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over the conduct of their
respective businesses or the ownership of their respective Property except for any failure to
comply with any of the foregoing which could not reasonably be expected to have a Material Adverse
Effect.
5.14. Ownership of Properties. Except as set forth on Schedule 5.14, on the Effective
Date, the Borrower and its Subsidiaries will have good title (fee or leasehold, as applicable),
free of all Liens other than those permitted by Section 6.15, to all of the Property and assets
material to its business.
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5.15. Plan Assets; Prohibited Transactions. Neither the Borrower nor any of its
Subsidiaries is an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. § 2510.3-
101 of an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to
Title I of ERISA or any plan (within the meaning of Section 4975 of the Code), and neither the
execution of this Agreement nor the making of the Loans or Facility LCs hereunder gives rise to a
prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code.
5.16. Environmental Matters. In the ordinary course of its business, the officers of
the Borrower and its Subsidiaries consider the effect of Environmental Laws on the business of the
Borrower and its Subsidiaries, in the course of which they identify and evaluate potential risks
and liabilities accruing to the Borrower due to Environmental Laws. On the basis of this
consideration, the Borrower has concluded that Environmental Laws cannot reasonably be expected to
have a Material Adverse Effect. Neither the Borrower nor any Subsidiary has received any written
notice to the effect that its operations are not in material compliance with any of the
requirements of applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a release of any toxic
or hazardous waste or substance into the environment, which non-compliance or remedial action could
reasonably be expected to have a Material Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor any Subsidiary is an
“investment company” or a company “controlled” by an “investment company”, within the meaning of
the Investment Company Act of 1940, as amended.
5.18. Insurance. Schedule 5.18 summarizes the property and casualty insurance
coverage carried by the Borrower with respect to itself and its Domestic Subsidiaries as of the
Effective Date. Such insurance coverage complies with Section 6.6.
5.19. Solvency. (i) On the Effective Date and on each subsequent Credit Extension
Date, giving effect to any Credit Extensions made on such date and after giving effect to the
application of the proceeds of such Credit Extensions, (a) the fair value of the assets of the
Borrower and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts
and liabilities, subordinated, contingent or otherwise, of the Borrower and its Subsidiaries on a
consolidated basis; (b) the present fair saleable value of the Property of the Borrower and its
Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay
the probable liability of the Borrower and its Subsidiaries on a consolidated basis on their debts
and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Borrower and its Subsidiaries on a consolidated basis will be
able to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrower and its Subsidiaries on a
consolidated basis will not have unreasonably small capital with which to conduct the businesses in
which they are engaged as such businesses are conducted on the Effective Date.
(ii) The Borrower does not intend to, or to permit any of its Subsidiaries to, and does not
believe that it or any of its Subsidiaries will, incur debts beyond its ability to pay such debts
as they mature, taking into account the timing of and amounts of cash to be received by it or any
such Subsidiary and the timing of the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
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5.20. Collateral Documents. (i) Each of the Security Agreement and the Subsidiary
Security Agreement is effective to create in favor of the Administrative Agent, for the benefit of
the Lenders, a legal, valid and enforceable security interest in the Collateral described therein
and proceeds thereof to the extent a security interest can be created by the execution and delivery
of a security agreement under the Uniform Commercial Code. In the case of Capital Stock of a
Subsidiary that constitutes Certificated Securities (as defined in the Uniform Commercial Code),
when stock certificates representing such Capital Stock are delivered to the Administrative Agent
pursuant to the Security Agreement or the Subsidiary Security Agreement together with undated stock
powers covering such certificates executed in blank, the grantors thereunder shall have granted to
the Administrative Agent a fully perfected Lien on, and security interest in, all right, title and
interest in the Capital Stock of such Subsidiary (except as otherwise provided in the Security
Agreement or the Subsidiary Security Agreement with respect to the Capital Stock of any Foreign
Subsidiary) and the proceeds thereof, as security for the Obligations, in each case prior and
superior in right to any other Person (except Liens permitted by Section 6.15, and subject, in the
case of Proceeds, to the applicable limitations under Section 9-315 of the Uniform Commercial
Code). In the case of any Capital Stock of a Subsidiary that constitute General Intangibles or
Uncertificated Securities (as defined in the Uniform Commercial Code), when financing statements in
appropriate form are filed in the offices specified on Schedule 5.20 and, in the case of
Uncertificated Securities, the Administrative Agent has obtained “control” (within the meaning of
the Uniform Commercial Code) of such Uncertificated Securities, the grantors thereunder shall have
granted to the Administrative Agent a fully perfected Lien on, and security interest in, all right,
title and interest in such Collateral (except as otherwise provided in the Security Agreement or
the Subsidiary Security Agreement with respect to the Capital Stock of any Foreign Subsidiary) and
the Proceeds thereof, as security for the Obligations, in each case prior and superior in right to
any other Person (except Liens permitted by Section 6.15 and subject, in the case of Proceeds to
the applicable limitations under Section 9-315 of the Uniform Commercial Code). Schedule 5.20
specifies the locations in which to file the financing statements which may perfect a legal, valid
and enforceable security interest in the Capital Stock of its Subsidiaries granted under the
Security Agreement or Subsidiary Security Agreement in the Investment Property pursuant to Section
9-305(c) of the Uniform Commercial Code.
5.21. Subordinated Debt. The principal of and interest on the Loans and all other
Obligations will constitute “senior debt” as that or any similar term is or may be used in any
other instrument evidencing or applicable to any Indebtedness of the Borrower permitted pursuant to
Section 6.11(vii).
-48-
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall otherwise consent in
writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and each Subsidiary,
a system of accounting established and administered in accordance with GAAP, and furnish to the
Administrative Agent on behalf of the Lenders:
|
(i) |
|
Within 90 days after the close of each of its fiscal years, an unqualified (except
for qualifications relating to changes in accounting GAAP or practices reflecting changes
in generally accepted accounting principles and required or approved by the Borrower’s
independent certified public accountants) audit report certified by independent certified
public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP
on a consolidated and consolidating basis (consolidating statements need not be certified
by such accountants and shall be in a form reasonably satisfactory to the Administrative
Agent) for itself and its Subsidiaries, including balance sheets as of the end of such
period, related profit and loss and reconciliation of surplus statements, and a statement
of cash flows, accompanied by any management letter prepared by said accountants. |
|
(ii) |
|
Within 45 days after the close of the first three quarterly periods of each of its
fiscal years, for itself and its Subsidiaries, consolidated and consolidating unaudited
balance sheets as at the close of each such period and consolidated and consolidating
profit and loss and reconciliation of surplus statements and a statement of cash flows for
the period from the beginning of such fiscal year to the end of such quarter, all
certified by its chief financial officer. |
|
(iii) |
|
As soon as available, but in any event within 30 days after the beginning of each
fiscal year of the Borrower, a copy of the plan and forecast (including a projected
consolidated and consolidating balance sheet, income statement and funds flow statement) of
the Borrower and its Subsidiaries for such fiscal year; provided, however, that the
preceding plan and forecast shall be required to be delivered only if, as of September 30
of the year immediately preceding the year in which such plan and forecast would otherwise
be required to be delivered, the Leverage Ratio is greater than 2.00 to 1.0. |
|
(iv) |
|
Together with the financial statements required under Sections 6.1(i) and (ii), a
compliance certificate in substantially the form of Exhibit B signed by its chief financial
officer showing the calculations necessary to determine compliance with this Agreement and
stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof. |
|
(v) |
|
As soon as possible and in any event within 10 Business Days after the Borrower knows
that any Reportable Event has occurred with respect to any Single Employer Plan, which
Reportable Event could reasonably be expected to have a Material Adverse Effect, a
statement, signed by the chief financial officer of the Borrower, describing said
Reportable Event and the action which the Borrower proposes to take with respect thereto. |
-49-
|
(vi) |
|
As soon as possible and in any event within 10 Business Days after receipt by the
Borrower, a copy of (a) any written notice or written claim to the effect that the Borrower
or any of its Subsidiaries is or may be liable to any Person as a result of the release by
the Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous waste
or substance into the environment, and (b) any written notice alleging any violation of any
federal, state or local environmental, health or safety law or regulation by the Borrower
or any of its Subsidiaries, which, in either case, could reasonably be expected to have a
Material Adverse Effect. |
|
(vii) |
|
Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of
all financial statements, reports and proxy statements so furnished. |
|
(viii) |
|
Promptly upon the filing thereof, notice of the filing to the Administrative Agent of all
registration statements and periodic and current reports on forms 10-K, 10-Q and 8-K which
the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission. |
|
(ix) |
|
Such other information (including non-financial information) as the Administrative
Agent or any Lender may from time to time reasonably request. |
If any information which is required to be furnished to the Lenders under this Section 6.1 is
required by law or regulation to be filed by the Borrower with a government body on an earlier
date, then the information required hereunder shall, to the extent reasonably practicable under the
circumstances, be furnished to the Lenders at such earlier date.
Documents required to be delivered pursuant to this Section 6.1 (to the extent any such
documents are included in materials otherwise filed with the Securities and Exchange Commission)
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; 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 and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent);
provided that the Borrower shall deliver paper copies of such documents to the
Administrative Agent on behalf of any Lender that requests delivery of such paper copies until a
written request to cease delivering paper copies is given by the Administrative Agent or such
Lender. Except for the compliance certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to above, and in any event
shall have no responsibility to monitor compliance by the Borrower with any such request for
delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.
6.2. Use of Proceeds. The Borrower will, and will cause each Subsidiary to, use the
proceeds of the Advances for general corporate purposes in the ordinary course of business,
including acquisitions otherwise permitted hereunder which have been approved by the Board of
Directors or analogous body of the Person to be acquired. The Borrower will not, nor will it
permit any Subsidiary to, use any of the proceeds of the Advances to purchase or “carry” (as
defined in Regulation U) any “margin stock” (as defined in Regulation U).
-50-
6.3. Notice of Default. The Borrower will, and will cause each Subsidiary to, give
notice in writing to the Lenders of the occurrence of any Default or Unmatured Default promptly
after an Authorized Officer has knowledge of such Default or Unmatured Default.
6.4. Conduct of Business. The Borrower will, and will cause each Subsidiary to, carry
on and conduct its business in substantially the same manner and in substantially the same fields
of enterprise as it is presently conducted (except that Subsidiaries acquired pursuant to Section
6.14(vi) may engage in different fields of enterprise) and do all things necessary to remain duly
incorporated or organized, validly existing and (to the extent such concept applies to such entity)
in good standing as a domestic corporation, partnership or limited liability company in its
jurisdiction of incorporation or organization, as the case may be, and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is conducted and all
other material rights and privileges, except where the failure to be in good standing or maintain
such qualifications, rights or privileges could not reasonably be expected to have a Material
Adverse Effect and except for liquidations of Subsidiaries which could not reasonably be expected
to have a Material Adverse Effect so long as if the liquidating Subsidiary is a Guarantor, the
entity to which the assets of the liquidating Subsidiary are distributed is either the Borrower or
a Guarantor.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to, timely file
complete and correct United States federal and applicable material foreign, state and local tax
returns required by law and pay when due all taxes, assessments and governmental charges and levies
upon it or its income, profits or Property, except those which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been set aside in
accordance with GAAP.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to, maintain in
full force and effect, insurance policies and programs, with such deductibles or self-insurance
amounts as reflect coverage that is reasonably consistent with prudent industry practice. The
Borrower will furnish to any Lender upon request information in reasonable detail as to the
insurance policies and programs of the Borrower and its Subsidiaries.
6.7. Compliance with Laws. The Borrower will, and will cause each Subsidiary to,
comply with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards
to which it may be subject including, without limitation, all Environmental Laws, except where the
failure to comply could not reasonably be expected to have a Material Adverse Effect.
6.8. Maintenance of Properties. The Borrower will, and will cause each Subsidiary to,
do all things necessary to maintain, preserve, protect and keep, in all material respects, its
material Property in good repair, working order and condition, ordinary wear and tear and damage
from casualty and condemnation excepted, and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be properly conducted at
all times, subject to interruption for repairs, maintenance and restoration.
-51-
6.9. Inspection. The Borrower will, and will cause each Subsidiary to, permit the
Administrative Agent and the Lenders, by their respective representatives and agents, to inspect
any of the Property, books and financial records of the Borrower and each Subsidiary, to examine
and make copies of the books of accounts and other financial records of the Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts of the Borrower and each Subsidiary
with, and to be advised as to the same by, their respective officers upon reasonable prior notice
and at such reasonable times and intervals as the Administrative Agent or any Lender may request.
6.10. Restricted Payments. The Borrower will not, nor will it permit any Subsidiary
to, declare or pay any dividends or make any distributions on its Capital Stock (other than
dividends by way of stock split or otherwise payable in its own common stock) or redeem, repurchase
or otherwise acquire or retire any of its Capital Stock at any time outstanding, except that (i)
any Subsidiary may declare and pay dividends or make distributions to the Borrower or to a
Wholly-Owned Subsidiary, (ii) the Borrower may declare and pay dividends on its Capital Stock not
in excess of $10,000,000 in any calendar year provided that no Default or, to the knowledge of an
Authorized Officer after due inquiry, Unmatured Default shall exist before or after giving effect
to the declaration of such dividends or be created as a result thereof and no Default or Unmatured
Default under Section 7.2 or breach of Section 6.23 shall exist before or after giving effect to
the payment of such dividend or be created as a result thereof, (iii) the Borrower may repurchase
its Capital Stock for aggregate consideration not in excess of $10,000,000 in any calendar year,
provided that no Default or, to the knowledge of an Authorized Officer after due inquiry, Unmatured
Default shall exist before or after giving effect to any such repurchase or be created as a result
thereof, and (iv) any non-Wholly-Owned Subsidiary of the Borrower may declare and pay dividends or
make other distributions to its shareholders generally so long as the Borrower or its respective
Subsidiary which owns Capital Stock in the Subsidiary paying such dividends or making such other
distributions receives at least its proportionate share thereof (based on its relative holdings of
Capital Stock in the Subsidiary paying such dividends or making such other distributions and taking
into account relative preferences, if any, of the various classes of Capital Stock in such
Subsidiary).
