CREDIT AGREEMENT dated as of July 27, 2010 among RALCORP HOLDINGS, INC., as Borrower THE LENDERS PARTY HERETO JPMORGAN CHASE BANK, N.A., as Administrative Agent, Swingline Lender and Issuing Bank BANK OF AMERICA, N.A. and SUNTRUST BANK, as...
Exhibit 10.1
$500,000,000
dated as of
July 27, 2010
among
RALCORP HOLDINGS, INC.,
as Borrower
as Borrower
THE LENDERS PARTY HERETO
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, Swingline Lender and Issuing Bank
as Administrative Agent, Swingline Lender and Issuing Bank
BANK OF AMERICA, N.A. and SUNTRUST BANK,
as Co-Syndication Agents
as Co-Syndication Agents
and
DEUTSCHE BANK AG NEW YORK BRANCH,
XXXXX FARGO BANK, N.A.
and
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
as Documentation Agents
XXXXX FARGO BANK, N.A.
and
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
as Documentation Agents
X.X. XXXXXX SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC,
and
SUNTRUST XXXXXXXX XXXXXXXX, INC.,
as Joint Bookrunners and Joint Lead Arrangers
BANC OF AMERICA SECURITIES LLC,
and
SUNTRUST XXXXXXXX XXXXXXXX, INC.,
as Joint Bookrunners and Joint Lead Arrangers
TABLE OF CONTENTS
Page | ||||
ARTICLE I Definitions |
1 | |||
SECTION 1.01. Defined Terms |
1 | |||
SECTION 1.02. Classification of Loans and Borrowings |
20 | |||
SECTION 1.03. Terms Generally |
20 | |||
SECTION 1.04. Accounting Terms |
20 | |||
ARTICLE II The Credits |
20 | |||
SECTION 2.01. Commitments |
20 | |||
SECTION 2.02. Loans and Borrowings |
21 | |||
SECTION 2.03. Requests for Borrowings |
21 | |||
SECTION 2.04. [Intentionally Omitted] |
22 | |||
SECTION 2.05. Swingline Loans |
22 | |||
SECTION 2.06. Letters of Credit |
23 | |||
SECTION 2.07. Funding of Borrowings |
27 | |||
SECTION 2.08. Interest Elections |
28 | |||
SECTION 2.09. Termination and Reduction of Commitments; Increase of Commitments |
29 | |||
SECTION 2.10. Repayment of Loans; Evidence of Debt |
31 | |||
SECTION 2.11. Amortization of Term Loans |
32 | |||
SECTION 2.12. Prepayment of Loans |
32 | |||
SECTION 2.13. Fees |
33 | |||
SECTION 2.14. Interest |
34 | |||
SECTION 2.15. Alternate Rate of Interest |
35 | |||
SECTION 2.16. Increased Costs |
36 | |||
SECTION 2.17. Break Funding Payments |
37 | |||
SECTION 2.18. Taxes |
37 | |||
SECTION 2.19. Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
38 | |||
SECTION 2.20. Mitigation Obligations; Replacement of Lenders |
40 | |||
SECTION 2.21. Defaulting Lenders |
41 | |||
ARTICLE III Representations and Warranties |
43 | |||
SECTION 3.01. Corporate Existence and Standing |
43 | |||
SECTION 3.02. Authorization and Validity |
43 | |||
SECTION 3.03. Compliance with Laws and Contracts |
43 | |||
SECTION 3.04. Governmental Consents |
44 | |||
SECTION 3.05. Financial Statements |
44 | |||
SECTION 3.06. Material Adverse Change |
44 | |||
SECTION 3.07. Taxes |
44 | |||
SECTION 3.08. Litigation and Contingent Obligations |
44 | |||
SECTION 3.09. Subsidiaries and Capitalization |
45 | |||
i |
Page | ||||
SECTION 3.10. ERISA |
45 | |||
SECTION 3.11. Defaults |
45 | |||
SECTION 3.12. Federal Reserve Regulations |
46 | |||
SECTION 3.13. Investment Company Act |
46 | |||
SECTION 3.14. Certain Fees |
46 | |||
SECTION 3.15. Solvency |
46 | |||
SECTION 3.16. Ownership of Properties |
46 | |||
SECTION 3.17. Indebtedness |
47 | |||
SECTION 3.18. Subordinated Indebtedness |
47 | |||
SECTION 3.19. Employee Controversies |
47 | |||
SECTION 3.20. Material Agreements |
47 | |||
SECTION 3.21. Environmental Laws |
47 | |||
SECTION 3.22. Insurance |
48 | |||
SECTION 3.23. Disclosure |
48 | |||
SECTION 3.24. Material Foreign Subsidiaries |
