CONFORMED EXECUTION COPY
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$435,000,000
SECOND AMENDED AND RESTATED
REVOLVING
CREDIT AGREEMENT
dated as of September 29, 2005
(amending and restating the
Amended and Restated Credit Agreement,
dated as of July 22, 2004)
among
WORTHINGTON INDUSTRIES, INC.,
as the Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
PNC BANK, NATIONAL ASSOCIATION,
as Issuing Lender, Swingline Lender and Administrative Agent,
THE BANK OF NOVA SCOTIA,
as Syndication Agent and Sole Bookrunner,
and
U.S. BANK NATIONAL ASSOCIATION,
WACHOVIA BANK, NATIONAL ASSOCIATION,
and COMERICA BANK,
as Co-Documentation Agents.
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THE BANK OF NOVA SCOTIA
and
PNC CAPITAL MARKETS, INC.,
as Joint Lead Arrangers
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SECOND AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT
This Second Amended and Restated Revolving Credit Agreement (this
"Agreement") is dated as of September 29, 2005 and is among WORTHINGTON
INDUSTRIES, INC., an Ohio corporation (the "Borrower"), the financial
institutions and other Persons from time to time party hereto (the "Lenders"),
PNC BANK, NATIONAL ASSOCIATION, as Issuing Lender, Swingline Lender and
Administrative Agent, and THE BANK OF NOVA SCOTIA, as Syndication Agent and Sole
Bookrunner.
W I T N E S S E T H:
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WHEREAS, pursuant to the Amended and Restated Revolving Credit Agreement,
dated as of July 22, 2004 (as amended, supplemented or otherwise modified prior
to the date hereof, the "Existing Credit Agreement"), among the Borrower,
certain banks and financial institutions from time to time party thereto (the
"Existing Lenders"), PNC Bank, National Association, as Issuing Lender,
Swingline Lender and Administrative Agent thereunder and The Bank of Nova
Scotia, as Syndication Agent and Sole Bookrunner thereunder, the Existing
Lenders were committed to make extensions of credit to the Borrower on the terms
and conditions set forth therein and made revolving loans (the "Existing
Revolving Loans") and swingline loans (the "Existing Swingline Loans" and,
together with the Existing Revolving Loans, the "Existing Loans") to the
Borrower;
WHEREAS, the Borrower desires to, among other things, obtain the
Commitments to make Loans on the terms and conditions set forth herein for the
purposes set forth herein;
WHEREAS, the Borrower has requested that the Existing Credit Agreement be
amended and restated in its entirety to become effective and binding on the
Borrower pursuant to the terms of this Agreement, and the Lenders have agreed
(subject to the terms of this Agreement) to amend and restate the Existing
Credit Agreement in its entirety to read as set forth in this Agreement, and it
has been agreed by the parties to the Existing Credit Agreement that (a) the
commitments which the Existing Lenders have agreed to extend to the Borrower
under the Existing Credit Agreement shall be extended or advanced upon the
amended and restated terms and conditions contained in this Agreement, and (b)
the Existing Loans and other Obligations (as defined in the Existing Credit
Agreement) outstanding under the Existing Credit Agreement shall be governed by
and deemed to be outstanding under the amended and restated terms and conditions
contained in this Agreement, with the intent that the terms of this Agreement
shall amend and restate in their entirety the terms of the Existing Credit
Agreement (each of which shall hereafter have no further effect upon the parties
thereto, other than for fees and expenses accrued and owing and indemnification
provisions arising under the terms of the Existing Credit Agreement on or prior
to the date hereof or arising (in the case of an indemnification) under the
terms of the Existing Credit Agreement); and
NOW, THEREFORE, the parties hereto hereby agree to amend and restate the
Existing Credit Agreement, and the Existing Credit Agreement is hereby amended
and restated in its entirety as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Defined Terms. As used in this Agreement, including its
preamble and recitals, the following terms shall have the meanings set forth
below (such meanings to be equally applicable to the singular and plural forms
thereof):
"Active Restricted Subsidiary" means a Restricted Subsidiary having a net
worth in excess of $1,000,000.
"Administrative Agent" means PNC Bank, National Association, in its
capacity as administrative agent for the Lenders hereunder and under the other
Loan Documents, and its successor or successors in such capacity.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address and account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (i)
to vote 10% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managing general partners or (ii)
to direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"Agent" means the Administrative Agent or the Syndication Agent and any
successors and assigns in such capacity, and "Agents" means any two or more of
them.
"Agent-Related Persons" means any Agent, together with its Affiliates
(including in the case of PNC Bank, National Association in its capacity as the
Administrative Agent), and the officers, directors, employees, agents and
attorneys-in-fact of such Person and its Affiliates.
"Agreement" means the Existing Credit Agreement, as amended and restated
hereby and as further amended, restated, supplemented or otherwise modified from
time to time.
"Amendment Effective Date" means the date this Agreement becomes
effective pursuant to Section 10.17.
"Anti-Terrorism Laws" means any Laws relating to terrorism or money
laundering, including Executive Order No. 13224, the USA Patriot Act, the Laws
compromising or implementing the Bank Secrecy Act and the Laws administered by
the United States Treasury Department's Office of Foreign Asset Control (as any
of the foregoing Laws may from time to time be amended, renewed, extended or
replaced).
"Applicable Interbank Offered Rate" for any Eurodollar Loan for the
Interest Period applicable thereto means:
(i) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on display page
3750 of the Moneyline Telerate screen (or any successor thereto) that
displays the average British Bankers Association Interest Settlement Rate
for deposits in Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as of
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period; or
(ii) if the rate referenced in clause (i) above does not appear
on such page or service or such page or service shall cease to be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on such other page
or service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 A.M. two Business Days prior to the
first day of such Interest Period; or
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(iii) if the rates referenced in the preceding clauses (i) and
(ii) are not available, the rate per annum determined by the Administrative
Agent as the rate of interest (rounded upwards to the next 1/100th of 1%)
at which deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the Eurodollar Loan
being made, continued or converted with a term equivalent to such Interest
Period would be offered by PNC Bank, National Association or one of its
Affiliates to major banks in the offshore market for Dollars at their
request at approximately 11:00 A.M. (London time) two Business Days prior
to the first day of such Interest Period.
"Applicable Lending Office" means (i) with respect to any Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of
such Lender) designated for such Type of Loan on Schedule 10.02 or such other
office of such Lender (or of an Affiliate of such Lender) as such Lender may
from time to time specify to the Administrative Agent and the Borrower as the
office by which its Loans of such Type are to be made and maintained; provided
that any Lender may from time to time by notice to the Borrower and the
Administrative Agent designate separate Eurodollar Lending Offices for loans in
different currencies, in which case all references herein to the Applicable
Lending Office of such Lender shall, with respect to its Eurodollar Loans, be
deemed to refer to any or all of such offices, as the context may require, in
which case all references herein to the Applicable Lending Office of such Lender
shall, with respect to such Loans, be deemed to refer to any or all of such
offices, as the context may require, and (ii) with respect to any Issuing Lender
and for each Letter of Credit, the "Lending Office" of such Issuing Lender (or
of an Affiliate of such Issuing Lender) designated on Schedule 10.02 or such
other office of such Issuing Lender (or of an Affiliate of such Issuing Lender)
as such Lender may from time to time specify to the Administrative Agent and the
Borrower as the office by which its Letters of Credit are to be issued and
maintained.
"Applicable Margin" means, for purposes of calculating (i) the applicable
interest rate for any day for any Base Rate Loans or Eurodollar Loans or (ii)
the applicable rate for the Facility Fee for any day for purposes of Section
2.12(a), the appropriate applicable percentage set forth below corresponding to
then current Worthington's Ratings:
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Applicable Applicable Percentage for
Worthington's Applicable Percentage Percentage for Base Eurodollar
Ratings (S&P/Moody's) for Facility Fees Rate Loans Loans
--------------------- ---------------------- ------------------------- --------------------- ----------------------------
Category A: BBB+/Baal or higher .100% 0% .400%
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Category B: BBB/Baa2 .125% 0% .500%
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Category C: BBB-/Baa3 .175% 0% .575%
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Category D: BB+/Ba1 or .250% 0% 1.125%
lower or unrated
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Initially, the Applicable Margins for Base Rate Loans and Eurodollar
Loans and the applicable rate for Facility Fees shall be based upon
Worthington's Ratings specified in the certificate delivered pursuant to Section
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4.01(d)(ii) of this Agreement. Thereafter, each change in the Applicable Margins
for Base Rate Loans and Eurodollar Loans and the applicable rate for Facility
Fees shall be effective during the period commencing on the date of a public
announcement with respect to a change in Worthington's Ratings and ending on the
date immediately preceding the effective date of the next such change, if any.
In the event a rating differential of one level exists, Worthington's Ratings
shall be deemed to be the higher of the two ratings. In the event a rating
differential of more than one level exists, Worthington's Ratings shall be
deemed to be one level below the higher rating.
"Approved Fund" means (i) with respect to any Lender, an entity (whether
a corporation, partnership, limited liability company, trust or otherwise) that
is engaged in making, purchasing, holding or otherwise investing in bank loans
and similar extensions of credit in the ordinary course of its business and is
managed by such Lender or an Affiliate of such Lender, (ii) with respect to any
Lender that is a fund that invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor and (iii) any special purpose funding
vehicle described in Section 10.06(h).
"Assignment and Acceptance" means an Assignment and Acceptance,
substantially in the form of Exhibit C hereto, under which an interest of a
Lender hereunder is transferred to an Eligible Assignee pursuant to Section
10.06(b).
"Associate" has the meaning given to it in Rule 12b-2 under the Exchange
Act.
"Attorney Costs" means all reasonable and actual fees and disbursements
of any law firm or other external counsel.
"Bankruptcy Event" means, with respect to any Person, (i) a court or
governmental agency having appropriate jurisdiction shall enter a decree or
order for relief in respect of such Person in an involuntary case under any
Debtor Relief Law now or hereafter in effect, or appoint a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of such Person or
for any substantial part of its property or ordering the winding up or
liquidation of its affairs, (ii) an involuntary case under any applicable Debtor
Relief Law now or hereafter in effect is commenced against such Person and such
petition remains unstayed and in effect for a period of 60 consecutive days,
(iii) such Person shall commence a voluntary case under any applicable Debtor
Relief Law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of such Person or any substantial part of its
property or make any general assignment for the benefit of creditors or (iv)
such Person shall admit in writing its inability to pay its debts generally as
they become due or any definitive action shall be taken by such Person in
preparation for any of the aforesaid.
"Base Rate" means, for any day, (a) a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Open Rate for such day (any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Open Rate shall be effective on
the effective date of such change in the Prime Rate or the Federal Funds Open
Rate) or (b) exclusively for purposes of Swingline Loans, any other rate per
annum that may be agreed upon between the Swingline Lender and the Borrower.
"Base Rate Loan" means a Loan which bears interest at the Base Rate
pursuant to the applicable Revolving Loan Request, Swingline Loan Request,
Notice of Extension/Conversion or the provisions of Article III.
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"Blocked Person" means any Person (i) that is listed in the annex to, or
is otherwise subject to the provisions of, Executive Order No. 13224; (ii) owned
or controlled by, or acting for or on behalf of, any Person that is listed in
the annex to, or is otherwise subject to the provisions of, Executive Order No.
13224; (iii) with which any Lender is prohibited from dealing or otherwise
engaging in any transaction by any Anti-Terrorism Law; (iv) that commits,
threatens or conspires to commit or supports "terrorism" as defined in Executive
Order No. 13224; (v) that is named as a "specially designated national" on the
most current list published by the U.S. Treasury Department Office of Foreign
Asset Control at its official website or any replacement website or other
replacement official publication of such list; or (vi) who is affiliated or
associated with a person or entity listed above.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means Worthington Industries, Inc., an Ohio corporation, and
its successors.
"Borrower's 2005 Form 10-K" means the Borrower's annual report on Form
10-K for the fiscal year ended May 31, 2005, as filed with the Securities and
Exchange Commission pursuant to the Exchange Act.
"Borrowing" has the meaning set forth in Section 1.04.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks are authorized or required to close, under the laws of,
or are in fact closed in, the state where the Administrative Agent's Office is
located, except that:
(i) when used in Section 2.06 with respect to any action taken
by or with respect to any Issuing Lender, or to the issuance of, drawing
under, or reimbursement obligation arising in respect of, a Letter of
Credit or a notice by the Borrower with respect to any such issuance,
drawing or reimbursement obligation, the term "Business Day" shall not
include any day on which commercial banks are authorized or required to
close, under the laws of, or in fact closed in, the jurisdiction where such
Issuing Lender's Applicable Lending Office is located; and
(ii) if such day relates to a borrowing of, a payment or
prepayment of principal of or interest on, or the Interest Period for, a
Eurodollar Loan, or a notice by the Borrower with respect to any such
borrowing, payment, prepayment or Interest Period, such day shall also be a
day on which commercial banks are open for international business
(including dealings in Dollar deposits) in London.
"Capital Lease" of any Person means any lease of property (whether real,
personal or mixed) by such Person as lessee which would, in accordance with
GAAP, be required to be accounted for as a capital lease on the balance sheet of
such Person.
"Capital Lease Obligations" means, with respect to any Person, all
obligations of such Person as lessee under Capital Leases, in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"Capitalization" means Consolidated Indebtedness plus Consolidated Net
Worth.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Issuing Lenders and the Lenders, as
collateral for the LC Obligations, cash or deposit balances pursuant to
documentation in form and substance satisfactory to the Administrative Agent and
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the Issuing Lenders (which documents are hereby consented to by the Lenders).
Derivates of such term have a corresponding meaning.
"Cash Equivalents" means:
(i) securities issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States of
America is pledged in support thereof) having maturities of not more than
twelve months from the date of acquisition;
(ii) Dollar-denominated certificates of deposit of (A) any
Lender, (B) any United States commercial bank of recognized standing having
capital and surplus in excess of $500,000,000 or (C) any bank whose (or
whose parent company's) short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Xxxxx'x is at least P-1 or the
equivalent thereof (any such bank being an "Approved Lender"), in each case
with maturities of not more than 270 days from the date of acquisition;
(iii) commercial paper and variable or fixed rate notes issued by
any Approved Lender (or by the parent company thereof) or any variable rate
notes issued by, or guaranteed by, any domestic corporation not an
Affiliate of the Borrower rated A-1 (or the equivalent thereof) or better
by S&P or P-1 (or the equivalent thereof) or better by Moody's and maturing
within six months of the date of acquisition;
(iv) repurchase agreements with a bank or trust company
(including any of the Lenders) or recognized securities dealer having
capital and surplus in excess of $500,000,000 for direct obligations issued
by or fully guaranteed by the United States of America in which the
Borrower or one or more of its Subsidiaries shall have a perfected first
priority security interest (subject to no other Liens) and having, on the
date of purchase thereof, a fair market value of at least 100% of the
amount of the repurchase obligations;
(v) auction rate securities of an issuer rated at least AA by
S&P or Aa2 by Moody's, regardless of the stated maturity, so long as such
securities have a liquidity mechanism permitting the Disposition of such
securities at par within one year from the issuance of such securities or
from the date of the immediately preceding permitted Disposition of such
securities; and
(vi) Investments, classified in accordance with GAAP as current
assets, in money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character described
in the foregoing clauses (i) through (v).
"Change of Control" means, with respect to any Person, an event or series
of events by which:
(i) any "person" or "group" (within the meaning of Section
13(d) and 14(d) of the Exchange Act) (other than Xxxx X. XxXxxxxxx, Xxxx X.
XxXxxxxxx, their Affiliates, their Associates (as defined in Rule 12b-2
under the Exchange Act), or a group which the foregoing are a principal
participant, or any profit sharing, employee stock ownership or other
employee benefit plan of the Borrower or any Subsidiary of the Borrower or
any trustee or fiduciary with respect to any such plan when acting in such
capacity) has become the "beneficial owner" (as defined in Rules 13d-3 and
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13d-5 under the Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all securities that any such Person has the right
to acquire, whether such right is exercisable immediately or only after the
passage of time), by way of merger, consolidation or otherwise, of 30% or
more of the Equity Interests of such Person on a fully-diluted basis after
giving effect to the conversion and exercise of all outstanding Equity
Equivalents (whether or not such Equity Equivalents are then currently
convertible or exercisable); or
(ii) during any period of 12 consecutive months, a majority of
the members of the board of directors or other equivalent governing body of
such Person cease to be composed of individuals (A) who were members of
that board or equivalent governing body on the first day of such period,
(B) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (ii)(A) above
constituting at the time of such election or nomination at least a majority
of that board or equivalent governing body or (C) whose election or
nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (ii)(A) and (B) above constituting at
the time of such election or nomination at least a majority of that board
or equivalent governing body.
"Closing Date" means May 10, 2002.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time.
"Commitment" means (i) with respect to each Lender, its Revolving
Commitment, (ii) with respect to each Issuing Lender, its LC Commitment and
(iii) with respect to the Swingline Lender, the Swingline Commitment, in each
case in the respective amount set forth on Schedule 1.01A or in the applicable
Assignment and Acceptance, as any such amount may be increased or decreased from
time to time pursuant to this Agreement.
"Consolidated EBITDA" means, for any period, the sum of (i) Consolidated
Net Income for such period plus (ii) an amount which, in the determination of
Consolidated Net Income for such period, has been deducted for (A) Consolidated
Interest Expense, (B) provisions for Federal, state, local and foreign income,
value added and similar taxes and (C) depreciation, amortization (including,
without limitation, amortization of goodwill and other intangibles) and other
non-cash expense, all determined in accordance with GAAP, minus (iii) an amount
which, in the determination of Consolidated Net Income for such period, has been
added for (A) interest income and (B) any non-cash income or non-cash gains, all
as determined in accordance with GAAP. If the Borrower or any Subsidiary makes a
material acquisition or divestiture, in either case to the extent permitted
pursuant to this Agreement, during any period for which Consolidated EBITDA is
measured, then for purposes of determining the Interest Coverage Ratio,
Consolidated EBITDA shall be adjusted for the period of time prior to the date
of such acquisition or divesture by adding the historical financial results for
such period of the Person or assets acquired (without taking account of cost
savings or others synergies unless approved by the Required Lenders) or deleting
that portion of the financial results of the Borrower and its Consolidated
Subsidiaries for such period attributable to the Person or assets divested, all
as reasonably determined by the Borrower and certified to the Administrative
Agent and the Lenders.
"Consolidated Indebtedness" means at any date the Indebtedness of the
Borrower and its Subsidiaries, determined on a consolidated basis as of such
date.
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"Consolidated Interest Expense" means, for any period, the aggregate
interest expense of the Borrower and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, including, without
duplication, the portion of any cash payments made or accrued in respect of
Capital Lease Obligations allocable to interest expense.
"Consolidated Net Income" means, for any period, the net income (or net
loss) after taxes of the Borrower and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP; provided that there
shall be excluded from the calculation of Consolidated Net Income (i) the income
(or loss) of any Person (referred to herein as "Person A") in which any other
Person (other than the Borrower or any of its Wholly-Owned Subsidiaries) has an
ownership interest and which Person A would not be consolidated with the
Borrower and its Subsidiaries in their consolidated financial statements if such
statements were prepared for such period in accordance with GAAP, except to the
extent that any such income is actually received by the Borrower or any of its
Wholly-Owned Subsidiaries in the form of dividends or other distributions during
such period and (ii) the income of any Subsidiary of the Borrower to the extent
that the declaration or payment of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Subsidiary.
"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of the amounts that would appear on a consolidated
balance sheet of the Borrower and its Subsidiaries for the total assets (less
accumulated depletion, depreciation or amortization, allowances for doubtful
receivables, other applicable reserves and other properly deductible items) of
the Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP, after deducting therefrom, to the extent included in total
assets, in each case as determined on a consolidated basis in accordance with
GAAP (without duplication): (i) the aggregate amount of liabilities of the
Borrower and its Subsidiaries which may properly be classified as current
liabilities (including taxes accrued as estimated); (ii) current Indebtedness
and current maturities of long-term Indebtedness; (iii) minority interests in
the Borrower's subsidiaries held by Persons other than the Borrower or a
wholly-owned Subsidiary of the Borrower; and (iv) unamortized debt discount and
expenses and other unamortized deferred charges, goodwill, patents, trademarks,
service marks, trade names, copyrights, licenses, organization or developmental
expenses and other intangible items.
"Consolidated Net Worth" means at any time the consolidated stockholders'
equity of the Borrower and its Subsidiaries calculated on a consolidated basis
in accordance with GAAP as of such time.
"Consolidated Subsidiary" means with respect to any Person at any date
any Subsidiary of such Person or other entity the accounts of which would be
consolidated with those of such Person in its consolidated financial statements
if such statements were prepared as of such date in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
material security issued by such Person or of any material agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound.
"Controlling Person" means, with respect any Person, the beneficial owner
of a percentage of the voting power of the Equity Interests of any such Person
sufficient to approve an action of any such Person which requires a simple
majority of the owners of such Equity Interest to vote to approve any such
action; provided that any such Person is a Consolidated Subsidiary of such
Controlling Person.
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"Credit Exposure" has the meaning set forth in the definition of
"Required Lenders" in this Section 1.01.
"Credit Extension" means a Borrowing or the issuance, renewal or
extension of a Letter of Credit or the purchase by a Lender of a Participation
Interest.
"Creditor" means each Lender, each Issuing Lender, each Agent and each
Indemnitee and their respective successors and assigns, and "Creditors" means
any two or more of such Creditors.
"Debtor Relief Laws" means the Bankruptcy Reform Act of 1978, as amended,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization or similar debtor relief laws of the United States of America or
other applicable jurisdiction from time to time affecting the rights of
creditors generally.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Defaulting Lender" means at any time any Lender that, within one
Business Day of when due, (i) has failed to make a Loan or purchase a
Participation Interest in a Swingline Loan or LC Obligation required pursuant to
the terms of this Agreement, (ii) other than as set forth in clause (i) above,
has failed to pay to any Agent or any Lender an amount owed by such Lender
pursuant to the terms of this Agreement or any other Loan Document or (iii) has
been deemed insolvent or has become subject to a Bankruptcy Event.
"Derivatives Agreement" means (i) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement and (ii) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement or any other master agreement.
"Derivatives Obligations" of any Person means all obligations (including,
without limitation, any amounts which accrue after the commencement of any
Bankruptcy Event with respect to such Person, whether or not allowed or
allowable as a claim under any applicable Debtor Relief Laws) of such Person in
respect of any Derivatives Agreement, excluding any amounts which such Person is
entitled to set-off against its obligations under applicable law.
"Disposition" or "Dispose" means the sale, transfer, license or other
disposition (including any Sale/Leaseback Transaction) of any property by any
Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes, accounts receivable or payment intangible or any
rights or claims associated therewith.
"Dollars" and the sign "$" means lawful money of the United States of
America.
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"Eligible Assignee" means (i) any Lender, (ii) any Affiliate of a Lender,
(iii) any Approved Fund and (iv) any other Person (other than a natural Person)
approved by (A) the Administrative Agent, (B) in the case of any assignment of a
Revolving Commitment, the Issuing Lenders and the Swingline Lender and (C)
unless (x) such Person is taking delivery of an assignment in connection with
physical settlement of a credit derivatives transaction or (y) an Event of
Default has occurred and is continuing at the time any assignment is effected
pursuant to Section 10.06(b), the Borrower (each such approval not to be
unreasonably withheld or delayed and any such approval required of the Borrower
to be deemed given by the Borrower if no objection from the Borrower is received
by the assigning Lender and the Administrative Agent within two Business Days
after notice of such proposed assignment has been provided by the assigning
Lender to the Borrower); provided that the Borrower and its Affiliates shall not
qualify as Eligible Assignees.
"Environmental Laws" means any current or future legal requirement of any
Governmental Authority pertaining to (i) the protection of health, safety, and
the environment, (ii) the conservation, management or use of natural resources
and wildlife, (iii) the protection or use of surface water and groundwater or
(iv) the management, manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, release, threatened release,
abatement, removal, remediation or handling of, or exposure to, any hazardous or
toxic substance or material and includes, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq.,
Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery
Act of 1976 and Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 et
seq., Federal Water Pollution Control Act, as amended by the Clean Water Act of
1977, 33 USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et
seq., Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous
Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety and
Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990,
33 USC 2701 et seq., Emergency Planning and Community Right-to-Know Act of 1986,
42 USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et
seq., Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) et seq., any
analogous implementing or successor law, and any amendment, rule, regulation,
order or directive issued thereunder.
"Equity Equivalents" means with respect to any Person any rights,
warrants, options, convertible securities, exchangeable securities, indebtedness
or other rights, in each case exercisable for or convertible or exchangeable
into, directly or indirectly, Equity Interests of such Person or securities
exercisable for or convertible or exchangeable into Equity Interests of such
Person, whether at the time of issuance or upon the passage of time or the
occurrence of some future event.
"Equity Interests" means all shares of capital stock, partnership
interests (whether general or limited), limited liability company membership
interests, beneficial interests in a trust and any other interest or
participation that confers on a Person the right to receive a share of profits
or losses, or distributions of assets, of an issuing Person, but excluding any
debt securities convertible into such Equity Interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
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"ERISA Event" means: (i) a Reportable Event with respect to a Pension
Plan; (ii) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA); (iii) a
complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (iv) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (v) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (vi) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.
"Eurodollar Loan" means a Loan which bears interest at a Eurodollar Rate
pursuant to the applicable Revolving Loan Request or Notice of
Extension/Conversion.
"Eurodollar Rate" means, for each Interest Period for each Eurodollar
Loan comprising the same Group, the quotient obtained (rounded upward, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the Applicable
Interbank Offered Rate for Dollars for such Interest Period by (ii) 1.00 minus
the Eurodollar Reserve Percentage.
"Eurodollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board (or any other entity succeeding to the functions currently performed
thereby) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in New York City with deposits exceeding five billion
Dollars in respect of "Eurodollar liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Eurodollar Loans is determined or any category of extensions of
credit or other assets which includes loans by a non-United States office of any
Lender to United States residents), whether or not a Lender has any Eurodollar
liabilities subject to such reserve requirement at that time. Eurodollar Loans
shall be deemed to constitute Eurodollar liabilities and as such shall be deemed
subject to reserve requirements without benefits of credits for prorations,
exceptions or offsets that may be available from time to time to a Lender. The
Eurodollar Rate shall be adjusted automatically on and as of the effective date
of any change in the Eurodollar Reserve Percentage.
"Event of Default" has the meaning set forth in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
any successor statute thereto, together with the rules and regulations
promulgated thereunder.
"Executive Order No. 13224" means the Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001, as the same has been, or
shall hereafter be, renewed, extended, amended or replaced.
"Exemption Certificate" has the meaning set forth in Section 3.01(d).
"Existing Credit Agreement" is defined in the first recital.
"Existing Lenders" is defined in the first recital.
"Existing Letters of Credit" means the letters of credit issued for the
account of the Borrower and any Restricted Subsidiary before the Amendment
Effective Date and described by date of issuance, letter of credit number,
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undrawn amount, name of beneficiary and date of expiry on Schedule 7.01 hereto,
without giving effect to any extension of the term thereof.
"Existing Loans" is defined in the first recital.
"Existing Revolving Loans" is defined in the first recital.
"Existing Swingline Loans" is defined in the first recital.
"Facility Fee" has the meaning set forth in Section 2.12(a).
"Failed Loan" has the meaning set forth in Section 2.04(e).
"Federal Funds Open Rate" means the rate per annum determined by the
Administrative Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the "open" rate
for federal funds transactions as of the opening of business for federal funds
transactions among members of the Federal Reserve System arranged by federal
funds brokers on such day, as quoted by Xxxxxx Guybutler, any successor entity
thereto or any other broker selected by the Administrative Agent, as set forth
on the applicable Moneyline Telerate display page; provided that if such day is
not a Business Day, the Federal Funds Open Rate for such day shall be the "open"
rate on the immediately preceding Business Day, or if no such rate shall be
quoted by a federal funds broker at such time, such other rate as determined by
the Administrative Agent in accordance with its usual procedures.