6.11. Indebtedness. The Borrower will not, nor will it permit any Subsidiary to,
create, incur or suffer to exist any Indebtedness, except:
|
(i) |
|
The Loans and Indebtedness in respect of Facility LCs outstanding from time to time
under this Agreement. |
|
(ii) |
|
Indebtedness existing on the Effective Date and described in Schedule 6.11 and
extensions, renewals and replacements thereof not increasing the aggregate principal
amount thereof outstanding at the time of such extension, renewal or replacement. |
|
(iii) |
|
Indebtedness in respect of guaranties executed by any Subsidiary (other than a
Guarantor) with respect to any Indebtedness or other obligations of the Borrower or any
other Subsidiary; provided such Indebtedness or other obligation is not incurred by such
Person in violation of this Agreement. |
-52-
|
(iv) |
|
Indebtedness in respect of guaranties executed by a Credit Party with respect to any
Indebtedness or other obligations of the Borrower or any Subsidiary entered into in the
ordinary course of business. |
|
(v) |
|
Indebtedness assumed in connection with an Acquisition permitted under Section 6.14,
provided, such Indebtedness was not created in anticipation of or as a result of such
Acquisition. |
|
(vi) |
|
Indebtedness owing to the Borrower or a Subsidiary in respect of an Investment
permitted by Section 6.14(iii) or (iv). |
|
(vii) |
|
Indebtedness of the Borrower owing to a Subsidiary which is subordinated to the
Obligations on substantially the terms set forth on Exhibit C hereto or on other terms
satisfactory to the Administrative Agent. |
|
(viii) |
|
Other Indebtedness at no time exceeding 10% of Consolidated Net Worth in aggregate
outstanding principal amount (determined as of the most recent fiscal quarter end for which
financial statements have been provided pursuant to Section 6.1(i) or (ii)). |
6.12. Merger. The Borrower will not, nor will it permit any Subsidiary to, merge or
consolidate with or into any other Person, except that a Subsidiary may merge into or consolidate
with (i) the Borrower, with the Borrower as the surviving entity, or (ii) a Wholly-Owned
Subsidiary.
6.13. Sale of Assets. The Borrower will not, nor will it permit any Subsidiary to,
lease, sell or otherwise dispose of its Property to any other Person, except:
|
(i) |
|
Sales of inventory in the ordinary course of business. |
|
(ii) |
|
The disposition in the ordinary course of business of equipment, inventory or other
assets, including real property, that is, in any event, obsolete, excess or no longer used
or useful in the Borrower’s or its Subsidiaries’ businesses and the leasing or subleasing
in the ordinary course of business of owned or leased properties which are excess
properties or are no longer used or useful in the Borrower’s or its Subsidiaries’
businesses. |
|
(iii) |
|
Leasing of assets between (A) the Borrower and its Subsidiaries or (B) any Subsidiary
and another Subsidiary. |
|
(iv) |
|
Sale or transfer of the Capital Stock or Property of Glacier Park, Inc. upon expiration
of the Concession Agreement. |
-53-
|
(v) |
|
Leases, sales or other dispositions of its Property that, together with all other
Property of the Borrower and its Subsidiaries previously leased, sold or disposed of
(other than dispositions permitted by Sections 6.13(i) through (iv)) as permitted by this
Section during the twelve-month period ending with the month in which any such lease, sale
or other disposition occurs, having a book value that does not in the aggregate exceed 10%
of Consolidated Net Worth as of the end of such month. |
6.14. Investments and Acquisitions. The Borrower will not, nor will it permit any
Subsidiary to, make or suffer to exist any Investments (including without limitation, loans and
advances to, and other Investments in, Subsidiaries), or commitments therefor, or to become a
partner in any partnership or joint venture, or to make any Acquisition of any Person, except:
|
(i) |
|
Cash Equivalent Investments. |
|
(ii) |
|
Investments constituting non-cash consideration for dispositions of assets permitted
hereunder. |
|
(iii) |
|
Existing Investments in Subsidiaries and other Investments in existence on the
Effective Date and described in Schedule 6.14. |
|
(iv) |
|
Investments made after the Effective Date in Persons which are Subsidiaries, provided
that immediately after giving effect to each Investment made pursuant to this section
Investments in Foreign Subsidiaries and non-Wholly-Owned Subsidiaries (other than
Investments disclosed on Schedule 6.14) shall not exceed in the aggregate 10% of
Consolidated Net Worth (determined as of the most recent fiscal quarter end for which
financial statements have been provided pursuant to Section 6.1(i) or (ii)). |
|
(v) |
|
Acquisitions after the Effective Date of (or of all or substantially all of the
assets of) entities engaged in substantially the same or related lines of business as the
Borrower, so long as (A) immediately after giving effect to each such Acquisition, (1) the
Borrower shall be in compliance with its covenants hereunder, (2) on a pro forma basis the
Borrower would be in compliance with Section 6.23.1 and 6.23.3 for the previous four
fiscal quarters and (3) the Leverage Ratio would be less than or equal to 2.00 to 1.00,
(B) for any Acquisition with aggregate consideration (including cash, other property,
stock and debt assumption, with such property and stock valued at fair market value at the
time of such Acquisition) in excess of $50,000,000, the Borrower shall have delivered to
the Administrative Agent a certificate executed by an Authorized Officer setting forth the
calculations demonstrating such compliance and (C) both before and after giving effect to
such Acquisition no Default exists (each such entity, an “Acquired Company”). |
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|
(vii) |
|
Investments in Rate Management Transactions related to the Loans or entered into in
the ordinary course of business. |
|
(viii) |
|
Investments received in connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other disputes with customers
and suppliers arising in the ordinary course of business or other securities of a de minimis
value. |
|
(ix) |
|
Loans to the trustee of the “Trust Fund” identified in Section 2.1(i) of Appendix A to
the Viad Corp Capital Accumulation Plan, as amended and restated December 31, 2009, and as
further amended and restated at any time or from time to time; provided that loans
permitted under this Section 6.14(ix) shall not exceed $25,000,000 at any one time
outstanding in the aggregate. |
|
(x) |
|
Loans permitted by Section 6.11(vii). |
|
(xi) |
|
Other Investments in other Persons not to exceed $10,000,000 in the aggregate at any
time. |
6.15. Liens. The Borrower will not, nor will it permit any Subsidiary to, create,
incur, or suffer to exist any Lien in, of or on the Property of the Borrower or any of its
Subsidiaries, except:
|
(i) |
|
Liens for taxes, assessments or governmental charges or levies on its Property if
the same shall not at the time be delinquent or thereafter can be paid without penalty,
or are being contested in good faith and by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its books. |
|
(ii) |
|
Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ liens and
other similar liens arising in the ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set aside on its
books. |
|
(iii) |
|
Liens arising out of pledges or deposits under worker’s compensation laws,
unemployment insurance, old age pensions, or other social security or retirement benefits,
or similar legislation. |
|
(iv) |
|
Easements, building restrictions, zoning restrictions and such other encumbrances or
charges against real property as are of a nature generally existing with respect to
properties of a similar character and which do not in any material way interfere with the
use thereof in the business of the Borrower or its Subsidiaries. |
|
(v) |
|
Liens existing on the Effective Date and described in Schedule 6.15, and extensions
and renewals of any such Liens on the Property now subject thereto to
the extent and for so long as the Indebtedness secured thereby is not increased, is
expressly permitted hereunder and remains outstanding. |
-55-
|
(vi) |
|
Liens in favor of the Administrative Agent, for the benefit of the Lenders, granted
pursuant to any Collateral Document and Liens granted pursuant to Section 2.20.11. |
|
(vii) |
|
Liens existing on Property acquired pursuant to an Acquisition permitted under Section
6.14, provided such Liens existed prior to the time of such Acquisition and were not
created in contemplation thereof, and extensions and renewals of any such Liens for so long
as the Indebtedness secured thereby is not increased and remains outstanding. |
|
(viii) |
|
Leases or subleases granted to others not interfering in any material respect with the
business of the Borrower or its Subsidiaries, taken as a whole, any interest or title of a
lessor under any lease not in violation of this Agreement. |
|
(ix) |
|
Other Liens securing Indebtedness at no time exceeding 10% of Consolidated Net Worth in
aggregate outstanding principal amount (determined as of the most recent fiscal quarter end
for which financial statements have been provided pursuant to Section 6.1(i) or (ii)). |
6.16. Affiliates. The Borrower will not, and will not permit any Subsidiary to, enter
into any transaction (including, without limitation, the purchase or sale of any Property or
service) with, or make any payment or transfer to, any Affiliate except (i) in the ordinary course
of business and pursuant to the reasonable requirements of the Borrower’s or such Subsidiary’s
business and upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a comparable arms-length transaction, (ii)
transactions among the Borrower and any Subsidiary that has executed a Guaranty or (iii)
Investments permitted by Section 6.14(xi).
6.17. Amendments to Agreements. The Borrower will not, and will not permit any
Subsidiary to amend or terminate its certificate of incorporation, by-laws or other organizational
document in a manner that materially adversely affects the Lenders.
6.18. Contingent Obligations. The Borrower will not, nor will it permit any
Subsidiary to, make or suffer to exist any Contingent Obligation (including, without limitation,
any Contingent Obligation with respect to the obligations of a Subsidiary), except (i) by
endorsement of instruments for deposit or collection in the ordinary course of business and (ii)
for the Guaranty or any guaranty entered into pursuant to Section 6.21 or permitted by Section
6.11.
6.19. Financial Contracts. The Borrower will not, nor will it permit any Subsidiary
to, enter into or remain liable upon any Financial Contract, except Rate Management Obligations not
constituting Indebtedness.
-56-
6.20. Inconsistent Agreements. The Borrower shall not, and shall not permit any
Subsidiary to, enter into any indenture, agreement, instrument (or amendment thereto) or other
arrangement which (i) directly or indirectly prohibits or restrains, or has the effect of
prohibiting or restraining, or imposes materially adverse conditions upon, the incurrence or
repayment of the Obligations, the amendment of the Loan Documents, or the ability of any Material
Domestic Subsidiary or Glacier Park, Inc. to pay dividends or make other distributions on its
capital (except to the extent of existing contractual constraints of the Concession Agreement and
renewals thereof) or (ii) contains any provision which would be violated or breached by the making
of Credit Extensions or by the performance by the Borrower or any Subsidiary of any of its
obligations under any Loan Document.
6.21. Subsidiary Guaranties and Personal Property Pledges. Effective upon any Person
becoming a Material Domestic Subsidiary, the Borrower shall cause such Person to (i) execute and
deliver to the Administrative Agent for the benefit of the Lenders a guaranty of the Obligations
pursuant to a guaranty substantially similar to the Guaranty (or a joinder thereto) and (ii) pledge
to the Administrative Agent for the benefit of the Lenders a first priority security interest in
all personal property owned by such Person pursuant to a security agreement substantially similar
to the Subsidiary Security Agreement (or a joinder thereto), all pursuant to documentation
(including related certificates, opinions and financing statements) reasonably acceptable to the
Agent; provided, that if at any time any Domestic Subsidiaries which are not party to the
Guaranty or the Subsidiary Security Agreement (other than Glacier Park, Inc.) hold, on an aggregate
basis, an amount in excess of the lesser of (x) 10% of Consolidated Net Income or (y) 10% of total
assets (valued at the higher of book or fair market value) of the Borrower and its Subsidiaries on
a consolidated basis, in the case of both (x) and (y) calculated as of the most recent fiscal
quarter end for which financial statements are available, then one or more of such Domestic
Subsidiaries shall promptly execute a guaranty substantially in the form of the Guaranty (or a
joinder thereto) and a security agreement substantially in the form of the Subsidiary Security
Agreement or joinders thereto so that such threshold is no longer exceeded, all pursuant to
documentation (including related certificates, opinions and financing statements) reasonably
acceptable to the Agent. The Borrower shall notify the Administrative Agent as promptly as
possible but in any event within thirty (30) days following the date on which any Person is
required to join the Guaranty or Subsidiary Security Agreement in accordance with the provisions of
this Section 6.21. Notwithstanding the foregoing, if Glacier Park, Inc. shall become a Material
Domestic Subsidiary the foregoing provisions shall not be applicable to it if, at such time,
compliance by Glacier Park, Inc. with this Section 6.21 would result in a breach of then existing
contractual obligations of Glacier Park, Inc. not undertaken in anticipation of its becoming a
Material Domestic Subsidiary.