48 | |||
ARTICLE IV Conditions |
48 | |||
SECTION 4.01. Effective Date |
48 | |||
SECTION 4.02. Each Credit Event |
50 | |||
ARTICLE V Affirmative Covenants |
51 | |||
SECTION 5.01. Financial Reporting |
51 | |||
SECTION 5.02. Use of Proceeds |
52 | |||
SECTION 5.03. Notice of Default |
52 | |||
SECTION 5.04. Conduct of Business |
52 | |||
SECTION 5.05. Taxes |
53 | |||
SECTION 5.06. Insurance |
53 | |||
SECTION 5.07. Compliance with Laws and Material Contractual Obligations |
53 | |||
SECTION 5.08. Maintenance of Properties |
53 | |||
SECTION 5.09. Inspection |
53 | |||
SECTION 5.10. Environmental Matters |
54 | |||
SECTION 5.11. Material Subsidiaries |
54 | |||
SECTION 5.12. Material Foreign Subsidiaries |
54 | |||
SECTION 5.13. Payment of Obligations |
54 | |||
ARTICLE VI Negative Covenants |
55 | |||
SECTION 6.01. Capital Stock and Dividends |
55 | |||
SECTION 6.02. Indebtedness |
55 | |||
SECTION 6.03. Merger; Fundamental Changes |
55 | |||
SECTION 6.04. Sale of Assets |
56 | |||
SECTION 6.05. Sale of Accounts |
56 | |||
SECTION 6.06. Investments and Purchases |
56 | |||
SECTION 6.07. Contingent Obligations |
58 | |||
SECTION 6.08. Liens |
58 | |||
SECTION 6.09. Affiliates |
59 | |||
ii |
Page | ||||
SECTION 6.10. Subordinated Indebtedness; Other Indebtedness |
59 | |||
SECTION 6.11. Change in Corporate Structure; Fiscal Year |
60 | |||
SECTION 6.12. Inconsistent Agreements |
60 | |||
SECTION 6.13. ERISA Compliance. |
60 | |||
SECTION 6.14. Restricted Payments |
61 | |||
SECTION 6.15. Swap Agreements |
61 | |||
SECTION 6.16. Sale and Leaseback Transactions |
61 | |||
SECTION 6.17. Financial Covenants |
61 | |||
SECTION 6.18. Borrowings under Existing Credit Agreement |
61 | |||
ARTICLE VII Events of Default |
61 | |||
ARTICLE VIII The Administrative Agent |
64 | |||
ARTICLE IX Miscellaneous |
67 | |||
SECTION 9.01. Notices |
67 | |||
SECTION 9.02. Waivers; Amendments |
67 | |||
SECTION 9.03. Expenses; Indemnity; Damage Waiver |
68 | |||
SECTION 9.04. Successors and Assigns |
70 | |||
SECTION 9.05. Survival |
73 | |||
SECTION 9.06. Counterparts; Integration; Effectiveness |
73 | |||
SECTION 9.07. Severability |
73 | |||
SECTION 9.08. Right of Setoff |
74 | |||
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process |
74 | |||
SECTION 9.10. WAIVER OF JURY TRIAL |
74 | |||
SECTION 9.11. Headings |
75 | |||
SECTION 9.12. Confidentiality |
75 | |||
SECTION 9.13. Interest Rate Limitation |
76 | |||
SECTION 9.14. USA PATRIOT Act |
76 | |||
iii |
SCHEDULES
Schedule 1.01 — Pricing Schedule
Schedule 2.01 — Commitments
Schedule 3.08 — Material Contingent Obligations
Schedule 3.09 — Subsidiaries and Capitalization
Schedule 3.14 — Brokers’ Fees
Schedule 3.16 — Properties
Schedule 3.17 — Indebtedness
Schedule 3.24 — Material Foreign Subsidiaries
Schedule 6.06 — Investments
Schedule 6.08 — Liens
Schedule 1.01 — Pricing Schedule
Schedule 2.01 — Commitments
Schedule 3.08 — Material Contingent Obligations
Schedule 3.09 — Subsidiaries and Capitalization
Schedule 3.14 — Brokers’ Fees
Schedule 3.16 — Properties
Schedule 3.17 — Indebtedness
Schedule 3.24 — Material Foreign Subsidiaries
Schedule 6.06 — Investments
Schedule 6.08 — Liens
EXHIBITS
Exhibit A — Form of Assignment and Assumption
Exhibit B — Compliance Certificate
Exhibit A — Form of Assignment and Assumption
Exhibit B — Compliance Certificate
iv
CREDIT AGREEMENT dated as of July 27, 2010, among RALCORP HOLDINGS, INC., a Missouri
corporation, the Lenders party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent,
Swingline Lender and Issuing Bank.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.