"Federal Funds Rate" means for any day the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (i) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (ii) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate quoted to the
Administrative Agent on such day on such transactions as determined by the
Administrative Agent.
"Foreign Subsidiary" means with respect to any Person any Subsidiary of
such Person that is organized outside the United States and conducts
substantially all of its business outside the United States.
"GAAP" means at any time generally accepted accounting principles as then
in effect in the United States, applied on a basis consistent (except for
changes with which the Borrower's independent public accountants have concurred)
with the most recent audited consolidated financial statements of the Borrower
and its Consolidated Subsidiaries previously delivered to the Lenders.
"Government Acts" is defined in Section 2.06(p).
"Governmental Authority" means any federal, state, local, provincial or
foreign government, authority, agency, central bank, quasi-governmental or
regulatory authority, court or other body or entity, and any arbitrator with
authority to bind a party at law.
"Granting Lender" is defined in Section 10.06(h).
"Group" means at any time a group of Loans consisting of (i) all Loans
which are Base Rate Loans at such time or (ii) all Loans which are Eurodollar
Loans having the same Interest Period at such time; provided that if a Loan of
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any particular Lender is converted to or made as a Base Rate Loan pursuant to
Article III, such Loan shall be included in the same Group of Loans from time to
time as it would have been had it not been so converted or made.
"Guaranty Obligation" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any other
Person and any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided that the term "Guaranty Obligation" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guaranty"
used as a verb has a corresponding meaning. The amount of any Guaranty
Obligation hereunder shall (subject to any limitations set forth therein) be
deemed to be an amount equal to the outstanding principal amount (or maximum
principal amount, if larger) of the Indebtedness in respect of which such
Guaranty Obligation is made.
"ICC" has the meaning set forth in Section 2.06(m).
"Indebtedness" of any Person means at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of such
person evidenced by bond, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee that are capitalized in
accordance with GAAP, (v) all Guaranty Obligations, (vi) all contingent or
non-contingent obligations of such Person to reimburse any bank or other Person
in respect of amounts paid or payable (currently or in the future, on a
contingent or non-contingent basis) under a letter of credit or similar
instrument, (vii) all obligations of such Person under conditional sale or other
title retention agreements relating to property purchased by such Person to the
extent of the value of such property (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary
course of business) and (viii) proceeds paid to such Person from asset
securitization, synthetic sale/leaseback and other similar off balance sheet
transactions.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitee" has the meaning set forth in Section 10.05.
"Interest Coverage Ratio" means, for any period, the ratio of (i)
Consolidated EBITDA of the Borrower and its Subsidiaries for such period to (ii)
Consolidated Interest Expense of the Borrower and its Subsidiaries for such
period.
"Interest Payment Date" means (i) as to Base Rate Loans, the last day of
each fiscal quarter of the Borrower and the Maturity Date and (ii) as to
Eurodollar Loans, the last day of each applicable Interest Period and the
Maturity Date, and, where the applicable Interest Period for a Eurodollar Loan
is greater than three months, also the date three months from the beginning of
the Interest Period and each three months thereafter.
"Interest Period" means, with respect to each Eurodollar Loan, a period
commencing on the date of borrowing specified in the applicable Revolving Loan
Request or on the date specified in the applicable Notice of
Extension/Conversion and ending one, two, three or six months thereafter, as the
Borrower may elect in the applicable notice; provided that:
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(i) any Interest Period (except an Interest Period determined
pursuant to clause (iii) below) which would otherwise end on a day which is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period which begins on the last Business Day
in a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (iii) below, end on the last Business Day of a
calendar month; and
(iii) any Interest Period which would otherwise end after the
Maturity Date shall end on the Maturity Date.
"Investment" in any Person means (i) the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or otherwise) of all
or substantially all of the assets, shares of Capital Stock, bonds, notes,
debentures, time deposits or other securities of such other Person, (ii) any
deposit with, or advance, loan or other extension of credit to or for the
benefit of such Person (other than deposits made in connection with the purchase
of equipment or inventory in the ordinary course of business) or (iii) any other
capital contribution to or investment in such Person, including by way of
Guaranty Obligations of any obligation of such Person, any support for a letter
of credit issued on behalf of such Person incurred for the benefit of such
Person or in the case of any Restricted Subsidiary of the Borrower, any release,
cancellation, compromise or forgiveness in whole or in part of any Indebtedness
owing by such Restricted Subsidiary.
"Issuing Lender" means (i) PNC Bank, National Association, in its
capacity as issuer of Letters of Credit under Section 2.06(b), and its successor
or successors in such capacity and (ii) any other Lender which the Borrower
shall have designated as an "Issuing Lender" by notice to the Administrative
Agent.
"Issuing Lender Fees" has the meaning set forth in Section 2.12(b)(iii).
"Law" means any international, foreign, Federal, state or local statute,
treaty, rule, guideline, regulation, ordinance, code, or administrative or
judicial precedent or authority, including the interpretation or administration
thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof, and all applicable administrative
orders, directed duties, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authority, in each case whether or not having
the force of law.
"LC Commitment" means the commitment of an Issuing Lender to issue
Letters of Credit in an aggregate face amount at any one time outstanding
(together with the amounts of any unreimbursed drawings thereon and all LC
Commitments of other Issuing Lenders) of up to the LC Committed Amount.
"LC Committed Amount" has the meaning set forth in Section 2.06(a).
"LC Disbursement" means a payment or disbursement made by an Issuing
Lender pursuant to a Letter of Credit.
"LC Documents" means, with respect to any Letter of Credit, such Letter
of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
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Letter of Credit) governing or providing for (i) the rights and obligations of
the parties concerned or at risk or (ii) any collateral security for such
obligations.
"LC Obligations" means at any time, the sum of (i) the maximum amount
which is, or at any time thereafter may become, available to be drawn under
Letters of Credit then outstanding, assuming compliance with all requirements
for drawings referred to in such Letters of Credit plus (ii) the aggregate
amount of all LC Disbursements not yet reimbursed by the Borrower as provided in
Section 2.06(h) to the applicable Issuing Lenders in respect of drawings under
Letters of Credit, including any portion of any such obligation to which a
Lender has become subrogated pursuant to Section 2.06(i).
"Lender" means each bank or other lending institution listed on Schedule
1.01A, each Eligible Assignee that becomes a Lender pursuant to Section 10.06(b)
and their respective successors and shall include, as the context may require,
each Issuing Lender and/or the Swingline Lender, in each case in such capacity.
"Letter of Credit" means any letter of credit issued hereunder by an
Issuing Lender on or after the Closing Date.
"Letter of Credit Fee" has the meaning set forth in Section 2.12(b)(i).
"Letter of Credit Request" has the meaning set forth in Section 2.06(b).
"Lien" means, with respect to any asset, any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge, or preference, priority or other security interest or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable Laws
of any jurisdiction), including the interest of a purchaser of accounts
receivable, chattel paper, payment intangibles or promissory notes. Solely for
the avoidance of doubt, the filing of a Uniform Commercial Code financing
statement that is a protective lease filing in respect of an operating lease
that does not constitute a security interest in the leased property or otherwise
give rise to a Lien does not constitute a Lien solely on account of being filed
in a public office.
"Loan" means a Revolving Loan or a Swingline Loan and "Loans" means all
of them, collectively.
"Loan Documents" means this Agreement and the Notes, in each case as the
same may be amended, restated, modified or supplemented from time to time.
"Material Adverse Change" has the meaning set forth in Section 5.02(b).
"Material Adverse Effect" means an effect on the business, financial
condition, assets or liabilities of the Borrower and its Restricted
Subsidiaries, considered on a consolidated basis, which, when combined on a
cumulative basis with other changes in the business, financial condition, assets
and liabilities of the Borrower and its Consolidated Subsidiaries, considered on
a consolidated basis: (i) would have a material adverse effect on the ability of
the Borrower to perform its obligations under the Loan Documents or (ii) would
result in a material adverse change in the financial condition of the Borrower
and its Restricted Subsidiaries, considered on a consolidated basis.
"Maturity Date" means September 29, 2010 or such later date to which the
Maturity Date for any Loans or Lender may be extended pursuant to Section
2.11(d) or, if any such day is not a Business Day, the next preceding Business
Day.
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"Moody's" means Xxxxx'x Investors Service, Inc., a Delaware corporation,
and its successors or, absent any such successor, such nationally recognized
statistical rating organization as the Borrower and the Administrative Agent may
select.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
three calendar years, has made or been obligated to make contributions.
"Non-U.S. Lender" has the meaning set forth in Section 3.01(d).
"Note" means a Revolving Note or a Swingline Note and "Notes" means all
of them, collectively.
"Notice of Extension/Conversion" has the meaning set forth in Section
2.08.
"Obligations" means, without duplication:
(i) all principal of and interest (including, without
limitation, any interest which accrues after the commencement of any
Bankruptcy Event, whether or not allowed or allowable as a claim under any
applicable Debtor Relief Law) on any Loan or LC Obligation under, or any
Note issued pursuant to, this Agreement or any other Loan Document;
(ii) all fees, expenses, indemnification obligations and other
amounts of whatever nature now or hereafter payable by the Borrower
(including, without limitation, any amounts which accrue after the
commencement of any Bankruptcy Event, whether or not allowed or allowable
as a claim under any applicable Debtor Relief Law) pursuant to this
Agreement or any other Loan Document;
(iii) all expenses of the Agents as to which one or more of the
Agents have a right to reimbursement under Section 10.04 of this Agreement;
and
(iv) all Indemnified Liabilities and other amounts paid by any
Indemnitee as to which such Indemnitee has the right to payment or
reimbursement under Section 10.05 of this Agreement or under any other
similar provision of any other Loan Document;
together in each case with all renewals, modifications, consolidations or
extensions thereof.
"Operating Lease" means, as applied to any Person, a lease (including a
lease which may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) by such Person as lessee which is not a
Capital Lease.
"Organization Documents" means: (i) with respect to any corporation, the
certificate or articles of incorporation and the bylaws; (ii) with respect to
any limited liability company, the articles of formation and operating
agreement; and (iii) with respect to any partnership, joint venture, trust or
other form of business entity, the partnership, joint venture or other
applicable agreement of formation and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation with the
secretary of state or other department in the state of its formation, in each
case as amended from time to time.
"Other Taxes" has the meaning set forth in Section 3.01(b).
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"Participation Interest" means a Credit Extension by a Lender by way of a
purchase of a participation interest in Letters of Credit or LC Obligations as
provided in Section 2.06(a) or (d), in Swingline Loans as provided in Section
2.01(b)(vi) or in any Loans as provided in Section 2.14.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any entity succeeding to any or
all of its functions under ERISA.
"Pension Plan" means an "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, in which in the case of a multiple employer
plan (as described in Section 4064(a) of ERISA) has made contributions at any
time during the immediately preceding five plan years.
"Permit" means any license, permit, franchise, right or privilege,
certificate of authority or order, or any waiver of the foregoing, issued or
issuable by any Governmental Authority.
"Permitted Investments" has the meaning set forth in Section 7.03.
"Permitted Liens" means:
(i) Liens securing the payment of taxes and special
assessments, either not yet due or the validity of which is being contested
by the Person being charged in good faith by appropriate proceedings, and
as to which it has set aside on its books adequate reserves to the extent
required by GAAP;
(ii) deposits or Liens securing property under workers'
compensation, unemployment insurance and social security laws, or to secure
the performance of bids, tenders, contracts (other than for the repayment
of borrowed money) or leases, or to secure statutory obligations or surety
or appeal bonds, or to secure indemnity, performance or other similar bonds
in the ordinary course of business;
(iii) Liens imposed by law, such as carriers', warehousemen's or
mechanics' liens and liens of landlords or mortgagees of landlords arising
by operation of law on property located on leased premises, incurred by it
in good faith in the ordinary course of business;
(iv) Liens incurred in connection with the lease or acquisition
of fixed or capital assets limited to the specific assets acquired with
such lease or financing or Capital Lease Obligation (subject to the
acquisition of such assets and incurrence of such debt being otherwise
permitted by the terms of this Agreement);
(v) Liens existing on the date of this Agreement securing
Indebtedness outstanding on the date of this Agreement in aggregate
principal amount not exceeding $27,400,000;
(vi) any Lien existing on any asset of any Person at the time
such Person becomes a Subsidiary of the Borrower and not created in
contemplation of such event;
(vii) any Lien on any asset of any Person existing at the time
such Person is merged or consolidated with or into Borrower or a Subsidiary
and not created in contemplation of such event;
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(viii) any Lien existing on any asset prior to the acquisition
thereof by Borrower or a Subsidiary and not created in contemplation of
such event;
(ix) any Lien arising out of the refinancing, extension, renewal
or refunding of any Indebtedness secured by any Lien permitted by any of
the foregoing clauses (iv), (v), (vi), (vii) or (viii) of this definition;
provided that such Indebtedness is not increased and is not secured by any
additional assets;
(x) Liens incidental to the conduct of the business of the
Borrower or its Subsidiaries or the ownership of their respective assets
which (i) do not secure Indebtedness or Derivative Obligations, (ii) do not
secure any obligation, or related series of obligations, in an amount
exceeding $20,000,000 and (iii) do not in the aggregate materially detract
from the value of its assets or materially impair the use thereof in the
operation of the business of the Borrower or its Subsidiaries;
(xi) Liens on cash and Cash Equivalents securing Derivative
Obligations; provided that the aggregate amount of Cash Equivalents subject
to such Liens may at no time exceed $20,000,000;
(xii) any attachment Lien being contested in good faith and by
proceedings promptly initiated and diligently conducted, unless the
attachment giving rise thereto will not, within sixty days after the entry
thereof, have been discharged or fully bonded or will not have been
discharged within sixty days after the termination of any such bond;
(xiii) any judgment Lien, unless the judgment it secures will not,
within sixty days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or will not have been discharged
within sixty days after the expiration of any such stay;
(xiv) easements, rights-of-way, zoning restrictions and other
restrictions, charges or encumbrances not materially interfering with the
ordinary conduct of the business;
(xv) any Lien on property of a Subsidiary securing Indebtedness
of such Subsidiary owing to Borrower or a Restricted Subsidiary;
(xvi) Liens to banks arising from the issuance of letters of
credit issued by such banks ("issuing banks") on the following: (a) any and
all shipping documents, warehouse receipts, policies or certificates of
insurance and other document accompanying or relative to drafts drawn under
any credit, and any draft drawn thereunder (whether or not such documents,
goods or other property be released to or upon the order of the Borrower or
any Subsidiary under a security agreement or trust or bailee receipt or
otherwise), and the proceeds of each and all of the foregoing; (b) the
balance of every deposit account, now or at any time hereafter existing, of
the Borrower or any Subsidiary with the issuing banks, and any other claims
of the Borrower or any Subsidiary against the issuing banks; and all
property claims and demands and all rights and interests therein of the
Borrower or any Subsidiary and all evidences thereof and all proceeds
thereof which have been or at any time will be delivered to or otherwise
come into the issuing bank's possession, custody or control, or into the
possession, custody or control of any bailee for the issuing bank or of any
of its agents or correspondents for the account of the issuing bank, for
any purpose, whether or not the express purpose of being used by the
issuing bank as collateral security or for the safekeeping or for any other
or different purpose, the issuing bank being deemed to have possession or
control of all of such property actually in transit to or from or set apart
for the issuing bank, any bailee for the issuing bank or any of its
-18-
correspondents for others acting in its behalf, it being understood that
the receipt at any time by the issuing bank, or any of its bailees, agents
or correspondents, or other security, of whatever nature, including cash,
will not be deemed a waiver of any of the issuing bank's rights or power
hereunder; (c) all property shipped under or pursuant to or in connection
with any credit or drafts drawn thereunder or in any way related thereto,
and all proceeds thereof; (d) all additions to and substitutions for any of
the property enumerated above in this subsection; and
(xvii) any Lien on accounts of the Borrower or any Subsidiary
(which accounts arise in the ordinary course of business) in connection
with the sale or purported sale of accounts to an Unrestricted Subsidiary
or a bankruptcy-remote entity that purchases receivables in the ordinary
course of its business.
"Person" means an individual, a corporation, a partnership, an
association, a limited liability company, a trust or an unincorporated
association or any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"Prime Rate" means for any day the rate of interest publicly announced by
PNC Bank, National Association (or such other principal office of the
Administrative Agent as communicated in writing to the Borrower and the Lenders)
from time to time as its Prime Rate for Dollars loaned in the United States. It
is a rate set by PNC Bank, National Association based upon a variety of factors,
including PNC Bank, National Association's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above or below such announced rate.
Any change in the interest rate resulting from a change in the Prime Rate shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"Real Property" means, with respect to any Person, all of the right,
title and interest of such Person in and to land, improvements and fixtures,
including leaseholds.
"Refunded Swingline Loan" has the meaning set forth in Section
2.01(b)(iii).
"Register" has the meaning set forth in Section 10.06(d).
"Regulation O, T, U or X" means Regulation O, T, U or X, respectively, of
the Board as amended, or any successor regulation, in each case together with
all interpretations of staff opinions issued in connection therewith.
"Regulations" has the meaning set forth in Section 3.01(d).
"Remaining Lender" has the meaning set forth in Section 2.11(d)(i).
"Replacement Date" has the meaning set forth in Section 2.11(c).
"Replacement Lender" has the meaning set forth in Section 2.11(c).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30-day notice period has been waived.
"Required Lenders" means Revolving Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes more than 50% of the Credit
Exposure of all Revolving Lenders at such time. For purposes of the preceding
sentence, the term "Credit Exposure" as applied to each Lender shall mean (i) at
any time prior to the termination of the Commitments, the Revolving Commitment
Percentage of such Lender multiplied by the Revolving Committed Amount, and (ii)
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at any time after the termination of the Commitments, the sum of (A) the
principal amount of the outstanding Revolving Loans of such Lender plus (B) the
principal amount such Lender's Participation Interests in all LC Obligations and
Swingline Loans. For purposes of the foregoing, (i) the interest of any Lender
holding a Loan in which any other Lender has a Participation Interest pursuant
to Section 10.06(e) shall be calculated net of all such Participation Interests
of other Lenders and (ii) the Participation Interest of any Lender pursuant to
Section 10.06(e) in a Loan held by any other Lender shall be counted as if such
Lender holding a Participation Interest under Section 10.06(e) held directly a
proportionate part of the related Loan.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, treasurer or assistant treasurer of the Borrower. Any
document delivered hereunder that is signed by a Responsible Officer of the
Borrower shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of the Borrower and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
the Borrower.
"Restricted Payment" means (i) any dividend or other distribution, direct
or indirect, on account of any class of Equity Interests or Equity Equivalents
of the Borrower or any Subsidiary, now or hereafter outstanding, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any class of Equity Interests or
Equity Equivalents of the Borrower or any Subsidiary, now or hereafter
outstanding or (iii) any payment made to retire, or to obtain the surrender of,
any Equity Interests or Equity Equivalents of or now or hereafter outstanding.
"Restricted Subsidiary" means with respect to any Person at any date any
Subsidiary of such Person or other entity the accounts of which would be
consolidated with those of such Person in its consolidated financial statements
if such statements were prepared as of such date in accordance with GAAP,
excluding, with respect to the Borrower at any date, all Unrestricted
Subsidiaries designated as such pursuant to Section 7.07.
"Revolving Borrowing" means a Loan comprised of Revolving Loans and
identified as such in the Revolving Loan Request with respect thereto.
"Revolving Commitment" means, with respect to any Lender, the commitment
of such Lender, in an aggregate principal amount at any time outstanding of up
to such Lender's Revolving Commitment Percentage of the Revolving Committed
Amount, (i) to make Revolving Loans in accordance with the provisions of Section
2.01(a), (ii) to purchase Participation Interests in Swingline Loans in
accordance with the provisions of Section 2.01(b) and (iii) to purchase
Participation Interests in Letters of Credit in accordance with the provisions
of Section 2.06(d).
"Revolving Committed Amount" means $435,000,000 or such lesser amount to
which the Revolving Committed Amount may be adjusted pursuant to Section 2.11.
"Revolving Commitment Percentage" means, for each Lender, the percentage
identified as its Revolving Commitment Percentage on Schedule 1.01A hereto, as
such percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 10.06(b).
"Revolving Lender" means each Lender identified in the Schedule 1.01A as
having a Revolving Commitment and each Eligible Assignee which acquires a
Revolving Commitment or Revolving Loan pursuant to Section 10.06(b) and their
respective successors.
"Revolving Loan" means a Loan made by a Lender pursuant to Section
2.01(a); provided that if any such Loan or Loans (or portions thereof) are
combined or subdivided pursuant to a Notice of Extension/Conversion, the term
"Revolving Loan" shall refer to the combined principal amount resulting from
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such combination or to each of the separate principal amounts resulting from
such subdivision, as the case may be.
"Revolving Loan Request" has the meaning set forth in Section 2.02(a).
"Revolving Note" means a promissory note, substantially in the form of
Exhibit B-1 hereto, evidencing the obligation of the Borrower to repay
outstanding Revolving Loans, as such Note may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"Revolving Outstandings" means at any date the aggregate outstanding
principal amount of all Revolving Loans and Swingline Loans plus the aggregate
outstanding amount of all LC Obligations.
"Sale/Leaseback Transaction" means any direct or indirect arrangement
with any Person or to which any such Person is a party providing for the leasing
to the Borrower or any of its Subsidiaries of any property, whether owned by the
Borrower or any of its Subsidiaries as of the Closing Date or later acquired,
which has been or is to be sold or transferred by the Borrower or any of its
Subsidiaries to such Person or to any other Person from whom funds have been, or
are to be, advanced by such Person on the security of such property.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., a New York corporation, and its successor or, absent any such successor,
such nationally recognized statistical rating organization as the Borrower and
the Administrative Agent may select.
"Xxxxxxxx-Xxxxx Act" means the United States Xxxxxxxx-Xxxxx Act of 2002.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute thereto, together with the rules and regulations promulgated
thereunder.
"SPC" is defined in Section 10.06(h).
"Standby Letter of Credit" has the meaning set forth in Section 2.06(a).
"Subsidiary" means with respect to any Person any corporation,
partnership, limited liability company, association or other business entity of
which (i) if a corporation, more than 50% of the total voting power of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a partnership,
limited liability company, association or business entity other than a
corporation, more than 50% of the partnership or other similar ownership
interests thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have more than 50%
ownership interest in a partnership, limited liability company, association or
other business entity if such Person or Persons shall be allocated more than 50%
of partnership, association or other business entity gains or losses or shall be
or control the managing director, manager or a general partner of such
partnership, association or other business entity. Notwithstanding the
foregoing, any Person that is not included as a "Consolidated Subsidiary" under
GAAP shall not be a Subsidiary hereunder.
"Swingline Commitment" means the agreement of the Swingline Lender to
make Loans pursuant to Section 2.01(b).
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"Swingline Committed Amount" means the lesser of (i) $30,000,000 or (ii)
an amount which, when added to the aggregate principal amount of all other Loans
then outstanding and Letters of Credit then outstanding under this Agreement,
does not exceed $435,000,000.
"Swingline Lender" means PNC Bank, National Association, in its capacity
as the Swingline Lender under Section 2.01(b), and its successor or successors
in such capacity.
"Swingline Loan" means a Base Rate Loan made by the Swingline Lender in
Dollars pursuant to Section 2.01(b), and "Swingline Loans" means any two or more
of such Base Rate Loans.
"Swingline Loan Request" has the meaning set forth in Section 2.02(b).
"Swingline Note" means a promissory note, substantially in the form of
Exhibit B-3 hereto, evidencing the obligation of the Borrower to repay
outstanding Swingline Loans, as such Note may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"Swingline Termination Date" means the earlier of (i) September 29, 2010
(or, if such day is not a Business Day, the next preceding Business Day) or such
earlier date upon which the Revolving Commitments shall have been terminated in
their entirety in accordance with this Agreement and (ii) the date on which the
Swingline Commitment is terminated in its entirety in accordance with the
Agreement.
"Syndication Agent" means The Bank of Nova Scotia, in its capacity as
syndication agent for the Lenders hereunder and under the other Loan Documents,
and its successor or successors in such capacity.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (i) a so-called synthetic, off-balance sheet or tax retention lease or
(ii) an agreement for the use or possession of property creating obligations
that do not appear on the balance sheet of such Person but which, upon the
insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such person (without regard to accounting treatment).
"Taxes" has the meaning set forth in Section 3.01(a).
"Trade Letter of Credit" has the meaning set forth in Section 2.06(a).
"Type" has the meaning set forth in Section 1.04.
"UCP" has the meaning set forth in Section 2.06(m).
"United States" means the United States of America, including the states
and the District of Columbia, but excluding its territories and possessions.
"Unrestricted Subsidiary" means any Subsidiary which would otherwise be a
Consolidated Subsidiary, but which has been designated as an Unrestricted
Subsidiary by the Borrower pursuant to the provisions of Section 7.07.
"USA Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Public Law 107-56, as the same has been, or shall hereafter be, renewed,
extended, amended or replaced.
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"Worthington's Ratings" means the ratings from Xxxxx'x and S&P with
respect to the senior, unsecured, long-term indebtedness for borrowed money of
the Borrower that is not guaranteed by any other Person.
"Wholly-Owned Subsidiary" means, with respect to any Person at any date,
any Subsidiary of such Person all of the shares of capital stock or other
ownership interests of which (except directors' qualifying shares) are at the
time directly or indirectly owned by such Person.
Section 1.02 Computation of Time Periods and Other Definitional
Provisions. For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding". All references to time herein shall be references to Eastern
Standard time or Eastern Daylight time, as the case may be, unless specified
otherwise. References in this Agreement to Articles, Sections, Schedules,
Appendices or Exhibits shall be to Articles, Sections, Schedules, Appendices or
Exhibits of or to this Agreement unless otherwise specifically provided. The
definitions in Section 1.01 shall apply equally to both the singular and plural
forms of the terms defined.
Section 1.03 Accounting Terms and Determinations. Except as otherwise
expressly provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Lenders hereunder shall be
prepared, in accordance with GAAP applied on a consistent basis. All financial
statements delivered to the Lenders hereunder shall be accompanied by a
statement from the Borrower that GAAP has not changed since the most recent
financial statements delivered by the Borrower to the Lenders or, if GAAP has
changed, describing such changes in detail and explaining how such changes
affect the financial statements. All calculations made for the purposes of
determining compliance with this Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
with the most recent annual or quarterly financial statements delivered pursuant
to Section 6.01 (or, prior to the delivery of the first financial statements
pursuant to Section 6.01, consistent with the financial statements described in
Section 5.02(a)). Any change in GAAP that effects the calculation of financial
covenants will result in an adjustment in the affected covenant so that it is no
more or less restrictive than on the Closing Date.
Section 1.04 Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Lenders to be made to the Borrower pursuant
to Article II on the same date, all of which Loans are of the same Type (subject
to Article III) and, except in the case of Base Rate Loans, have the same
initial Interest Period. Loans hereunder are distinguished by "Type". The "Type"
of a Loan refers to whether such Loan is a Base Rate Loan or a Eurodollar Loan.
ARTICLE II
THE CREDIT FACILITIES
Section 2.01 Commitments to Lend.