6.22. Subsidiary Stock Pledge. Effective upon any Person becoming a Material Domestic
Subsidiary or a Material Foreign Subsidiary after the Effective Date, the Borrower shall pledge, or
shall cause to be pledged, all of the Capital Stock thereof owned by the Borrower or any Guarantor
pursuant to an amendment to the Security Agreement or the Subsidiary Security Agreement, as
applicable, and other documentation (including related certificates, opinions and financing
statements and in the case of the pledged Capital Stock of Foreign Subsidiaries, any requested
foreign law pledge agreements) in each case reasonably acceptable to the Administrative Agent;
provided, that only 65% of the outstanding voting stock of any
Foreign Subsidiary shall be required to be pledged pursuant hereto. The Borrower shall
promptly notify the Administrative Agent any time a Person becomes a Material Domestic Subsidiary
or a Material Foreign Subsidiary.
-57-
6.23. Financial Covenants.
6.23.1. Fixed Charge Coverage Ratio. The Borrower will not permit the
ratio, determined as of the end of each of its fiscal quarters, for the then most
recently ended four fiscal quarters of (i) Consolidated EBITDA plus Consolidated
Rentals to (ii) cash Consolidated Interest Expense, plus Consolidated Rentals, all
calculated for the Borrower and its Subsidiaries on a consolidated basis, to be less
than (a) 2.25 to 1.00 for each fiscal quarter ending from and including June 30,
2011 to and including September 30, 2012 and (b) 2.50 to 1.00 for each fiscal
quarter ending thereafter.
6.23.2. Leverage Ratio. The Borrower will not permit the Leverage Ratio
determined as of the end of each of its fiscal quarters to be greater than 2.50 to
1.00.
6.23.3. Minimum Liquidity. The Borrower will at all times maintain
Liquidity of not less than $50,000,000.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Borrower or any
of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this
Agreement, any Credit Extension, or any certificate or information delivered in connection with
this Agreement or any other Loan Document shall be materially false on the date as of which made.
7.2. Nonpayment of principal of any Loan when due, nonpayment of any Reimbursement Obligation
within one Business Day after the same becomes due, or nonpayment of interest upon any Loan or of
any commitment fee, LC Fee or other obligations under any of the Loan Documents within five
Business Days after the same becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of Section 6.2, 6.3, 6.4 or
Sections 6.10 through 6.23 inclusive.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another
Section of this Article VII) of any of the terms or provisions of this Agreement
which is not remedied within thirty days after written notice from the Administrative Agent or
any Lender.
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7.5. Failure of the Borrower or any of its Subsidiaries to pay when due any Material
Indebtedness; or the default by the Borrower or any of its Subsidiaries in the performance (beyond
the applicable grace period with respect thereto, if any) of any term, provision or condition
contained in any Material Indebtedness Agreement, or any other event shall occur or condition
exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of
such Material Indebtedness or the lender(s) under any Material Indebtedness Agreement to cause,
such Material Indebtedness to become due prior to its stated maturity or any commitment to lend
under any Material Indebtedness Agreement to be terminated prior to its stated expiration date; or
any Material Indebtedness of the Borrower or any of its Subsidiaries shall be declared to be due
and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment)
prior to the stated maturity thereof.
7.6. The Borrower or any of its Subsidiaries shall (i) have an order for relief entered with
respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or
any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief
under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions set forth in this Section
7.6, or (vi) fail to contest in good faith any appointment or proceeding described in Section 7.7,
or (vii) the Borrower or any of its Subsidiaries shall not pay, or admit in writing its inability
to pay, its debts generally as they become due.
7.7. Without the application, approval or consent of the Borrower or any of its Subsidiaries,
a receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower
or any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in
Section 7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries and such
appointment continues undischarged or such proceeding continues undismissed or unstayed for a
period of 60 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of, all or any portion of the Property of the Borrower and
its Subsidiaries which, when taken together with all other Property of the Borrower and its
Subsidiaries (other than pursuant to the expiration and non-renewal of the Glacier Park, Inc.
Concession Agreement) so condemned, seized, appropriated, or taken custody or control of, during
the twelve-month period ending with the month in which any such action occurs, constitutes a
Substantial Portion.
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7.9. The Borrower or any of its Subsidiaries shall fail within 30 days to pay, bond or
otherwise discharge one or more (i) judgments or orders for the payment of money in excess of
$15,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate,
provided, however, that any such judgment or order shall not give rise to a Default under this
Section 7.9(i) if and for so long as the amount of such judgment or order is covered by a valid and
binding policy of insurance between the defendant and the insurer covering the full payment
thereof; or (ii) nonmonetary judgments or orders which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good faith.
7.10. The Unfunded Liabilities of all Single Employer Plans shall exceed in the aggregate
$10,000,000 or any Reportable Event shall occur in connection with any Single Employer Plan, which
Reportable Event would reasonably be expected to have a Material Adverse Effect. The Borrower or
any of members of its Controlled Group incurs withdrawal liability from a Multiemployer Plan that
could reasonably be expected to result in a Material Adverse Effect.
7.11. Nonpayment by the Borrower or any Subsidiary of any Rate Management Obligation with a
termination or settlement value in excess of $15,000,000 when due or the breach by the Borrower or
any Subsidiary of any term, provision or condition contained in any Rate Management Transaction or
any transaction of the type described in the definition of “Rate Management Transactions,” whether
or not any Lender or Affiliate of a Lender is a party thereto, and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation of, acceleration of
obligations with a termination or settlement value in excess of $15,000,000 under or an early
termination of such Rate Management Obligation.
7.12. Any Change in Control shall occur.
7.13. The Borrower or any other member of the Controlled Group shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred liability to such Multiemployer Plan as a
result of the withdrawal from such Multiemployer Plan by the Borrower or a member of the Controlled
Group in an amount which, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Borrower or any other member of the Controlled Group as withdrawal
liability (determined as of the date of such notification), exceeds $15,000,000 or requires
payments exceeding $3,000,000 per annum.
7.14. The occurrence of any “default”, as defined in any Loan Document (other than this
Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this
Agreement), which default or breach continues beyond any period of grace therein provided.
7.15 Any Guaranty shall fail to remain in full force or effect or any action shall be taken to
discontinue or to assert the invalidity or unenforceability of any Guaranty, or any guarantor shall
fail to comply with any of the terms or provisions of any Guaranty to which it is a party, or any
guarantor shall deny that it has any further liability under any Guaranty to which it is a party,
or shall give notice to such effect.
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7.16. Any Collateral Document shall for any reason fail to create a valid and perfected first
priority security interest in any portion of the collateral deemed material by the Administrative
Agent purported to be covered thereby, except as permitted by the terms of this Agreement or any
Collateral Document, or any Collateral Document shall fail to remain in full force or effect or any
action shall be taken by or on behalf of the Borrower of any Affiliate thereof to discontinue or to
assert the invalidity or unenforceability of any Collateral Document.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration; Facility LC Collateral Account. (i) If any Default described in
Section 7.6 or 7.7 occurs with respect to the Borrower, the obligations of the Lenders to make
Loans hereunder and the obligation and power of the LC Issuer to issue Facility LCs shall
automatically terminate and the Obligations shall immediately become due and payable without any
election or action on the part of the Administrative Agent, the LC Issuer or any Lender and the
Borrower will be and become thereby unconditionally obligated, without any further notice, act or
demand, to pay to the Administrative Agent an amount in immediately available funds, which funds
shall be held in the Facility LC Collateral Account, equal to the difference of (x) the amount of
LC Obligations at such time, less (y) the amount on deposit in the Facility LC Collateral Account
at such time which is free and clear of all rights and claims of third parties and has not been
applied against the Obligations (such difference, the “Collateral Shortfall Amount”). If any other
Default occurs, the Required Lenders (or the Administrative Agent with the consent of the Required
Lenders) may (a) terminate or suspend the obligations of the Lenders to make Loans hereunder and
the obligation and power of the LC Issuer to issue Facility LCs, or declare the Obligations to be
due and payable, or both, whereupon the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives, and (b) upon notice to the Borrower and in addition to the continuing right to
demand payment of all amounts payable under this Agreement, make demand on the Borrower to pay, and
the Borrower will, forthwith upon such demand and without any further notice or act, pay to the
Administrative Agent the Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account.
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(ii) |
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If at any time while any Default is continuing, the Administrative Agent
determines that the Collateral Shortfall Amount at such time is greater than zero, the
Administrative Agent may make demand on the Borrower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay to the
Administrative Agent the Collateral Shortfall Amount, which funds shall be deposited in
the Facility LC Collateral Account. |
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(iii) |
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The Administrative Agent may at any time or from time to time after funds are
deposited in the Facility LC Collateral Account, apply such funds to the payment of the
Obligations and any other amounts as shall from time to time have become
due and payable by the Borrower to the Lenders or the LC Issuer under the Loan
Documents. |
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(iv) |
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At any time while any Default is continuing, neither the Borrower nor any
Person claiming on behalf of or through the Borrower shall have any right to withdraw
any of the funds held in the Facility LC Collateral Account. After all of the
Obligations have been indefeasibly paid in full and the Aggregate Commitment has been
terminated, any funds remaining in the Facility LC Collateral Account shall be returned
by the Administrative Agent to the Borrower or paid to whomever may be legally entitled
thereto at such time. |
8.2. Amendments. Subject to the provisions of this Section 8.2, the Required Lenders
(or the Administrative Agent with the consent in writing of the Required Lenders) and the Borrower
may enter into agreements supplemental hereto for the purpose of adding or modifying any provisions
to the Loan Documents or changing in any manner the rights of the Lenders or the Borrower hereunder
or waiving any Default or Unmatured Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of all of the Lenders affected thereby:
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(i) |
|
Extend the final maturity of any Loan, or extend the expiry date of any Facility LC
to a date after the Facility Termination Date or forgive all or any portion of the
principal amount thereof or any Reimbursement Obligation related thereto, or reduce the
rate or extend the time of payment of interest or fees thereon or Reimbursement
Obligations related thereto; or |
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(ii) |
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Extend the Facility Termination Date, or reduce the amount or extend the payment date
for the mandatory payments required under Section 2.2, or increase the amount of the
Aggregate Commitment or of the Commitment of any Lender hereunder or the commitment to
issue Facility LCs; |
provided further, that no such supplemental agreement shall, without the consent of all of the
Lenders:
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(i) |
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Reduce the percentage specified in the definition of Required Lenders; |
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(ii) |
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Permit the Borrower to assign its rights under this Agreement; |
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(iii) |
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Amend this Section 8.2 or Section 11.2; or |
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(iv) |
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Release any guarantor from the Guaranty or, except as provided in the Collateral
Documents, release all or a material portion of the Collateral. |
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No amendment of any provision of this Agreement relating to the Administrative Agent shall be
effective without the written consent of the Administrative Agent, and no amendment of any
provision relating to the LC Issuer shall be effective without the written consent of the LC
Issuer. No amendment of any provision of this Agreement relating to the Swing Line Lender or any
Swing Line Loans shall be effective without the written consent of the Swing Line Lender. The
Administrative Agent may waive payment of the fee required under Section 12.1(ii) without obtaining
the consent of any other party to this Agreement. Notwithstanding the foregoing, upon the
execution and delivery of all documentation required by Section 2.6.3 to be delivered in connection
with an increase to the Aggregate Commitment, the Administrative Agent, the Borrower and the new or
existing Lenders whose Commitments have been affected may and shall if necessary or desirable enter
into an amendment hereof (which shall be binding on all parties hereto) solely for the purpose of
reflecting any new Lenders and their new Commitments and any increase in the Commitment of any
existing Lender.
8.3. Preservation of Rights. No delay or omission of the Lenders, the LC Issuer or
the Administrative Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the making of a Credit
Extension notwithstanding the existence of a Default or the inability of the Borrower to satisfy
the conditions precedent to such Credit Extension shall not constitute any waiver or acquiescence.
Any single or partial exercise of any such right shall not preclude other or further exercise
thereof or the exercise of any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law afforded shall be
cumulative and all shall be available to the Administrative Agent and the Lenders until the
Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of the Borrower
contained in this Agreement shall survive the making of the Loans and Facility LCs herein
contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to the contrary
notwithstanding, neither the LC Issuer nor any Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any applicable statute or
regulation.
9.3. Headings. Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the provisions of the Loan
Documents.
9.4. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent, the LC Issuer and the Lenders and
supersede all prior agreements and understandings among the Borrower, the Administrative Agent, the
LC Issuer and the Lenders relating to the subject matter thereof other than those
contained in the fee letter described in Section 10.13 which shall survive and remain in full
force and effect during the term of this Agreement.
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9.5. Several Obligations; Benefits of this Agreement. The respective obligations of
the Lenders hereunder are several and not joint and no Lender shall be the partner or
Administrative Agent of any other (except to the extent to which the Administrative Agent is
authorized to act as such). The failure of any Lender to perform any of its obligations hereunder
shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not
be construed so as to confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns, provided, however, that the parties hereto
expressly agree that the Arranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10
and 10.11 to the extent specifically set forth therein and shall have the right to enforce such
provisions on its own behalf and in its own name to the same extent as if it were a party to this
Agreement.
9.6. Expenses; Indemnification. (i) The Borrower shall reimburse the Administrative
Agent and the Arranger for any reasonable costs, internal charges and out-of-pocket expenses
(including attorneys’ fees and time charges of attorneys for the Administrative Agent, which
attorneys may be employees of the Administrative Agent) paid or incurred by the Administrative
Agent or the Arranger in connection with the preparation, negotiation, execution, delivery,
syndication, distribution (including, without limitation, via the internet), review, amendment
(proposed or actual), modification, and administration of the Loan Documents. The Borrower also
agrees to reimburse the Administrative Agent, the Arranger, the LC Issuer and the Lenders for any
reasonable costs, internal charges and out-of-pocket expenses (including attorneys’ fees and time
charges of attorneys for the Administrative Agent, the Arranger and the Lenders, which attorneys
may be employees of the Administrative Agent, the Arranger, the LC Issuer or the Lenders) paid or
incurred by the Administrative Agent, the Arranger, the LC Issuer or any Lender in connection with
the collection under and enforcement of the Loan Documents.