“Accounts Receivable Financing Program” means a program of sales or securitization of,
or transfers of interests in, accounts receivable and related contract rights by the Borrower or
any Subsidiary on a limited recourse basis pursuant to which the aggregate amount of financing
thereunder at any time outstanding shall not exceed an amount equal to 10% of (a) the amount of
total consolidated assets of the Borrower and its Subsidiaries as of the most recent Fiscal Quarter
end for which financial statements have been delivered by the Borrower pursuant to Section 5.01(a)
or (b), as applicable, minus (b) the aggregate amount of goodwill and other intangible
assets of the Borrower and its Subsidiaries as of such Fiscal Quarter end, in each case as
reflected on such financial statements, provided that such sale or transfer qualifies as a sale
under Agreement Accounting Principles.
“Adjusted EBITDA” means, for any applicable computation period, the sum of (a) EBIT
for such period plus (b) the Borrower’s and its Subsidiaries’ amortization and depreciation
deducted in determining Net Income for such period; provided, however, that
Adjusted EBITDA shall be calculated (i) giving pro forma effect to any Permitted Purchase during
such period as though such Permitted Purchase occurred on the first day of such period and (ii) by
subtracting (adding) all equity earnings (losses) attributable to the Borrower’s ownership interest
in Vail Resorts, Inc. for such period.
“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing (or, as
applicable, for purposes of determining the Alternate Base Rate with respect to any ABR Borrowing)
for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next
1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory
Reserve Rate.
“Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder.
“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
“Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
“Agreement” means this Credit Agreement, as amended, restated, amended and restated,
modified or supplemented from time to time.
“Agreement Accounting Principles” means generally accepted accounting principles as in
effect from time to time, applied in a manner consistent with those used in preparing the Financial
Statements; provided, however, that for purposes of all computations required to be
made with respect to compliance by the Borrower with Section 6.17, such term shall mean GAAP as in
effect on the date hereof, applied in a manner consistent with those used in preparing the
Financial Statements.
“AIPC” means American Italian Pasta Company, a Delaware corporation.
“AIPC Transaction” means the proposed transaction pursuant to the AIPC Transaction
Agreement whereby (a) Merger Sub will acquire at least a majority of the Equity Interests of AIPC
and (b) thereafter, Merger Sub will be merged with and into AIPC, with AIPC surviving as a
Wholly-Owned Subsidiary of the Borrower.
“AIPC Transaction Agreement” means that certain Agreement and Plan of Merger dated as
of June 20, 2010 by and between the Borrower, Merger Sub and AIPC, as amended by the Amendment to
Agreement and Plan of Merger by and between the Borrower, Merger Sub and AIPC dated as of July 15,
2010.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for deposits in Dollars for a one month
Interest Period on such day (or if such day is not a Business Day, the immediately preceding
Business Day) plus 1%, provided that, for the avoidance of doubt, the Adjusted LIBO
Rate for any Business Day shall be based on the rate appearing on the Reuters Screen LIBOR01 Page 1
(or on any successor or substitute page of such page) at approximately 11:00 a.m. London time on
such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal
Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and including the effective
date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate,
respectively.
“Applicable Percentage” means, with respect to any Lender, the percentage of the total
Revolving Commitments represented by such Lender’s Revolving Commitment; provided that in
the case of Section 2.21 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean
the percentage of the total Revolving Commitments (disregarding any Defaulting Lender’s Revolving
Commitment) represented by such Lender’s Revolving Commitment. If the Revolving Commitments have
terminated or expired, the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments and to any Lender’s status as
a Defaulting Lender at the time of determination.
2
“Applicable Rate” means, for any day, with respect to any Eurodollar Loan, ABR Loan or
with respect to the commitment fees payable hereunder, the applicable rate per annum set forth on
Schedule 1.01 under the caption “Eurodollar Spread”, “ABR Spread” or “Commitment Fee Rate”, as the
case may be, based upon the Net Leverage Ratio.
“Approved Fund” has the meaning assigned to such term in Section 9.04.