(a) Revolving Loans. Each Revolving Lender severally agrees, on the
terms and conditions set forth in this Agreement, to the continuation and
reallocation (as the case may be) of Existing Revolving Loans and to make
Revolving Loans to the Borrower pursuant to this subsection 2.01(a) from time to
time prior to the Maturity Date in amounts such that the aggregate of its
Revolving Outstandings shall not exceed (after giving effect to all Revolving
Loans repaid, all reimbursements of LC Disbursements made, and all Refunded
Swingline Loans paid, concurrently with the making of any Revolving Loans) its
Revolving Commitment; provided that immediately after giving effect to each such
Revolving Loan, the aggregate of the Revolving Outstandings shall not exceed the
aggregate amount of the Revolving Commitments. Each Revolving Borrowing (other
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than a Borrowing to be used to repay Refunded Swingline Loans which shall be in
an aggregate amount equal to such Refunded Swingline Loans) shall be in an
aggregate principal amount of $5,000,000 or any larger multiple of $1,000,000
(except that any such Borrowing may be in the aggregate amount of the unused
Revolving Commitments) and shall be made from the several Revolving Lenders
ratably in proportion to their respective Revolving Commitments. Within the
foregoing limits, the Borrower may borrow under this subsection 2.01(a), repay,
or, to the extent permitted by Section 2.10, prepay, Revolving Loans and
reborrow under this subsection 2.01(a).
(b) Swingline Loans.
(i) The Swingline Lender agrees, on the terms and subject to
the conditions set forth herein, to the continuation of Existing Swingline
Loans and to make a portion of the Revolving Commitments available to the
Borrower from time to time prior to the Swingline Termination Date by
making Swingline Loans to the Borrower in Dollars (each such loan, a
"Swingline Loan" and collectively, the "Swingline Loans"); provided that
(i) the aggregate principal amount of the Swingline Loans outstanding at
any one time shall not exceed the Swingline Committed Amount, (ii) with
regard to each Lender individually (other than the Swingline Lender in its
capacity as such), the principal amount of such Lender's outstanding
Revolving Loans plus its Participation Interests in outstanding Swingline
Loans plus its Participation Interests in outstanding LC Obligations shall
not at any time exceed such Lender's Revolving Commitment Percentage of the
Revolving Committed Amount, (iii) with regard to the Revolving Lenders
collectively, the aggregate of the Revolving Outstandings shall not exceed
the Revolving Committed Amount, and (iv) the Swingline Committed Amount
shall not exceed the aggregate of the Revolving Commitments then in effect.
Each of the parties hereto acknowledges and agrees that the Existing
Swingline Loans shall continue as Swingline Loans for all purposes under
this Agreement and the Loan Documents. Swingline Loans may be repaid and
reborrowed in accordance with the provisions hereof prior to the Swingline
Termination Date. Swingline Loans may be made notwithstanding the fact that
such Swingline Loans, when aggregated with the Swingline Lender's other
Revolving Outstandings, exceeds its Revolving Commitment. The proceeds of a
Swingline Borrowing may not be used, in whole or in part, to refund any
prior Swingline Borrowing.
(ii) The principal amount of all Swingline Loans shall be due
and payable on the earliest of (A) the maturity date agreed to by the
Swingline Lender and the Borrower with respect to such Swingline Loan
(which maturity date shall not be a date more than 10 Business Days from
the date of advance thereof), (B) the Swingline Termination Date, (C) the
occurrence of a Bankruptcy Event with respect to the Borrower or (D) the
acceleration of any Loan or the termination of the Revolving Commitments
pursuant to Section 8.02.
(iii) With respect to any Swingline Loans that have not been
voluntarily prepaid by the Borrower or paid by the Borrower when due under
clause (ii) above, the Swingline Lender (by request to the Administrative
Agent) or Administrative Agent at any time may, and shall at any time
Swingline Loans have been outstanding for more than 10 Business Days, on
one Business Day's notice, require each Revolving Lender, including the
Swingline Lender, and each such Lender hereby agrees, subject to the
provisions of this Section 2.01(b), to make a Revolving Loan (which shall
be initially funded as a Base Rate Loan) in an amount equal to such
Lender's Revolving Commitment Percentage of the amount of the Swingline
Loans ("Refunded Swingline Loans") outstanding on the date notice is given.
(iv) In the case of Revolving Loans made by Lenders other than
the Swingline Lender under clause (iii) above, each such Revolving Lender
shall make the amount of its Revolving Loan available to the Administrative
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Agent, in Dollars in same day funds, at the Administrative Agent's Office,
not later than 1:00 P.M. on the Business Day next succeeding the date such
notice is given. The proceeds of such Revolving Loans shall be immediately
delivered to the Swingline Lender (and not to the Borrower) and applied to
repay the Refunded Swingline Loans. On the day such Revolving Loans are
made, the Swingline Lender's Revolving Commitment Percentage of the
Refunded Swingline Loans shall be deemed to be paid with the proceeds of a
Revolving Loan made by the Swingline Lender and such portion of the
Swingline Loans deemed to be so paid shall no longer be outstanding as
Swingline Loans and shall instead be outstanding as Revolving Loans. The
Borrower authorizes the Administrative Agent and the Swingline Lender to
charge the Borrower's account with the Administrative Agent (up to the
amount available in such account) in order to pay immediately to the
Swingline Lender the amount of such Refunded Swingline Loans to the extent
amounts received from the Revolving Lenders, including amounts deemed to be
received from the Swingline Lender, are not sufficient to repay in full
such Refunded Swingline Loans. If any portion of any such amount paid (or
deemed to be paid) to the Swingline Lender should be recovered by or on
behalf of any Borrower from the Swingline Lender in bankruptcy, by
assignment for the benefit of creditors or otherwise, the loss of the
amount so recovered shall be ratably shared among all Revolving Lenders in
the manner contemplated by Section 2.14.
(v) A copy of each notice given by the Swingline Lender
pursuant to this Section 2.01(b) shall be promptly delivered by the
Swingline Lender to the Administrative Agent and the Borrower. Upon the
making of a Revolving Loan by a Revolving Lender pursuant to this Section
2.01(b), the amount so funded shall no longer be owed in respect of its
Participation Interest in the related Refunded Swingline Loans.
(vi) If as a result of any Bankruptcy Event, Revolving Loans
are not made pursuant to this Section 2.01(b) sufficient to repay any
amounts owed to the Swingline Lender as a result of a nonpayment of
outstanding Swingline Loans, each Revolving Lender agrees to purchase, and
shall be deemed to have purchased, a participation in such outstanding
Swingline Loans in an amount equal to its Revolving Commitment Percentage
of the unpaid amount together with accrued interest thereon. Upon one
Business Day's notice from the Swingline Lender, each Revolving Lender
shall deliver to the Swingline Lender an amount in Dollars equal to its
respective Participation Interest in such Swingline Loans in same day funds
at the office of the Swingline Lender specified on Schedule 10.02. In order
to evidence such Participation Interest each Revolving Lender agrees to
enter into a participation agreement at the request of the Swingline Lender
in form and substance reasonably satisfactory to all parties. In the event
any Revolving Lender fails to make available to the Swingline Lender the
amount of such Revolving Lender's Participation Interest as provided in
this Section 2.01(b)(vi), the Swingline Lender shall be entitled to recover
such amount on demand from such Revolving Lender together with interest at
the customary rate set by the Swingline Lender for correction of errors
among banks in New York City for one Business Day and thereafter at the
Base Rate plus the then Applicable Margin for Base Rate Loans.
(vii) Each Revolving Lender's obligation to make Revolving Loans
pursuant to clause (iv) above and to purchase Participation Interests in
outstanding Swingline Loans pursuant to clause (vi) above shall be absolute
and unconditional and shall not be affected by any circumstance, including
(without limitation) (i) any set-off, counterclaim, recoupment, defense or
other right which such Revolving Lender or any other Person may have
against the Swingline Lender or the Borrower, (ii) the occurrence or
continuance of a Default or an Event of Default or the termination or
reduction in the amount of the Revolving Commitments after any such
Swingline Loans were made, (iii) any adverse change in the condition
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(financial or otherwise) of the Borrower or any other Person, (iv) any
breach of this Agreement or any other Loan Document by the Borrower or any
other Lender, (v) whether any condition specified in Article IV is then
satisfied or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the forgoing; provided that no Revolving
Lender shall be obligated following the occurrence and during the
continuance of any Default or Event of Default to make any payment to the
Swingline Lender under this subsection (b) with respect to a Swingline Loan
made by the Swingline Lender at a time when it had actual knowledge that a
Default or Event of Default had occurred and was continuing. If such Lender
does not pay such amount forthwith upon the Swingline Lender's demand
therefor, and until such time as such Lender makes the required payment,
the Swingline Lender shall be deemed to continue to have outstanding
Swingline Loans in the amount of such unpaid Participation Interest for all
purposes of the Loan Documents other than those provisions requiring the
other Lenders to purchase a participation therein. Further, such Lender
shall be deemed to have assigned any and all payments made of principal and
interest on its Loans, and any other amounts due to it hereunder to the
Swingline Lender to fund Swingline Loans in the amount of the Participation
Interest in Swingline Loans that such Lender failed to purchase pursuant to
this Section 2.01(b)(vii) until such amount has been purchased (as a result
of such assignment or otherwise).
Section 2.02 Notice of Loan.
(a) Revolving Loans. The Borrower shall give the Administrative Agent
notice of each Revolving Loan substantially in the form of Exhibit A-1 hereto (a
"Revolving Loan Request") not later than 11:00 A.M. on (i) the date of each
Borrowing of Base Rate Loans and (ii) the third Business Day before each
Borrowing of Eurodollar Loans. Each such notice shall be irrevocable and shall
specify:
(A) the date of such Borrowing, which shall be a
Business Day;
(B) the aggregate amount of such Borrowing;
(C) whether the Loans comprising such Borrowing are to
bear interest initially at the Base Rate or the Eurodollar Rate; and
(D) in the case of a Borrowing of Eurodollar Loans, the
duration of the initial Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period and to Section
2.07(a).
(b) Swingline Borrowings. The Borrower shall request a Swingline Loan
by written notice (or telephone notice promptly confirmed in writing)
substantially in the form of Exhibit A-2 hereto (a "Swingline Loan Request") to
the Swingline Lender and the Administrative Agent not later than 2:00 P.M. on
the Business Day of the requested Swingline Loan. Each such notice shall be
irrevocable and shall specify (i) that a Swingline Loan is requested, (ii) the
date of the requested Swingline Loan (which shall be a Business Day) and (iii)
the principal amount of the Swingline Loan requested. Each Swingline Loan shall
be made in Dollars as a Base Rate Loan and, subject to Section 2.01(b)(ii),
shall have such maturity date as agreed to by the Swingline Lender and the
Borrower upon receipt by the Swingline Lender of the Swingline Loan Request from
the Borrower.
Section 2.03 [Intentionally Omitted].
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Section 2.04 Notice to Lenders; Funding of Loans.
(a) Notice to Lenders. Upon receipt of a Revolving Loan Request, the
Administrative Agent shall promptly notify each Lender of such Lender's ratable
share (if any) of the Borrowing referred to therein, and such Revolving Loan
Request shall not thereafter be revocable by the Borrower.
(b) Funding of Loans.
(i) On the date of each Borrowing, each Lender participating
therein shall make available its share of such Borrowing not later than
2:00 P.M., in Federal or other funds immediately available, to the
Administrative Agent at the Administrative Agent's Office. Unless the
Administrative Agent determines that any applicable condition specified in
Article IV has not been satisfied, the Administrative Agent will make the
funds so received from the Lenders available to the Borrower in the
Borrower's account established at the Administrative Agent's Office;
provided that if on the date of any Revolving Loan there are outstanding
Swingline Loans or LC Disbursements, then the funds so received shall be
applied, first, to the payment of such LC Disbursements, second, to the
repayment of such Swingline Loans and third, to the Borrower as provided
above.
(ii) Not later than 3:00 P.M. on the date of each Swingline
Borrowing, the Swingline Lender shall, unless the Administrative Agent
shall have notified the Swingline Lender that any applicable condition
specified in Article IV has not been satisfied, make available the amount
of such Swingline Borrowing, in Federal or other immediately available
funds, to the Borrower in the Borrower's account established at the
Swingline Lender's address referred to in Schedule 10.02.
(c) Funding by the Administrative Agent in Anticipation of Amounts Due
from the Lenders. Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing (except in the case of a Base
Rate Borrowing, in which case prior to the time of such Borrowing) that such
Lender will not make available to the Administrative Agent such Lender's share
of such Borrowing, the Administrative Agent may assume that such Lender has made
such share available to the Administrative Agent on the date of such Borrowing
in accordance with Section 2.04(b) above, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such share available to the Administrative Agent, such Lender and the
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount, together with interest thereon for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent at (i) a rate per annum equal to
the higher of the Federal Funds Open Rate (if such Borrowing is in Dollars) or
the rate then applicable to such Loan in accordance with Section 2.07, in the
case of the Borrower, and (ii) the Federal Funds Rate, in the case of such
Lender. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's Loan
included in such Borrowing for purposes of this Agreement.
(d) Obligations of Lenders Several. The failure of any Lender to make
a Loan required to be made by it as part of any Borrowing hereunder shall not
relieve any other Lender of its obligation, if any, hereunder to make any Loan
on the date of such Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on
such date of Borrowing.
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(e) Failed Loans. If any Lender shall fail to make any Loan (a "Failed
Loan") which such Lender is otherwise obligated hereunder to make to the
Borrower on the date of Borrowing thereof, and the Administrative Agent shall
not have received notice from the Borrower or such Lender that any condition
precedent to the making of the Failed Loan has not been satisfied, then, until
such Lender shall have made or be deemed to have made (pursuant to the last
sentence of this subsection (e)) the Failed Loan in full or the Administrative
Agent shall have received notice from the Borrower or such Lender that any
condition precedent to the making of the Failed Loan was not satisfied at the
time the Failed Loan was to have been made, whenever the Administrative Agent
shall receive any amount from the Borrower for the account of such Lender, (i)
the amount so received (up to the amount of such Failed Loan) will, upon receipt
by the Administrative Agent, be deemed to have been paid to the Lender in
satisfaction of the obligation for which paid, without actual disbursement of
such amount to the Lender, (ii) the Lender will be deemed to have made the same
amount available to the Administrative Agent for disbursement as a Loan to the
Borrower (up to the amount of such Failed Loan) and (iii) the Administrative
Agent will disburse such amount (up to the amount of the Failed Loan) to the
Borrower or, if the Administrative Agent has previously made such amount
available to the Borrower on behalf of such Lender pursuant to the provisions
hereof, reimburse itself (up to the amount of the amount made available to the
Borrower); provided that the Administrative Agent shall have no obligation to
disburse any such amount to the Borrower or otherwise apply it or deem it
applied as provided herein unless the Administrative Agent shall have determined
in its sole discretion that to so disburse such amount will not violate any law,
rule, regulation or requirement applicable to the Administrative Agent. Upon any
such disbursement by the Administrative Agent, such Lender shall be deemed to
have made a Base Rate Loan to the Borrower in satisfaction, to the extent
thereof, of such Lender's obligation to make the Failed Loan.
Section 2.05 Evidence of Loans.
(a) Lender Accounts. Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness owed by 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 under this Agreement.
(b) Administrative Agent Records. The Administrative Agent shall
maintain accounts in which it will record (i) the amount of each Loan made
hereunder, the Type of each Loan made and the Interest Period, if any,
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Agent hereunder from the Borrower
and each Lender's share thereof.
(c) Evidence of Debt. The entries made in the accounts maintained
pursuant to subsections (a) and (b) of this Section 2.05 shall be prima facie
evidence of the existence and amounts of the obligations therein recorded;
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the
obligations of the Borrower to repay the Loans in accordance with their terms.
(d) Notes. Notwithstanding any other provision of this Agreement, if
any Lender shall request and receive a Note or Notes as provided in Section
10.06 or otherwise, then the Revolving Loans of such Lender shall be evidenced
by a Revolving Note or Notes, substantially in the form of Exhibit B-1, and
payable to the order of such Lender for the account of its Applicable Lending
Office in an amount equal to the aggregate unpaid principal amount of such
Lender's Revolving Loans. If requested by the Swingline Lender, the Swingline
Loans shall be evidenced by a single Swingline Note, substantially in the form
of Exhibit B-2, and payable to the order of the Swingline Lender in an amount
equal to the aggregate unpaid principal amount of the Swingline Loans.
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(e) Notes for Loans of Different Types. Each Lender may, by notice to
the Borrower and the Administrative Agent, request that its Loans of a
particular Type be evidenced by separate Notes in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such Note shall be in
substantially the form of Exhibit B-1 hereto with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant Type.
(f) Note Endorsements. Each Lender having one or more Notes shall
record the date, amount, Type of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect thereto, and may, if
such Lender so elects in connection with any transfer or enforcement of any
Note, endorse on the reverse side or on the schedule, if any, forming a part
thereof appropriate notations to evidence the foregoing information with respect
to each outstanding Loan evidenced thereby; provided that the failure of any
Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under any such Note. Each Lender is
hereby irrevocably authorized by the Borrower so to endorse each of its Notes
and to attach to and make a part of each of its Notes a continuation of any such
schedule as and when required.
Section 2.06 Letters of Credit.
(a) Letters of Credit. Each Issuing Lender agrees, on the terms and
conditions set forth in this Agreement, to issue Letters of Credit from time to
time before the Maturity Date for the account, and upon the request, of the
Borrower and in support of (i) trade obligations of the Borrower and/or its
Subsidiaries, which shall be payable at sight (each such letter of credit, a
"Trade Letter of Credit" and, collectively, the "Trade Letters of Credit") and
(ii) such other obligations of the Borrower that are acceptable to the Lenders
(each such letter of credit, a "Standby Letter of Credit" and, collectively, the
"Standby Letters of Credit"); provided that immediately after each Letter of
Credit is issued, (i) the aggregate amount of the LC Obligations shall not
exceed $50,000,000 (the "LC Committed Amount"), (ii) the aggregate of the
Revolving Outstandings shall not exceed the aggregate amount of the Revolving
Commitments and (iii) with respect to each individual Revolving Lender, the
aggregate outstanding principal amount of the Revolving Lender's Revolving Loans
plus its Participation Interest in outstanding LC Obligations plus its (other
than the Swingline Lender's in its capacity as such) Participation Interests in
outstanding Swingline Loans shall not exceed such Revolving Lender's Revolving
Commitment Percentage of the Revolving Committed Amount.
(b) Method of Issuance of Letters of Credit; Amendment of Letters of
Credit. The Borrower shall give the applicable Issuing Lender notice (with a
copy to the Administrative Agent) substantially in the form of Exhibit A-3
hereto and, to the extent required by the Issuing Lender, the Issuing Lender's
then current application for a letter of credit (collectively, a "Letter of
Credit Request") of the requested issuance or amendment of a Letter of Credit
prior to 1:00 P.M. one Business Day before the proposed date of the issuance or
amendment of Trade Letters of Credit (which shall be a Business Day) and at
least three Business Days before the proposed date of issuance or extension of
Standby Letters of Credit (which shall be a Business Day) (or such shorter
period as may be agreed by the applicable Issuing Lender in any particular
instance). In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Request shall specify in form and detail
satisfactory to the Issuing Lender: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of the
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beneficiary thereof; (E) the documents to be presented by such beneficiary in
case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and (G) such
other matters as the Issuing Lender may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit Request
shall specify in form and detail satisfactory to the Issuing Lender: (A) the
Letter of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed amendment; and
(D) such other matters as the Issuing Lender may require. The extension or
renewal of any Letter of Credit shall be deemed to be an issuance of such Letter
of Credit. No Letter of Credit shall have a term of more than one year or shall
have a term extending or be extendible beyond the fifth Business Day before the
Maturity Date.
Promptly after receipt of any Letter of Credit Request, the Issuing
Lender will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has received a copy of such Letter of Credit
Request from the Borrower and, if not, the Issuing Lender will provide the
Administrative Agent with a copy thereof. Upon receipt by the Issuing Lender of
confirmation from the Administrative Agent that the requested issuance or
amendment is permitted in accordance with the terms hereof, then, subject to the
terms and conditions thereof, the Issuing Lender shall, on the requested date,
issue a Letter of Credit for the account of the Borrower or enter into the
applicable amendment, as the case may be, in each case in accordance with the
Issuing Lender's usual and customary business practices.
Promptly after its delivery of any Letter of Credit or any amendment to a
Letter of Credit to an advising bank with respect thereto or to the beneficiary
thereof, the Issuing Lender will also deliver to the Borrower and the
Administrative Agent a true and complete copy of such Letter of Credit or
amendment.
(c) Conditions to Issuance of Letters of Credit. The issuance by an
Issuing Lender of each Letter of Credit shall, in addition to the conditions
precedent set forth in Section 4.02, be subject to the conditions precedent that
(i) such Letter of Credit shall be satisfactory in form and substance to the
applicable Issuing Lender, (ii) the Borrower shall have executed and delivered
such other instruments and agreements relating to such Letter of Credit as the
Issuing Lender shall have reasonably requested, (iii) the Issuing Lender shall
have confirmed with the Administrative Agent on the date of (and after giving
effect to) such issuance that (A) the aggregate amount of all LC Obligations
will not exceed the LC Committed Amount and (B) the aggregate Revolving
Outstandings will not exceed the aggregate amount of the Revolving Commitments
and (iv) the Issuing Lender shall not have been notified by the Administrative
Agent that any condition specified in Section 4.02(b) or (c) is not satisfied on
the date such Letter of Credit is to be issued. Notwithstanding any other
provision of this Section 2.06, no Issuing Lender shall be under any obligation
to issue any Letter of Credit if: (i) any order, judgment or decree of any
Governmental Authority shall by its terms purport to enjoin or restrain the
Issuing Lender from issuing such Letter of Credit, or any requirement of Law
applicable to such Issuing Lender or any request or directive (whether or not
having a force of Law) from any Governmental Authority with jurisdiction over
such Issuing Lender shall prohibit, or request that such Issuing Lender refrain
from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Lender with respect to such Letter
of Credit any restriction, reserve or capital requirement (for which such
Issuing Lender is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon such Issuing Lender any unreimbursed loss,
cost or expense which was not applicable on the Closing Date and which such
Issuing Lender in good xxxxx xxxxx material to it; or (ii) the issuance of such
Letter of Credit shall violate any applicable general policies of such Issuing
Lender.
(d) Purchase and Sale of Letter of Credit Participations. Upon the
issuance by an Issuing Lender of a Letter of Credit, such Issuing Lender shall
be deemed, without further action by any party hereto, to have sold to each
Revolving Lender, and each Revolving Lender shall be deemed, without further
action by any party hereto, to have purchased from such Issuing Lender, without
recourse or warranty, an undivided participation interest in such Letter of
Credit and the related LC Obligations in the proportion its Revolving Commitment
Percentage bears to the Revolving Committed Amount (although any fronting fee
payable under Section 2.12 shall be payable directly to the Administrative Agent
for the account of the applicable Issuing Lender, and the Lenders (other than
such Issuing Lender) shall have no right to receive any portion of any such
fronting fee) and any security therefor or guaranty pertaining thereto. Upon any
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change in the Revolving Commitments pursuant to Section 10.06, there shall be an
automatic adjustment to the Participation Interests in all outstanding Letters
of Credit and all LC Obligations to reflect the adjusted Revolving Commitments
of the assigning and assignee Lenders or of all Lenders having Revolving
Commitments, as the case may be.
(e) Drawings under Letters of Credit. Upon receipt from the
beneficiary of any Letter of Credit of any notice of a drawing under such Letter
of Credit, the applicable Issuing Lender shall determine in accordance with the
terms of such Letter of Credit whether such drawing should be honored. If the
Issuing Lender determines that any such drawing shall be honored, such Issuing
Lender shall make available to such beneficiary in accordance with the terms of
such Letter of Credit the amount of the drawing and shall notify the Borrower
and the Administrative Agent as to the amount to be paid as a result of such
drawing and the payment date.
(f) Duties of Issuing Lenders to Revolving Lenders; Reliance. In
determining whether to pay under any Letter of Credit, the relevant Issuing
Lender shall not have any obligation relative to the Revolving Lenders
participating in such Letter of Credit or the related LC Obligations other than
to determine that any document or documents required to be delivered under such
Letter of Credit have been delivered and that they substantially comply on their
face with the requirements of such Letter of Credit. Any action taken or omitted
to be taken by an Issuing Lender under or in connection with any Letter of
Credit shall not create for the Issuing Lender any resulting liability if taken
or omitted in the absence of gross negligence or willful misconduct. Each
Issuing Lender shall be entitled (but not obligated) to rely, and shall be fully
protected in relying, on the representation and warranty by the Borrower set
forth in the last sentence of Section 4.02 to establish whether the conditions
specified in subsections (b) and (c) of Section 4.02 are met in connection with
any issuance or extension of a Letter of Credit. Each Issuing Lender shall be
entitled to rely, and shall be fully protected in relying, upon advice and
statements of legal counsel, independent accountants and other experts selected
by such Issuing Lender and upon any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopier, telex or teletype message, statement, order or other
document believed by it in good faith to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary unless
the beneficiary and the Borrower shall have notified such Issuing Lender that
such documents do not comply with the terms and conditions of the Letter of
Credit. Each Issuing Lender shall be fully justified in refusing to take any
action requested of it under this Section 2.06 in respect of any Letter of
Credit unless it shall first have received such advice or concurrence of the
Required Revolving Lenders as it reasonably deems appropriate or it shall first
be indemnified to its reasonable satisfaction by the Revolving Lenders against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take, or omitting or continuing to omit, any such
action. Notwithstanding any other provision of this Section 2.06, each Issuing
Lender shall in all cases be fully protected in acting, or in refraining from
acting, under this Section 2.06 in respect of any Letter of Credit in accordance
with a request of the Required Revolving Lenders, and such request and any
action taken or failure to act pursuant hereto shall be binding upon all
Revolving Lenders and all future holders of participations in such Letter of
Credit.
(g) Reimbursement Obligations. The Borrower shall be irrevocably and
unconditionally obligated forthwith to reimburse each Issuing Lender for any
amounts paid by such Issuing Lender in accordance with Sections 2.06(e) and (f)
of this Agreement upon any drawing under any Letter of Credit, together with any
and all reasonable charges and expenses which the Issuing Lender may pay or
incur relative to such drawing and interest on the amount drawn at the rate
applicable to Revolving Base Rate Loans for each day from and including the date
such amount is drawn to but excluding the date such reimbursement payment is due
and payable. Such reimbursement payment shall be due and payable (i) at or
before 1:00 P.M. on the date the Issuing Lender notifies the Borrower of such
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drawing, if such notice is given at or before 10:00 A.M. on such date or (ii) at
or before 10:00 A.M. on the next succeeding Business Day if such notice is given
after 10:00 A.M. on the immediately preceding Business Day; provided that no
payment otherwise required by this sentence to be made by the Borrower at or
before 1:00 P.M. on any day shall be overdue hereunder if arrangements for such
payment satisfactory to the Issuing Lender, in its reasonable discretion, shall
have been made by the Borrower at or before 1:00 P.M. on such day and such
payment is actually made at or before 3:00 P.M. on such day. In addition, the
Borrower agrees to pay to the Issuing Lender interest, payable on demand, on any
and all amounts not paid by the Borrower to the Issuing Lender when due under
this subsection (g), for each day from and including the date when such amount
becomes due to but excluding the date such amount is paid in full, whether
before or after judgment, at a rate per annum equal to the sum of 2% plus the
rate applicable to Revolving Base Rate Loans for such day. Subject to the
satisfaction of all applicable conditions set forth in Article IV, the Borrower
may, at its option, utilize the Swingline Commitment or the Revolving
Commitments, or make other arrangements for payment satisfactory to the Issuing
Lender, for the reimbursement of all LC Disbursements as required by this
subsection (g). Each reimbursement payment to be made by the Borrower pursuant
to this subsection (g) shall be made to the Issuing Lender in Federal or other
funds immediately available to it at its address referred to Schedule 10.02.