(ii) The Borrower hereby further agrees to indemnify the Administrative Agent, the Arranger,
each Lender, their respective affiliates, and each of their directors, officers and employees
against all losses, claims, damages, penalties, judgments, liabilities and expenses (including,
without limitation, all expenses of litigation or preparation therefor whether or not the
Administrative Agent, the Arranger, any Lender or any affiliate is a party thereto) which any of
them may pay or incur arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or proposed application of
the proceeds of any Credit Extension hereunder except to the extent that they are determined in a
final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the party seeking indemnification. The obligations of the
Borrower under this Section 9.6 shall survive the termination of this Agreement. To the extent
that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 9.6 may
be unenforceable in whole or in part because they are violative of any law or public policy, the
Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all indemnified liabilities incurred by the
indemnitees or any of them. This Section 9.6(ii) shall not apply with respect to Taxes other than
any Taxes that represent losses or damages arising from any non-Tax claim.
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9.7. Numbers of Documents. All statements, notices, closing documents, and requests
hereunder shall be furnished to the Administrative Agent with sufficient counterparts so that the
Administrative Agent may furnish one to each of the Lenders.
9.8. Accounting. Except as provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall be made in accordance
with GAAP in a manner consistent with that used in preparing the financial statements referred to
in Section 5.4, except that any calculation or determination which is to be made on a consolidated
basis shall be made for the Borrower and all of its Subsidiaries, including those Subsidiaries, if
any, which are unconsolidated on the Borrower’s audited financial statements. 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 the Borrower, the Administrative Agent or the Required Lenders shall so request,
the Administrative Agent, the Lenders and the Loan Parties 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, such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such change therein and
the Borrower shall provide to the Administrative Agent and the Lenders reconciliation statements
showing the difference in such calculation, together with the delivery of monthly, quarterly and
annual financial statements required hereunder.
9.9. Severability of Provisions. Any provision in any Loan Document that is held to
be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable.
9.10. Nonliability of Lenders. The relationship between the Borrower on the one hand
and the Lenders, the LC Issuer and the Administrative Agent on the other hand shall be solely that
of borrower and lender. Neither the Administrative Agent, the Arranger, the LC Issuer nor any
Lender shall have any fiduciary responsibilities to the Borrower. Neither the Administrative
Agent, the Arranger nor any Lender undertakes any responsibility to the Borrower to review or
inform the Borrower of any matter in connection with any phase of the Borrower’s business or
operations. The Borrower agrees that neither the Administrative Agent, the Arranger, the LC Issuer
nor any Lender shall have liability to the Borrower (whether sounding in tort, contract or
otherwise) for losses suffered by the Borrower in connection with, arising out of, or in any way
related to, the transactions contemplated and the relationship established by the Loan Documents,
or any act, omission or event occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses resulted from the
gross negligence or willful misconduct of the party from which recovery is sought. Neither the
Administrative Agent, the Arranger, the LC Issuer nor any Lender shall have any liability with
respect to, and the Borrower hereby waives, releases and agrees not to xxx for, any special,
indirect, consequential or punitive damages suffered by the Borrower in connection with, arising
out of, or in any way related to the Loan Documents or the transactions contemplated thereby.
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9.11. Confidentiality. The Administrative Agent and each Lender agrees to hold any
Information which it may receive from the Borrower in connection with this Agreement in confidence,
except for disclosure (i) to its Affiliates and to the Administrative Agent and any other Lender
and their respective Affiliates, (ii) to legal counsel, accountants, and other professional
advisors to such Lender or to a Transferee, (iii) to regulatory officials, (iv) to any Person as
requested pursuant to or as required by law, regulation, or legal process, (v) to any Person in
connection with any legal proceeding to which it is a party, (vi) to its direct or indirect
contractual counterparties in swap agreements or to legal counsel, accountants and other
professional advisors to such counterparties, (vii) permitted by Section 12.2, and (viii) to rating
agencies if requested or required by such agencies in connection with a rating relating to the
Advances hereunder. Without limiting Section 9.4, the Borrower agrees that the terms of this
Section 9.11 shall set forth the entire agreement between the Borrower and each Lender (including
the Administrative Agent) with respect to any Information previously or hereafter received by such
Lender in connection with this Agreement, and this Section 9.11 shall supersede any and all prior
confidentiality agreements entered into by such Lender with respect to such Information.
“Information” means all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the Administrative Agent, the LC
Issuer or any Lender on a non-confidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the date hereof,
such information is clearly identified at the time of delivery as confidential.
EACH LENDER ACKNOWLEDGES THAT INFORMATION (AS DEFINED ABOVE) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE
BORROWER AND ITS AFFILIATES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS
DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION
AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE
PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE
BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING,
THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION ABOUT THE BORROWER AND ITS AFFILIATES OR THEIR RESPECTIVE
SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE
AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO
MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE
WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
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9.12. Nonreliance. Each Lender hereby represents that it is not relying on or looking
to any margin stock (as defined in Regulation U) for the repayment of the Loans provided for
herein.
9.13. Disclosure. The Borrower and each Lender hereby acknowledge and agree that
JPMCB and/or its Affiliates from time to time may hold investments in, make other loans to or have
other relationships with the Borrower and its Affiliates.
9.14. USA PATRIOT Act. Each Lender that is subject to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) hereby
notifies the Borrower that pursuant to the requirements of the Act, it is required to obtain,
verify and record information that identifies the Borrower, which information includes the name and
address of the Borrower and other information that will allow such Lender to identify the Borrower
in accordance with the Act.
9.15. Exiting Lender Payment. Each Lender consents to the payment by the Borrower of
all outstanding Obligations (as defined in the Existing Credit Agreement) owing to the Exiting
Lenders on the Effective Date.
9.16. Amendment and Restatement.
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(i) |
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On the Effective Date, the Existing Credit Agreement shall be amended, restated
and superseded in its entirety. The parties hereto acknowledge and agree that (a) this
Agreement, any Notes delivered pursuant to Section 2.14 and the other Loan Documents
executed and delivered in connection herewith do not constitute a novation, payment and
reborrowing, or termination of the “Obligations” (as defined in the Existing Credit
Agreement) under the Existing Credit Agreement as in effect prior to the Effective Date
and (b) such “Obligations” are in all respects continuing with only the terms thereof
being modified as provided in this Agreement. |
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(ii) |
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Notwithstanding the modifications effected by this Agreement of the
representations, warranties and covenants of the Borrower contained in the Existing
Credit Agreement, the Borrower acknowledges and agrees that any causes of action or
other rights created in favor of any Lender and its successors arising out of the
representations and warranties of the Borrower contained in or delivered (including
representations and warranties delivered in connection with the making of the loans or
other extensions of credit thereunder) in connection with the Existing Credit Agreement
shall survive the execution and delivery of this Agreement; provided, however,
that it is understood and agreed that the Borrower’s monetary obligations under the
Existing Credit Agreement in respect of the loans and letters of credit thereunder are
evidenced by this Agreement as provided in Article II hereof. |
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(iii) |
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All indemnification obligations of the Borrower pursuant to the Existing
Credit Agreement (including any arising from a breach of the representations
thereunder)
shall survive the amendment and restatement of the Existing Credit Agreement
pursuant to this Agreement. |
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(iv) |
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As of the Effective Date each Lender hereby (a) consents to the amendments to
the Security Agreement and the Subsidiary Security Agreement in substantially the forms
made available to the Lenders by the Administrative Agent prior to the Effective Date
and (b) authorizes and directs the Administrative Agent to enter into such amendments. |
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(v) |
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The Administrative Agent, Swing Line Lender and the Lenders hereby waive any
notice otherwise required by Section 2.8 in connection with the repayment of the
outstanding Loans under the Existing Credit Agreement on the Effective Date hereof. |
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1.
Appointment; Nature of Relationship. JPMCB is hereby appointed by each of the
Lenders as its contractual representative (herein referred to as the “Administrative Agent”)
hereunder and under each other Loan Document, and each of the Lenders irrevocably authorizes the
Administrative Agent to act as the contractual representative of such Lender with the rights and
duties expressly set forth herein and in the other Loan Documents. The Administrative Agent agrees
to act as such contractual representative upon the express conditions contained in this Article X.
Notwithstanding the use of the defined term “Administrative Agent,” it is expressly understood and
agreed that the Administrative Agent shall not have any fiduciary responsibilities to any Lender by
reason of this Agreement or any other Loan Document and that the Administrative Agent is merely
acting as the contractual representative of the Lenders with only those duties as are expressly set
forth in this Agreement and the other Loan Documents. In its capacity as the Lenders’ contractual
representative, the Administrative Agent (i) does not hereby assume any fiduciary duties to any of
the Lenders, (ii) is a “representative” of the Lenders within the meaning of the term “secured
party” as defined in the
New York Uniform Commercial Code and (iii) is acting as an independent
contractor, the rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to assert no claim
against the Administrative Agent on any agency theory or any other theory of liability for breach
of fiduciary duty, all of which claims each Lender hereby waives.
10.2. Powers. The Administrative Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Administrative Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The Administrative Agent
shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by the Loan
Documents to be taken by the Administrative Agent.
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10.3. General Immunity. Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or any Lender for any
action taken or omitted to be taken by it or them hereunder or under any other Loan Document or in
connection herewith or therewith except to the extent such action or inaction is determined in a
final non-appealable judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Administrative Agent
nor any of its directors, officers, agents or employees shall be responsible for or have any duty
to ascertain, inquire into, or verify (i) any statement, warranty or representation made in
connection with any Loan Document or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each Lender; (iii) the
satisfaction of any condition specified in Article IV, except receipt of items required to be
delivered solely to the Administrative Agent; (iv) the existence or possible existence of any
Default or Unmatured Default; (v) the validity, enforceability, effectiveness, sufficiency or
genuineness of any Loan Document or any other instrument or writing furnished in connection
therewith; (vi) the value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (vii) the financial condition of the Borrower or any guarantor of any of
the Obligations or of any of the Borrower’s or any such guarantor’s respective Subsidiaries.
Except as expressly set forth herein, the Administrative Agent shall not 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 Subsidiaries that is communicated to or obtained by the bank serving as Administrative
Agent or any of its Affiliates in any capacity.
10.5. Action on Instructions of Lenders. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and under any other Loan
Document in accordance with written instructions signed by the Required Lenders, and such
instructions and any action taken or failure to act pursuant thereto shall be binding on all of the
Lenders. The Lenders hereby acknowledge that the Administrative Agent shall be under no duty to
take any discretionary action permitted to be taken by it pursuant to the provisions of this
Agreement or any other Loan Document unless it shall be requested in writing to do so by the
Required Lenders. The Administrative Agent shall be fully justified in failing or refusing to take
any action hereunder and under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
10.6. Employment of Agents and Counsel. The Administrative Agent may execute any of
its duties as Administrative Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the Lenders, except as to
money or securities received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent
shall be entitled to advice of counsel concerning the contractual
arrangement between the Administrative Agent and the Lenders and all matters pertaining to the
Administrative Agent’s duties hereunder and under any other Loan Document.
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10.7. Reliance on Documents; Counsel. The Administrative Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex,
electronic mail message, statement, paper or document believed by it in good faith to be genuine
and correct and to have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Administrative Agent, which counsel may
be employees of the Administrative Agent. For purposes of determining compliance with the
conditions specified in Sections 4.1 and 4.2, 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
applicable date specifying its objection thereto.
10.8. Administrative Agent’s Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Administrative Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their Commitments
immediately prior to such termination) (i) for any amounts not reimbursed by the Borrower for which
the Administrative Agent is entitled to reimbursement by the Borrower under the Loan Documents,
(ii) for any other expenses incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and enforcement of the Loan
Documents (including, without limitation, for any expenses incurred by the Administrative Agent in
connection with any dispute between the Administrative Agent and any Lender or between two or more
of the Lenders) and (iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in any way relating to or
arising out of the Loan Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such amounts incurred by
or asserted against the Administrative Agent in connection with any dispute between the
Administrative Agent and any Lender or between two or more of the Lenders), or the enforcement of
any of the terms of the Loan Documents or of any such other documents, provided that (i) no Lender
shall be liable for any of the foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Administrative Agent and (ii) any indemnification required
pursuant to Section 3.4(v) shall, notwithstanding the provisions of this Section 10.8, be paid by
the relevant Lender in accordance with the provisions thereof. The obligations of the Lenders
under this Section 10.8 shall survive payment of the Obligations and termination of this Agreement.
10.9. Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default hereunder unless the
Administrative Agent has received written notice from a Lender or the Borrower referring to this
Agreement describing such Default or Unmatured Default and stating that such notice is a “notice of
default”. In the event that the Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders.
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10.10. Rights as a Lender. In the event the Administrative Agent is a Lender, the
Administrative Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may exercise the same as
though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, at any time
when the Administrative Agent is a Lender, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of trust, debt, equity or
other transaction, in addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person.
10.11. Lender Credit Decision. Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent, the Arranger or any other Lender and based on
the financial statements prepared by the Borrower and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and
the other Loan Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement and the other Loan Documents.