“Assessment Rate” means, for any day, the annual assessment rate in effect on such day
that is payable by a member of the Bank Insurance Fund classified as “well capitalized” and within
supervisory subgroup “B” (or a comparable successor risk classification) within the meaning of 12
C.F.R. Part 327 (or any successor provision) to the Federal Deposit Insurance Corporation for
insurance by such Corporation of time deposits made in dollars at the offices of such member in the
United States; provided that if, as a result of any change in any law, rule or regulation,
it is no longer possible to determine the Assessment Rate as aforesaid, then the Assessment Rate
shall be such annual rate as shall be determined by the Administrative Agent to be representative
of the cost of such insurance to the Lenders.
“Asset Disposition” means any sale, transfer or other disposition of any asset of the
Borrower or any Subsidiary in a single transaction or in a series of related transactions (other
than the sale of notes receivable and accounts receivable permitted by Section 6.05, the sale of
inventory in the ordinary course, the sale of obsolete or worn out Property in the ordinary course
or the sale of Investments of the type described in Sections 6.06(a)-(g) and (m) in the ordinary
course).
“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.
“August 2009 Senior Notes” means the Borrower’s $300,000,000 aggregate principal
amount of 6.625% Senior Notes, due August 15, 2039, as in effect on August 11, 2009.
“Authorized Officer” means (a) any of the president, chief financial officer,
treasurer or controller of the Borrower, acting singly or (b) any other officer, employee or
representative of the Borrower who is (i) expressly authorized in writing by the president, chief
financial officer, treasurer or controller of the Borrower to act on behalf of the Borrower
hereunder and (ii) acceptable to the Administrative Agent.
“Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Revolving
Commitments.
“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy
3
Event shall not result solely by virtue of any ownership interest, or the acquisition of any
ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Person.
“Board” means the Board of Governors of the Federal Reserve System of the United
States of America.
“Borrower” means Ralcorp Holdings, Inc., a Missouri corporation.
“Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect, (b) Term Loans of the same Type, made, converted or continued on the same date and, in the
case of Eurodollar Loans, as to which a single Interest Period is in effect or (c) a Swingline
Loan.
“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.
“Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.
“Capitalized Lease” of a Person means any lease of Property by such Person as lessee
which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
“Capitalized Lease Obligations” of a Person means the amount of the obligations of
such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
“Change in Control” means (a) the acquisition by any Person, or two or more Persons
acting in concert, including without limitation any acquisition effected by means of any
transaction contemplated by Section 6.03, of beneficial ownership (within the meaning of Rule 13d-3
of the Securities and Exchange Commission under the Securities Exchange Act of 1934) of 20% or more
of the outstanding shares of voting stock of the Borrower, or (b) during any period of 25
consecutive calendar months, commencing on the date of this Agreement, the ceasing of those
individuals (the “Continuing Directors”) who (i) were directors of the Borrower on the
first day of each such period or (ii) subsequently became directors of the Borrower and whose
initial election or initial nomination for election subsequent to that date was approved by a
majority of the Continuing Directors then on the board of directors of the Borrower, to constitute
a majority of the board of directors of the Borrower.
4
“Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.16(b), by any lending
office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.
“Charges” has the meaning set forth in Section 9.13.
“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Term Loans or Swingline Loans.
“Code” means the Internal Revenue Code of 1986, as amended or otherwise modified from
time to time.
“Commitment” means either a Revolving Commitment or a Term Commitment.
“Commitment Letter” means the commitment letter dated July 9, 2010, between and among
the Borrower, JPMorgan Chase Bank, N.A., X.X. Xxxxxx Securities Inc., Bank of America, N.A., Banc
of America Securities LLC, SunTrust Bank and SunTrust Xxxxxxxx Xxxxxxxx, Inc.
“Condemnation” has the meaning set forth in clause (h) of Article VII.
“Consolidated” or “consolidated”, when used in connection with any
calculation, means a calculation to be determined on a consolidated basis for the Borrower and its
Subsidiaries in accordance with Agreement Accounting Principles.
“Consolidated Interest Expense” means, with respect to any period, the sum (without
duplication) of (i) Consolidated interest expense of the Borrower and its Consolidated Subsidiaries
for such period before the effect of interest income, as reflected on the Consolidated statements
of income for the Borrower and its Consolidated Subsidiaries for such period, and (ii) Consolidated
interest, yield or discount accrued during such period on the aggregate outstanding investment or
claim held by purchasers, assignees or other transferees of (or of interests in) receivables of the
Borrower and its Consolidated Subsidiaries in connection with a revolving Accounts Receivable
Financing Program (regardless of the accounting treatment of such Accounts Receivable Financing
Program).
“Contingent Obligation” of a Person means any agreement, undertaking or arrangement by
which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds
for the payment of, or otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating agreement or take-or-pay
contract or application for a letter of credit.