(h) Obligations of Revolving Lenders to Reimburse Issuing Lender for
Unpaid LC Disbursements. If the Borrower shall not have reimbursed an Issuing
Lender in full for any LC Disbursement as required pursuant to subsection (g) of
this Section 2.06, the Issuing Lender shall promptly notify the Administrative
Agent, and the Administrative Agent shall promptly notify each Revolving Lender
(other than the relevant Issuing Lender) of (x) the date of drawing under the
related Letter of Credit, (y) the amount of the unreimbursed LC Disbursement and
(z) such Revolving Lender's pro-rata share of the LC Disbursement). Upon receipt
of notice from the Administrative Agent pursuant to this subsection (h), each
such Revolving Lender shall promptly and unconditionally pay to the
Administrative Agent, for the account of such Issuing Lender, such Revolving
Lender's pro-rata share of the amount of each LC Disbursement which is the
subject of such notice (determined by the proportion its Revolving Commitment
Percentage bears to the aggregate Revolving Committed Amount) in Dollars in
Federal or other immediately available funds; provided that no Revolving Lender
shall be obligated to pay to the Administrative Agent its pro-rata share of such
unreimbursed amount for any wrongful payment made by the relevant Issuing Lender
under a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence by such Issuing Lender. Such payment from the
Revolving Lender shall be due (i) at or before 1:00 P.M. on the date the
Administrative Agent so notifies a Revolving Lender, if such notice is given at
or before 10:00 A.M. on such date or (ii) at or before 10:00 A.M. on the next
succeeding Business Day, together with interest on such amount for each day from
and including the date of such drawing to but excluding the day such payment is
due from such Revolving Lender at the Federal Funds Rate for such day (which
funds the Administrative Agent shall promptly remit to the applicable Issuing
Lender). The failure of any Revolving Lender to make available to the
Administrative Agent for the account of an Issuing Lender its pro-rata share of
any unreimbursed LC Disbursement shall not relieve any other Revolving Lender of
its obligation hereunder to make available to the Administrative Agent for the
account of such Issuing Lender its pro-rata share of any payment made under any
Letter of Credit on the date required, as specified above, but no such Lender
shall be responsible for the failure of any other Lender to make available to
the Administrative Agent for the account of the Issuing Lender such other
Lender's pro-rata share of any such payment. Upon payment in full of all amounts
payable by a Lender under this subsection (h), such Lender shall be subrogated
to the rights of the Issuing Lender against the Borrower to the extent of such
Lender's pro-rata share of the related LC Obligation so paid (including interest
accrued thereon). If any Revolving Lender fails to pay any amount required to be
paid by it pursuant to this subsection (h) on the date on which such payment is
due, interest shall accrue on such Lender's obligation to make such payment, for
each day from and including the date such payment became due to but excluding
the date such Lender makes such payment, whether before or after judgment, at a
rate per annum equal to (i) for each day from the date such payment is due to
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the third succeeding Business Day, inclusive, the Federal Funds Rate for such
day as determined by the relevant Issuing Lender and (ii) for each day
thereafter, the sum of 2% plus the rate applicable to its Revolving Base Rate
Loans for such day. Any payment made by any Lender after 3:00 P.M. on any
Business Day shall be deemed for purposes of the preceding sentence to have been
made on the next succeeding Business Day.
(i) Funds Received from the Borrower in Respect of Drawn Letters of
Credit. Whenever an Issuing Lender receives a payment of an LC Obligation as to
which the Administrative Agent has received for the account of such Issuing
Lender any payments from the Lenders pursuant to subsection (h) above, such
Issuing Lender shall pay the amount of such payment to the Administrative Agent,
and the Administrative Agent shall promptly pay to each Lender which has paid
its pro-rata share thereof, in Dollars in Federal or other immediately available
funds, an amount equal to such Lender's pro-rata share of the principal amount
thereof and interest thereon for each day after relevant date of payment at the
Federal Funds Rate.
(j) Obligations in Respect of Letters of Credit Unconditional. The
obligations of the Borrower under Section 2.06(g) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under all circumstances whatsoever, including,
without limitation, the following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any Letter of Credit or any document related hereto or thereto;
(ii) any amendment or waiver of or any consent to departure from
all or any of the provisions of this Agreement or any Letter of Credit or
any document related hereto or thereto;
(iii) the use which may be made of the Letter of Credit by, or
any acts or omission of, a beneficiary of a Letter of Credit (or any Person
for whom the beneficiary may be acting);
(iv) the existence of any claim, set-off, defense or other
rights that the Borrower may have at any time against a beneficiary of a
Letter of Credit (or any Person for whom the beneficiary may be acting),
any Issuing Lender or any other Person, whether in connection with this
Agreement or any Letter of Credit or any document related hereto or thereto
or any unrelated transaction;
(v) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect
or any statement therein being untrue or inaccurate in any respect
whatsoever; provided that the relevant Issuing Lender's determination that
documents presented under such Letter of Credit comply with the terms
thereof shall not have constituted gross negligence or willful misconduct
of such Issuing Lender;
(vi) payment under a Letter of Credit against presentation to an
Issuing Lender of a draft or certificate that does not comply with the
terms of such Letter of Credit; provided that the relevant Issuing Lender's
determination that documents presented under such Letter of Credit comply
with the terms thereof shall not have constituted gross negligence or
willful misconduct of such Issuing Lender; or
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(vii) any other act or omission to act or delay of any kind by
any Issuing Lender or any other Person or any other event
or circumstance whatsoever that might, but for the
provisions of this subsection (vii), constitute a legal or
equitable discharge of the Borrower's obligations
hereunder.
(k) Designation of Subsidiaries as Account Parties. Notwithstanding
anything to the contrary set forth in this Agreement, a Letter of Credit issued
hereunder may contain a statement to the effect that such Letter of Credit is
issued for the account of a Subsidiary of the Borrower; provided that
notwithstanding such statement, the Borrower shall be the actual account party
for all purposes of this Agreement for such Letter of Credit and such statement
shall not affect the Borrower's reimbursement obligations hereunder with respect
to such Letter of Credit.
(l) Modification and Extension. The issuance of any supplement,
modification, amendment, renewal, or extensions to any Letter of Credit shall,
for purposes hereof, be treated in all respects the same as a Credit Extension
hereunder.
(m) International Standby Practices; Uniform Customs and Practices.
Unless otherwise expressly agreed by the Issuing Lender and the Borrower when a
Letter of Credit is issued, (i) the rules of the "International Standby
Practices 1998" published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance) shall apply to each Standby Letter of Credit, and (ii) the rules of
the Uniform Customs and Practice for Documentary Credits (collectively, the
"UCP"), as most recently published by the International Chamber of Commerce (the
"ICC") at the time of issuance shall apply to each Trade Letter of Credit.
(n) Responsibility of Issuing Lenders. It is expressly understood and
agreed that the obligations of the Issuing Lenders hereunder to the Revolving
Lenders are only those expressly set forth in this Agreement and that the
Issuing Lender shall be entitled to assume that the conditions precedent set
forth in Section 4.02 have been satisfied unless it shall have acquired actual
knowledge that any such condition precedent has not been satisfied; provided
that nothing set forth in this Section 2.06 shall be deemed to prejudice the
right of any Revolving Lender to recover from the Issuing Lender any amounts
made available by such Revolving Lender to the Issuing Lender pursuant to this
Section 2.06 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Letter of Credit constituted
gross negligence or willful misconduct on the part of the Issuing Lender.
(o) Conflict with LC Documents. In the event of any conflict between
this Agreement and any LC Document, this Agreement shall govern.
(p) Indemnification of Issuing Lenders.
(i) In addition to its other obligations under this Agreement,
the Borrower hereby agrees to protect, indemnify, pay and save each Issuing
Lender harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable and
actual attorneys' fees) that such Issuing Lender may incur or be subject to
as a consequence, direct or indirect, of (A) the issuance of any Letter of
Credit or (B) the failure of such Issuing Lender to honor a drawing under a
Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority (all such acts or omissions, herein called
"Government Acts").
(ii) As between the Borrower and each Issuing Lender, the
Borrower shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuing Lender shall not
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be responsible for: (A) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (C) failure of the beneficiary of a
Letter of Credit to comply fully with conditions required in order to draw
upon a Letter of Credit; (D) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex
or otherwise, whether or not they be in cipher; (E) errors in
interpretation of technical terms; (F) any loss or delay in the
transmission or otherwise of any documents required in order to make a
drawing under a Letter of Credit or of the proceeds thereof; and (G) any
consequences arising from causes beyond the control of the Issuing Lender,
including, without limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the Issuing Lender's rights or
powers hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by
an Issuing Lender, under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith, shall not put the
Issuing Lender under any resulting liability to the Borrower. It is the
intention of the parties that this Agreement shall be construed and applied
to protect and indemnify the Issuing Lenders against any and all risks
involved in the issuance of any Letter of Credit, all of which risks are
hereby assumed by the Borrower, including, without limitation, any and all
risks of the acts or omissions, whether rightful or wrongful, of any
present or future Government Acts. The Issuing Lenders shall not, in any
way, be liable for any failure by the Issuing Lenders or anyone else to pay
any drawing under any Letter of Credit as a result of any Government Acts
or any other cause beyond the control of the Issuing Lenders.
(iv) Nothing in this subsection (p) is intended to limit the
reimbursement obligation of the Borrower contained in this Section 2.06.
The obligations of the Borrower under this subsection (p) shall survive the
termination of this Agreement. No act or omission of any current or prior
beneficiary of a Letter of Credit shall in any way affect or impair the
rights of any Issuing Lender to enforce any right, power or benefit under
this Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (p), the Borrower shall have no obligation to indemnify any
Issuing Lender in respect of any liability incurred by the Issuing Lender
arising solely out of the gross negligence or willful misconduct of the
Issuing Lender, as determined by a court of competent jurisdiction. Nothing
in this Agreement shall relieve any Issuing Lender of any liability to the
Borrower in respect of any action taken by the Issuing Lender which action
constitutes gross negligence or willful misconduct of the Issuing Lender or
a violation of the UCP or Uniform Commercial Code, as applicable, as
determined by a court of competent jurisdiction.
(q) Cash Collateral. If the Borrower is required pursuant to the terms
of this Agreement or any other Loan Document to Cash Collateralize any LC
Obligations, the Borrower shall deposit in an account with the Administrative
Agent an amount in cash equal to 100% of the amount of such LC Obligations. Such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the LC Obligations. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal,
over such account. The Administrative Agent will, at the request of the
Borrower, invest amounts deposited in such account in Cash Equivalents; provided
that (i) the Administrative Agent shall not be required to make any investment
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that, in its sole judgment, would require or cause the Administrative Agent to
be in, or would result in any, violation of any Law, (ii) such Cash Equivalents
shall be subjected to a first priority perfected security interest in favor of
the Administrative Agent and (iii) if an Event of Default shall have occurred
and be continuing, the selection of such Cash Equivalents shall be in the sole
discretion of the Administrative Agent. The Borrower shall indemnify the
Administrative Agent for any losses relating to such investments in Cash
Equivalents. Other than any interest or profits earned on such investments, such
deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Lender immediately
for drawings under Letters of Credit and, if the maturity of the Loans has been
accelerated, to satisfy the LC Obligations. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned
to the Borrower within three Business Days after all Events of Default have been
cured or waived. Any moneys remaining in such account after the Obligations have
been indefeasibly paid in full in cash shall be returned to the Borrower.
(r) Resignation of an Issuing Lender. (a) An Issuing Lender may resign
at any time by giving 60 days' notice to the Administrative Agent, the Lenders
and the Borrower. Upon any such resignation, the Borrower shall (within 60 days
after such notice of resignation) either appoint a successor, or terminate the
unutilized LC Commitment of such Issuing Lender; provided that, if the Borrower
elects to terminate such unutilized LC Commitment, the Borrower may at any time
thereafter that the Revolving Credit Commitments are in effect reinstate such LC
Commitment in connection with the appointment of another Issuing Lender. Subject
to subsection (s) below, upon the acceptance of any appointment as an Issuing
Lender hereunder by a successor Issuing Lender, such successor shall succeed to
and become vested with all the interests, rights and obligations of the retiring
Issuing Lender, and the retiring Issuing Lender shall be discharged from its
obligations to issue Letters of Credit hereunder. The acceptance of any
appointment as Issuing Lender hereunder by a successor Issuing Lender shall be
evidenced by an agreement entered into by such successor, in a form reasonably
satisfactory to the Borrower and the Administrative Agent, and, from and after
the effective date of such agreement, (i) such successor shall be a party hereto
and have all the rights and obligations of an Issuing Lender under this
Agreement and the other Loan Documents and (ii) references herein and in the
other Loan Documents to the "Issuing Lender" shall be deemed to refer to such
successor or to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require.
(s) Rights with Respect to Outstanding Letter of Credit. After the
resignation of an Issuing Lender hereunder, the retiring Issuing Lender shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Lender under this Agreement and the other Loan Documents with
respect to Letters of Credit issued by it prior to such resignation, but shall
not be required to issue Letters of Credit.
Section 2.07 Interest.
(a) Rate Options Applicable to Loans. Each Loan shall be comprised of
Base Rate Loans or (except in the case of Swingline Loans which shall be made
and maintained as Base Rate Loans) Eurodollar Loans, as the Borrower may request
pursuant to Section 2.02 or 2.03, as applicable. Borrowings of more than one
Type may be outstanding at the same time; provided that the Borrower may not
request any Borrowing that, if made, would result in an aggregate of more than
five separate Groups of Eurodollar Loans being outstanding hereunder at any one
time. For this purpose, Loans having different Interest Periods, regardless of
whether commencing on the same date, shall be considered separate Groups.
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(b) Base Rate Loans. Each Loan which is made as, or converted into, a
Base Rate Loan shall bear interest on the outstanding principal amount thereof,
for each day from the date such Loan is made as, or converted into, a Base Rate
Loan until it becomes due or is converted into a Loan of any other Type or
repaid in full, at a rate per annum equal to the Applicable Margin for Base Rate
Loans for such day plus the Base Rate for such day. Such interest shall be
payable quarterly in arrears on each Interest Payment Date and, with respect to
the principal amount of any Base Rate Loan converted to a Eurodollar Loan, on
the date such Base Rate Loan is so converted. Any overdue principal of or
interest on any Base Rate Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 2% plus the rate
otherwise applicable to Base Rate Loans for such day.
(c) Eurodollar Loans. Each Eurodollar Loan shall bear interest on the
outstanding principal amount thereof, for each day during the Interest Period
applicable thereto, at a rate per annum equal to the sum of the Applicable
Margin for Eurodollar Loans for such day plus the Eurodollar Rate; provided that
if any Eurodollar Loan or any portion thereof shall, as a result of the
definition of Interest Period, have an Interest Period of less than one month,
such portion shall bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such interest shall be payable
for each Interest Period on each Interest Payment Date. Any overdue principal
amount of or interest on any Eurodollar Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the higher of (i)
the sum of 2% plus the Applicable Margin for Eurodollar Loans for such day plus
the Eurodollar Rate applicable to such Loan at the date such payment was due and
(ii) the sum of 2% plus the Applicable Margin for Eurodollar Loans for such day
plus the quotient obtained (rounded upward, if necessary, to the nearest 1/100th
of 1%) by dividing (x) the Applicable Interbank Offered Rate for one day (or if
such amount due remains unpaid more than three Business Days, then for such
other period of time not longer than six months as the Administrative Agent may
select) deposits in Dollars in an amount approximately equal to such overdue
payment by (y) 1.00 minus the Eurodollar Reserve Percentage (or, if the
circumstances described in Section 3.02 shall exist, at a rate per annum equal
to the sum of 2% plus the rate applicable to Revolving Base Rate Loans for such
day).
(d) Determination and Notice of Interest Rates. The Administrative
Agent shall determine each interest rate applicable to the Loans hereunder. The
Administrative Agent shall give prompt notice to the Borrower and the
participating Lenders of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error. Any
notice with respect to Eurodollar Loans shall, without the necessity of the
Administrative Agent so stating in such notice, be subject to adjustments in the
Applicable Margin applicable to such Loans after the beginning of the Interest
Period applicable thereto. When during an Interest Period any event occurs that
causes an adjustment in the Applicable Margin applicable to Loans to which such
Interest Period is applicable, the Administrative Agent shall give prompt notice
to the Borrower and the Lenders of such event and the adjusted rate of interest
so determined for such Loans, and its determination thereof shall be conclusive
in the absence of manifest error.
(e) Default Interest. Upon the occurrence and during the continuance
of an Event of Default and regardless of whether or not any judgment has been
entered thereon, the principal amount of and, to the extent permitted by law,
interest on the Loans and any other amounts owing herein or under the other Loan
Documents shall bear interest, payable on demand, at a per annum rate equal to
(i) in the case of principal of any Loan, the rate otherwise applicable to such
Loan during such period pursuant to this Section 2.07 plus 2.00% (without
duplication of any amount owing in respect of Base Rate Loans under the third
sentence of Section 2.07(b) or in respect of Eurodollar Loans under the third
sentence of Section 2.07(c)), (ii) in the case of interest on any Loan, the Base
Rate plus the Applicable Margin for such Loan on such day plus 2.00% and (iii)
in the case of any other amount, the Base Rate plus the Applicable Margin for
Base Rate Loans plus 2.00%.
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Section 2.08 Extension and Conversion.
(a) Continuation Conversion Options. The Revolving Loans shall bear
interest initially at the type of rate specified by the Borrower in the
applicable Revolving Loan Request. Thereafter, the Borrower shall have the
option, on any Business Day, to elect to change or continue the type of interest
rate borne by each Group of Loans (subject in each case to the provisions of
Article III and subsection 2.08(d)), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect
to convert such Loans to Eurodollar Loans as of any Business Day; and
(ii) if such Loans are Eurodollar Loans, the Borrower may elect
to convert such Loans to Base Rate Loans or elect to continue such Loans as
Eurodollar Loans for an additional Interest Period, subject to Section 3.05
in the case of any such conversion or continuation effective on any day
other than the last day of the then current Interest Period applicable to
such Loans.
Each such election shall be made by delivering a notice, substantially in
the form of Exhibit A-4 hereto (a "Notice of Extension/Conversion") to the
Administrative Agent not later than 12:00 Noon on the third Business Day before
the conversion or continuation selected in such notice is to be effective. A
Notice of Extension/Conversion may, if it so specifies, apply to only a portion
of the aggregate principal amount of the relevant Group of Loans, provided that
(i) such portion is allocated ratably among the Loans comprising such Group and
(ii) the portion to which such Notice applies, and the remaining portion to
which it does not apply, are each $5,000,000 or any larger multiple of
$1,000,000.
(b) Contents of Notice of Extension/Conversion. Each Notice of
Extension/ Conversion shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection 2.08(a) above;
(iii) if the Loans comprising such Group are to be converted, the
new type of Loans and, if the Loans being converted are to be Eurodollar
Loans, the duration of the next succeeding Interest Period applicable
thereto; and
(iv) if such Loans are to be continued as Eurodollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election
shall comply with the provisions of the definition of the term "Interest
Period".
(c) Notification to Lenders. Upon receipt of a Notice of
Extension/Conversion from the Borrower pursuant to subsection 2.08(a) above, the
Administrative Agent shall promptly notify each Lender of the contents thereof
and such notice shall not thereafter be revocable by the Borrower. If no Notice
of Extension/Conversion is timely received prior to the end of an Interest
Period for any Group of Eurodollar Loans, the Borrower shall be deemed to have
elected that such Group be converted to Base Rate Loans as of the last day of
such Interest Period.
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(d) Limitation on Conversion/Continuation Options. The Borrower shall
not be entitled to elect to convert any Loans to, or continue any Loans for an
additional Interest Period as, Eurodollar Loans if (i) the aggregate principal
amount of any Group of Loans created or continued as a result of such election
would be less than $5,000,000 or (ii) a Default shall have occurred and be
continuing when the Borrower delivers notice of such election to the
Administrative Agent.
(e) Certain Mandatory Conversions and Prepayments of Eurodollar Loans.
On the date in which the aggregate unpaid principal amount of Eurodollar Loans
comprising any Group of Loans shall be reduced, by payment or prepayment or
otherwise, to less than $5,000,000, such Loans shall, on the last day of the
then current Interest Period therefor, automatically be converted into Base Rate
Loans. Upon the occurrence and during the continuance of any Event of Default,
(i) each Eurodollar Loan shall automatically, on the last day of the then
current Interest Period therefor, be converted into a Base Rate Loan and (ii)
the obligation of the Lenders to make, or to continue or convert Loans into,
Eurodollar Loans shall be suspended.
(f) Accrued Interest. Accrued interest on a Loan (or portion thereof)
being extended or converted shall be paid by the Borrower (i) with respect to
any Base Rate Loan being converted to a Eurodollar Loan, on the last day of the
first fiscal quarter of the Borrower ending on or after the date of conversion
and (ii) otherwise, on the date of extension or conversion.
Section 2.09 Scheduled Termination of Commitments; Mandatory Prepayments.
The Commitments shall terminate on the Maturity Date, and any Loans then
outstanding (together with accrued interest thereon) shall be due and payable on
the Maturity Date. If on any date the aggregate of all Revolving Outstandings
exceeds the aggregate amount of the Revolving Commitments or the aggregate
amount of all LC Obligations exceeds the LC Committed Amount, the Borrower
shall, within 5 Business Days, prepay outstanding Loans (as selected by the
Borrower and notified to the Revolving Lenders through the Administrative Agent
not less than three Business Days prior to the date of such payment) and/or Cash
Collateralize outstanding Letters of Credit to the extent necessary to eliminate
any such excess.
Section 2.10 Optional Prepayments.
(a) Subject in the case of any Eurodollar Loan to Section 3.05, the
Borrower may (i) with notice by 12:00 Noon on the date of such prepayment,
prepay any Group of Base Rate Loans or any Swingline Borrowing bearing interest
at the Base Rate pursuant to Section 3.02, in each case in whole at any time, or
from time to time in part in an aggregate principal amount of $5,000,000 or any
larger multiple of $1,000,000, or (ii) upon at least three Business Days' notice
to the Administrative Agent, prepay any Group of Eurodollar Loans in whole at
any time, or from time to time in part in an aggregate principal amount of
$5,000,000 or any larger multiple of $1,000,000, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
Each such optional prepayment shall be applied to prepay ratably the Loans of
the several Lenders included in such Group or Borrowing.
(b) Upon receipt of a notice of prepayment pursuant to this Section,
the Administrative Agent shall promptly notify each Lender of the contents
thereof and of such Lender's ratable share (if any) of such prepayment and such
notice shall not thereafter be revocable by the Borrower.
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Section 2.11 Adjustment of Commitments.
(a) Optional Termination or Reduction of Revolving Committed Amount.
The Borrower may from time to time terminate in full or permanently reduce the
Revolving Committed Amount upon 5 Business Days' prior written or telecopied
notice to the Administrative Agent; provided that (i) no such termination or
reduction shall be made which would cause the Revolving Outstandings (after
giving effect to any concurrent repayment of Revolving Loans or Swingline Loans
or Cash Collateralization of LC Obligations) to exceed the Revolving Committed
Amount as so reduced, and (ii) any such partial reduction shall be in a minimum
aggregate amount of $5,000,000 or any integral multiple of $1,000,000 in excess
thereof (or, if less, the full remaining amount of the then applicable Revolving
Committed Amount). The Administrative Agent shall promptly notify each affected
Lender of the receipt by the Administrative Agent of any notice from the
Borrower pursuant to this Section 2.11(a). Any partial reduction of the
Revolving Committed Amount pursuant to this Section 2.11(a) shall be applied to
the Revolving Commitments of the Lenders pro-rata based upon their respective
Revolving Commitment Percentages. The Borrower shall pay to the Administrative
Agent for the account of the Lenders in accordance with the terms of Section
2.12, on the date of each termination or reduction of the Revolving Committed
Amount, any fees accrued through the date of such termination or reduction on
the amount of the Revolving Committed Amount so terminated or reduced.
(b) Automatic Termination at Maturity. The Revolving Commitments of
the Lenders and the LC Commitments of the Issuing Lenders shall terminate
automatically on the Maturity Date. The Swingline Commitment of the Swingline
Lender shall terminate automatically on the Swingline Termination Date.
(c) Optional Replacement of Lenders, Non-Pro-Rata Termination of
Commitments. If (i) any Lender has demanded compensation or indemnification
pursuant to Section 3.01 or Section 3.04, (ii) the obligation of any Lender to
make Eurodollar Loans has been suspended pursuant to Section 3.02, (iii) any
Lender is a Defaulting Lender or (iv) any Lender has failed to consent to a
proposed amendment, waiver, discharge or termination which pursuant to the terms
of Section 10.01 or any other provision of any Loan Document requires the
consent of all of the Lenders and with respect to which the Required Lenders
shall have granted their consent, the Borrower shall have the right, if no
Default or Event of Default then exists, to (i) remove such Lender by
terminating such Lender's Commitment in full or (ii) replace such Lender by
causing such Lender to assign its Commitment (without payment of any assignment
fee) to one or more existing Lenders or Eligible Assignees (each a "Replacement
Lender") pursuant to Section 10.06; provided that if the Borrower elects to
exercise such right with respect to any Lender pursuant to clause (i) or (ii)
above, it shall be obligated to remove or replace, as the case may be, all
Lenders that have made similar requests for compensation pursuant to Section
3.01 or 3.04 or whose obligation to make Eurodollar Loans has been similarly
suspended. The replacement of a Lender pursuant to this Section 2.11(c) shall be
effective on the tenth Business Day (the "Replacement Date") following the date
of notice of such replacement to the Lenders through the Administrative Agent,
subject to the satisfaction of the following conditions:
(i) each Replacement Lender, and each Lender subject to
replacement, shall have satisfied the conditions to an Assignment and
Acceptance set forth in Section 10.06(b) and, in connection therewith,
the Replacement Lender(s) shall pay:
(A) to each Lender subject to replacement an amount
equal in the aggregate to the sum of (x) the principal amount of, and all
accrued but unpaid interest on, its outstanding Loans, (y) all LC
Disbursements that have been funded by (and not reimbursed to) it under
Section 2.06, together with all accrued but unpaid interest with respect
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thereto, and (z) all accrued but unpaid fees owing to it pursuant to
Section 2.12; and
(B) to the Issuing Lenders an amount equal to the
aggregate amount owing by the replaced Lenders to the Issuing Lenders as
reimbursement pursuant to Section 2.06, to the extent such amount was not
theretofore funded by such replaced Lenders; and
(ii) the Borrower shall have paid to the Administrative Agent
for the account of each replaced Lender an amount equal to all
obligations owing to such replaced Lenders by the Borrower pursuant to
this Agreement and the other Loan Documents (other than those obligations
of the Borrower referred to in clause (i)(A) above).
In the case of the removal of a Lender pursuant to this Section 2.11(c),
upon (i) payment by the Borrower to the Administrative Agent for the account of
the Lender subject to such removal of an amount equal to the sum of (A) the
aggregate principal amount of all Loans and LC Obligations held by such Lender
and (B) all accrued interest, fees and other amounts owing to such Lender
hereunder, including, without limitation, all amounts payable by the Borrower to
such Lender under Article III or Sections 10.04 and 10.05, and (ii) provision by
the Borrower to the Swingline Lender and each Issuing Lender of appropriate
assurances and indemnities (which may include letters of credit) as each may
reasonably require with respect to any continuing obligation of such removed
Lender to purchase Participation Interests in any LC Obligations or Swingline
Loans then outstanding, such Lender shall cease to constitute a Lender
hereunder; provided that the provisions of this Agreement (including, without
limitation, the provisions of Article III and Sections 10.04 and 10.05) shall
continue to govern the rights and obligations of a removed Lender with respect
to any Loans made, any Letters of Credit issued or any other actions taken by
such removed Lender while it was a Lender.