10.12. Successor Administrative Agent. The Administrative Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five days after the retiring Administrative Agent
gives notice of its intention to resign. Upon any such resignation, the Required Lenders shall
have the right to appoint, on behalf of the Borrower and the Lenders, a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders
within thirty days after the resigning Administrative Agent’s giving notice of its intention to
resign, then the resigning Administrative Agent may appoint, on behalf of the Borrower and the
Lenders, a successor Administrative Agent. If the Administrative Agent has resigned and no
successor Administrative Agent has been appointed, the Lenders may perform all the duties of the
Administrative Agent hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Administrative Agent shall be deemed to be appointed hereunder until such
successor Administrative Agent has accepted the appointment. Any such successor Administrative
Agent shall be a commercial bank having capital and retained earnings of at least $100,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning or removed
Administrative Agent. Upon the effectiveness of the resignation of the Administrative Agent, the
resigning Administrative Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation of an Administrative Agent,
the provisions of this Article X shall continue in effect for the benefit of such Administrative
Agent in respect of any actions taken or omitted to be taken by it while it was acting as the
Administrative Agent hereunder and under the other Loan Documents. In the event that there is a
successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate pursuant to this
Section 10.12, then the term “Prime Rate” as used in this Agreement shall mean the prime rate, base
rate or other analogous rate of the new Administrative Agent.
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10.13. Administrative Agent and Arranger Fees. The Borrower agrees to pay to the
Administrative Agent and the Arranger, for their respective accounts, the fees agreed to by the
Borrower, the Administrative Agent and the Arranger pursuant to that certain fee letter agreement
dated March 18, 2011, or as otherwise agreed from time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders agree that the
Administrative Agent may delegate any of its duties under this Agreement to any of its Affiliates.
Any such Affiliate (and such Affiliate’s directors, officers, agents and employees) which performs
duties in connection with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the Administrative Agent is
entitled under Articles IX and X.
10.15. Execution of Collateral Documents. The Lenders hereby empower and authorize
the Administrative Agent to execute and deliver to the Borrower on their behalf the Collateral
Documents and all related financing statements and any financing statements, agreements, documents
or instruments as shall be necessary or appropriate to effect the purposes of the Collateral
Documents.
10.16. Collateral Releases. The Lenders hereby empower and authorize the
Administrative Agent to execute and deliver to the Borrower on their behalf any agreements,
documents or instruments as shall be necessary or appropriate to effect any releases of Collateral
which shall be permitted by the terms hereof or of any other Loan Document or which shall otherwise
have been approved by the Required Lenders (or, if required by the terms of Section 8.2, all of the
Lenders) in writing. Without limiting the foregoing, if any Collateral or any Subsidiary is sold in
a transaction permitted hereunder (other than to the Borrower or to a Subsidiary thereof), (i) such
Collateral shall be sold free and clear of the Liens created by the Collateral Documents and (ii)
in the case of the sale of all of the Capital Stock of a Guarantor, such Guarantor and its
subsidiaries shall be released from the Guaranty and the Collateral Documents to which it is a
party and, in each case, the Administrative Agent shall be authorized to take any actions deemed
appropriate in order to effect the foregoing. Upon request by the Administrative Agent at any
time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release
or subordinate its interest in particular types or items of property, or to release any Guarantor
from its obligations under the Guaranty pursuant to this Section 10.
10.17. Syndication Agents. None of the Lenders identified in this Agreement as
Syndication Agents shall have any right, power, obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing,
none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender.
Each Lender hereby makes the same acknowledgments with respect to such Lenders as it makes with
respect to the Administrative Agent in Section 10.11.
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ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. If a Default shall have occurred and be continuing, each Lender and
each of its Affiliates is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any times held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held by such Lender or
Affiliate, irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each Lender under this
Section 11.1 are in addition to other rights and remedies (including other rights of setoff) which
such Lender may have.
11.2. Ratable Payments. 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 its
Loans or participations in disbursements under Facility LCs or Swing Line Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its Loans and
participations in disbursements under Facility LCs and Swing Line Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Loans and participations
in disbursements under Facility LCs and Swing Line Loans of other Lenders to the extent necessary
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
participations in disbursements under Facility LCs and Swing Line Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price restored to the extent of
such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment made by the Borrower pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in disbursements under Facility LCs
to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply).
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. (i) 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 (including any Affiliate of the LC Issuer that issues any Facility LC), except
that (A) the Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void) and (B) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in accordance with
this Section. 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
(including any Affiliate of the LC Issuer that issues any Facility LC), Participants (to the extent
provided in paragraph (iii) of this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the LC Issuer and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
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(ii)(A) |
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Subject to the conditions set forth in paragraph (ii)(B) below, any Lender may
assign to one or more assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitments and the Loans at the time
owing to it) with the prior written consent (such consent not to be unreasonably
withheld) of: |
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(1) |
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the Borrower, provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if a Default has occurred and is continuing, any other
assignee; provided that the Borrower shall be deemed to have consented to any
such assignment unless it shall object thereto by written notice to the
Administrative Agent within 5 Business Days after having received notice
thereof; |
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(2) |
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the Administrative Agent, provided that no consent of
the Administrative Agent shall be required for an assignment of any Commitment
to an assignee that is a Lender with a Commitment immediately prior to giving
effect to such assignment to a Lender; and |
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(B) |
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Assignments shall be subject to the following additional conditions: |
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(1) |
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except in the case of an assignment to a Lender or an Affiliate
of a Lender or an Approved Fund or an assignment of the entire remaining amount
of the assigning Lender’s Commitment or Loans, the amount of the Commitment or
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) shall not be less than $5,000,000 unless
each of the Borrower and the Administrative Agent otherwise consent,
provided that no such consent of the Borrower shall be required if a
Default has occurred and is continuing; |
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(2) |
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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; |
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(3) |
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the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500; and |
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(4) |
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the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about the Borrower and its
Affiliates and their respective securities) will be made available and who may
receive such information in accordance with the assignee’s compliance
procedures and applicable laws, including Federal and state securities laws. |
For the purposes of this Section 12.1(ii), the term “Approved Fund” has the
following meaning:
“Approved Fund” means any Person (other than a natural person) that is engaged
in making, purchasing, holding or investing in bank loans and similar extensions of
credit in the ordinary course of its business and that is administered or managed by
(1) a Lender, (2) an Affiliate of a Lender or (3) an entity or an Affiliate of an
entity that administers or manages a Lender.
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(C) |
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Subject to acceptance and recording thereof pursuant to paragraph (ii)(D) of
this Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of
a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender’s rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.1, 3.3, 3.4, and 9.6). Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this Section
12.1 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 paragraph (iii) of this
Section. |
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(D) |
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The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices 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 amount of (and stated interest on) the Loans and
disbursements under Facility LCs 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, the LC Issuer and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, the LC
Issuer and any Lender, at any reasonable time and from time to time upon reasonable
prior notice. |
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(E) |
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Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (ii) of this Section and any written consent
to such assignment required by paragraph (ii) of this Section, the Administrative Agent
shall accept such Assignment and Assumption and record the information contained
therein in the Register; provided that if either the assigning Lender or the
assignee shall have failed to make any payment required to be made by it pursuant to
Section 2.5.4, 2.19, 2.20.2, 2.20.5, or 10.8, the Administrative Agent shall have no
obligation to accept such Assignment and Assumption and record the information therein
in the Register unless and until such payment shall have been made in full, together
with all accrued interest thereon. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this
paragraph. |
(iii) Any Lender may, without the consent of the Borrower, the Administrative Agent, the LC
Issuer or the Swing Line Lender, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans owing to it); provided that
(1) such Lender’s obligations under this Agreement shall remain unchanged, (2) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(3) the Borrower, the Administrative Agent, the LC Issuer and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in Section
8.2(i) that affects such Participant. The Borrower agrees that each Participant shall be entitled
to the benefits of Sections 3.1, 3.3, and 3.4 (subject to the requirements and limitations therein,
including the requirements under Section 3.4(vi) (it being understood that the documentation
required under Section 3.4(vi) shall be delivered to the participating Lender)) to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (ii) of
this Section; provided that such Participant (1) agrees to be subject to the provisions of Section
11.2 as if it were an assignee under paragraph (ii) of this Section; and (2) shall not be entitled
to receive any greater payment under Sections 3.1 or 3.3, with respect to any participation, than
its participating Lender would have been entitled to receive, (i) except to the extent such
entitlement to receive a greater payment results from a Change in Law that occurs after the
Participant acquired the applicable participation or (ii) the sale of the participation to such
Participant is made with the Borrower’s prior written consent. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 11.1 as though it were a Lender,
provided such participant agrees to be subject to Section 11.2 as though it were a Lender. Each
Lender that sells a participation shall, acting solely for this purpose as an agent of the
Borrower, maintain a register on which it enters the name and address of each Participant and the
principal amounts (and stated interest) of each Participant’s interest in the Loans or other
obligations under this Agreement (the “Participant Register”); provided that no Lender shall have
any obligation to disclose all or any portion of the Participant Register to
any Person (including the identity of any Participant or any information relating to a
Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under
any Loan Document) except to the extent that such disclosure is necessary to establish that such
Commitment, Loan, Letter of Credit or other obligation is in registered form under Section
5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register
shall be conclusive absent manifest error, and such Lender shall treat each person whose name is
recorded in the Participant Register as the owner of such participation for all purposes of this
Agreement notwithstanding any notice to the contrary.
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(iv) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
12.2. Dissemination of Information. The Borrower authorizes each Lender to disclose
to any Participant or Purchaser or any other Person acquiring an interest in the Loan Documents by
operation of law (each a “Transferee”) and any prospective Transferee any and all information in
such Lender’s possession concerning the creditworthiness of the Borrower and its Subsidiaries;
provided that each Transferee and prospective Transferee agrees to be bound by Section 9.11 of this
Agreement.
ARTICLE XIII
NOTICES
13.1. Notices; Effectiveness; Electronic Communication
(i) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in paragraph (ii) 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:
(A) if to the Borrower, at its address or telecopier number set forth on the
signature page hereof;
(B) if to the Administrative Agent, at its address or telecopier number set
forth on the signature page hereof;
(C) if to the LC Issuer, at its address or telecopier number set forth on
the signature page hereof;
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(D) if to a Lender, to it at its address (or telecopier number) set forth 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 paragraph (ii) below,
shall be effective as provided in said paragraph (ii).
(ii) Electronic Communications. Notices and other communications to the Lenders may
be delivered or furnished by electronic communication (including e-mail and internet or intranet
websites) pursuant to procedures approved by the Administrative Agent or as otherwise determined by
the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender
pursuant to Article II if such Lender 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 respective discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it or as it otherwise
determines, provided that such determination or approval may be limited to particular notices or
communications.
Unless the Administrative Agent otherwise prescribes, (A) 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 given during the normal business hours of the recipient, such notice or
communication shall be deemed to have been given at the opening of business on the next Business
Day for the recipient, and (B) 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 (A) of notification that such notice or communication is
available and identifying the website address therefor.
(iii) Change of Address, Etc. Any party hereto may change its address or telecopier
number for notices and other communications hereunder by notice to the other parties hereto.
ARTICLE XIV
COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION
14.1. Counterparts; 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. Except as
provided in Article IV, 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 which, when taken together, bear the signatures of each of the parties
hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. 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.
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14.2. Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any assignment and assumption agreement 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, or
any other state laws based on the Uniform Electronic Transactions Act.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1.
CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY
EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2.
CONSENT TO JURISDICTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN
NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT
MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. ANY JUDICIAL PROCEEDING BY ANY PARTY HERETO
AGAINST ANY OTHER PARTY HERETO OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT
ONLY IN A COURT IN NEW YORK, NEW YORK; PROVIDED, HOWEVER THAT NOTHING HEREIN SHALL LIMIT THE RIGHT
OF ANY PARTY HERETO TO BRING PROCEEDINGS AGAINST ANY OTHER PARTY HERETO IN THE COURTS OF ANY OTHER
JURISDICTION TO THE EXTENT NECESSARY TO OBTAIN JURISDICTION OVER SUCH OTHER PARTY OR TO ENFORCE ANY
JUDGMENT ENTERED RELATING HERETO.
-79-
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
[signature pages follow]
-80-
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent have executed this
Agreement as of the date first above written.