5
“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings
correlative thereto.
“Controlled Group” means all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control which, together with the
Borrower or any of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
“Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Defaulting Lender” means any Lender that (a) has failed, within two Business Days of
the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion
of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Specified
Party any other amount required to be paid by it hereunder, unless, in the case of clause (i)
above, such Lender notifies the Administrative Agent in writing that such failure is the result of
such Lender’s good faith determination that a condition precedent to funding (specifically
identified and including the particular default, if any) has not been satisfied, (b) has notified
the Borrower or any Specified Party in writing, or has made a public statement to the effect, that
it does not intend or expect to comply with any of its funding obligations under this Agreement
(unless such writing or public statement indicates that such position is based on such Lender’s
good faith determination that a condition precedent (specifically identified and including the
particular default, if any) to funding a loan under this Agreement cannot be satisfied) or
generally under other agreements in which it commits to extend credit, (c) has failed, within three
Business Days after request by a Specified Party, acting in good faith, to provide a certification
in writing from an authorized officer of such Lender that it will comply with its obligations (and
is financially able to meet such obligations) to fund prospective Loans and participations in then
outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender
shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Specified Party’s
receipt of such certification in form and substance satisfactory to it and the Administrative
Agent, or (d) has become the subject of a Bankruptcy Event.
“dollars” or “$” refers to lawful money of the United States of America.
“EBIT” means, for any applicable computation period, the Borrower’s and Subsidiaries’
Net Income on a consolidated basis, plus (a) consolidated federal, state, local and foreign
income and franchise taxes paid or accrued during such period and (b) Consolidated Interest
Expense for such period, minus (or plus) equity earnings (or losses) during such
period attributable to equity investments by the Borrower and its Subsidiaries in the capital stock
or other equity interests in any Person which is not a Subsidiary.
6
“XXXXX” means the electronic disclosure system for the receipt, storage, retrieval and
dissemination of public documents filed with the Securities and Exchange Commission.
“Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).
“Environmental Claims” means all claims, investigations, litigation, administrative
proceedings, notices, requests for information, whether pending or threatened, or judgments or
orders, however asserted, by any Governmental Authority or other Person alleging potential
liability or responsibility for any violation of any Environmental Laws, or for any Release or
injury to the environment.
“Environmental Laws” means all federal, state and local laws, statutes, common law
duties, rules, regulations, ordinances and codes, together with all administrative orders, direct
duties, requests, licenses, approvals, certificates, decrees, standards, permits and other
authorizations of, and agreements with, any Governmental Authority, in each case relating to
environmental, health, safety and land use matters, including without limitation, chemical
substances, air emissions, effluent discharges and the storage, treatment, transport and disposal
of Hazardous Materials.
“Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.
“Event of Default” has the meaning set forth in Article VII.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrowers hereunder, (a) income or franchise taxes imposed on (or measured by) its net income
by the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which any of the Borrowers is
organized or in which its principal office is located and (c) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section 2.20(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender’s failure to comply with Section 2.18(e), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
7
designation of a new lending office (or assignment), to receive additional amounts from the
Borrowers with respect to such withholding tax pursuant to Section 2.18(a).
“Existing Credit Agreement” means the Credit Agreement dated as of July 18, 2008 among
the Borrower, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders party thereto.
“Existing Letters of Credit” means any letters of credit issued and outstanding under
the Existing Credit Agreement that the Borrower shall request to be reissued under this Agreement.
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“Financial Statements” has the meaning set forth in Section 3.05.
“Fiscal Quarter” means one of the four three-month accounting periods comprising a
Fiscal Year.
“Fiscal Year” means the twelve-month accounting period ending September 30 of each
year.
“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is organized. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
“GAAP” means generally accepted accounting principles in the United States of America.
“Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including without limitation any board of insurance, insurance department
or insurance commissioner and any taxing authority or political subdivision).
“Guarantor” means each Subsidiary of the Borrower which is a party to the Subsidiary
Guaranty.
“Hazardous Materials” means any toxic or hazardous waste, substance or chemical or any
pollutant, contaminant, chemical or other substance defined or regulated
8
pursuant to any Environmental Laws, including, without limitation, asbestos, petroleum or
crude oil.
“Incremental Term Commitments” has the meaning set forth in Section 2.09(d).
“Incremental Term Loan” has the meaning set forth in Section 2.09(d).