(d) Optional Extensions of Commitments.
(i) If the Borrower shall request, by notice to the
Administrative Agent not less than 30 days prior to the Maturity Date then
in effect, that the availability period for Revolving Loans be extended
until the first anniversary of such Maturity Date, then the Administrative
Agent shall promptly notify each Revolving Lender of such request, and each
Revolving Lender shall notify the Borrower and the Administrative Agent not
more than 15 Business Days after the date on which the Administrative Agent
shall have received the Borrower's request (which date shall be set forth
in the notice of such request given by the Administrative Agent) of its
election so to extend (in such case, each a "Remaining Lender") or not
extend the availability period for Revolving Loans. Any Lender which shall
not timely notify the Administrative Agent of such election shall be deemed
to have elected not to extend such availability period.
(ii) If one or more Lenders shall timely notify the
Administrative Agent pursuant to subsection (d)(i) of this Section 2.11 of
its election not to extend the availability period for Revolving Loans or
shall be deemed to have elected not to extend the availability period for
Revolving Loans by virtue of having not timely notified the Administrative
Agent of its election to extend such availability period, then the
Administrative Agent shall so advise the Borrower and the Remaining
Lenders, and the Remaining Lenders or any of them shall have the right (but
not the obligation), upon notice to the Administrative Agent not later than
10 Business Days immediately preceding the applicable Maturity Date, to
increase their respective Revolving Commitments by an amount equal in the
aggregate to the Revolving Commitments of the Lenders who have, or have
been deemed to have, elected not to extend the availability period for
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Revolving Loans. Each Lender electing to increase its Revolving Commitment
hereunder shall specify in its notice to the Administrative Agent the
amount by which it is willing to increase its Revolving Commitment. Each
increase in the Revolving Commitment of a Lender hereunder shall be
evidenced by a written instrument executed by such Lender, the
Administrative Agent and the Borrower and shall take effect on the Maturity
Date in effect for the Lenders who have, or have been deemed to have,
elected not to extend the availability period for Revolving Loans.
(iii) If the aggregate Revolving Commitments of the Lenders prior
to any adjustment under this Section 2.11 shall exceed the aggregate
Revolving Commitments of the Remaining Lenders that have agreed to increase
their Revolving Commitments pursuant to subsection (d)(ii) of this Section
2.11, the Borrower may, with the approval of the Administrative Agent, such
approval not to be unreasonably withheld, designate one or more Eligible
Assignees willing to extend Revolving Commitments until the first
anniversary of the Maturity Date in effect for the Lenders who have, or
have been deemed to have, elected not to extend the availability period for
Revolving Loans in an aggregate amount not greater than such excess. Any
such Eligible Assignee shall, on or prior to the Maturity Date in effect
for the Lenders who have, or have been deemed to have, elected not to
extend the availability period for Revolving Loans, execute and deliver to
the Borrower, the Administrative Agent and each Remaining Lender an
instrument, satisfactory to the Borrower and the Administrative Agent,
setting forth the amount of its Revolving Commitment and containing its
agreement to become, and to perform all the obligations of, a Lender
hereunder. The Revolving Commitment of such Eligible Assignee shall become
effective, and such Eligible Assignee shall become a Lender hereunder, on
the Maturity Date then in effect for the Lenders who have, or have been
deemed to have, elected not to extend the availability period for Revolving
Loans.
(iv) The Borrower shall deliver to each Eligible Assignee and
each Lender who has increased its Revolving Commitment pursuant to Section
2.11(d)(ii), on the Maturity Date in effect for the Lenders who have, or
have been deemed to have, elected not to extend the availability period for
Revolving Loans, a Revolving Note evidencing the Borrower's obligation to
pay Revolving Loans made by such Eligible Assignee or such Lender pursuant
to this Agreement.
(v) If some or all of the Lenders shall have elected to extend
the availability period for Revolving Loans as provided in this Section
2.11(d), then (A) the availability period with respect to the Revolving
Commitments of such Lenders and any which becomes a Lender hereunder shall
continue until the first anniversary of the Maturity Date in effect prior
to such election and, as to such Lenders, the term "Maturity Date", as used
herein, shall mean such first anniversary; (B) the Revolving Commitments of
the Lenders who have, or have been deemed to have, elected not to extend
the availability period for Revolving Loans shall continue in effect until
the Maturity Date in effect prior to such extension and shall then
terminate, and, as to such Lenders, the term "Maturity Date", as used
herein, shall continue to mean such Maturity Date and the Borrower shall
repay all such Revolving Loans on such date; and (C) on the Maturity Date
in effect prior to such extension, each Lender who has, or has been deemed
to have, elected not to extend the availability period for Revolving Loans
Lender shall cease to be a Lender hereunder upon payment in full of all
Revolving Loans, accrued interest, fees, costs and expenses due to such
Lender hereunder; provided that the provisions of this Agreement
(including, without limitation, the provisions of Article III and Sections
10.04 and 10.05) shall continue to govern the rights and obligations of
such Lender with respect to any Loans made, any Letters of Credit issued or
any other actions taken by such Lender while it was a Lender.
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(vi) If some or all of the Lenders shall have elected to extend
the availability period for Revolving Loans as provided in this Section
2.11(d), the availability period for Swingline Loans shall, automatically
without action on the part of the Borrower, continue until the date to
which the Maturity Date has been extended, and the term "Swingline
Termination Date", as used herein, shall mean such date. The foregoing
notwithstanding (i) in the event that the Swingline Lender is also a Lender
who has not extended its Revolving Commitment hereunder, the Borrower's
right to so extend the Swingline Termination Date shall be subject to the
appointment of a successor Swingline Lender hereunder; and (ii) to the
extent the Swingline Lender's Revolving Commitment has been reduced in
connection with any such extension or there has been the appointment of a
successor Swingline Lender whose Revolving Commitment is less than the
Swingline Commitment existing immediately preceding such appointment, then
the Swingline Termination Date may only be extended with respect to such
lesser amount.
Section 2.12 Fees.
(a) Facility Fee. The Borrower shall pay to the Administrative Agent
for the account of each Revolving Lender a fee (the "Facility Fee") on such
Lender's Revolving Commitment Percentage of the daily Revolving Committed
Amount, computed at a per annum rate for each day at a rate equal to the
Applicable Margin then in effect. The Facility Fee shall continue to accrue from
the Closing Date and shall be due and payable in arrears on last day of each
March, June, September and December (and any date that the Revolving Committed
Amount is reduced as provided in Section 2.10(a) and the Maturity Date) for the
calendar quarter or portion thereof ending on each such date, beginning with the
first of such dates to occur after the Closing Date and continuing after the
Amendment Effective Date.
(b) Letter of Credit Fees.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender a fee (the "Letter of
Credit Fee") on such Lender's Revolving Commitment Percentage of the
average daily maximum amount available to be drawn under each such Letter
of Credit computed at a per annum rate for each day from the date of
issuance to the date of expiration equal to the Applicable Margin in
respect of Eurodollar Revolving Loans in effect from time to time. The
Letter of Credit Fee will be payable quarterly in arrears on the last day
of each March, June, September and December for the immediately preceding
quarter (or portion thereof), beginning with the first of such dates to
occur after the date of issuance of such Letter of Credit and on the
Maturity Date. If there is a change in the Applicable Margins during any
period, the actual amount of each Letter of Credit shall be computed and
multiplied by the Applicable Margins separately for each period during
which such Applicable Margins are in effect.
(ii) Fronting Fees. The Borrower shall pay directly to each
Issuing Lender for its own account a fronting fee in the amount (A) with
respect to each Trade Letter of Credit, equal to .125% of the amount of
such Trade Letter of Credit, due and payable upon the issuance thereof and
(B) with respect to each Standby Letter of Credit, equal to .125% per annum
on the daily maximum amount available to be drawn thereunder, due and
payable quarterly in arrears on the last day of each March, June, September
and December, commencing with the first such date after the issuance of
such letter of credit and on the Maturity Date.
(iii) Issuing Lender Fees. In addition to the Letter of Credit
Fee payable pursuant to clause (i) above and any fronting fees payable
pursuant to clause (ii) above, the Borrower promises to pay to the Issuing
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Lender for its own account without sharing by the other Lenders the letter
of credit fronting and negotiation fees agreed to by the Borrower and the
Issuing Lender from time to time and the customary charges from time to
time of the Issuing Lender with respect to the issuance, amendment,
transfer, administration, cancellation and conversion of, and drawings
under, such Letters of Credit (collectively, the "Issuing Lender Fees").
(c) Agency Fees. The Borrower shall pay an agency fee to the
Administrative Agent's own account, in amounts and at times specified in the
letter agreement dated September 8, 2005 between the Borrower and the
Administrative Agent. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
Section 2.13 Pro-Rata Treatment. Except to the extent otherwise provided
herein:
(a) Loans. Each Revolving Loan, each payment or prepayment of
principal of or interest on any Revolving Loan, each payment of fees (other than
the Issuing Lender Fees retained by the Issuing Lender for its own account and
the fees retained by the Agents for their own account), each reduction of the
Revolving Committed Amount and each conversion or continuation of any Revolving
Loan, shall be allocated pro-rata among the relevant Lenders in accordance with
the respective Revolving Commitment Percentages, of such Lenders (or, if the
Commitments of such Lenders have expired or been terminated, in accordance with
the respective principal amounts of the outstanding Loans and Participation
Interests of such Lenders); provided that in the event any amount paid to any
Lender pursuant to this subsection (a) is rescinded or must otherwise be
returned by the Administrative Agent, each Lender shall, upon the request of the
Administrative Agent, repay to the Administrative Agent the amount so paid to
such Lender, with interest for the period commencing on the date such payment is
returned by the Administrative Agent until the date the Administrative Agent
receives such repayment at a rate per annum equal to, during the period to but
excluding the date two Business Days after such request, the Federal Funds Rate,
and thereafter, the Base Rate plus two percent (2%) per annum.
(b) Letters of Credit. Each payment of LC Obligations shall be
allocated to each Revolving Lender pro-rata in accordance with its Revolving
Commitment Percentage; provided that if any Revolving Lender shall have failed
to pay its applicable pro-rata share of any LC Disbursement, then any amount to
which such Revolving Lender would otherwise be entitled pursuant to this
subsection (b) shall instead be payable to the Issuing Lender; provided further
that in the event any amount paid to any Revolving Lender pursuant to this
subsection (b) is rescinded or must otherwise be returned by the Issuing Lender,
each Revolving Lender shall, upon the request of the Issuing Lender, repay to
the Administrative Agent for the account of the Issuing Lender the amount so
paid to such Revolving Lender, with interest for the period commencing on the
date such payment is returned by the Issuing Lender until the date the Issuing
Lender receives such repayment at a rate per annum equal to, during the period
to but excluding the date two Business Days after such request, the Federal
Funds Rate, and thereafter, the Base Rate plus two percent (2%) per annum.
Section 2.14 Sharing of Payments. The Lenders agree among themselves
that, except to the extent otherwise provided herein, if any Lender shall obtain
payment in respect of any Loan, unreimbursed LC Disbursements or any other
obligation owing to such Lender under this Agreement through the exercise of a
right of setoff, banker's lien or counterclaim, or pursuant to a secured claim
under Section 506 of the Bankruptcy Code or other security or interest arising
from, or in lieu of, such secured claim, received by such Lender under any
applicable bankruptcy, insolvency or other similar law or otherwise, or by any
other means, in excess of its pro-rata share of such payment as provided for in
this Agreement, such Lender shall promptly pay in cash or purchase from the
other Lenders a participation in such Loans, unreimbursed LC Disbursements, and
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other obligations in such amounts, and make such other adjustments from time to
time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this
Agreement; provided that nothing in this Section 2.14 shall impair the right of
any Lender to exercise any right of set-off or counterclaim it may have for
payment of indebtedness of the Borrower other than its indebtedness hereunder.
The Lenders further agree among themselves that if payment to a Lender obtained
by such Lender through the exercise of a right of setoff, banker's lien,
counterclaim or other event as aforesaid shall be rescinded or must otherwise be
restored, each Lender which shall have shared the benefit of such payment shall,
by payment in cash or a repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such participation as fully as if such Lender were a holder of
such Loan, LC Obligation or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Agreement, if any
Lender or the Administrative Agent shall fail to remit to the Administrative
Agent or any other Lender an amount payable by such Lender or the Administrative
Agent to the Administrative Agent or such other Lender pursuant to this
Agreement on the date when such amount is due, such payments shall be made
together with interest thereon if paid within two Business Days of the date when
such amount is due at a per annum rate equal to the Federal Funds Rate and
thereafter at a per annum rate equal to the Base Rate until the date such amount
is paid to the Administrative Agent or such other Lender. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 2.14 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 2.14 to share in the benefits of any recovery on such secured claim.
Section 2.15 Payments; Computations.
(a) Payments by the Borrower. Each payment of principal of and
interest on Loans, LC Obligations and fees hereunder (other than fees payable
directly to the Issuing Lenders or the Agents) shall be paid not later than 2:00
P.M. on the date when due, in funds immediately available to the Administrative
Agent at the Administrative Agent's Office. Each such payment shall be made
irrespective of any set-off, counterclaim or defense to payment which might in
the absence of this provision be asserted by the Borrower or any Affiliate
against any Agent or any Lender. Except as otherwise provided herein, payments
received after 2:00 P.M. shall be deemed to have been received on the next
Business Day. The Borrower shall, at the time it makes any payments under this
Agreement, specify to the Administrative Agent the Loan, Letters of Credit, fees
or other amounts payable by the Borrower hereunder to which such payment is to
be applied (and if it fails so to specify or if such application would be
inconsistent with the terms hereof, the Administrative Agent shall, subject to
Section 2.13, distribute such payment to the Lenders in such manner as the
Administrative Agent may deem appropriate). The Administrative Agent will
distribute such payments in like funds to the applicable Lenders on the date of
receipt thereof, if such payment is received prior to 2:00 P.M.; otherwise the
Administrative Agent will distribute such payment to the applicable Lenders on
the next succeeding Business Day. Whenever any payment hereunder shall be due on
a day which is not a Business Day, the date for payment thereof shall be
extended to the next succeeding Business Day unless (in the case of Eurodollar
Loans) such Business Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Business Day. If the date for
any payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time. The Borrower hereby authorizes
and directs the Administrative Agent to debit any account maintained by the
Borrower with the Administrative Agent to pay when due any amounts required to
be paid from time to time under this Agreement.
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(b) Distributions by the Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Lenders hereunder that the Borrower will
not make such payment in full, the Administrative Agent may assume that the
Borrower has made such payment in full to the Administrative Agent on such date,
and the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent that the Borrower shall not have so made
such payment, each Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Administrative Agent, at the Federal
Funds Rate.
(c) Computations. Except for Base Rate Loans, in which case interest
shall be computed on the basis of a 365 or 366 day year as the case may be
(unless the Base Rate is determined by reference to the Federal Funds Rate), all
computations of interest and fees hereunder shall be made on the basis of the
actual number of days elapsed over a year of 360 days. Interest shall accrue
from and include the date of borrowing (or continuation or conversion) but
excluding the date of payment.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01 Taxes.
(a) Payments Net of Certain Taxes. Any and all payments by the
Borrower to or for the account of any Lender or any Agent hereunder or under any
other Loan Document shall be made free and clear of and without deduction for
any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in
the case of each Lender (or its Applicable Lending Office) and each Agent, taxes
imposed on its income, and franchise taxes imposed on it, by: (i) the
jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or such Agent (as the case may be) is incorporated or organized or any
political subdivision thereof, (ii) the jurisdiction in which its principal
executive office is located or (iii) reason of any connection between it and the
jurisdiction imposing such tax other than a connection arising from its having
executed, delivered or performed its obligations under, or received payment
under or enforced, this Agreement (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrower or the Administrative Agent shall be
required by law to deduct or withhold any Taxes from or in respect of any sum
payable under this Agreement or any other Loan Document to any Lender or any
other Agent, (i) the sum payable shall be increased as necessary so that after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section 3.01) such
Lender or such Agent receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and withholdings, (iii) the Borrower shall pay the full amount deducted or
withheld to the relevant taxation Governmental Authority or other authority in
accordance with applicable law and (iv) the Borrower shall furnish to the
Administrative Agent, at the office of the Administrative Agent specified in
Schedule 10.02, the original or a certified copy of a receipt evidencing payment
thereof.
(b) Other Taxes. In addition, the Borrower agrees to pay any and all
present or future stamp or documentary, excise or property taxes or similar
levies (including mortgage recording taxes) which arise from any payment made
under this Agreement or any other Loan Document or from the execution or
delivery of, or otherwise with respect to, this Agreement or any other Loan
Document (hereinafter referred to as "Other Taxes").
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(c) Additional Taxes. If the Borrower fails to pay Taxes or Other
Taxes in accordance with the provisions of Sections 3.01(a) or (b), the Borrower
agrees to indemnify each Lender and each Agent for the full amount of Taxes and
Other Taxes (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 3.01) paid by such Lender or
such Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising from such failure or with respect thereto.
(d) Tax Forms and Certificates. Each Lender (or its Applicable Lending
Office) organized under the laws of a jurisdiction outside the United States (a
"Non-U.S. Lender"), on or prior to the date of its execution and delivery of
this Agreement in the case of each Lender listed on the signature pages hereof
and in the case of each other Lender at least 5 Business Days before the
effective date of such assignment or participation (unless the Administrative
Agent in its sole discretion shall permit such assignee or participant to make
delivery less than 5 Business Days before such date in which case it shall be
due on the date specified by the Administrative Agent), and, to the extent it is
legally entitled to do so, from time to time thereafter as required by law,
shall provide the Borrower and the Administrative Agent with (i) two duly
completed copies of Internal Revenue Service Form W-8BEN or W-8ECI, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which reduces or eliminates the rate of
withholding tax on payments of interest or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade
or business in the United States or (ii) in the case of a Non-U.S. Lender that
is not legally entitled to deliver either form listed in the previous clause
(i), (x) a certificate of a duly authorized officer of such Non-U.S. Lender to
the effect that such Non-U.S. Lender is not (A) a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled
foreign corporation receiving interest from a related person within the meaning
of Section 881(c)(3)(C) of the Code (such certificate, an "Exemption
Certificate") and (y) two duly completed copies of Internal Revenue Service Form
W-8BEN or applicable successor form. Notwithstanding the submission of an
Internal Revenue Service Form or Exemption Certificate as provided for in this
Section 3.01(d) claiming a reduced rate of or exemption from United States
withholding tax, the Administrative Agent shall be entitled to withhold United
States federal income taxes at the full 30% withholding rate if in its
reasonable judgment it is required to do so under the due diligence requirements
imposed upon a withholding agent under ss. 1.1441-7(b) of the United States
federal income tax regulations (the "Regulations"). Further, the Administrative
Agent is indemnified under ss. 1.1461-1(e) of the Regulations against any claims
and demands of any Lender or assignee or participant of a Lender for the amount
of any tax it deducts and withholds in accordance with regulations under ss.
1441 of the Internal Revenue Code.
(e) Failure to Provide Tax Forms and Certificates. For any period with
respect to which a Lender (or its Applicable Lending Office) has failed to
provide the Borrower and the Administrative Agent with the appropriate form
pursuant to Section 3.01(d) (unless such failure is due to a change in treaty,
law or regulation occurring subsequent to the date on which a form originally
was required to be provided), such Lender shall not be entitled to
indemnification under Section 3.01(a) or 3.01(b) with respect to Taxes imposed
by the United States; provided that should a Lender, which is otherwise exempt
from withholding tax, become subject to Taxes because of its failure to deliver
a form required to be delivered hereunder, the Borrower shall take such steps as
such Lender shall reasonably request to assist such Lender to recover such
Taxes.
(f) Obligations in Respect of Non-U.S. Lenders. The Borrower shall not
be required to indemnify any Non-U.S. Lender or to pay any additional amounts to
any Non-U.S. Lender, in respect of United States Federal withholding tax
pursuant to subsections (a), (b) or (d) above to the extent that the obligation
to withhold amounts with respect to United States Federal withholding tax
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existed on the date such Non-U.S. Lender became a party to this Agreement (or,
in the case of a participant, on the date such participant acquired its
participation interest) or, with respect to payments to a new Applicable Lending
Office, the date such Non-U.S. Lender designated such new Applicable Lending
Office with respect to a Loan; provided that this subsection (f) shall not apply
(i) to any participant or new Applicable Lending Office that becomes a
participant or new Applicable Lending Office as a result of an assignment,
participation, transfer or designation made at the request of the Borrower and
(ii) to the extent the indemnity payment or additional amounts any participant,
or any Lender acting through a new Applicable Lending Office, would be entitled
to receive (without regard to this subsection (f)) do not exceed the indemnity
payment or additional amounts that the Person making the assignment,
participation or transfer to such participant, or Lender (or participant) making
the designation of such new Applicable Lending Office, would have been entitled
to receive in the absence of such assignment, participation, transfer or
designation.
(g) Mitigation. If the Borrower is required to pay additional amounts
to or for the account of any Lender (or its Applicable Lending Office) pursuant
to this Section 3.01, then such Lender will agree to use reasonable efforts to
change the jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such change,
in the judgment of such Lender, is not otherwise disadvantageous to such Lender.
(h) Tax Receipts. Within thirty days after the date of any payment of
Taxes, the Borrower shall furnish to the Agent the original or a certified copy
of a receipt evidencing such payment (to the extent one is so provided).
Section 3.02 Illegality. If, on or after the date of this Agreement, the
adoption of any applicable Law, or any change in any applicable Law, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of Law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Lender (or its Applicable Lending Office) to make,
maintain or fund any of its Eurodollar Loans and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall forthwith give notice
thereof to the other Lenders and the Borrower, whereupon until such Lender
notifies the Borrower and the Administrative Agent that the circumstances giving
rise to such suspension no longer exist, the obligation of such Lender to make
Eurodollar Loans, or to convert outstanding Loans into Eurodollar Loans, shall
be suspended. Before giving any notice to the Administrative Agent pursuant to
this Section 3.02, such Lender shall designate a different Applicable Lending
Office if such designation will avoid the need for giving such notice and will
not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender. If such notice is given, each Eurodollar Loan of such Lender then
outstanding shall be converted to a Base Rate Loan either (i) on the last day of
the then current Interest Period applicable to such Eurodollar Loan if such
Lender may lawfully continue to maintain and fund such Loan to such day or (ii)
immediately if such Lender shall determine that it may not lawfully continue to
maintain and fund such Loan to such day.
Section 3.03 Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any Eurodollar Loan:
(i) the Administrative Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the applicable
Eurodollar Rate for such Interest Period; or
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(ii) in the case of Eurodollar Loans, Lenders having 50% or more of
the aggregate amount of the Commitments advise the Administrative Agent
that the Applicable Interbank Offered Rate as determined by the
Administrative Agent will not adequately and fairly reflect the cost to
such Lenders of funding their Eurodollar Loans for such Interest Period;
the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer exist,
(i) the obligations of the Lenders to make Eurodollar Loans, or to continue or
convert outstanding Loans as or into Eurodollar Loans, shall be suspended and
(ii) each outstanding Eurodollar Loan shall be converted into a Base Rate Loan
on the last day of the then current Interest Period applicable thereto. Unless
the Borrower notifies the Administrative Agent at least two Business Days before
the date of any Borrowing of Eurodollar Loans for which a Revolving Loan Request
has previously been given that it elects not to borrow on such date, such
Borrowing shall instead be made as a Borrowing of Base Rate Loans in the same
aggregate principal amount as the requested Borrowing.
Section 3.04 Increased Costs and Reduced Return. (a) If on or after the
date hereof, the adoption of or any change in any applicable Law or in the
interpretation or application thereof applicable to any Lender (or its
Applicable Lending Office), or compliance by any Lender (or its Applicable
Lending Office) with any request or directive (whether or not having the force
of Law) from any central bank or other Governmental Authority:
(i) shall subject such Lender (or its Applicable Lending Office) to
any tax of any kind whatsoever with respect to any Letter of Credit, any
Eurodollar Loans made by it or any of its Notes or its obligation to make
Eurodollar Loans or to participate in Letters of Credit, or change the
basis of taxation of payments to such Lender (or its Applicable Lending
Office) in respect thereof (except for (A) Taxes and Other Taxes covered by
Section 3.01 (including Taxes imposed solely by reason of any failure of
such Lender to comply with its obligations under Section 3.01(d)) and (B)
changes in taxes measured by or imposed upon the overall net income, or
franchise tax (imposed in lieu of such net income tax), of such Lender or
its Applicable Lending Office, branch or any affiliate thereof));
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender (or its Applicable Lending Office) which is not
otherwise included in the determination of the Eurodollar Rate hereunder;
or
(iii) shall impose on such Lender (or its Applicable Lending Office)
any other condition (excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, converting into, continuing
or maintaining any Eurodollar Loans or issuing or participating in Letters of
Credit or to reduce any amount receivable hereunder in respect thereof, then, in
any such case, upon notice to the Borrower from such Lender, through the
Administrative Agent, in accordance herewith, the Borrower shall be obligated to
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender on an after-tax basis (after taking into account
applicable deductions and credits in respect of the amount indemnified) for such
increased cost or reduced amount receivable.
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(b) If any Lender shall have determined that the adoption or the
becoming effective of, or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable Law, regarding capital adequacy, or compliance by such Lender, or its
parent corporation, with any request or directive regarding capital adequacy
(whether or not having the force of Law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's (or parent corporation's) capital or assets as a consequence of
its commitments or obligations hereunder to a level below that which such
Lender, or its parent corporation, could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's (or
parent corporation's) policies with respect to capital adequacy), then, upon
notice from such Lender to the Borrower, the Borrower shall be obligated to pay
to such Lender such additional amount or amounts as will compensate such Lender
on an after-tax basis (after taking into account applicable deductions and
credits in respect of the amount indemnified) for such reduction. Each
determination by any such Lender of amounts owing under this Section 3.04 shall,
absent manifest error, be conclusive and binding on the parties hereto; provided
that the Borrower shall not be required to compensate any Lender pursuant to
subsection (a) above or this subsection (b) for any additional costs or
reductions suffered more than 180 days prior to the date such Lender notifies
the Borrower of the circumstances giving rise to such additional costs or
reductions and of such Lender's intentions to claim compensation therefor, and
provided further that, if the change in Law or in the interpretation or
administration thereof giving rise to such additional costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.
(c) A certificate of each Lender setting forth such amount or amounts
as shall be necessary to compensate such Lender or its holding company as
specified in subsection (a) or (b) above, as the case may be, shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay each Lender or the Issuing Lender the amount shown as due on any such
certificate delivered by it within 10 Business Days after receipt of the same.
(d) Promptly after any Lender becomes aware of any circumstance that
will, in its sole judgment, result in a request for increased compensation
pursuant to this Section 3.04, such Lender shall notify the Borrower thereof.
Failure on the part of any Lender so to notify the Borrower or to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital with respect to any period shall
not constitute a waiver of such Lender's right to demand compensation with
respect to such period or any other period. The protection of this Section 3.04
shall be available to each Lender regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, guideline or other
change or condition which shall have occurred or been imposed.