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VIAD CORP
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By: |
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/s/ Xxxxx X. Xxxxxxxxx |
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Name:
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Xxxxx X. Xxxxxxxxx |
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Title:
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Chief Financial Officer |
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By: |
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/s/ Xxxxx X. Xxxxxx |
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Name:
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Xxxxx X. Xxxxxx |
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Title:
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Treasurer |
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0000 X. Xxxxxxx Xxx., Xxxxx 000 |
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Xxxxxxx, XX 00000-0000 |
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Attention: Treasurer’s Department |
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Telephone: 000-000-0000 |
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Fax: 000-000-0000 |
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[Signature Page to Viad Amended and Restated Credit Agreement]
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JPMORGAN CHASE BANK, N.A., |
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as Lender and as Administrative Agent |
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By: |
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/s/ Xxxxxx X. Xxxxxxxx |
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Name:
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Xxxxxx X. Xxxxxxxx |
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Title:
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Senior Vice President/ Corporate Client Banking |
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000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx |
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Mail Code AZ1-1228 |
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Xxxxxxx, XX 00000 |
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Telephone: 000-000-0000 |
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Fax: 000-000-0000 |
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[Signature Page to Viad Amended and Restated Credit Agreement]
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BANK OF AMERICA, N.A.,
as Lender and as Syndication Agent
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By: |
/s/ Xxxxxx Xxxxxxxx
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
Senior Vice President |
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[Signature Page to Viad Amended and Restated Credit Agreement]
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KEYBANK NATIONAL ASSOCIATION,
as Lender and as Syndication Agent
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By: |
/s/ Xxxx Xxxxxxxxxx
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Name: |
Xxxx Xxxxxxxxxx |
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Title: |
Senior Vice President |
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[Signature Page to Viad Amended and Restated Credit Agreement]
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U.S. BANK NATIONAL ASSOCIATION
as Lender and as Syndication Agent
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By: |
/s/ Xxxxxx XxXxxxxx
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Name: |
Xxxxxx XxXxxxxx |
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Title: |
Vice President |
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[Signature Page to Viad Amended and Restated Credit Agreement]
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XXXXX FARGO BANK, N.A.,
as Lender and as Syndication Agent
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By: |
/s/ Xxx Xx
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Name: |
Xxx Xx |
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Title: |
Vice President |
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[Signature Page to Viad Amended and Restated Credit Agreement]
PRICING SCHEDULE
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Applicable |
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Margin |
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Level I Status |
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Level II Status |
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Level III Status |
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Level IV Status |
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Eurodollar Rate |
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2.00 |
% |
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2.25 |
% |
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2.50 |
% |
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2.75 |
% |
Floating Rate |
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1.00 |
% |
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1.25 |
% |
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1.50 |
% |
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1.75 |
% |
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Applicable |
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Fee Rate |
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Level I Status |
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Level II Status |
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Level III Status |
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Level IV Status |
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Letter of Credit Fee |
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2.00 |
% |
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2.25 |
% |
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2.50 |
% |
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2.75 |
% |
Commitment Fee |
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0.35 |
% |
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0.40 |
% |
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0.45 |
% |
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0.50 |
% |
For the purposes of this Schedule, the following terms have the following meanings,
subject to the final paragraph of this Schedule:
“Financials” means the annual or quarterly financial statements of the Borrower delivered
pursuant to Section 6.1(i) or (ii).
“Level I Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, the Leverage Ratio is less than or equal to
1.00 to 1.00.
“Level II Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status and (ii) the Leverage Ratio is less than or equal to 1.50 to 1.00.
“Level III Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status or Level II Status and (ii) the Leverage Ratio is less than or equal to 2.00 to 1.00.
“Level IV Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, the Borrower has not qualified for Level I
Status, Level II Status or Level III Status.
“Status” means either Level I Status, Level II Status, Level III Status or Level IV Status.
The Applicable Margin and Applicable Fee Rate shall be determined in accordance with the
foregoing table based on the Borrower’s Status as reflected in the then most recent Financials.
Adjustments, if any, to the Applicable Margin or Applicable Fee Rate shall be effective five
Business Days after the Administrative Agent has received the applicable Financials. If the
Borrower fails to deliver the Financials to the Administrative Agent at the time required pursuant
to Section 6.1, then the Applicable Margin and Applicable Fee Rate shall be the highest Applicable
Margin and Applicable Fee Rate set forth in the foregoing table until five days after such
Financials are so delivered. Until adjusted after the Closing Date, Level I Status shall be deemed
to exist.
COMMITMENT SCHEDULE
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Lender |
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Commitment |
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JPMorgan Chase Bank, N.A. |
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$ |
30,000,000 |
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Bank of America, N.A. |
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$ |
25,000,000 |
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KeyBank National Association |
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$ |
25,000,000 |
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U.S. Bank National Association |
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$ |
25,000,000 |
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Xxxxx Fargo Bank, N.A. |
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$ |
25,000,000 |
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Total |
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$ |
130,000,000 |
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SCHEDULE I
Exiting Lenders
1. |
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Comerica Bank |
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2. |
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Bank of the West |
EXHIBIT A
NOTE
, 2011
Viad Corp, a Delaware Corporation (the “Borrower”), promises to pay to the order of
(the “Lender”) the aggregate unpaid principal amount of all Loans made
by the Lender to the Borrower pursuant to Article II of the Agreement (as hereinafter defined), in
immediately available funds at the Payment Office (as defined below) of JPMorgan Chase Bank, N.A.,
as Administrative Agent, together with interest on the unpaid principal amount hereof at the rates
and on the dates set forth in the Agreement. The Borrower shall pay the principal of and accrued
and unpaid interest on the Loans in full on the Facility Termination Date. “Payment Office” means
the office of the Administrative Agent specified pursuant to Section 2.13 of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule attached hereto, or to
otherwise record in accordance with its usual practice, the date and amount of each Loan and the
date and amount of each principal payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to the benefits of, the
Amended and Restated Credit Agreement dated as of May 18, 2011 (which, as it may be amended or
modified and in effect from time to time, is herein called the “Agreement”), among the Borrower,
the lenders party thereto, including the Lender, and JPMorgan Chase Bank, N.A., as Administrative
Agent, to which Agreement reference is hereby made for a statement of the terms and conditions
governing this Note, including the terms and conditions under which this Note may be prepaid or its
maturity date accelerated. This Note is secured pursuant to the Collateral Documents and
guaranteed pursuant to the Guaranty, all as more specifically described in the Agreement, and
reference is made thereto for a statement of the terms and provisions thereof. Capitalized terms
used herein and not otherwise defined herein are used with the meanings attributed to them in the
Agreement.
This Note shall be governed by and construed in accordance with the internal laws of the State
of New York.
[signature page follows]
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VIAD CORP
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By: |
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Print Name: |
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Title: |
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By: |
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Print Name: |
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Title: |
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SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF ,
DATED , 2011,
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Principal |
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Maturity |
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Principal |
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Amount of |
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of Interest |
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Amount |
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Unpaid |
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Date |
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Loan |
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Period |
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Paid |
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Balance |
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EXHIBIT B
COMPLIANCE CERTIFICATE
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To: |
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The Lenders parties to the
Credit Agreement Described Below |
This Compliance Certificate is furnished pursuant to that certain Amended and Restated Credit
Agreement dated as of May 18, 2011 (as amended, modified, renewed or extended from time to time,
the “Agreement”) among
Viad Corp, a Delaware corporation (the “Borrower”), the lenders party
thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders. Unless otherwise
defined herein, capitalized terms used in this Compliance Certificate have the meanings ascribed
thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have caused to be made
under my supervision, a detailed review of the transactions and conditions of the Borrower and its
Subsidiaries during the accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have no actual knowledge
of, the existence of any condition or event which constitutes a Default or Unmatured Default during
or at the end of the accounting period covered by the attached financial statements or as of the
date of this Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations evidencing the
Borrower’s compliance with certain covenants of the Agreement, all of which data and computations
are true, complete and correct.
5. Schedule II hereto sets forth the determination of the interest rates to be paid for
Advances and the commitment fee rates commencing on the fifth day following the delivery hereof.
6. Except as set forth on Schedule III attached hereto, all reports and deliveries which are
required at this time under the Credit Agreement, the Security Agreement and the other Loan
Documents have been delivered.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature
of the condition or event, the period during which it has existed and the action which the Borrower
has taken, is taking, or proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations set forth in Schedule I and
Schedule II hereto and the financial statements delivered with this Certificate in support hereof,
are made and delivered this _____ day of , _____.
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VIAD CORP
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By: |
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Its: |
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Name: |
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By: |
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Its: |
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Name: |
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SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of [ , _____] with
Provisions of Sections 6.14(v), 6.23.1, 6.23.2 and 6.23.3 of
the Agreement
Acquisitions in the same line of business with aggregate consideration
(including cash, other property, stock and debt assumption, with such
property and stock valued at fair market value at the time of such
Acquisition) in excess of $50,000,000
Section 6.14(v)
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[ ] |
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1. Aggregate consideration: |
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$ |
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2. Borrower is in compliance with all covenants under the Agreement |
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3. Fixed Charge Coverage Ratio (as calculated in Section 6.23.1 below, on
a pro forma basis): |
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____:____ |
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Minimum Required: |
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From and including fiscal quarter ending June 30, 2011 to and
including
September 30, 2012: |
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2.25 to 1.00 |
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For each fiscal quarter ending thereafter: |
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2.50 to 1.00 |
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4. Liquidity (as calculated in Section 6.23.3 below, on a pro forma basis): |
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$ |
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Minimum Required: |
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$ |
50,000,000 |
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5. Leverage Ratio (as calculated in Section 6.23.2 below): |
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___:___ |
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Maximum Allowed: |
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2.00:1.00 |
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Fixed Charge Coverage Ratio
Section 6.23.1
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Four Fiscal |
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Quarters Ended |
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[ ] |
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1. (a) Consolidated EBITDA1 |
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(i) Consolidated Net Income (“CNI”) |
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$ |
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(ii) To the extent deducted in CNI, Consolidated Interest Expense |
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$ |
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(iii) To the extent deducted in CNI, expense for income taxes
paid or accrued |
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$ |
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(iv) To the extent deducted in CNI, depreciation |
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$ |
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(v) To the extent deducted in CNI, amortization |
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$ |
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(vi) To the extent deducted in CNI, extraordinary or non-recurring
losses |
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$ |
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(vii) To the extent deducted in CNI, restructuring expenses (not
to exceed $10,000,000 during any 12-month period, and $20,000,000
in the aggregate for all such computation periods ending after the
Effective Date and before the Facility Termination Date) |
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$ |
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(viii) To the extent deducted in CNI, non-cash losses |
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$ |
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(ix) To the extent deducted in CNI, goodwill impairment losses |
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$ |
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(x) To the extent deducted in CNI, Stock Compensation Expense |
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$ |
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(xi) To the extent included in CNI, extraordinary or
non-recurring gains realized other than in the ordinary course of
business |
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$ |
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(xii) To the extent included in CNI, non-cash gains |
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$ |
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(xiii) Consolidated EBITDA ((A) sum of Lines 1(a)(i) through
1(a)(x) minus (B) sum of Lines 1(a)(xi) through 1(a)(xii)) |
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$ |
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(b) Consolidated Rentals |
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$ |
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2. (c) cash Consolidated Interest Expense |
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$ |
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(d) Consolidated Rentals |
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$ |
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Fixed Charge Coverage Ratio: (a + b):(c + d) |
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___:1.00 |
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Minimum Required: |
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From and including fiscal quarter ending June 30, 2011 to and including
September 30, 2012 |
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2.25 to 1.00 |
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For each fiscal quarter ending thereafter: |
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2.50 to 1.00 |
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1 |
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For any computation period during which (i)
an Acquired Company is acquired or (ii) a Disposed Company is sold,
Consolidated EBITDA shall be calculated on a pro forma basis as if such
Acquired Company or Disposed Company, as the case may be, had been acquired
(and any related Indebtedness incurred) or sold (and any related Indebtedness
disposed of), as the case may be, on the first day of such computation period. |
Leverage Ratio
Section 6.23.2
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As of the Fiscal |
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Quarter Ended |
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[ ] |
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1. (a) Consolidated Indebtedness |
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(i) obligations for borrowed money |
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$ |
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(ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the
ordinary course of such Person’s business payable on terms customary
in the trade) |
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$ |
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(iii) obligations, whether or not assumed, secured by Liens or
payable out of the proceeds or production from Property now or
hereafter owned or acquired by such Person |
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$ |
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(iv) obligations which are evidenced by notes, acceptances, or
other Instruments |
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$ |
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(v) obligations of such Person to purchase securities or other
Property arising out of or in connection with the sale of the same
or substantially similar securities or Property |
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$ |
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(vi) Capitalized Lease Obligations |
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$ |
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(vii) Letters of Credit |
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$ |
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(viii) Contingent Obligations2 |
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$ |
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(ix) Rate Management Obligations |
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$ |
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(x) any other obligation for borrowed money or other financial
accommodation which in accordance with GAAP would be shown as a
liability on the consolidated balance sheet of such Person |
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$ |
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(xi) Consolidated Indebtedness (sum of Lines 1(a)(i) through 1(a)(x)) |
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$ |
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2. (b) Consolidated EBITDA (Line 1(a)(xiii) above) |
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$ |
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Leverage Ratio: (a:b) |
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___:___ |
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2 |
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For purposes hereof, the amount of any
Contingent Obligation 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 Contingent Obligation 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; provided that for
purposes of computing the Leverage Ratio (i) the amount of any Contingent
Obligation of the Borrower or a Subsidiary in respect of obligations of the
Borrower or a Subsidiary and (ii) the amount of any Contingent Obligation in
respect of an obligation not itself constituting Indebtedness shall be zero.
Notwithstanding the foregoing, Rate Management Obligations (to the extent
related to the Loans or otherwise incurred in the ordinary course of business
and not for speculative purposes) shall not constitute Indebtedness. |
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Maximum Allowed: |
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2.50:1.00 |
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Minimum Liquidity
Section 6.23.3
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At all times |
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1. (a) unrestricted cash |
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$ |
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2. (b) Cash Equivalent Investments of the Borrower and its Subsidiaries
calculated on a consolidated basis |
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$ |
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Liquidity: |
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$ |
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Minimum Required: |
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$ |
50,000,000 |
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SCHEDULE II TO COMPLIANCE CERTIFICATE
Borrower’s Applicable Margin Calculation
Level [I][II][III][IV]
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Applicable Margin or Fee |
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Rate |
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|
Eurodollar Rate |
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|
% |
Floating Rate |
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|
% |
Letter of Credit Fee |
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|
% |
Commitment Fee |
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% |
SCHEDULE III TO COMPLIANCE CERTIFICATE
Reports and Deliveries Currently Due
EXHIBIT C
SUBORDINATION TERMS
SUBORDINATED INDEBTEDNESS SUBORDINATION AGREEMENT
SUBORDINATED INDEBTEDNESS SUBORDINATION AGREEMENT (this “Agreement”) dated as of
_____, 201_____, between:
(i) [NAME OF CREDITOR], a _____ organized under the law of _____ (the
“Creditor”);
(ii) Viad Corp, a corporation organized under the laws of Delaware (the
“Debtor”); and
(iii) JPMorgan Chase Bank, N.A., as administrative agent (with its successors in such
capacity, the “Administrative Agent”).