“Indebtedness” of a Person means such Person’s (a) obligations for borrowed money, (b)
obligations representing the deferred purchase price of Property or services (other than accounts
payable arising in the ordinary course of such Person’s business payable on terms customary in the
trade), (c) obligations, whether or not assumed, secured by Liens or payable out of the proceeds or
production from Property now or hereafter owned or acquired by such Person, (d) obligations which
are evidenced by notes, acceptances, or similar instruments, (e) Capitalized Lease Obligations, (f)
Contingent Obligations, (g) obligations for which such Person is obligated pursuant to or in
respect of a Letter of Credit and the face amount of any other letter of credit, (h) obligations
under so-called “synthetic leases” and (i) repurchase obligations or liabilities of such Person
with respect to accounts or notes receivable sold by such Person.
“Indemnified Taxes” means Taxes other than Excluded Taxes.
“Initial Lender” means any Lender as of the date hereof.
“Interest Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.08.
“Interest Expense Coverage Ratio” means, at the end of any Fiscal Quarter of the
Borrower, the ratio of (a) EBIT for the four Fiscal Quarters then ending to (b) the Borrower’s
Consolidated Interest Expense for the four Fiscal Quarters then ending, all as determined in
accordance with Agreement Accounting Principles.
“Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’
duration, each day prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period and (c) with respect to any Swingline
Loan, the day that such Loan is required to be repaid.
“Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is seven days or one, two, three or six months (or, if available, nine or
twelve months) thereafter, as the Borrower may elect; provided, that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next preceding Business Day and
(ii) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business
Day of a calendar month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day of the
9
last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
“Investment” of a Person means any loan, advance (other than commission, travel and
similar advances to officers and employees made in the ordinary course of business), extension of
credit (other than accounts receivable arising in the ordinary course of business on terms
customary in the trade), deposit account or contribution of capital by such Person to any other
Person or any investment in, or purchase or other acquisition of, the stock, partnership interests,
notes, debentures or other securities of any other Person made by such Person.
“Issuing Bank” means each of (a) JPMorgan Chase Bank, N.A. (i) in its capacity as the
issuer of the Existing Letters of Credit and (ii) in its capacity as the issuer of Letters of
Credit hereunder, (b) such additional Lenders as may be designated by the Borrower with the consent
of the Administrative Agent, each as issuers of Letters of Credit hereunder and (c) any respective
successors of the foregoing in such capacity as provided in Section 2.06(i). The Issuing Bank may,
in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the
Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect
to Letters of Credit issued by such Affiliate. With respect to any Letter of Credit, “Issuing
Bank” shall mean the issuer thereof.
“LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.
“Lead Arrangers” means X.X. Xxxxxx Securities Inc., Banc of America Securities LLC and
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Assumption, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context
otherwise requires, the term “Lenders” includes the Swingline Lender.
“Letter of Credit” means any letter of credit issued pursuant to this Agreement and
the Existing Letters of Credit.
“Leverage Ratio” means, with respect to the Borrower on a consolidated basis with its
Subsidiaries, at the end of any Fiscal Quarter, the ratio of (a) Total Debt at the end of such
Fiscal Quarter to (b) Adjusted EBITDA for the four Fiscal Quarters then ending.
“LIBO Rate” means, with respect to any Eurodollar Borrowing (or, as applicable, for
purposes of determining the Alternate Base Rate with respect to any ABR Borrowing) for any Interest
Period, the rate appearing on the Reuters Screen LIBOR01 Page 1 (or on any
10
successor or substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on such page of such
Service, as determined by the Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then the “LIBO Rate”
with respect to such Eurodollar Borrowing for such Interest Period shall be the rate at which
dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
“Lien” means any security interest, lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever (including, without
limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or
other title retention agreement).
“Loan Documents” means this Agreement, the Subsidiary Guaranty, the Pledge Agreement
and the other documents and agreements contemplated hereby and executed by the Borrower and/or the
Guarantors in favor of the Administrative Agent or any Lender.
“Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.
“Margin Stock” has the meaning assigned to that term under Regulation U.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets,
Property, condition (financial or other) or prospects of the Borrower and its Subsidiaries taken as
a whole, (b) the ability of the Borrower and the Guarantors to perform their obligations under the
Loan Documents, or (c) the validity or enforceability of any of the Loan Documents or the rights or
remedies of the Administrative Agent or the Lenders thereunder.
“Material Foreign Subsidiary” means a Subsidiary of the Borrower organized under the
laws of a jurisdiction located outside the United States and at any time having assets with a fair
market value in excess of $10,000,000.
“Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit) or obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and its Subsidiaries in an aggregate principal amount exceeding $35,000,000. For purposes
of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or
any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.