Section 3.05 Funding Losses. The Borrower shall indemnify each Lender
against any loss or reasonable expense (including any loss of anticipated
profits) which such Lender may sustain or incur as a consequence of (i) any
failure by the Borrower to fulfill on the date of any Borrowing hereunder the
applicable conditions set forth in Article IV, so long as any such failure is
not solely due to the failure of the Agent or any Lender to comply with its
obligations hereunder in all material respects, (ii) any failure by the Borrower
to borrow or to refinance, convert or continue any Loan hereunder after
irrevocable notice of such Borrowing, refinancing, conversion or continuation
has been given pursuant to Section 2.02 or 2.08, so long as any such failure is
not solely due to the failure of the Agent or any Lender to comply with its
obligations hereunder in all material respects, (iii) any payment, prepayment or
conversion of a Eurodollar Loan, whether voluntary or involuntary, pursuant to
any other provision of this Agreement or otherwise made on a date other than the
last day of the Interest Period applicable thereto, so long as any such payment,
prepayment or conversion is not solely due to the failure of the Agent or any
Lender to comply with its obligations hereunder in all material respects, (iv)
any default in payment or prepayment of the principal amount of any Loan or any
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part thereof or interest accrued thereon, as and when due and payable (at the
due date thereof, by irrevocable notice of prepayment or otherwise), or (v) the
occurrence of any Event of Default, including, in each such case, any loss or
reasonable expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to effect or
maintain such Loan or any part thereof as a Eurodollar Loan. Such loss or
reasonable expense shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (i) its cost of obtaining the funds for
the Loan being paid, prepaid, converted or not borrowed (based on the applicable
Eurodollar Rate), for the period from the date of such payment, prepayment,
conversion or failure to borrow, convert or continue to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan which would have commenced on the date of such
failure to borrow, convert or continue) over (ii) the amount of interest (as
reasonably determined by such Lender) that would be realized by such Lender in
reemploying the funds so paid, prepaid, converted or not borrowed, converted or
continued for such period or Interest Period, as the case may be. A certificate
of any Lender setting forth any amount or amounts which such Lender is entitled
to receive pursuant to this Section 3.05 shall be delivered to the Borrower and
shall be conclusive absent manifest error.
Section 3.06 Base Rate Loans Substituted for Affected Eurodollar Loans.
If (i) the obligation of any Lender to make, or to continue or convert
outstanding Loans as or to, Eurodollar Loans has been suspended pursuant to
Section 3.02 or (ii) any Lender has demanded compensation under Section 3.01 or
3.04 with respect to its Eurodollar Loans, and in any such case the Borrower
shall, by at least 5 Business Days' prior notice to such Lender through the
Administrative Agent, have elected that the provisions of this Section 3.06
shall apply to such Lender, then, unless and until such Lender notifies the
Borrower that the circumstances giving rise to such suspension or demand for
compensation no longer exist, all Loans which would otherwise be made by such
Lender as (or continued as or converted to) Eurodollar Loans shall instead be
Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Eurodollar Loans of the other Lenders). If
such Lender notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist, the principal amount of
each such Base Rate Loan shall be converted into a Eurodollar Loan on the first
day of the next succeeding Interest Period applicable to the related Eurodollar
Loans of the other Lenders.
ARTICLE IV
CONDITIONS
Section 4.01 Conditions to Effectiveness. The amendment and restatement
of the Existing Credit Agreement and the obligation of each Lender to continue
Existing Loans and make a Loan or issue a Letter of Credit on the Amendment
Effective Date are subject to the satisfaction of the following conditions:
(a) Executed Loan Documents. Receipt by the Administrative Agent of
duly executed copies of: (i) this Agreement; and (ii) the Notes, if any, each of
which shall be in full force and effect.
(b) Legal Matters. All legal matters incident to this Agreement and
the borrowings hereunder shall be satisfactory to the Agents and to Mayer,
Brown, Xxxx & Maw LLP, counsel for the Agents.
(c) Organization Documents. The Administrative Agent shall have
received: (i) a copy of the Organization Documents of the Borrower, certified as
of a recent date by the Secretary of State of its respective state of
organization, and a certificate as to the good standing of the Borrower, from
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such Secretary of State, as of a recent date; (ii) a certificate of the
Secretary or Assistant Secretary of the Borrower dated the Amendment Effective
Date and certifying (A) that the Organization Documents of the Borrower have not
been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above; (B) that
attached thereto is a true and complete copy of the code of regulations of the
Borrower as in effect on the Amendment Effective Date and at all times since a
date prior to the date of the resolutions described in clause (C) below, (C)
that attached thereto is a true and complete copy of resolutions duly adopted by
the board of directors of the Borrower authorizing the execution, delivery and
performance of the Loan Documents and the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full force
and effect; and (D) as to the incumbency and specimen signature of each officer
executing any Loan Document or any other document delivered in connection
herewith on behalf of the Borrower; (iii) a certificate of another officer of
the Borrower as to the incumbency and specimen signature of the Secretary or
Assistant Secretary executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Syndication Agent or
Mayer, Brown, Xxxx & Maw LLP, counsel for the Agents, may reasonably request.
(d) Officer's Certificate. The Administrative Agent shall have
received a certificate, dated the Amendment Effective Date and signed by a
Responsible Officer of the Borrower, (i) confirming compliance with the
conditions precedent set forth in subsections (b), (c) and (d) of Section 4.02
and (ii) certifying the current Worthington's Ratings.
(e) Opinions of Counsel. On the Amendment Effective Date, the
Administrative Agent shall have received a favorable written opinion of Vorys,
Xxxxx, Xxxxxxx and Xxxxx LLP, special counsel to the Borrower or, as appropriate
or customary, of in-house counsel of the Borrower, addressed to the
Administrative Agent and each Lender, dated the Amendment Effective Date,
substantially in the form of Exhibit D hereto and covering such additional
matters incident to the transactions contemplated hereby as the Administrative
Agent, the Syndication Agent or the Required Lenders may reasonably request.
(f) Financial Statements. The Administrative Agent and each Lender
shall have received and be satisfied with the audited consolidated financial
statements of the Borrower for the fiscal year ending May 31, 2005, audited by
KPMG, or other nationally recognized independent public accountants, and
containing an opinion of such firm that such financial statements present
fairly, in all material respects, the financial position and results of
operations of the Borrower and its Consolidated Subsidiaries and are prepared in
conformity with GAAP.
(g) Consents. All necessary governmental (domestic or foreign),
regulatory and third party approvals, if any, in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
have been obtained and remain in full force and effect, in each case without any
action being taken by any competent authority which could restrain or prevent
such transaction or impose, in the reasonable judgment of the Administrative
Agent, materially adverse conditions upon the consummation of such transactions.
(h) Payment of Fees. All costs, fees and expenses due to the Agents
and the Lenders on or before the Amendment Effective Date shall have been paid.
(i) Counsel Fees. The Administrative Agent shall have received full
payment from the Borrower of the reasonable and actual fees and expenses of
Mayer, Brown, Xxxx & Maw LLP described in Section 10.04 which are billed through
the Amendment Effective Date.
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All corporate and legal proceedings and instruments and agreements
relating to the transactions contemplated by this Agreement or in any other
document delivered in connection herewith or therewith shall be reasonably
satisfactory in form and substance to the Agents and their counsel, and the
Agents shall have received all information and copies of all documents and
papers, including records of corporate proceedings, governmental approvals, good
standing certificates and bring-down telegrams, if any, which the Agents
reasonably may have requested in connection therewith, such documents and papers
where appropriate to be certified by proper corporate or Governmental
Authorities. The documents referred to in this Section 4.01 shall be delivered
to the Administrative Agent no later than the Amendment Effective Date. The
certificates and opinions referred to in this Section shall be dated the
Amendment Effective Date.
Promptly upon the satisfaction of each of the conditions contained in
this Section 4.01, the Administrative Agent shall notify the Borrower and the
Lenders of the Amendment Effective Date, and such notice shall be conclusive and
binding on all parties hereto.
Section 4.02 Conditions to All Credit Extensions. The obligation of any
Lender to make a Loan on the occasion of any Borrowing, and the obligation of
any Issuing Lender to issue (or renew or extend the term of) any Letter of
Credit, is subject to the satisfaction of the following conditions:
(a) Notice. The Borrower shall have delivered (i) in the case of any
Revolving Loan, to the Administrative Agent, an appropriate Revolving Loan
Request, duly executed and completed, by the time specified in Section 2.02 or
2.03, (ii) in the case of any Letter of Credit, to the Issuing Lender, an
appropriate Letter of Credit Request duly executed and completed in accordance
with the provisions of Section 2.06, and (iii) in the case of any Swingline
Loan, to the Swingline Lender, a Swingline Loan Request, duly executed and
completed, by the time specified in Section 2.02.
(b) Representations and Warranties. The representations and warranties
made by the Borrower in any Loan Document are true and correct in all material
respects at and as if made as of such date except to the extent they expressly
relate to an earlier date.
(c) No Default. No Default or Event of Default shall exist or be
continuing either prior to or after giving effect thereto.
(d) Availability. Immediately after giving effect to the making of a
Loan (and the application of the proceeds thereof) or to the issuance of a
Letter of Credit, as the case may be, (i) the Revolving Outstandings shall not
exceed the Revolving Committed Amount, (ii) the sum of LC Obligations
outstanding shall not exceed the LC Committed Amount, and (iii) the sum of
Swingline Loans outstanding shall not exceed the Swingline Committed Amount.
The delivery of each Revolving Loan Request, Swingline Loan Request,
notice requesting an extension of the availability period for Revolving Loans
pursuant to Section 2.11(d) and each request for a Letter of Credit shall
constitute a representation and warranty by the Borrower of the correctness of
the matters specified in subsections (b) and (c) above.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agents and the Lenders that:
Section 5.01 Organization. The Borrower and each of its Active Restricted
Subsidiaries is a corporation duly organized and in good standing under the laws
of the state of its incorporation, is duly qualified in all jurisdictions where
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required by the conduct of its business or ownership of its assets, except where
the failure to so qualify would not have a Material Adverse Effect, and has the
power and authority to own and operate its assets and to conduct its business as
is now done.
Section 5.02 Financial Condition.
(a) Audited Financial Statements. The consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of May 31, 2005 and the
related consolidated statements of income and cash flows for the fiscal year
then ended, reported on by KPMG and set forth in the Borrower's 2005 Form 10-K,
a copy of which has been delivered to each of the Lenders, fairly present, in
conformity with GAAP, the consolidated financial position of the Borrower and
its Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) Material Adverse Change. Since May 31, 2005, except as reflected
in the Borrower's most recent filing with the SEC prior to the Amendment
Effective Date, there has been no change in the business, assets, financial
condition or operations of the Borrower and its Consolidated Subsidiaries,
considered as a whole, that would materially and adversely affect the Borrower's
ability to perform any of its respective obligations under this Agreement or the
other Loan Documents (a "Material Adverse Change"), and no event or development
has occurred which could reasonably be expected to result in a Material Adverse
Effect.
(c) Post-Closing Financial Statements. The financial statements
delivered to the Lenders pursuant to Section 6.01(a)(i), (a)(iii), (b) and (c),
if any, (i) have been prepared in accordance with GAAP (except as may otherwise
be permitted under Section 6.01(a), (b) and (c)) and (ii) present fairly (on the
basis disclosed in the footnotes to such financial statements, if any) the
consolidated financial condition, results of operations and cash flows of the
Borrower and its Consolidated Subsidiaries as of the respective dates thereof
and for the respective periods covered thereby.
Section 5.03 Litigation, Etc. As of the date hereof, there are no
actions, suits, proceedings or governmental investigations pending, or, to its
knowledge, threatened against the Borrower or any of its Subsidiaries which, in
the reasonable judgment of the Borrower, would result in a Material Adverse
Effect.
Section 5.04 Taxes. The Borrower and its Restricted Subsidiaries have
filed all United States Federal income tax returns and all other material tax
returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Borrower
or any Restricted Subsidiary. The charges, accruals and reserves on the books of
the Borrower and its Restricted Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate.
Section 5.05 Authority. The Borrower has full power and authority to
enter into the transactions provided for in this Agreement. The documents to be
executed by it in connection with this Agreement, when executed and delivered by
it will constitute the legal, valid and binding obligations of it enforceable in
accordance with their respective terms except as such enforceability may be
limited by applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws in effect from time to time affecting the rights of creditors
generally and except as such enforceability may be subject to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
Section 5.06 Other Defaults. There does not now exist any material
default or violation by the Borrower or any Restricted Subsidiary of or under
any of the terms, conditions or obligations of: (i) its Articles or Certificate
of Incorporation and Regulations or Bylaws, as applicable, (ii) any indenture,
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mortgage, deed of trust, franchise, permit, contract, agreement, or other
instrument to which it is a party or by which it is bound or (iii) any law,
regulation, ruling, order, injunction, decree, condition or other requirement
applicable to or imposed upon it by any law or by any governmental authority,
court or agency; and the transactions contemplated by this Agreement and the
other Loan Documents will not result in any such default or violation. As used
herein, a material default or violation will mean one which would result in a
Material Adverse Effect.
Section 5.07 Licenses, Etc. The Borrower and each of its Restricted
Subsidiaries has obtained any and all licenses, permits, franchises, or other
governmental authorizations necessary for the ownership of its properties and
the conduct of its business, except where failure to obtain any such item would
not cause a Material Adverse Effect.
Section 5.08 ERISA. The Borrower and each of its Subsidiaries is in
compliance with the applicable provisions of ERISA, the related applicable
provisions of the Code and other Federal and state laws and the regulations and
published interpretations thereunder, to the extent necessary to avoid a
Material Adverse Effect.
Section 5.09 Environmental Matters. The Borrower and its Subsidiaries are
in material compliance with Environmental Laws and neither the Borrower nor any
of its Subsidiaries are subject to any liability or obligation under any
Environmental Laws which would have a Material Adverse Effect.
Section 5.10 Ownership of Property; Liens. The Borrower and each
Restricted Subsidiary has good record and marketable title in fee simple to, or
valid leasehold interests in, all real property necessary or used in the
ordinary conduct of its business, except for such defects in title as would not,
individually or in the aggregate, have a Material Adverse Effect. As of the
Amendment Effective Date, the property of the Borrower and its Restricted
Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.02.
Section 5.11 Insurance. The properties of the Borrower and its Restricted
Subsidiaries are insured with responsible insurance companies against loss or
damage from hazards and the Borrower and its Restricted Subsidiaries maintain
public liability insurance, all in amounts reasonably consistent with the
Borrower's current practices.
Section 5.12 Subsidiaries. Schedule 5.12 sets forth a complete and
accurate list as of the Amendment Effective Date of all Restricted Subsidiaries
of the Borrower. Schedule 5.12 sets forth as of the Amendment Effective Date the
jurisdiction of formation of each such Restricted Subsidiary, and for each
Restricted Subsidiary which is not a Wholly-Owned Subsidiary of the Borrower,
the number of authorized shares of each class of Equity Interests of each such
Restricted Subsidiary, the number of outstanding shares of each class of Equity
Interests, the number and percentage of outstanding shares of each class of
Equity Interests of each such Restricted Subsidiary owned (directly or
indirectly) by any Person and the number and effect, if exercised, of all Equity
Equivalents with respect to Capital Stock of each such Restricted Subsidiary.
Section 5.13 Margin Regulation; Investment Company Act; Public Utility
Holding Company Act. (a) None of the Borrower and its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying "margin stock" within the
meaning of Regulation U. No part of the Letters of Credit or proceeds of the
Loans will be used, directly, or indirectly, for the purpose of purchasing or
carrying any "margin stock" within the meaning of Regulation U. If requested by
any Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in Regulation U. No
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indebtedness being reduced or retired out of the proceeds of the Loans was or
will be incurred for the purpose of purchasing or carrying any margin stock
within the meaning of Regulation U or any "margin security" within the meaning
of Regulation T. "Margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the Borrower
and its Consolidated Subsidiaries. None of the transactions contemplated by this
Agreement (including the direct or indirect use of the proceeds of the Loans)
will violate or result in a violation of the Securities Act, as amended, the
Exchange Act or regulations issued pursuant thereto, or Regulation T, U or X.
(b) None of the Borrower and its Subsidiaries is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act or
the Investment Company Act of 1940, each as amended. In addition, none of the
Borrower and its Subsidiaries is (i) an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as amended,
(ii) controlled by such a company, or (iii) a "holding company", a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1934, as amended.
(c) No director, executive officer or principal holder of any Equity
Interest of the Borrower or any of its Subsidiaries is a director, executive
officer or principal shareholder of any Lender. For the purposes hereof, the
terms "director", "executive officer" and "principal shareholder" (when used
with reference to any Lender) have the respective meanings assigned thereto in
Regulation O.
Section 5.14 Disclosure. No statement, information, report,
representation, or warranty made by the Borrower in any Loan Document or
furnished to the Agents or any Lender by or on behalf of the Borrower as
required by any Loan Document contains any untrue statement of a material fact
or omits any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading in any material respect.
Section 5.15 Anti-Terrorism Laws.
(a) None of the Borrower nor or any Subsidiary or Affiliate of the
Borrower is in violation of any Anti-Terrorism Law or engages in or conspires to
engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law.
(b) None of the Borrower nor or any Subsidiary or Affiliate of the
Borrower or, to the knowledge of the Borrower, their respective agents acting or
benefiting in any capacity in connection with the Loans, Letters of Credit or
other transactions hereunder, is a Blocked Person.
(c) None of the Borrower nor, to the knowledge of the Borrower, any of
its agents acting in any capacity in connection with the Loans, Letters of
Credit or other transactions hereunder (i) conducts any business or engages in
making or receiving any contribution of funds, goods or services to or for the
benefit of any Blocked Person, or (ii) deals in, or otherwise engages in any
transaction relating to, any property or interests in property blocked pursuant
to the Executive Order No. 13224.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower agrees that so long as any Lender has any Commitment
hereunder, any Obligation or other amount payable hereunder or under any Note or
other Loan Document or any LC Obligation remains unpaid or any Letter of Credit
remains in effect:
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Section 6.01 Information. The Borrower will furnish, or cause to be
furnished, to the Administrative Agent and each of the Lenders:
(a) Certain SEC Filings and Shareholder Reports. As soon as available,
and in any event within 14 days of the filing or distribution thereof, (i)
copies of all periodic reports on Forms 10-K and 10-Q, (ii) copies of all
current reports on Form 8-K, and (iii) its annual reports to its shareholders
(in all cases as filed with the Securities and Exchange Commission).
(b) Annual Financial Statements. If the Borrower is not required to
file 10-K filings with the Securities and Exchange Commission or does not file
the same within 75 days after the end of each fiscal year, as soon as available,
and in any event within 75 days after the end of each fiscal year of the
Borrower, a consolidated balance sheet and income statement of the Borrower and
its Consolidated Subsidiaries, as of the end of such fiscal year, and the
related consolidated statements of operations and retained earnings and cash
flows for such fiscal year, setting forth in comparative form consolidated
figures for the preceding fiscal year, all such financial statements to be in
reasonable form and detail and audited by independent certified public
accountants of recognized national standing reasonably acceptable to the
Administrative Agent and accompanied by an opinion of such accountants (which
shall not be subject to any qualifications or exceptions as to the scope of the
audit nor to any qualifications or exceptions not reasonably acceptable to the
Required Lenders) to the effect that such consolidated financial statements have
been prepared in accordance with GAAP and present fairly in accordance with GAAP
the consolidated financial position and consolidated results of operations and
cash flows of the Borrower and its Consolidated Subsidiaries in accordance with
GAAP consistently applied (except for changes with which such accountants
concur).
(c) Quarterly Financial Statements. If the Borrower is not required to
file 10-Q filings with the Securities and Exchange Commission or does not file
the same within 45 days after the end of each fiscal year, as soon as available,
and in any event within 45 days after the end of each of the first three fiscal
quarters in each fiscal year of the Borrower, a consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of the end of such fiscal
quarter, together with related consolidated statements of operations and
retained earnings and cash flows for such fiscal quarter and the then elapsed
portion of such fiscal year, setting forth in comparative form consolidated
figures for the corresponding periods of the preceding fiscal year, all such
financial statements to be in form and detail and reasonably acceptable to the
Administrative Agent, and accompanied by a certificate of the chief financial
officer of the Borrower to the effect that such quarterly financial statements
have been prepared in accordance with GAAP and present fairly in accordance with
GAAP in all material respects the consolidated financial position and
consolidated results of operations and cash flows of the Borrower and its
Consolidated Subsidiaries in accordance with GAAP consistently applied, subject
to changes resulting from normal year-end audit adjustments and the absence of
footnotes required by GAAP.
(d) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 6.01(a), 6.01(b) and 6.01(c) above, a
certificate of the chief financial officer of the Borrower (i) demonstrating
compliance with the financial covenants contained in Section 7.13 by calculation
thereof as of the end of the fiscal period covered by such financial statements,
(ii) stating that no Default or Event of Default exists, or if any Default or
Event of Default does exist, specifying the nature and extent thereof and what
action the Borrower proposes to take with respect thereto, and (iii) stating
whether, since the date of the most recent financial statements delivered
hereunder, there has been any material change in the GAAP applied in the
preparation of the financial statements of the Borrower and its Consolidated
Subsidiaries, and, if so, describing such change.
(e) Reports. Promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or communication
sent to the stockholders of the Borrower, and copies of all annual, regular,
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periodic and special reports and registration statements which the Borrower may
file or be required to file with the Securities and Exchange Commission under
Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise
required to be delivered to the Administrative Agent pursuant hereto.
(f) Notices. Prompt notice of: (i) the occurrence of any Default or
Event of Default; (ii) breach or non-performance of, or any default under, a
material Contractual Obligation of the Borrower or any Subsidiary; (iii) any
dispute, litigation, investigation, proceeding or suspension between the
Borrower or any Subsidiary and any Governmental Authority; (iv) the commencement
of, or any material development in, any litigation or proceeding affecting the
Borrower or any Subsidiary, including pursuant to any applicable Environmental
Law; (v) the occurrence of any ERISA Event; (vi) any material change in
accounting policies or financial reporting practice by the Borrower or any
Restricted Subsidiary; and (vii) of any public announcement by Xxxxx'x or S&P of
any change or possible change in Worthington's Ratings; provided that in the
case of the events set forth in clauses (ii) through (v), of this subsection
(f), any such event has had, or the Borrower reasonably expects such event will
have, a Material Adverse Effect. Each notice pursuant to this Section 6.01(f)
shall (i) be accompanied by a statement of a Responsible Officer of the Borrower
setting forth details of the occurrence referred to therein and stating what
action the Borrower has taken and proposes to take with respect thereto and (ii)
describe with particularity any and all provisions of this Agreement or other
Loan Document that have been breached.
(g) Other Information. With reasonable promptness upon request
therefor, such other information regarding the business, properties or financial
condition of the Borrower or any Restricted Subsidiary as the Administrative
Agent or the Required Lenders may reasonably request.
Section 6.02 Books and Records. The Borrower will, and will cause each of
its Restricted Subsidiaries to, maintain proper books of account and other
records and enter therein complete and accurate entries and records of all of
its transactions and give representatives of the Agents, at the Lenders'
expense, reasonable access thereto at all reasonable times, including permission
to examine, copy and make abstracts from any of such books and records and such
other information as it may from time to time reasonably request. In addition,
it will be available to the Lenders, or cause its officers to be available from
time to time upon reasonable notice to discuss the status of the Loans, its
business and any statements, records or documents furnished or made available to
the Lenders in connection with this Agreement.
Section 6.03 Payment of Obligations. The Borrower will, and will cause
each of its Restricted Subsidiaries to, pay and discharge as the same shall
become due and payable, all its obligations and liabilities the non-payment of
which could reasonably be expected to have a Material Adverse Effect, including:
(i) material taxes, assessments, charges, levies and other similar material
liabilities imposed upon it, its income, profits, property or business, except
those which currently are being contested in good faith by appropriate
proceedings and for which it has set aside reserves or made other adequate
provision with respect thereto; and (ii) all lawful claims which, if unpaid,
would by law become a Lien upon its property which is not a Permitted Lien.
Section 6.04 Compliance with Laws. The Borrower will, and will cause each
of its Restricted Subsidiaries to, comply in all material respects with all laws
and regulations applicable to each of them and to the operation of their
respective businesses, including without limitation those relating to
environmental and health matters, and do all things necessary to maintain, renew
and keep in full force and effect all rights, permits, licenses, certificates,
satisfactory clearances and franchises necessary to enable them to continue
their respective businesses, to the extent its failure to comply with or do any
of the foregoing could result in a Material Adverse Effect.
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Section 6.05 Environmental Violations. The Borrower will promptly notify
the Administrative Agent of any violation by it or any of its Subsidiaries of
any Environmental Law; to the extent such violation would, in the reasonable
judgment of the Borrower, have a Material Adverse Effect.
Section 6.06 ERISA Compliance. To the extent necessary to prevent a
Material Adverse Effect, the Borrower will, and will cause each of its
Subsidiaries to, comply in all material respects with the applicable provisions
of ERISA, the applicable related provisions of the Code and other Federal and
state laws.
Section 6.07 Maintenance of Properties. The Borrower will, and will cause
each of its Restricted Subsidiaries to, (i) maintain, preserve and protect all
of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted,
and (ii) make all necessary repairs thereto and renewals and replacements
thereof, except in each case where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
Section 6.08 Maintenance of Insurance. The Borrower will, and will cause
each of its Restricted Subsidiaries to, maintain insurance with responsible
insurance companies against loss or damage from hazards and the Borrower and its
Restricted Subsidiaries will maintain public liability insurance, all in amounts
reasonably consistent with the Borrower's current practice.
Section 6.09 Use of Proceeds. The Borrower will use the proceeds of the
Credit Extensions for working capital and other general corporate purposes,
including, without limitation, capital expenditures or acquisitions, not in
contravention of any Law or of any Loan Document.
Section 6.10 Tax Shelter Regulations. In the event that the Borrower
intends to treat the Loans and/or the Letters of Credit and related transactions
as being a "reportable transaction" (within the meaning of Treasury Regulation
Section 1.6011-4), the Borrower will promptly (i) notify the Administrative
Agent thereof, and (ii) deliver to the Administrative Agent a duly completed
copy of IRS Form 8886 or any successor form.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower agrees that so long as any Lender has any Commitment
hereunder, any Obligation or other amount payable hereunder or under any Note or
other Loan Document or any LC Obligation remains unpaid or any Letter of Credit
remains unexpired:
Section 7.01 Limitation on Indebtedness of Restricted Subsidiaries. The
Borrower will not cause or permit any Restricted Subsidiary to, directly or
indirectly, incur, create, assume or permit to exist any Indebtedness except:
(i) Indebtedness of a Person existing at the time such Person becomes
a Subsidiary of the Borrower (including any Indebtedness of a Person
existing at the time such Person is merged with or into or consolidated
with a Subsidiary of the Borrower, or at the time of a sale, lease or other
disposition of all or substantially all of the properties of a Person to a
Subsidiary of the Borrower); provided that such Indebtedness was not
incurred in connection with, or in anticipation of, such event;
(ii) Indebtedness owing to the Borrower, any Restricted Subsidiary or
Worthington Receivables Corporation (or any replacement or substitute
thereof);
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(iii) Indebtedness existing as of the Amendment Effective Date
evidenced by Existing Letters of Credit and other letters of credit issued
from time to time after the Amendment Effective Date for the benefit of the
Borrower or any Restricted Subsidiary other than pursuant to Section 2.06
of this Agreement; provided that the sum of (A) the maximum amount which
is, or at any time thereafter may become, available to be drawn under such
Existing Letters of Credit or other letters of credit then outstanding and
(B) the aggregate amount of all payments or disbursements not yet
reimbursed by the Borrower or any Restricted Subsidiary to the applicable
letter of credit issuer in respect of drawings under such Existing Letters
of Credit or other letters of credit, shall not exceed $20,000,000 in the
aggregate at any time; and
(iv) other Indebtedness of the Restricted Subsidiaries in an aggregate
principal amount at any time outstanding not in excess of 10% of
Consolidated Net Tangible Assets.
Section 7.02 Restriction on Liens. The Borrower will not, and will not
cause or permit any Restricted Subsidiary to, incur, create, assume, become or
be liable in any way, or suffer to exist any mortgage, pledge, lien, charge, or
other encumbrance of any nature whatsoever on any of its assets, now or
hereafter owned, other than Permitted Liens.