The Debtor, the Administrative Agent and the various financial institutions
signatory thereto (the “Lenders”) are parties to that certain Amended and
Restated Credit Agreement dated as of May 18, 2011 (as it may be amended, restated or
modified and in effect from time to time, the “Credit Agreement”).
To induce the Lenders to extend or continue to extend credit as described in the
Credit Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Creditor has agreed to subordinate
the Subordinated Debt (as hereinafter defined) to the Senior Debt (as so defined) all
in the manner and to the extent hereinafter provided. Accordingly, the parties hereto
agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are used herein as
defined therein. In addition, as used herein:
“Holder” shall mean a Person which holds, or acts as representative of holders of,
Senior Debt.
“Senior Debt” shall mean, collectively, the following indebtedness and obligations:
(a) all indebtedness or other obligations of the Debtor under the Credit Agreement and
the other Loan Documents, including all interest, expenses, indemnities and penalties and
all other amounts from time to time owing under the Credit Agreement and the other Loan
Documents; and
(b) all Rate Management Obligations owing to any Lender or Affiliate thereof.
The term
“Senior Debt” shall include any interest, and any expenses of the type described in Section 9.6 of
the Credit Agreement (or comparable provisions of any other Loan Document),
accruing or arising after the date of any filing by the Debtor of any petition in bankruptcy or the
commencing of any bankruptcy, insolvency or similar proceedings with respect to the Debtor, whether
or not such interest or expenses are allowable as a claim in any such proceeding.
“Subordinated Debt” shall mean all Indebtedness of the Debtor to the Creditor
incurred pursuant to Section 6.11(vii) of the Credit Agreement, whether now existing or
hereafter arising, including without limitation [specify anticipated Indebtedness].
Section 2. Subordination.
2.01 Subordination of Subordinated Debt. The Debtor, for itself and its
respective successors and assigns, covenants and agrees, and the Creditor, on its own
behalf and on behalf of each subsequent holder of Subordinated Debt, likewise covenants
and agrees, that, to the extent and in the manner set forth in this Agreement, the
Subordinated Debt and the payment from whatever source of the principal of, and
interest and premium (if any) on, the Subordinated Debt, are hereby expressly made
subordinate and subject in right of payment to the prior payment in full in cash of all
Senior Debt and in that connection hereby agree that, except and to the extent
permitted under Section 2.03 hereof, (a) no payment on account of the Subordinated Debt
or any judgment with respect thereto shall be made by or on behalf of the Debtor and
(b) the Creditor shall not (i) ask, demand, xxx for, take or receive from the Debtor,
by set-off or in any other manner payment on account of the Subordinated Debt, or (ii)
seek any other remedy allowed at law or in equity against the Debtor for breach of the
Debtor’s obligations under the instruments representing such Subordinated Debt.
In the event that, notwithstanding the foregoing provisions of this Section 2.01,
the Creditor shall have received any payment not permitted by the provisions of Section
2.03 hereof, including, without limitation, any such payment arising out of the
exercise by the Creditor of a right of set-off or counterclaim and any such payment
received by reason of other indebtedness of the Debtor being subordinated to the
Subordinated Debt, then, and in any such event, such payment shall be held in trust for
the benefit of, and shall be immediately paid over or delivered to, the Administrative
Agent, to be paid to the Holders, ratably according to the aggregate amounts remaining
unpaid on account of the principal of, and interest and premium (if any) on, the Senior
Debt held or represented by each Holder, for application to such Senior Debt remaining
unpaid, whether or not then due and payable.
2.02 Payment of Proceeds Upon Dissolution. In the event of (a) any
insolvency or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding in connection therewith, relative to
the Debtor or to its creditors, as such, or to its assets, or (b) any liquidation,
dissolution or other winding up of the Debtor, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the Debtor,
then and in any such event:
(1) the Holders shall be entitled to receive payment in full in cash of all amounts due
or to become due on or in respect of all Senior Debt, or provision shall be made for such
payment, before the Creditor shall be entitled to receive any payment on account of
principal of, or interest or premium (if any) on, the Subordinated Debt;
(2) any payment or distribution of assets of the Debtor of any kind or character,
whether in cash, property or securities, by set-off or otherwise, to which the Creditor
would be entitled but for the provisions of this Agreement, including any such payment or
distribution that may be payable or deliverable by reason of the payment of any other
indebtedness of the Debtor being subordinated to the payment of the Subordinated Debt, shall
be paid by the liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the Administrative Agent, to be paid to the Holders, ratably
according to the aggregate amounts then due and payable on account of the principal of, and
interest and premium (if any) on, the Senior Debt held by each Holder, to the extent
necessary to make payment in full in cash of all Senior Debt remaining unpaid, after giving
effect to any concurrent payment or distribution to the Holders;
(3) in the event that, notwithstanding the foregoing provisions of this Section 2.02,
the Creditor shall have received, before all Senior Debt is paid in full in cash or payment
thereof provided for, any such payment or distribution of assets of the Debtor of any kind
or character, whether in cash, property or securities, including any such payment or
distribution arising out of the exercise by the Creditor of a right of set-off or
counterclaim and any such payment or distribution received by reason of any other
indebtedness of the Debtor being subordinated to the Subordinated Debt, then, and in such
event, such payment or distribution shall be held in trust for the benefit of, and shall be
immediately paid over or delivered to, the Administrative Agent, to be paid to the Holders,
ratably according to the aggregate amounts remaining unpaid on account of the principal of,
and interest and premium (if any) on, the Senior Debt held or represented by each Holder, to
the extent necessary to make payment in full in cash of all Senior Debt remaining unpaid,
after giving effect to any concurrent payment or distribution to the Holders; and
(4) if the Creditor shall have failed to file claims or proofs of claim with respect to
the Subordinated Debt earlier than 30 days prior to the deadline for any such filing, the
Administrative Agent is hereby irrevocably authorized to vote and file proofs of claim and
otherwise to act with respect to the Subordinated Debt as the Administrative Agent may deem
appropriate in its reasonable discretion.
2.03 Certain Payments Permitted. Notwithstanding the foregoing, except
during any period when any Default shall have occurred and be continuing, the Creditor
shall be entitled to receive and retain any payment in respect of Debt made by on or
behalf of the Debtor to the Creditor.
2.04 Subrogation. Subject to the payment in full in cash of all Senior
Debt, the Creditor shall be subrogated (equally and ratably with the holders of all
indebtedness of the
Debtor that by its express terms is subordinated to Senior Debt of the Debtor to the
same extent as the Subordinated Debt is subordinated and that is entitled to like
rights of subrogation) to the rights of the Holders to receive payments and
distributions of cash, property and securities applicable to the Senior Debt until
the principal of, and interest and premium (if any) on, the Subordinated Debt shall
be paid in full in cash. For purposes of such subrogation, no payments or
distributions to the Holders of any cash, property or securities to which the
Creditor would be entitled except for the provisions of this Section 2, and no
payments over pursuant to the provisions of this Section 2 to the Holders by the
Creditor, shall, as between the Creditor, its creditors other than the Holders, and
the Creditor, be deemed to be a payment or distribution by the Creditor to or on
account of the Senior Debt.
2.05 Provisions Solely to Define Relative Rights. The provisions of this
Section 2 are and are intended solely for the purpose of defining the relative rights
of the Creditor on the one hand and the Holders on the other hand. Nothing contained
in this Section 2 or elsewhere in this Agreement is intended to or shall:
(a) impair, as among the Debtor, its creditors other than the Holders and the Creditor,
the obligation of the Debtor to pay to the Creditor the principal of and interest on the
Subordinated Debt as and when the same shall become due and payable in accordance with its
terms; or
(b) affect the relative rights against the Debtor of the Creditor and creditors of the
Debtor other than the Holders.
2.06 No Waiver of Subordination Provisions. No right of any Holder to
enforce subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Debtor or by any act or
failure to act, in good faith, by any Holder, or by any non-compliance by the Debtor
with the terms, provisions and covenants of this Agreement, regardless of any knowledge
thereof any Holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the Holders may, at
any time and from time to time, without the consent of or notice to the Creditor,
without incurring responsibility to the Creditor and without impairing or releasing the
subordination provided in this Section 2 or the obligations hereunder of the Creditor
to the holders of Senior Debt, do any one or more of the following: (a) change the
time, manner or place of payment of Senior Debt, or otherwise modify or supplement in
any respect any of the provisions of the Loan Documents or any other instrument
evidencing or relating to any of the Senior Debt; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior Debt;
(c) release any Person liable in any manner for the collection of Senior Debt; and (d)
exercise or refrain from exercising any rights against the Debtor and any other Person.
Section 3. Miscellaneous.
3.01 No Waiver. No failure on the part of any Holder to exercise, and no
course of dealing with respect to, and no delay in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise by any Holder of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any remedies provided by law.
3.02 Notices. All notices, requests, consents and demands hereunder shall
be in writing and telecopied or delivered to the intended recipient at the “Address for
Notices” specified beneath its name on the signature pages hereof or, as to either
party, at such other address as shall be designated by such party in a notice to the
other party. Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when transmitted by telecopier or personally
delivered or, in the case of a mailed notice, upon receipt, in each case given or
addressed as aforesaid.
3.03 Amendments, Etc. The terms of this Agreement may be waived, altered
or amended only by an instrument in writing duly executed by the Creditor and the
Administrative Agent with the consent of the Required Lenders. Any such amendment or
waiver shall be binding upon each Lender (and each holder of Senior Debt) and the
Creditor.
3.04 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Creditor and each
Holder.
3.05 Captions. The captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
3.06 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same instrument
and either of the parties hereto may execute this Agreement by signing any such
counterpart. Delivery of a counterpart signature page by facsimile transmission or by
e-mail transmission of an Adobe portable document format file (also known as a “PDF”
file) shall be effective as delivery of a manually executed counterpart signature page.
3.07 Governing Law; Submission to Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the law of the State of New York. The
Creditor hereby submits to the nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of the Supreme Court of the State of
New York sitting in New York County (including its Appellate Division), and of any
other appellate court in the State of New York, for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Creditor hereby irrevocably waives, to the fullest extent
permitted by applicable law, any objection that it may now or
hereafter have to the laying of the venue of any such proceeding brought in such a
court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
3.08 Waiver of Jury Trial. EACH OF THE CREDITOR AND THE ADMINISTRATIVE
AGENT (FOR ITSELF AND ON BEHALF OF THE HOLDERS) HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY
IN WITNESS WHEREOF, the parties hereto have caused this Subordinated
Indebtedness Subordination Agreement to be duly executed and delivered as of the day
and year first above written.
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[NAME OF CREDITOR] |
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By: |
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Name:
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Title: |
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Address for Notices: |
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[Address] |
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Attention: [ ] |
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Telephone No.: [ ] |
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Telecopier No.: [ ] |
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VIAD CORP |
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By: |
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Name:
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Title: |
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By: |
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Name:
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Address for Notices: |
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[Address] |
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Attention: [ ] |
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Telephone No.: [ ] |
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JPMORGAN CHASE BANK, N.A., as Administrative Agent |
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By: |
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Address for Notices: |
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[Address] |
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Attention: [ ] |
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Telephone No.: [ ] |
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EXHIBIT D
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between [Insert name
of Assignor] (the “Assignor”) and [Insert name of Assignee] (the
“Assignee”). Capitalized terms used but not defined herein shall have the
meanings given to them in the Amended and Restated Credit Agreement identified below
(as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to
the Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions and the
Credit Agreement, as of the Effective Date inserted by the Administrative Agent as
contemplated below (i) all of the Assignor’s rights and obligations in its capacity as
a Lender under the Credit Agreement and any other documents or instruments delivered
pursuant thereto to the extent related to the amount and percentage interest identified
below of all of such outstanding rights and obligations of the Assignor under the
respective facilities identified below (including any letters of credit, guarantees,
and swing line loans included in such facilities) and (ii) to the extent permitted to
be assigned under applicable law, all claims, suits, causes of action and any other
right of the Assignor (in its capacity as a Lender) against any Person, whether known
or unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions governed
thereby or in any way based on or related to any of the foregoing, including contract
claims, tort claims, malpractice claims, statutory claims and all other claims at law
or in equity related to the rights and obligations sold and assigned pursuant to clause
(i) above (the rights and obligations sold and assigned pursuant to clauses (i) and
(ii) above being referred to herein collectively as the “Assigned Interest”).
Such sale and assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty by the
Assignor.
1. |
Assignor: |
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2. |
Assignee: |
[and is an Affiliate/Approved Fund of [identify Lender]3] |
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3. |
Borrower: |
Viad Corp |
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4. |
Administrative Agent: |
JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement |
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5. |
Credit Agreement: |
The $130,000,000 Amended and Restated Credit Agreement dated as of May 18,
2011 among Viad Corp, the Lenders parties thereto, JPMorgan Chase |
Bank, N.A., as Administrative Agent, and the other agents parties thereto, as amended,
restated, supplemented or otherwise modified and in effect from time to time.