“Material Subsidiary” means a Subsidiary of the Borrower organized under the laws of a
jurisdiction located within the United States and at any time having assets with a fair
11
market value in excess of $10,000,000; provided, however, that (i) any special
purpose Subsidiary established for the purpose of entering into the Accounts Receivable Financing
Program and (ii) Mattnick shall not be a Material Subsidiary.
“Mattnick” means Mattnick Insurance Company, a Missouri corporation.
“Mattnick Mortgages” means mortgages and deeds of trust granting Liens on real
property (and property affixed or attached to, installed on or proceeds of such real property,
including but not limited to all buildings, improvements, and fixtures, hereditaments, easements,
licenses, water rights and permits, appurtenances, rents, uses, issues and profits, reversion or
reversions, remainder or remainders, rents and royalties under all oil, gas or mineral leases,
proceeds of insurance paid or payable as a result of damage or destruction of the property and any
awards which may be made with respect to the property as a result of the exercise of the right to
eminent domain and any other damage or injury to or decrease in the value of the property described
above, and all estate, right, title and interest in and to every part and parcel thereof) of the
Borrower or any of its Subsidiaries in favor of Mattnick securing loans from Mattnick in an
aggregate principal amount at no time exceeding $25,000,000.
“Maturity Date” means July 27, 2015.
“Maximum Rate” has the meaning set forth in Section 9.13.
“May 2009 Senior Notes” means (a) the Borrower’s $50,000,000 aggregate principal
amount of 7.45% Senior Notes, Series 2009A, due May 28, 2019, as in effect on May 28, 2009 and (b)
the Borrower’s $50,000,000 aggregate principal amount of 7.60% Senior Notes, Series 2009B, due May
28, 2021, as in effect on May 28, 2009.
“Merger Sub” means Excelsior Acquisition Co., a Delaware corporation, a Wholly-Owned
Subsidiary of the Borrower.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means an employee pension benefit plan, as defined in Section
3(2) of ERISA, maintained pursuant to a collective bargaining agreement or any other arrangement to
which the Borrower or any member of the Controlled Group is a party to which more than one employer
outside of the Controlled Group is obligated to make contributions.
“Net Debt” means (a) Total Debt, minus (b) the amount of domestic cash held by
the Borrower and the Guarantors in excess of $10,000,000.
“Net Income” means, for any computation period, with respect to the Borrower on a
consolidated basis with its Subsidiaries (other than any Subsidiary which is restricted from
declaring or paying dividends or otherwise advancing funds to its parent whether by contract or
otherwise), cumulative net income earned during such period as determined in accordance with
Agreement Accounting Principles, but (i) excluding any non-cash charges (except any non-cash
charges that require accrual of a reserve for anticipated future cash payments) or non-cash gains
(except any non-cash gains resulting in the Borrower’s accrual of a receivable which will result in
a cash in-flow at a later date), which charges or gains are unusual, non-recurring or
12
extraordinary, (ii) excluding any non-cash stock based incentive-related expenses, and (iii)
including, to the extent not otherwise included in the determination of Net Income, all cash
dividends and cash distributions received by the Borrower or any Subsidiary from any Person in
which the Borrower or such Subsidiary has made an Investment pursuant to Section 6.06(j).
“Net Leverage Ratio” means, with respect to the Borrower on a consolidated basis with
its Subsidiaries, at the end of any Fiscal Quarter, the ratio of (a) Net Debt at the end of such
Fiscal Quarter to (b) Adjusted EBITDA for the four Fiscal Quarters then ending.
“Net Proceeds” means, with respect to any event, (a) the cash proceeds received in
respect of such event including (i) any cash received in respect of any non-cash proceeds
(including any cash payments received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise, but excluding any
interest payments), but only as and when received, (ii) in the case of a casualty, insurance
proceeds and (iii) in the case of a condemnation or similar event, condemnation awards and similar
payments, net of (b) the sum (without duplication) of (i) all amounts that are required to be, and
in fact are, used to prepay the loans (if any) under the 364-day senior bridge loan facility
contemplated by that certain commitment letter dated June 20, 2010 among the Borrower, Credit
Suisse AG and Credit Suisse Securities (USA) LLC in connection with such event, (ii) all reasonable
fees and out-of-pocket expenses paid to third parties in connection with such event, (iii) in the
case of a sale, transfer or other disposition of an asset (including pursuant to a sale and
leaseback transaction or a casualty or a condemnation or similar proceeding), the amount of all
payments required to be made as a result of such event to repay Indebtedness (other than Loans)
secured by such asset or otherwise subject to mandatory prepayment as a result of such event and
(iv) the amount of all taxes paid (or reasonably estimated to be payable) and the amount of any
reserves established to fund contingent liabilities reasonably estimated to be payable, in each
case during the year that such event occurred or the next succeeding year and that are directly
attributable to such event (as determined reasonably and in good faith by an Authorized Officer).