Section 7.03 Investments. The Borrower will not, and will not cause or
permit any Restricted Subsidiary to, make or acquire, any Investment in any
Person, except the following (such Investments described below being herein
referred to as "Permitted Investments"):
(i) Investments other than those permitted by subsections (i) through
(xii) existing on the date hereof and listed on Schedule 7.03;
(ii) Investments held by the Borrower or such Restricted Subsidiary in
the form of Cash Equivalents;
(iii) advances to officers, directors and employees of the Borrower
and Subsidiaries for travel, entertainment, relocation and analogous
ordinary business purposes, in each case only to the extent that the making
or incurrence of any such advance or obligation to any director or
executive officer (or equivalent thereof) would not be in violation of
Section 402 of the Xxxxxxxx-Xxxxx Act;
(iv) Investments of the Borrower in any Restricted Subsidiary or of
any Restricted Subsidiary in the Borrower or another Restricted Subsidiary;
(v) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the sale or lease of
goods or services in the ordinary course of business, and Investments
received in satisfaction or partial satisfaction thereof from financially
troubled account debtors to the extent reasonably necessary in order to
prevent or limit loss;
(vi) Guaranty Obligations permitted by Section 7.01;
(vii) Investments permitted by Section 7.04;
(viii) Investments consisting of capital expenditures or inventory for
use by or in the business of the Borrower or a Restricted Subsidiary;
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(ix) Investments in any Person of which the Borrower or any Restricted
Subsidiary is, or becomes as a result of such Investment, the Controlling
Person, or Investments in any assets which are acquired by the Borrower or
a Restricted Subsidiary; provided that as at the end of the immediately
preceding fiscal quarter prior to and after giving effect to any such
Investment, the Borrower is in pro forma compliance with the financial
covenants set forth in Section 7.13;
(x) Investments (including Investments made in connection with the
acquisition of assets) in any Person of which the Borrower or any
Restricted Subsidiary is not the Controlling Person; provided that as at
the end of the immediately preceding fiscal quarter prior to and after
giving effect to any such Investment, the Borrower is in pro forma
compliance with the financial covenants set forth in Section 7.13; provided
further that the initial amount (determined at the time made) of such
Investments which are made after the Closing Date shall not exceed
$100,000,000 in the aggregate;
(xi) Investments in the nature of seller financing or other
consideration received in a Disposition permitted under Section 7.05;
(xii) additional Investments not exceeding $25,000,000 in the
aggregate in any fiscal year of the Borrower.
Section 7.04 Merger. The Borrower will not, and will not cause or permit
any Restricted Subsidiary to, merge or consolidate with or into any other Person
except: (i) any Restricted Subsidiary or any other Person may merge or
consolidate with the Borrower; provided that (a) the Borrower is the surviving
entity of such merger or consolidation and (b) such surviving entity has the
majority of its property and assets within the continental limits of the United
States of America; or (ii) the Borrower may merge or consolidate with any
Restricted Subsidiary; provided that (a) such Restricted Subsidiary is the
surviving entity of such merger or consolidation, (b) such surviving entity is
organized and existing under the laws of a state of the United States, (c) such
surviving entity has the majority of its property and assets within the
continental limits of the United States of America and (d) such surviving entity
assumes in writing all of the obligations and liabilities of the Borrower under
the Loan Documents; or (iii) any Restricted Subsidiary may merge or consolidate
with any other Person; provided that the surviving entity of such merger or
consolidation is a Restricted Subsidiary after such merger or consolidation; or
(iv) any merger may be consummated in furtherance of a Disposition not
prohibited under Section 7.05; or (v) any Foreign Subsidiary may merge or
consolidated into any Foreign Subsidiary; provided that with respect to any
merger or consolidation described in subsections (i) through (v) above,
immediately prior to and after giving effect to any such transaction, no
condition or event exists which constitutes a Default or an Event of Default
shall have occurred and be continuing.
Section 7.05 Dispositions. The Borrower will not, and will not cause or
permit any Restricted Subsidiary to, make any Disposition or enter into any
agreement to make any Disposition of all or substantially all of the assets of
the Borrower and its Subsidiaries on a consolidated basis.
Section 7.06 ERISA. The Borrower will not, and will not cause or permit
any Subsidiary to, at any time engage in a transaction which could be subject to
Section 4069 or 4212(c) of ERISA, or permit any Plan to (i) engage in any
non-exempt "prohibited transaction" (as defined in Section 4975 of the Code);
(ii) fail to comply with ERISA or any other related applicable Laws; or (iii)
incur any material "accumulated funding deficiency" (as defined in Section 302
of ERISA), which, with respect to each event listed above, could be reasonably
expected to have a Material Adverse Effect.
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Section 7.07 Designation of Restricted and Unrestricted Subsidiaries. (a)
Schedule 7.07 sets forth a complete and accurate list of the Borrower's
Unrestricted Subsidiaries as of the Amendment Effective Date. From and after the
Amendment Effective Date, the Borrower may designate any Restricted Subsidiary
as an Unrestricted Subsidiary; provided that: (i) immediately prior to and after
giving effect to such change in designation no Default or an Event of Default
would exist and (ii) the designation of the Subsidiary as an Unrestricted
Subsidiary would not have a Material Adverse Effect; provided further that
Borrower may not designate any Restricted Subsidiaries as Unrestricted
Subsidiaries if the aggregate operating income of the Restricted Subsidiaries so
designated at that time would account for more than 30% of the consolidated
operating income of the Borrower and its Consolidated Subsidiaries for the most
recently completed four fiscal quarters. Thereafter for purposes of such
calculation operating income (including operating income from prior fiscal
quarters) of Unrestricted Subsidiaries will be excluded from the consolidated
operating income of the Borrower and its Consolidated Subsidiaries.
(b) From and after the Closing Date, the Borrower shall not designate
any Unrestricted Subsidiary which otherwise meets the definition of a Restricted
Subsidiary, as a Restricted Subsidiary, unless if, and only if, immediately
after giving effect to such change in designation: (i) any and all outstanding
Indebtedness of such Subsidiary could then have been incurred in compliance with
Section 7.01 and (ii) immediately prior to and after giving effect to such
change in designation no Default or an Event of Default would exist; provided
that if Borrower has designated a Subsidiary which was previously treated as a
Restricted Subsidiary as an Unrestricted Subsidiary during the term of this
Agreement, Borrower may not again designate such Subsidiary as a Restricted
Subsidiary without the consent of the Required Lenders.
(c) Any change in designation pursuant to this Section 7.07 will be
made by the Borrower giving written notice to the Administrative Agent on or
prior to the date for such change in designation, specifying such date and the
name of the Subsidiary whose designation is to be so changed, which notice will
be accompanied by an officer's certificate certifying that the conditions
required for such change in designation will not be violated. The Administrative
Agent will promptly provide a copy of such change in designation to the Lenders.
Notwithstanding the foregoing, if due to an acquisition or other event, in
either case to the extent permitted by this Agreement, which would cause a
Person which was not previously a Consolidated Subsidiary to become a
Consolidated Subsidiary, Borrower may immediately elect to have such Person not
become a Consolidated Subsidiary, but instead to be designated as an
Unrestricted Subsidiary.
Section 7.08 Change in Nature of Business. The Borrower will not, and
will not cause or permit any Restricted Subsidiary to, make any change in its
business which would cause the type of business primarily conducted by the
Borrower and its Restricted Subsidiaries, considered on a consolidated basis, to
be materially different from the type of business primarily being conducted on
the Amendment Effective Date.
Section 7.09 Transactions with Affiliates. The Borrower will not, and
will not cause or permit any Restricted Subsidiary to, enter into any material
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service with any Affiliate of the
Borrower (other than a Restricted Subsidiary), other than arm's-length
transactions with Affiliates that are otherwise permitted hereunder.
Section 7.10 Burdensome Agreements. The Borrower will not, and will not
cause or permit any Restricted Subsidiary to, enter into any Contractual
Obligation that materially limits the ability of any Restricted Subsidiary to
make Restricted Payments to the Borrower or to otherwise generally transfer
property to the Borrower.
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Section 7.11 Use of Proceeds. The Borrower will not, and will not cause
or permit any Restricted Subsidiary to, use the proceeds of any Credit
Extension, whether directly or indirectly, and whether immediately, incidentally
or ultimately, to purchase or carry margin stock (within the meaning of
Regulation U of the Board) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally
incurred for such purpose.
Section 7.12 Governance Documents. The Borrower will not amend or change
its Articles of Incorporation or code of regulations in any manner which is
materially adverse to the Lenders.
Section 7.13 Financial Covenants.
(a) Interest Coverage Ratio. The Borrower will not permit the Interest
Coverage Ratio for any period of four consecutive fiscal quarters of the
Borrower, in each case taken as a single accounting period, calculated as of the
end of each fiscal quarter of the Borrower, to be less than 3.25:1.
(b) Consolidated Indebtedness to Capitalization. The Borrower will not
permit the ratio of Consolidated Indebtedness to Capitalization, calculated as
of the end of each fiscal quarter of the Borrower, to be greater than 55%.
Section 7.14 Anti-Terrorism Laws. The Borrower will not, and will not
cause or permit any Subsidiary to, (i) conduct any business or engage in any
transaction or dealing with any Blocked Person, including the making or
receiving any contribution of funds, goods or services to or for the benefit of
any Blocked Person, (ii) deal in, or otherwise engage in any transaction
relating to, any property or interests in property blocked pursuant to Executive
Order No. 13225, or (iii) engage in or conspire to engage in any transaction
that evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in Executive Order No. 13224, the USA
Patriot Act or any other Anti-Terrorism Law.
ARTICLE VIII
DEFAULTS
Section 8.01 Events of Default. An Event of Default shall exist upon the
occurrence of any of the following specified events or conditions (each an
"Event of Default"):
(a) Payment. The Borrower shall fail to pay: (i) as and when due
(whether by scheduled maturity, mandatory prepayment, acceleration or otherwise)
any amount of principal of any Loan or any LC Obligation; (ii) within 5 days of
when due (whether by scheduled maturity, mandatory prepayment, acceleration or
otherwise) any interest on any Loan or LC Obligation, any commitment facility,
utilization or other fee due hereunder; or (iii) within 5 days after the same
become due, any other amount payable hereunder or under any other Loan Document.
(b) Representation and Warranties. Any representation, warranty or
statement made or deemed to be made by the Borrower herein, in any of the other
Loan Documents or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material respect
on the date as of which it was made or deemed to have been made.
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(c) Covenants. The Borrower shall default in the due performance or
observance by it of any other term, covenant or agreement contained in this
Agreement and such default shall continue unremedied for a period of at least 30
days after the earlier of an executive officer of the Borrower becoming aware of
such default or notice thereof given by the Administrative Agent.
(d) Bankruptcy, etc. with respect to the Borrower and Active
Restricted Subsidiaries. A Bankruptcy Event shall occur with respect to the
Borrower or any of its Active Restricted Subsidiaries.
(e) Bankruptcy, etc. with respect to Unrestricted Subsidiaries. A
Bankruptcy Event shall occur with respect to any of the Borrower's Unrestricted
Subsidiaries and such event would reasonably be expected to have a Material
Adverse Effect.
(f) Cross-Default. A default by the Borrower or any of its
Subsidiaries with respect to any evidence of Indebtedness in excess of
$5,000,000 by it for borrowed money (other than to the Lenders pursuant to this
Agreement), if the effect of such default is to accelerate the maturity of such
Indebtedness or to permit the holder thereof to cause such Indebtedness to
become due prior to the stated maturity thereof, or if any Indebtedness of it in
excess of $5,000,000 for borrowed money (other than to the Lenders pursuant to
this Agreement) is not paid when due and payable, whether at the due date
thereof or a date fixed for prepayment or otherwise (after the expiration of any
applicable grace period).
(g) Judgments. Unless adequately insured or bonded, the entry of a
final judgment for the payment of money involving more than $10,000,000 against
the Borrower or any of its Subsidiaries and the failure by the Borrower or any
of its Subsidiaries: (i) to discharge the same, or cause it to be discharged,
within thirty days from the date of the order, decree or process under which or
pursuant to which such judgment was entered or (ii) to secure a stay of
execution pending appeal of such judgment; or the entry of one or more final
non-monetary judgments or orders against the Borrower or any of its Subsidiaries
which, singly or in the aggregate, does or could reasonably be expected to cause
a Material Adverse Effect.
(h) Ownership. There shall occur a Change of Control of the Borrower.
Section 8.02 Acceleration; Remedies. Upon the occurrence of an Event of
Default, and at any time thereafter unless and until such Event of Default has
been waived in writing by the Required Lenders (or all Lenders as may be
required pursuant to Section 10.01), the Administrative Agent shall, upon the
request and direction of the Required Lenders, by written notice to the
Borrower, take any of the following actions without prejudice to the rights of
the Agents or any Lender to enforce its claims against the Borrower except as
otherwise specifically provided for herein:
(a) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of and any
accrued interest in respect of all Loans, any reimbursement obligations arising
from drawings under Letters of Credit and any and all other indebtedness or
obligations of any and every kind owing by the Borrower to any of the Lenders
hereunder to be due whereupon the same shall be immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
(c) Cash Collateral. Direct the Borrower to pay (and the Borrower agrees
that upon receipt of such notice, or upon the occurrence of an Event of Default
under Section 8.01(d) or (e), it will immediately pay) to the Administrative
Agent additional cash, to be held by the Administrative Agent, for the benefit
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of the Lenders, in a cash collateral account as additional security for the LC
Obligations in respect of subsequent drawings under all then outstanding Letters
of Credit in an amount equal to the maximum aggregate amount which may be drawn
under all Letters of Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Loan Documents, including, without limitation,
delivery of a Notice of Acceleration (as defined in the Trust Agreement), and
all rights of set-off, or applicable Law.
Notwithstanding the foregoing, if an Event of Default specified in
Section 8.01(d) or (e) shall occur, then the Commitments shall automatically
terminate and all Loans, all reimbursement obligations under Letters of Credit,
all accrued interest in respect thereof and all accrued and unpaid fees and
other indebtedness or obligations owing to the Lenders hereunder and under the
other Loan Documents shall immediately become due and payable without the giving
of any notice or other action by the Administrative Agent or the Lenders, which
notice or other action is expressly waived by the Borrower.
Notwithstanding the fact that enforcement powers reside primarily with
the Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of any Debtor Relief Law
or any other insolvency statute.
In case any one or more of the covenants and/or agreements set forth in
this Agreement or any other Loan Document shall have been breached by the
Borrower, then the Administrative Agent may proceed to protect and enforce the
Lenders' rights either by suit in equity and/or by action at law, including an
action for damages as a result of any such breach and/or an action for specific
performance of any such covenant or agreement contained in this Agreement or
such other Loan Document. Without limitation of the foregoing, the Borrower
agrees that failure to comply with any of the covenants contained herein will
cause irreparable harm and that specific performance shall be available in the
event of any breach thereof.
ARTICLE IX
AGENCY PROVISIONS
Section 9.01 Appointment; Authorization.
(a) Appointment. Each Lender hereby designates and appoints PNC Bank,
National Association as Administrative Agent and The Bank of Nova Scotia as
Syndication Agent of such Lender to act as specified herein and in the other
Loan Documents, and each such Lender hereby authorizes the Agents, as the agents
for such Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated by the terms hereof and of the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere herein and in the other
Loan Documents, the Agents shall not have any duties or responsibilities, except
those expressly set forth herein and therein, or any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any of the other
Loan Documents, or shall otherwise exist against the Agents. In performing its
functions and duties under this Agreement and the other Loan Documents, each
Agent shall act solely as an agent of the Lenders and does not assume and shall
not be deemed to have assumed any obligation or relationship of agency or trust
with or for the Borrower. Without limiting the generality of the foregoing two
sentences, the use of the term "agent" herein and in the other Loan Documents
with reference to any Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any applicable
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law. Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties. The provisions of this Article IX (other than
Section 9.09) are solely for the benefit of the Agents and the Lenders and the
Borrower shall not have any rights as a third party beneficiary of the
provisions hereof (other than Section 9.09).
(b) Certain Other Agents. The Bank of Nova Scotia, in its capacity as
Syndication Agent, shall have no duties or obligations whatsoever under this
Agreement or any of the other Loan Documents.
Section 9.02 Delegation of Duties. An Agent may execute any of its duties
hereunder or under the other Loan Documents by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. An
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it in the absence of gross negligence or willful
misconduct.
Section 9.03 Exculpatory Provisions. No Agent-Related Person shall be (i)
liable for any action lawfully taken or omitted to be taken by any of them under
or in connection herewith or in connection with any of the other Loan Documents
or the transactions contemplated hereby or thereby (except for its own gross
negligence or willful misconduct in connection with its duties expressly set
forth herein) or (ii) responsible in any manner to any of the Lenders or
participants for any recitals, statements, representations or warranties made by
the Borrower contained herein or in any of the other Loan Documents or in any
certificate, report, document, financial statement or other written or oral
statement referred to or provided for in, or received by an Agent under or in
connection herewith or in connection with the other Loan Documents, or
enforceability or sufficiency therefor of any of the other Loan Documents, or
for any failure of the Borrower to perform its obligations hereunder or
thereunder or be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained herein or therein or as to the use of the proceeds of the Loans or the
use of the Letters of Credit or of the existence or possible existence of any
Default or Event of Default or to inspect the properties, books or records of
the Borrower.
Section 9.04 Reliance on Communications. The Agents shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex, teletype or e-mail message, statement, order or other
document or conversation 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 (including, without limitation, counsel to the
Borrower, independent accountants and other experts selected by the Agents). The
Agents may deem and treat each Lender as the owner of its interests hereunder
for all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative Agent in accordance with
Section 10.06(b). The Agents shall be fully justified in failing or refusing to
take any action under this Agreement or under any of the other Loan Documents
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate or it shall first be indemnified to its 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. The Agents shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or under any of the other Loan Documents in accordance with a request
of the Required Lenders (or to the extent specifically provided in Section
10.01, all the Lenders) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns). Where this Agreement expressly permits or prohibits an
action unless the Required Lenders otherwise determine, any Agent shall, and in
all other instances an Agent may, but shall not be required to, initiate any
solicitation for the consent or vote of the Lenders.
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Section 9.05 Notice of Default. An Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder, unless such Agent has received written notice from a Lender or the
Borrower referring to the Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". If the Administrative
Agent receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders; provided that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default or it shall deem advisable or in the best
interest of the Lenders, except to the extent that this Agreement expressly
requires that such action be taken, or not taken, only with the consent or upon
the authorization of the Required Lenders, or all of the Lenders, as the case
may be.
Section 9.06 Credit Decision; Disclosure of Information by Administrative
Agent. Each Lender expressly acknowledges that no Agent-Related Person has made
any representations or warranties to it and that no act by any Agent hereinafter
taken, including any consent to and acceptance of any assignment or review of
the affairs of the Borrower or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether any Agent-Related Person has
disclosed material information in its possession. Each Lender represents to the
Agents that it has, independently and without reliance upon any Agent-Related
Person or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, assets, operations, property, financial and other condition, prospects
and creditworthiness of the Borrower, and all requirements of Law pertaining to
the transaction contemplated by the Loan Documents, and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon any
Agent-Related Person 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 analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the Agents
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, assets, property,
financial or other conditions, prospects or creditworthiness of the Borrower or
its Affiliates which may come into the possession of any Agent-Related Person.
Section 9.07 Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Lenders agree to indemnify each
Agent-Related Person (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Commitments (or if the Commitments have expired or been terminated,
in accordance with the respective principal amounts of outstanding Loans and
Participation Interests of the Lenders), from and against any and all
Indemnified Liabilities which may at any time (including, without limitation, at
any time following payment in full of the Obligations) be imposed on, incurred
by or asserted against an Agent in its capacity as such in any way relating to
or arising out of this Agreement or the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by an Agent under
or in connection with any of the foregoing; provided that no Lender shall be
liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities resulting from such Person's gross negligence or willful
misconduct; provided further that no action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section 9.07. If any
indemnity furnished to an Agent for any purpose shall, in the opinion of such
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Agent, be insufficient or become impaired, such Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that the Administrative Agent is not reimbursed for such expenses by or on
behalf of the Borrower. The agreements in this Section 9.07 shall survive the
payment of the Obligations and all other obligations and amounts payable
hereunder and under the other Loan Documents.
Section 9.08 Agents in Their Individual Capacity. Each Agent and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire Equity Interests in, and generally engage in any kind of
banking, trust, financial advisory, underwriting and other business with the
Borrower as though such Agent were not an Agent hereunder or under another Loan
Document. The Lenders acknowledge that, pursuant to any such activities, an
Agent or its Affiliates may receive information regarding the Borrower or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrower or such Affiliate) and acknowledge that no
Agent shall be under any obligation to provide such information to them. With
respect to the Loans made and Letters of Credit issued and all obligations owing
to it, an Agent shall have the same rights and powers under this Agreement as
any Lender and may exercise the same as though it was not an Agent, and the
terms "Lender" and "Lenders" shall include each Agent in its individual
capacity.
Section 9.09 Successor Agents. Any Agent may, at any time, resign upon 30
days' written notice to the Lenders. If an Agent resigns under a Loan Document,
the Required Lenders shall appoint from among the Lenders a successor Agent,
which successor Agent shall be subject to the consent of the Borrower at all
times other than during the existence of an Event of Default (which consent of
the Borrower shall not be unreasonably withheld or delayed). If no successor
Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment prior to the effective date of the resignation of the
resigning Agent, then the resigning Agent shall have the right, after consulting
with the Lenders and the Borrower, to appoint a successor Agents; provided that
such successor is a Lender hereunder or a commercial bank organized under the
laws of the United States of America or of any State thereof and has a combined
capital and surplus of at least $500,000,000. If no successor Agent is appointed
prior to the effective date of the resignation of the resigning Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor Agent from among the Lenders. Upon the acceptance of any
appointment as an Agent hereunder by a successor, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations as an Agent, as appropriate, under this
Agreement and the other Loan Documents and the provisions of this Section 9.09
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was an Agent under this Agreement. If no successor Administrative Agent
has accepted appointment as Administrative Agent within sixty days after the
retiring Administrative Agent's giving notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless become effective and the
Lenders shall perform all duties of the Administrative Agent hereunder until
such time, if any, as the Required Lenders appoint a successor Administrative
Agent as provided for above.
Section 9.10 Certain Other Agents. None of the Lenders identified on the
facing page or signature pages of this Agreement as a "syndication agent",
"documentation agent", "co-agent", "joint lead arranger", "book runner" or "lead
manager" shall have any right, power, obligation, liability, responsibility or
duty under the Agreement other than those applicable to all Lenders as such.
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Without limiting the foregoing, none of the Lenders or any such Person so
identified shall have or be deemed to have any fiduciary relationship to any
Lender or the Borrower. Each Lender acknowledges that it has not relied, and
will not rely, on any of the Lenders or other Persons so identified in deciding
to enter into this Agreement or in taking or not taking action hereunder.
Section 9.11 Agents' Fees; Arranger Fee. The Borrower shall pay to the
Administrative Agent for its own account fees in the amounts and at the times
previously agreed upon between the Borrower and the Administrative Agent with
respect to this Agreement, the other Loan Documents and the transactions
contemplated hereby and thereby.
Section 9.12 No Reliance on Agents' Customer Identification Program. Each
Lender acknowledges and agrees that neither such Lender, nor any of its
Affiliates, participants or assignees, may rely on any Agent-Related Person to
carry out such Lender's, Affiliate's, participant's or assignee's customer
identification program, or other obligations required or imposed under or
pursuant to the USA Patriot Act or the regulations thereunder, including the
regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the
"CIP Regulations"), or any other Anti-Terrorism Law, including any programs
involving any of the following items relating to or in connection with Borrower,
its Subsidiaries, its Affiliates or their agents, the Loan Documents or the
transactions hereunder or contemplated hereby: (i) any identity verification
procedures, (ii) any recordkeeping, (iii) comparisons with government lists,
(iv) customer notices, or (v) other procedures required under the CIP
Regulations or such other Laws.
ARTICLE X
MISCELLANEOUS
Section 10.01 Amendments, Waivers and Consents. Neither this Agreement
nor any other Loan Document nor any of the terms hereof or thereof may be
amended, changed, waived, discharged or terminated except, in the case of this
Agreement, pursuant to an agreement or agreements in writing entered into by the
Borrower, the Administrative Agent, and the Required Lenders or, in the case of
any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Agents party thereto, as applicable;
provided that the foregoing shall not restrict the ability of the Required
Lenders to waive any Event of Default prior to the time the Administrative Agent
shall have declared, or the Required Lenders shall have requested the
Administrative Agent to declare, the Loans immediately due and payable pursuant
to Article VIII; provided further that:
(i) no such amendment, change, waiver, discharge or termination
shall, without the consent of each Lender affected thereby:
(A) extend the final maturity of any Loan or the time of
payment of any reimbursement obligation, or any portion thereof, arising
from drawings under Letters of Credit; provided that this clause (A)
shall not restrict the ability of the Required Lenders to waive any Event
of Default (other than an Event of Default the waiver of which would
effectively result in any such extension or waiver), prior to the time
the Administrative Agent shall have declared, or the Required Lenders
shall have requested the Administrative Agent to declare, the Loans
immediately due and payable pursuant to Article VIII;
(B) reduce the rate, or extend the time of payment, of
interest or change the manner of computation of any financial covenant
used in determining the Applicable Margin that could result in the
reduction of the rate of interest on any Loan (other than as a result of
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waiving the applicability of any post-default increase in interest rates)
thereon or fees hereunder;
(C) reduce or waive the principal amount of any Loan or
any LC Disbursement;
(D) increase the Commitment of a Lender over the amount
thereof in effect (it being understood and agreed that a waiver of any
Default or Event of Default or a mandatory reduction in the Commitments
shall not constitute a change in the terms of any Commitment of any
Lender);
(E) release the Borrower from its Obligations under the
Loan Documents;
(F) amend, modify or waive any provision of this Section
10.01 or reduce any percentage specified in, or otherwise modify, the
definition of Required Lenders;
(G) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under (or in respect of)
the Loan Documents to which it is a party, except as permitted thereby;
or
(H) amend, modify or waive any provision of Section 2.13
or Section 2.14;
(ii) no provision of Article IX may be amended without the
consent of the Administrative Agent, no provision of Section 2.06 may be
amended without the consent of each Issuing Lender and no provision of
Section 2.02(b) may be amended without the consent of the Swingline Lender.
Notwithstanding the fact that the consent of all the Lenders is required
in certain circumstances as set forth above, (i) each Lender is entitled to vote
as such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans or the Letters of Credit, and each Lender acknowledges that the provisions
of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent
provisions set forth herein and (ii) the Required Lenders may consent to allow
the Borrower to use cash collateral in the context of a bankruptcy or insolvency
proceeding.