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Aggregate Amount of |
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Amount of |
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Percentage Assigned |
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Commitment/Loans |
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Commitment/Loans |
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of |
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Facility Assigned |
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for all Lenders |
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Assigned |
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Commitment/Loans4 |
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$ |
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$ |
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% |
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Effective Date:
_____, 20___
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire
in which the Assignee designates one or more credit contacts to whom all syndicate-level
information (which may contain material non-public information about the Borrower, the Credit
Parties and their related parties or their respective securities) will be made available and who
may receive such information in accordance with the Assignee’s compliance procedures and applicable
laws, including Federal and state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR
[NAME OF ASSIGNOR] |
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By: |
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Title:
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ASSIGNEE
[NAME OF ASSIGNEE] |
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By: |
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Title:
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[Consented to and] Accepted:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
[Consented to:]
VIAD CORP
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4 |
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Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder. |
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By |
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Title:
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By |
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Title:
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Consented to: |
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JPMORGAN CHASE BANK, N.A., |
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as LC Issuer |
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By |
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Title:
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ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
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Representations and Warranties. |
1.1 |
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Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free
and clear of any lien, encumbrance or other adverse claim and (iii) it has full power
and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby; and
(b) assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other Loan
Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the
financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document or (iv) the performance or observance
by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Loan Document. |
1.2. |
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Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements,
if any, specified in the Credit Agreement that are required to be satisfied by it in
order to acquire the Assigned Interest and become a Lender, (iii) from and after the
Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the obligations of a
Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with
copies of the most recent financial statements delivered pursuant to Section 5.4
thereof, as applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this Assignment
and Assumption and to purchase the Assigned Interest on the basis of which it has made
such analysis and decision independently and without reliance on the Administrative
Agent or any other Lender, and (v) if it is a Non-U.S. Lender, attached to the
Assignment and Assumption is any documentation required to be delivered by it pursuant
to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender. |
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Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignor for amounts which have
accrued to but excluding the Effective Date and to the Assignee for amounts which have
accrued from and after the Effective Date. |
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General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective successors
and assigns. This Assignment and Assumption may be executed in any number of
counterparts, which together shall constitute one instrument. Delivery of an executed
counterpart of a signature page of this Assignment and Assumption by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York. |
EXHIBIT E
EXHIBIT E-1
FORM OF U.S. TAX CERTIFICATE
(For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement (as amended, restated,
supplemented or otherwise modified and in effect from time to time, the “Credit Agreement”)
dated as of May 18, 2011 among Viad Corp (the “Borrower”), the Lenders from time to time
party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.
Pursuant to the provisions of Section 3.4 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any
Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is
not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent
shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not
a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of
the Code and (v) the interest payments in question are not effectively connected with the
undersigned’s conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of
its non-U.S. person status on IRS Form W-8BEN. By executing this certificate, the undersigned
agrees that (1) if the information provided on this certificate changes, the undersigned shall
promptly so inform the Borrower and the Administrative Agent and (2) the undersigned shall have at
all times furnished the Borrower and the Administrative Agent with a properly completed and
currently effective certificate in either the calendar year in which each payment is to be made to
the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
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Name:
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Date: __, 20__ |
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EXHIBIT E-2
FORM OF U.S. TAX CERTIFICATE
(For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement (as amended, restated,
supplemented or otherwise modified and in effect from time to time, the “Credit Agreement”)
dated as of May 18, 2011 among Viad Corp (the “Borrower”), the Lenders from time to time
party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.
Pursuant to the provisions of Section 3.4 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing
such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are
the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii)
with respect to the extension of credit pursuant to this Credit Agreement, neither the undersigned
nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered
into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of
the Code, (iv) none of its partners/members is a ten percent shareholder of the Borrower within the
meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled
foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and
(vi) the interest payments in question are not effectively connected with the undersigned’s or its
partners/members’ conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY
accompanied by an IRS Form W-8BEN from each of its partners/members claiming the portfolio interest
exemption. By executing this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the
Administrative Agent and (2) the undersigned shall have at all times furnished the Borrower and the
Administrative Agent with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two
calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
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Name:
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Date: __, 20__ |
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EXHIBIT E-3
FORM OF U.S. TAX CERTIFICATE
(For Non-U.S. Participants That Are Not Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement (as amended, restated,
supplemented or otherwise modified and in effect from time to time, the “Credit Agreement”)
dated as of May 18, 2011 among Viad Corp (the “Borrower”), the Lenders from time to time
party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.
Pursuant to the provisions of Section 3.4 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the participation in respect of
which it is providing this certificate, (ii) it is not a bank within the meaning of Section
881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the
meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation
related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (v) the interest
payments in question are not effectively connected with the undersigned’s conduct of a U.S. trade
or business.
The undersigned has furnished its participating Lender with a certificate of its non-U.S.
person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1)
if the information provided on this certificate changes, the undersigned shall promptly so inform
such Lender in writing and (2) the undersigned shall have at all times furnished such Lender with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
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Name:
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Date: __, 20__ |
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EXHIBIT E-4
FORM OF U.S. TAX CERTIFICATE
(For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement (as amended, restated, supplemented or
otherwise modified and in effect from time to time, the “Credit Agreement”) dated as of May
18, 2011 among Viad Corp (the “Borrower”), the Lenders from time to time party thereto and
JPMorgan Chase Bank, N.A., as Administrative Agent.
Pursuant to the provisions of Section 3.4 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the participation in respect of which it is
providing this certificate, (ii) its partners/members are the sole beneficial owners of such
participation, (iii) with respect such participation, neither the undersigned nor any of its
partners/members is a bank extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,
(iv) none of its partners/members is a ten percent shareholder of the Borrower within the meaning
of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign
corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the
interest payments in question are not effectively connected with the undersigned’s or its
partners/members’ conduct of a U.S. trade or business.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by an
IRS Form W-8BEN from each of its partners/members claiming the portfolio interest exemption. By
executing this certificate, the undersigned agrees that (1) if the information provided on this
certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned
shall have at all times furnished such Lender with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or
in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
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Date: __, 20__ |
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AFFIRMATION AND AMENDMENT OF COLLATERAL DOCUMENTS
This Affirmation and Amendment of Collateral Documents (the “Affirmation”) dated as of May 18,
2011 is entered into by Viad Corp (the “Borrower”) and Global Experience Specialists, Inc. (the
“Guarantor”) with and for the benefit of JPMorgan Chase Bank, N.A., the successor by merger to Bank
One, NA, as administrative agent (the “Administrative Agent”) and the other present and future
holders of Secured Obligations (as defined in the Security Agreements referenced below). Terms
used but not otherwise defined herein have the meaning ascribed thereto by the Amended Credit
Agreement (as defined below).
1. Reference is made to that certain Amended and Restated Credit Agreement dated as of June
15, 2006 among the Borrower, the financial institutions signatory thereto, and JPMorgan Chase Bank,
N.A., as administrative agent (as amended prior to the date hereof, the “Existing Credit
Agreement”).
2. Reference is also made to that certain Pledge and Security Agreement dated as of June 30,
2004 by and between the Borrower and JPMorgan Chase Bank, N.A., the successor by merger to Bank
One, NA, as administrative agent (as amended prior to the date hereof, the “Parent Security
Agreement”).
3. Reference is also made to that certain Subsidiary Pledge and Security Agreement dated as of
June 30, 2004 by and between the Guarantor and JPMorgan Chase Bank, N.A., the successor by merger
to Bank One, NA, as administrative agent (as amended prior to the date hereof, the “Subsidiary
Security Agreement” and, collectively with the Parent Security Agreement, the “Security
Agreements”).
4. Reference is also made to that certain Guaranty made as of June 30, 2004 by the Guarantor
in favor of Bank One, NA, as administrative agent, for the benefit of the “Lenders” under the
Existing Credit Agreement (as amended prior to the date hereof, the “Subsidiary Guaranty” and,
collectively with the Security Agreements, the “Reaffirmed Documents”).
5. Reference is also made to that certain Amended and Restated Credit Agreement dated
as of the date hereof among the Borrower, the financial institutions signatory thereto (the
“Lenders”) and the Administrative Agent (the “Amended Credit Agreement”), which agreement amends
and restates the Existing Credit Agreement.
6. In order to induce the Administrative Agent and the Lenders to enter into and extend or
continue credit under the Amended Credit Agreement, the Borrower and the Guarantor (and, where
applicable, the Administrative Agent) hereby:
(a) agree to and reaffirm all of the terms and conditions of the Reaffirmed
Documents as if the same had been fully set forth herein;
(b) agree that for all purposes of the Reaffirmed Documents, the Amended Credit
Agreement shall be deemed to be the “Credit Agreement” and, hereafter, the term
“Credit Agreement” (as defined in each of the Security
Agreements and the Guaranty) shall mean the Amended Credit Agreement, as from
time to time amended or modified;
(c) without limiting the foregoing, make and confirm the grant of the security
interests as set forth in Article II of each of the Security Agreements to the
Administrative Agent on behalf of, and for the benefit of, the holders of the
Secured Obligations;
(d) without limiting the foregoing, make and confirm the grant of the guaranty
as set forth in Section 3 of the Subsidiary Guaranty to the Administrative Agent on
behalf of, and for the benefit of, the holders of the Secured Obligations;
(e) represent and warrant that the representations and warranties set forth in
Article III of each of the Security Agreements and Section 2.1 of the Subsidiary
Guaranty are true and correct on and as of the date hereof; and
7. The Administrative Agent and the Borrower further agree that the Parent Security Agreement
is amended as follows:
(a) The definition of “Secured Obligations” is amended in its entirety to read as
follows:
“‘Secured Obligations’ means the Obligations, the Rate Management
Obligations owed to one or more of the Lenders (including Lenders that have ceased
to be a party to the Credit Agreement) or their Affiliates and all obligations in
respect of overdrafts and related liabilities owed to one or more of the Lenders
(including Lenders that have ceased to be a party to the Credit Agreement) or their
Affiliates arising from treasury, depositary and cash management services or in
connection with any automated clearinghouse transfer of funds; provided that
with respect to Rate Management Obligations arising under agreements entered into
after May
_____, 2011, at or prior to the time that any transaction relating to such
Rate Management Obligation or treasury, depositary or cash management services or
automated clearinghouse transfer of funds is executed, the Lender (other than JPMCB)
party thereto or its Affiliate party thereto shall have delivered written notice to
the Administrative Agent that such a transaction has been entered into and that it
constitutes a Secured Obligation entitled to the benefits of the Collateral
Documents.”
(b) Section 4.3.2 is amended in its entirety to read as follows:
“Insurance. The Borrower will (i) maintain fire and extended coverage
insurance on the Inventory and Equipment containing a lender’s loss payable clause
in favor of the Agent, on behalf of the Lenders, and providing that said insurance
will not be terminated except after at least 30 days’ written notice from the
Borrower to the Agent, (ii) maintain such other insurance on the collateral for the
benefit of the Agent as the Agent shall from time to time request, (iii) upon the
request of the Agent from time to time, make the originals of all policies of
insurance on the Collateral available for inspection at Borrower’s offices and
furnish to the Agent certificates with respect to such insurance and (iv) maintain
general liability insurance naming the Agent, on behalf of the Lenders, as an
additional insured; provided, that the foregoing insurance policies and programs may
be subject to such deductibles or self-insurance amounts as reflect coverage that is
reasonably consistent with prudent industry practices.”
(c) Exhibits A through F of the Parent Security Agreement are amended in their
entirety to read as set forth on Exhibits A through F hereto.
8. The Administrative Agent and the Guarantor agree that:
(a) the sections of the Subsidiary Security Agreement corresponding to the sections of the
Parent Security Agreement amended by Sections 7(a) and (b) above are likewise amended
mutatis mutandis.
(b) Exhibits A through F and Schedule 3.6 of the Subsidiary Security Agreement are amended in
their entirety to read as set forth on Exhibits A through F and Schedules 3.6 hereto.
9. The parties agree that except as expressly modified hereby the Reaffirmed Documents remain
in full force and effect in accordance with their terms.
10. This Affirmation 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.
11. This Affirmation shall be construed in accordance with the internal laws of the State of
New York, but giving effect to federal laws applicable to national banks.
[signature pages follow]
IN WITNESS WHEREOF, the Borrower and the Guarantor have executed this Affirmation as of the
date first written above.
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VIAD CORP, as Borrower
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By: |
/s/ Xxxxx X. Xxxxxxxxx
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Name: |
Xxxxx X. Xxxxxxxxx |
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Title: |
Chief Financial Officer |
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By: |
/s/ Xxxxx X. Xxxxxx
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Name: |
Xxxxx X. Xxxxxx |
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Title: |
Treasurer |
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GLOBAL EXPERIENCE SPECIALISTS, INC., as
Guarantor
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By: |
/s/ Xxxxx X. Xxxxxxxxx
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Name: |
Xxxxx X. Xxxxxxxxx |
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Title: |
Vice President |
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By: |
/s/ Xxxxx X. Xxxxxx
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Name: |
Xxxxx X. Xxxxxx |
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Title: |
Treasurer |
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Acknowledged and agreed as of the date first written above.
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JPMORGAN CHASE BANK, N.A.,
as Administrative Agent |
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By:
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/s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx |
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Title: Vice President |
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