Section 10.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission) and (x) mailed, faxed or delivered, to the address,
facsimile number or (subject to subsection (c) below) electronic mail address
specified for notices on Schedule 10.02; or, in the case of the Borrower, the
Administrative Agent, any Issuing Lender or the Swingline Lender, to such other
address as shall be designated by such party in a notice to the other parties,
and in the case of any other party, to such other address as shall be designated
by such party in a notice to the Borrower, the Administrative Agent, any Issuing
Lender and the Swingline Lender or (y) subject to subsection (c) below, posted
on a site on the World Wide Web (a "Website Posting") if notice of such Website
Posting (including the information necessary to access such site) has previously
been delivered to the applicable parties hereto by another means set forth in
this subsection (a). All such notices and other communications shall be deemed
to be given or made upon the earlier to occur of (i) actual receipt by the
intended recipient and (ii) (A) if delivered by hand or by courier, when signed
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for by the intended recipient; (B) if delivered by mail, four Business Days
after deposit in the mails, postage prepaid and return receipt requested; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone;
(D) if delivered by electronic mail (which form of delivery is subject to the
provisions of subsection (c) below), when delivered; (E) if delivered by a
Website Posting, upon delivery of a notice of such posting (including the
information to access such site) by another means set forth in this subsection
(a); and (F) if delivered by any other means (including by overnight courier),
when actually received; provided that notices and other communications to the
Administrative Agent, any Issuing Lender and the Swingline Lender pursuant to
Article II shall not be effective until actually received by such Person. Any
Lender giving a notice to the Borrower shall concurrently send a copy thereof to
the Administrative Agent and the Administrative Agent shall promptly notify the
other Lenders of its receipt of such notice. Any notice or other communication
permitted to be given, made or confirmed by telephone hereunder shall be given,
made or confirmed by means of a telephone call to the intended recipient at the
number specified on Schedule 10.02, it being understood and agreed that a
voicemail message shall in no event be effective as a notice, communication or
confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to requirements of Law, have
the same force and effect as manually-signed originals and shall be binding on
the Borrower, the Agents and the Lenders. The Administrative Agent may also
require that any such documents and signatures be confirmed by a manually-signed
original thereof; provided that the failure to request or deliver the same shall
not limit the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and internet and
intranet websites (including a Website Posting) may be used only to distribute
routine communications, such as financial statements and other information, and
to distribute Loan Documents for execution by the parties thereto, and may not
be used for any other purpose (including the delivery of a notice of the
occurrence of a Default or Event of Default or a notice of acceleration of the
Loans).
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
purportedly given by or on behalf of the Borrower even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein or (ii) the terms thereof,
as understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify each Agent-Related Person and each Lender from all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of the Borrower, except
for such losses resulting from the Administrative Agent's or Lender's gross
negligence or willful misconduct. All telephonic notices to and other
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
Section 10.03 No Waiver; Cumulative Remedies. No failure or delay on the
part of an Agent or any Lender in exercising any right, power or privilege
hereunder or under any other Loan Document and no course of dealing between the
Agents or any Lender and the Borrower shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under any other Loan Document preclude any other or further exercise thereof
or the exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Agents or any Lender would otherwise have. No
notice to or demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Agents or the Lenders to any other or
further action in any circumstances without notice or demand.
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Section 10.04 Attorney Costs, Expenses and Taxes. The Borrower agrees (i)
to pay or reimburse the Administrative Agent for all costs and expenses incurred
in connection with the preparation, negotiation and execution of this Agreement
and the other Loan Documents and any amendment, waiver, consent or other
modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (ii) to pay or reimburse the
Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
reasonable and actual out-of-pocket expenses incurred by the Administrative
Agent and the reasonable and actual cost of independent public accountants and
other outside experts retained by the Administrative Agent or any Lender. The
agreements in this Section 10.04 shall survive the termination of the
Commitments and repayment of all the other Obligations.
Section 10.05 Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Borrower agrees to indemnify, save and
hold harmless each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the "Indemnitees") from and against: (i) any and
all claims, demands, actions or causes of action that are asserted against any
Indemnitee by any Person (other than the Administrative Agent or any Lender)
relating directly or indirectly to a claim, demand, action or cause of action
that such Person asserts or may assert against the Borrower, any Affiliate of
the Borrower or any of their respective officers or directors; (ii) any and all
claims, demands, actions or causes of action that may at any time (including at
any time following repayment of the Obligations and the resignation or removal
of any Agent or the replacement of any Lender) be asserted or imposed against
any Indemnitee, arising out of or relating to, the Loan Documents, any
predecessor loan documents, the Commitments, the use of or contemplated use of
the proceeds of any Credit Extension, or the relationship of the Borrower, any
Agent and the Lenders under this Agreement or any other Loan Document; (iii) any
administrative or investigative proceeding by any Governmental Authority arising
out of or related to a claim, demand, action or cause of action described in
clause (i) or (ii) above; and (iv) any and all liabilities (including
liabilities under indemnities), losses, costs or expenses (including Attorney
Costs) that any Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action, cause of action or proceeding, or as a result
of the preparation of any defense in connection with any foregoing claim,
demand, action, cause of action or proceeding, in all cases, and whether or not
an Indemnitee is a party to such claim, demand, action, cause of action, or
Proceeding (all the foregoing, collectively; the "Indemnified Liabilities");
provided that no Indemnitee shall be entitled to indemnification for any claim
caused by its own gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 10.05 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnitee or any other Person or any
Indemnitee is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. The Borrower agrees not to assert any claim
against any Agent, any Lender, any other Creditor, any of their Affiliates or
any of their respective directors, officers, employees, attorneys, agents and
advisers, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the Loan Documents, any
of the transactions contemplated herein or therein or the actual or proposed use
of the proceeds of the Loans or of the Letters of Credit. Without prejudice to
the survival of any other agreement of the Borrower hereunder and under the
other Loan Documents, the agreements and obligations of the Borrower contained
in this Section 10.05 shall survive the repayment of the Loans, LC Obligations
and other obligations under the Loan Documents and the termination of the
Commitments hereunder.
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Section 10.06 Successors and Assigns.
(a) Generally. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties hereto; provided that the Borrower may not assign or transfer any of its
interests and obligations without the prior written consent of either the
Required Lenders or the Lenders, as the terms set forth in Section 10.01 may
require;
(b) Assignments. Any Lender may assign all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Loans, its Notes, its Commitments and any Participation Interest
in Letters of Credit and Swingline Loans held by it); provided that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender, an
Affiliate of an existing Lender or any Approved Fund the aggregate amount
of the Revolving Commitment of the assigning Lender subject to such
assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall
not, without the consent of the Borrower and the Administrative Agent, be
less than $5,000,000 and an integral multiple of $1,000,000 (or such lesser
amount as shall equal the assigning Lender's entire Revolving Commitment);
(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all rights and obligations in respect of its
Commitments under this Agreement and the other Loan Documents;
(iv) the parties to such assignment shall execute and deliver to
the Administrative Agent and with respect to the assignment of all or a
portion of the Revolving Committed Amount the Issuing Lenders for their
consent not to be unreasonably withheld an Assignment and Acceptance in the
form of Exhibit C, together with any Note subject to such assignment and a
processing fee of $3,500, payable or agreed between the assigning Lender
and the assignee. Not later than the date any such executed Assignment and
Acceptance is delivered to the Administrative Agent, the Administrative
Agent shall provide the Borrower with notice of any such assignment.
(c) Assignment and Acceptance. By executing and delivering an
Assignment and Acceptance in accordance with this Section 10.06, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and the
assignee warrants that it is an Eligible Assignee; (ii) except as set forth in
clause (i) above, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, any of the other
Loan Documents or any other instrument or document furnished pursuant hereto or
thereto, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any of the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto or the
financial condition of the Borrower or the performance or observance by the
Borrower or any Subsidiary of any of its obligations under this Agreement, any
of the other Loan Documents or any other instrument or document furnished
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pursuant hereto or thereto; (iii) such assignee represents and warrants that it
is legally authorized to enter into such assignment agreement; (iv) such
assignee confirms that it has received a copy of this Agreement, the other Loan
Documents, together with copies of the most recent financial statements
delivered pursuant to Section 6.01 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (v) such assignee will independently and
without reliance upon the Administrative Agent, any Issuing Lender, the
Swingline Lender, such assigning Lender 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; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action on its behalf and to
exercise such powers under this Agreement or any other Loan Document as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with such powers as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all the obligations
which by the terms of this Agreement and the other Loan Documents are required
to be performed by it as a Lender. Upon execution, delivery, and acceptance of
such Assignment and Acceptance, the assignee thereunder shall be a party hereto
and, to the extent of such assignment, have the obligations, rights, and
benefits of a Lender hereunder and the assigning Lender shall, to the extent of
such assignment, relinquish its rights and be released from its obligations
under this Agreement. Upon the consummation of any assignment pursuant to this
Section 10.06, the assignor, the Administrative Agent and the Borrower shall
make appropriate arrangements so that, if required, new Notes are issued to the
assignor and the assignee. If the assignee is not a United States person under
Section 7701(a)(30) of the Code, it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction or withholding
of Taxes in accordance with Section 3.01.
(d) Register. The Borrower hereby designates the Administrative Agent
to serve as the Borrower's agent, solely for purposes of this subsection
10.06(d), to (i) maintain a register (the "Register") on which the
Administrative Agent will record the Commitments from time to time of each
Lender, the Loans made by each Lender and each repayment in respect of the
principal amount of the Loans of each Lender and to (ii) retain a copy of each
Assignment and Acceptance delivered to the Administrative Agent pursuant to this
Section 10.06. Failure to make any such recordation, or any error in such
recordation, shall not affect the Borrower's obligation in respect of such
Loans. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent, the Issuing Lenders
and the Lenders shall treat each Person in whose name a Loan and the Note
evidencing the same is registered as the owner thereof for all purposes of this
Agreement, notwithstanding notice or any provision herein to the contrary. With
respect to any Lender, the assignment or other transfer of the Commitments of
such Lender and the rights to the principal of, and interest on, any Loan made
and any Note issued pursuant to this Agreement shall not be effective until such
assignment or other transfer is recorded on the Register and, except to the
extent provided in this subsection 10.06(d), otherwise complies with this
Section 10.06, and prior to such recordation all amounts owing to the
transferring Lender with respect to such Commitments, Loans and Notes shall
remain owing to the transferring Lender. The registration of assignment or other
transfer of all or part of any Commitments, Loans and Notes for a Lender shall
be recorded by the Administrative Agent on the Register only upon the acceptance
by the Administrative Agent of a properly executed and delivered Assignment and
Acceptance and payment of the administrative fee referred to in Section
10.06(b)(iv). The Register shall be available at the offices where kept by the
Administrative Agent for inspection by the Borrower and any Lender at any
reasonable time upon reasonable prior notice to the Administrative Agent, and
the Administrative Agent shall provide a copy of the Register to any Lender
requesting a copy thereof, but in no event more frequently then once per
calendar quarter.
(e) Participations. Each Lender may, without the consent of the
Borrower, the Issuing Lenders, the Swingline Lender or any Agent, sell
participations to one or more Persons in all or a portion of its rights,
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obligations or rights and obligations under this Agreement (including all or a
portion of its Commitment or the Loans owing to it and any Notice and
participation in Letters of Credit and Swingline Loans held by it); provided
that (i) such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participant shall be entitled to
the benefit of the right of setoff contained in Section 10.08 and the yield
protection provisions contained in Sections 3.01, 3.04 and 3.05 and to the same
extent that the Lender from which such participant acquired its participation
would be entitled to the benefits of such yield protections; provided that the
Borrower shall not be required to reimburse any participant pursuant to Sections
3.01, 3.04 or 3.05 in an amount which exceeds the amount that would have been
payable thereunder to such Lender had such Lender not sold such participation
and (iv) the Borrower, the Agents, the Issuing Lenders, the Swingline Lenders
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, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to the Obligations owing to such Lender and
to approve any amendment, modification or waiver of any provision of this
Agreement (other than amendments, modifications or waivers decreasing the amount
of principal of or the rate at which interest is payable on such Loans or Notes,
extending any scheduled principal payment date or date fixed for the payment of
interest on such Loans or Notes or extending its Commitment).
(f) Other Assignments. Any Lender may at any time (i) assign all or
any portion of its rights under this Agreement and any Notes to a Federal
Reserve Bank, (ii) pledge or assign a security interest in all or any portion of
its interest and rights under this Agreement (including all or any portion of
its Notes, if any) to secure obligations of such Lender and (iii) grant to an
SPC referred to in subsection (h) below identified as such in writing from time
to time by such Lender to the Administrative Agent the Borrower the option to
provide to the Borrower all or any part of any Loans that such Lender would
otherwise be obligated to make to the Borrower pursuant to the Agreement;
provided that no such assignment, option, pledge or security interest shall
release a Lender from any of its obligations hereunder or substitute any such
Federal Reserve Bank or other person to which such option, pledge or assignment
has been made for such Lender as a party hereto.
(g) Information. Any Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender from time
to time to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 10.07.
(h) Other Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender, (a "Granting Lender") may grant to a special
purpose funding vehicle (an "SPC") the option to fund all or any part of any
Loan that such Granting Lender would otherwise be obligated to fund pursuant to
this Agreement; provided that (i) nothing herein shall constitute a commitment
by any SPC to fund any Loan, (ii) if an SPC elects not to exercise such option
or otherwise fails to fund all or any part of such Loan, the Granting Lender
shall be obligated to fund such Loan pursuant to the terms hereof, (iii) no SPC
shall have any voting rights pursuant to Section 10.01 and (iv) with respect to
notices, payments and other matters hereunder, the Borrower, the Administrative
Agent and the Lenders shall not be obligated to deal with an SPC, but may limit
their communications and other dealings relevant to such SPC to the applicable
Granting Lender. The funding of a Loan by an SPC hereunder shall utilize the
Revolving Commitment of the Granting Lender to the same extent that, and as if,
such Loan were funded by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or payment under this Agreement
for which a Lender would otherwise be liable for so long as, and to the extent,
the Granting Lender provides such indemnity or makes such payment.
Notwithstanding anything to the contrary contained in this Agreement, any SPC
may disclose on a confidential basis any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or provider of
any surety or guarantee to such SPC. This subsection (h) may not be amended
without the prior written consent of each Granting Lender, all or any part of
whose Loan is being funded by an SPC at the time of such amendment.
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Section 10.07 Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (i) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (ii) to the extent requested
by any regulatory authority; (iii) to the extent required by applicable Laws or
regulations or by any subpoena or similar legal process; (iv) to any other party
to this Agreement; (v) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (vi) subject to an agreement containing provisions
substantially the same as those of this Section 10.07, to (A) any Eligible
Assignee of or participant in, or any prospective Eligible Assignee of or
participant in, any of its rights or obligations under this Agreement or (B) any
direct or indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of the Borrower;
(vii) with the consent of the Borrower; (viii) to the extent such information
(A) becomes publicly available other than as a result of a breach of this
Section 10.07 or (B) becomes available to an Agent or any Lender on a
nonconfidential basis from a source other than the Borrower; or (ix) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates.
For the purposes of this Section 10.07, "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 or any Lender
on a nonconfidential 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 in writing at the time of delivery as
confidential.
Section 10.08 Set-off. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default,
each Lender (and each of its Affiliates) is authorized at any time and from time
to time, without presentment, demand, protest or other notice of any kind (all
of such rights being hereby expressly waived), to set-off and to appropriate and
apply any and all deposits (general or specific) and any other indebtedness at
any time held or owing by such Lender (including, without limitation, branches,
agencies or Affiliates of such Lender wherever located) to or for the credit or
the account of the Borrower against obligations and liabilities of the Borrower
to the Lenders hereunder, under the Notes, under the other Loan Documents or
otherwise, irrespective of whether the Administrative Agent or the Lenders shall
have made any demand hereunder and although such obligations, liabilities or
claims, or any of them, may be contingent or unmatured, and any such set-off
shall be deemed to have been made immediately upon the occurrence of an Event of
Default even though such charge is made or entered on the books of such Lender
subsequent thereto. The Borrower hereby agrees that to the extent permitted by
Law any Person purchasing a participation in the Loans, Commitments and LC
Obligations hereunder pursuant to Section 2.01(b), 2.06(a) or (e), 2.14 or
10.06(e) may exercise all rights of set-off with respect to its participation
interest as fully as if such Person were a Lender hereunder and any such set-off
shall reduce the amount owed by the Borrower to the Lender (but without
duplication).
Section 10.09 Interest Rate Limitation. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If the Administrative
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Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the Borrower. In determining
whether the interest contracted for, charged, or received by the Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (i) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations.
Section 10.10 Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart. Delivery of an executed counterpart by
facsimile shall be effective as an original executed counterpart and shall be
deemed a representation that the original executed counterpart will be
delivered.
Section 10.11 Integration. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, put rather in accordance with the fair meaning thereof.
Section 10.12 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
Section 10.13 Severability. Any provision of this Agreement and the other
Loan Documents to which the Borrower is a party that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions thereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
Section 10.14 Headings. The headings and captions of the sections and
subsections hereof are provided for convenience only and shall not in any way
affect the meaning or construction of any provision of this Agreement.
Section 10.15 Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF
CREDIT AND OTHER THAN AS EXPRESSLY SET FORTH IN SUCH OTHER LOAN DOCUMENTS) AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS
-00-
XX XXX XXXXX XX XXX XXXX (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. EACH LETTER OF CREDIT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES
DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED,
THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION),
INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500 AND, AS TO MATTERS NOT
GOVERNED BY SUCH UNIFORM CUSTOMS, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. Any
legal action or proceeding with respect to this Agreement or any other Loan
Document may be brought in the courts of the State of New York in New York
County, or of the United States for the Southern District of New York or the
Western District of North Carolina, and, by execution and delivery of this
Agreement, the Borrower hereby irrevocably accepts for itself and in respect of
its property, generally and unconditional, the nonexclusive jurisdiction of such
courts. The Borrower irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such court and any claim that any such proceeding
brought in any such court has been brought in an inconvenient forum.
(b) The Borrower hereby irrevocably appoints CT Corporation System as
its authorized agent to accept and acknowledge service of any and all process
which may be served in any suit, action or proceeding of the nature referred to
in this Section 10.15 and consents to process being served in any such suit,
action or proceeding upon CT Corporation System (with a copy thereof being
mailed by overnight courier to the Borrower's address referred to in Schedule
10.02) in any manner or by the mailing of a copy thereof by registered or
certified mail, postage prepaid, return receipt requested, to the Borrower's
address referred to in Schedule 10.02. The Borrower agrees that such service (i)
shall be deemed in every respect effective service of process upon it in any
such suit, action or proceeding and (ii) shall, to the fullest extent permitted
by law, be taken and held to be valid personal service upon and personal
delivery to it. Nothing in this Section 10.15 shall affect the right of any
Lender to serve process in any manner permitted by law or limit the right of any
Lender to bring proceedings against the Borrower in the courts of any
jurisdiction or jurisdictions.
Section 10.16 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION 10.16 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 10.17 Binding Effect. This Agreement shall become effective at
such time when it shall have been executed by the Borrower, each Lender and the
Administrative Agent, and the conditions set forth in Section 4.01 have been
satisfied by the Borrower or waived by the Lenders, and thereafter this
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Agreement shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and their respective successors and
assigns.
Section 10.18 Conflict. To the extent that there is a conflict or
inconsistency between any provision hereof, on the one hand, and any provision
of any other Loan Document, on the other hand, this Agreement shall control.
Section 10.19 Certification From Lenders and Participants. Each Lender
and each assignee or participant of a Lender that is not incorporated under the
Laws of the United States of America or a state thereof (and is not excepted
from the certification requirement contained in Section 313 of the USA Patriot
Act and the applicable regulations because it is both (i) an affiliate of a
depository institution or foreign bank that maintains a physical presence in the
United States or foreign country, and (ii) subject to supervision by a banking
authority regulating such affiliated depository institution or foreign bank)
shall deliver to the Administrative Agent the certification or, if applicable,
recertification, certifying that such Person is not a "shell" and certifying to
other matters as required by Section 313 of the USA Patriot Act and the
applicable regulations (i) within 10 days after the Amendment Effective Date,
and (ii) at such other times as are required under the USA Patriot Act.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER: WORTHINGTON INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President and Chief Financial Officer
-i-
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ Xxxxx X. XxXxxxxx
---------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Swingline Lender
By: /s/ Xxxxx X. XxXxxxxx
---------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxx X. XxXxxxxx
---------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
-ii-
WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Director
-iii-
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ X. Xxxx
---------------------------------------------
Name: X. Xxxx
Title: Sr. Manager
THE BANK OF NOVA SCOTIA,
as Syndication Agent
By: /s/ X. Xxxx
---------------------------------------------
Name: X. Xxxx
Title: Sr. Manager
-iv-
CREDIT SUISSE, CAYMAN ISLANDS
BRANCH (formerly Credit Suisse First Boston,
Cayman Islands Branch),
as a Lender
By: /s/ Xxxx X. Xxxxx
---------------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
By: /s/ Xxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxx Xxxxx
Title: Associate
-v-
FIFTH THIRD BANK (CENTRAL OHIO),
as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
-vi-
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxxxx X. Friend
---------------------------------------------
Name: Xxxxxx X. Friend
Title: Vice President
-vii-
COMERICA BANK, as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
-viii-
CITIZENS BANK OF PENNSYLVANIA, as a Lender
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
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THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
-x-
THE HUNTINGTON NATIONAL BANK,
as a Lender
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
-xi-
JPMORGAN CHASE BANK,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
-xii-
NATIONAL CITY BANK, as a Lender
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: SVP
-xiii-
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Xxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
-xiv-
LASALLE BANK NATIONAL
ASSOCIATION, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
-xv-
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...............................................................1
Section 1.01 Defined Terms.....................................................................1
Section 1.02 Computation of Time Periods and Other Definitional Provisions....................23
Section 1.03 Accounting Terms and Determinations..............................................23
Section 1.04 Types of Borrowings..............................................................23
ARTICLE II THE CREDIT FACILITIES.........................................................................23
Section 2.01 Commitments to Lend..............................................................23
Section 2.02 Notice of Loan...................................................................26
Section 2.03 [Intentionally Omitted]..........................................................26
Section 2.04 Notice to Lenders; Funding of Loans..............................................27
Section 2.05 Evidence of Loans................................................................28
Section 2.06 Letters of Credit................................................................29
Section 2.07 Interest.........................................................................36
Section 2.08 Extension and Conversion.........................................................38
Section 2.09 Scheduled Termination of Commitments; Mandatory Prepayments......................39
Section 2.10 Optional Prepayments.............................................................39
Section 2.11 Adjustment of Commitments........................................................40
Section 2.12 Fees.............................................................................43
Section 2.13 Pro-Rata Treatment...............................................................44
Section 2.14 Sharing of Payments..............................................................44
Section 2.15 Payments; Computations...........................................................45
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY........................................................46
Section 3.01 Taxes............................................................................46
Section 3.02 Illegality.......................................................................48
Section 3.03 Basis for Determining Interest Rate Inadequate or Unfair.........................48
Section 3.04 Increased Costs and Reduced Return...............................................49
Section 3.05 Funding Losses...................................................................50
Section 3.06 Base Rate Loans Substituted for Affected Eurodollar Loans........................51
ARTICLE IV CONDITIONS....................................................................................51
Section 4.01 Conditions to Effectiveness......................................................51
Section 4.02 Conditions to All Credit Extensions..............................................53
ARTICLE V REPRESENTATIONS AND WARRANTIES................................................................53
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TABLE OF CONTENTS
(continued)
Page
Section 5.01 Organization.....................................................................53
Section 5.02 Financial Condition..............................................................54
Section 5.03 Litigation, Etc..................................................................54
Section 5.04 Taxes............................................................................54
Section 5.05 Authority........................................................................54
Section 5.06 Other Defaults...................................................................54
Section 5.07 Licenses, Etc....................................................................55
Section 5.08 ERISA............................................................................55
Section 5.09 Environmental Matters............................................................55
Section 5.10 Ownership of Property; Liens.....................................................55
Section 5.11 Insurance........................................................................55
Section 5.12 Subsidiaries.....................................................................55
Section 5.13 Margin Regulation; Investment Company Act; Public Utility Holding Company
Act..............................................................................55
Section 5.14 Disclosure.......................................................................56
Section 5.15 Anti-Terrorism Laws..............................................................56
ARTICLE VI AFFIRMATIVE COVENANTS.........................................................................56
Section 6.01 Information......................................................................57
Section 6.02 Books and Records................................................................58
Section 6.03 Payment of Obligations...........................................................58
Section 6.04 Compliance with Laws.............................................................58
Section 6.05 Environmental Violations.........................................................59
Section 6.06 ERISA Compliance.................................................................59
Section 6.07 Maintenance of Properties........................................................59
Section 6.08 Maintenance of Insurance.........................................................59
Section 6.09 Use of Proceeds..................................................................59
Section 6.10 Tax Shelter Regulations..........................................................59
ARTICLE VII NEGATIVE COVENANTS............................................................................59
Section 7.01 Limitation on Indebtedness of Restricted Subsidiaries............................59
Section 7.02 Restriction on Liens.............................................................60
Section 7.03 Investments......................................................................60
Section 7.04 Merger...........................................................................61
Section 7.05 Dispositions.....................................................................61
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TABLE OF CONTENTS
(continued)
Page
Section 7.06 ERISA............................................................................61
Section 7.07 Designation of Restricted and Unrestricted Subsidiaries..........................62
Section 7.08 Change in Nature of Business.....................................................62
Section 7.09 Transactions with Affiliates.....................................................62
Section 7.10 Burdensome Agreements............................................................62
Section 7.11 Use of Proceeds..................................................................63
Section 7.12 Governance Documents.............................................................63
Section 7.13 Financial Covenants..............................................................63
Section 7.14 Anti-Terrorism Laws..............................................................63
ARTICLE VIII DEFAULTS......................................................................................63
Section 8.01 Events of Default................................................................63
Section 8.02 Acceleration; Remedies...........................................................64
ARTICLE IX AGENCY PROVISIONS.............................................................................65
Section 9.01 Appointment; Authorization.......................................................65
Section 9.02 Delegation of Duties.............................................................66
Section 9.03 Exculpatory Provisions...........................................................66
Section 9.04 Reliance on Communications.......................................................66
Section 9.05 Notice of Default................................................................67
Section 9.06 Credit Decision; Disclosure of Information by Administrative Agent...............67
Section 9.07 Indemnification..................................................................67
Section 9.08 Agents in Their Individual Capacity..............................................68
Section 9.09 Successor Agents.................................................................68
Section 9.10 Certain Other Agents.............................................................68
Section 9.11 Agents' Fees; Arranger Fee.......................................................69
Section 9.12 No Reliance on Agents' Customer Identification Program...........................69
ARTICLE X MISCELLANEOUS.................................................................................69
Section 10.01 Amendments, Waivers and Consents.................................................69
Section 10.02 Notices and Other Communications; Facsimile Copies...............................70
Section 10.03 No Waiver; Cumulative Remedies...................................................71
Section 10.04 Attorney Costs, Expenses and Taxes...............................................72
Section 10.05 Indemnification..................................................................72
Section 10.06 Successors and Assigns...........................................................73
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TABLE OF CONTENTS
(continued)
Page
Section 10.07 Confidentiality..................................................................76
Section 10.08 Set-off..........................................................................76
Section 10.09 Interest Rate Limitation.........................................................76
Section 10.10 Counterparts.....................................................................77
Section 10.11 Integration......................................................................77
Section 10.12 Survival of Representations and Warranties.......................................77
Section 10.13 Severability.....................................................................77
Section 10.14 Headings.........................................................................77
Section 10.15 Governing Law; Submission to Jurisdiction........................................77
Section 10.16 Waiver of Jury Trial.............................................................78
Section 10.17 Binding Effect...................................................................78
Section 10.18 Conflict.........................................................................79
Section 10.19 Certification From Lenders and Participants......................................79
Schedules:
Schedule 1.01A - Lenders and Commitments
Schedule 2.16 - Portion of Existing Loans
Schedule 5.12 - Subsidiaries
Schedule 7.01 Existing Letters of Credit
Schedule 7.03 - Investments
Schedule 7.07 - Unrestricted Subsidiaries
Schedule 10.02 - Notices; Lending Offices
Exhibits:
Exhibit A-1 - Form of Revolving Loan Request
Exhibit A-2 - Form of Swingline Loan Request
Exhibit A-3 - Form of Letter of Credit Request
Exhibit A-4 - Form of Notice of Extension/Conversion
Exhibit B-1 - Form of Revolving Note
Exhibit B-2 - Form of Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
-iv-