“Obligations” means all unpaid principal of and accrued and unpaid interest on the
Loans, the LC Exposure and all other liabilities (if any), whether actual or contingent, of the
Borrower with respect to Letters of Credit, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lenders or to any Lender,
the Administrative Agent or any indemnified party hereunder arising under any of the Loan
Documents.
“Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.
“Parent” means, with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a subsidiary.
“Participant” has the meaning set forth in Section 9.04(c).
13
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
“Permitted Purchase” means an acquisition permitted by Section 6.06(l).
“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means an employee pension benefit plan, as defined in Section 3(2) of ERISA, as
to which the Borrower or any member of the Controlled Group may have any liability.
“Pledge Agreement” means (a) the Pledge Agreement dated as of July 18, 2008 made by
the Borrower and the other pledgors party thereto in favor of the Pledgee and (b) any other pledge
or security agreement entered into by the Borrower or a Subsidiary in favor of the Administrative
Agent for the benefit of the Lenders pursuant to Section 5.12, in each case as the same may be
amended, restated, amended and restated, modified or supplemented from time to time.
“Pledged Subsidiary” means a Material Foreign Subsidiary of the Borrower, the Equity
Interests of which have been pledged in favor of the Pledgee pursuant to the Pledge Agreement.
“Pledgee” means JPMorgan Chase Bank, N.A., as collateral agent for the benefit of the
Administrative Agent and the other Secured Creditors and its successors and assigns in such
capacity.
“Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its office located at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx; each change in the Prime Rate shall be effective from and including the date
such change is publicly announced as being effective.
“Property” of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
“Purchase” means any transaction, or any series of related transactions, consummated
on or after the date of this Agreement, by which the Borrower or any of its Subsidiaries (a)
acquires any ongoing business or all or substantially all of the assets of any firm, corporation or
division or line of business thereof, whether through purchase of assets, merger or otherwise, or
(b) directly or indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the securities of a corporation
which have ordinary voting power for the election of directors (other than securities having such
power only by reason of the happening of a contingency) or a majority (by percentage or voting
power) of the outstanding partnership interests of a partnership.
“Xxxxxxx Obligations” means the indemnification obligations of the Borrower existing
on the date hereof in favor of Xxxxxxx Purina Company with respect to its guaranty of
14
the obligations of Xxxxxxx Resorts, Inc. under the Sports Facilities Refunding Revenue Bonds
identified on Schedule 3.08.
“Register” has the meaning set forth in Section 9.04.
“Regulation T” means Regulation T of the Board of Governors of the Federal Reserve
System as from time to time in effect and shall include any successor or other regulation or
official interpretation of such Board of Governors relating to the extension of credit by
securities brokers and dealers for the purpose of purchasing or carrying margin stocks applicable
to such Persons.
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors relating to the extension of credit by banks for the
purpose of purchasing or carrying margin stocks applicable to such Persons.
“Regulation X” means Regulation X of the Board of Governors of the Federal Reserve
System as from time to time in effect and shall include any successor or other regulation or
official interpretation of said Board of Governors relating to the extension of credit by the
specified lenders for the purpose of purchasing or carrying margin stocks applicable to such
Persons.
“Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
“Release” is defined in the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, 42 U.S.C. 39601 et seq.
“Reportable Event” means a reportable event as defined in Section 4043 of ERISA and
the regulations issued under such section, with respect to a Plan, excluding, however, such events
as to which the PBGC has by regulation waived the requirement of Section 4043(a) of ERISA that it
be notified within 30 days of the occurrence of such event; provided, that a failure to
meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the notice requirement in
accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.
“Required Lenders” means, at any time, Lenders having Revolving Credit Exposures,
unused Revolving Commitments and outstanding Term Loans representing (without duplication) more
than 50% of the sum (without duplication) of the total Revolving Credit Exposures, unused Revolving
Commitments and outstanding Term Loans at such time.
“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other Property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other Property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interests in the Borrower or any Subsidiary or any
15
option, warrant or other right to acquire any such Equity Interests in the Borrower or any
Subsidiary.
“Revolving Borrowing” means a Borrowing comprised of Revolving Loans.
“Revolving Commitment” means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline
Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s
Revolving Credit Exposure hereunder, as such commitment may be (a) reduced or increased from time
to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s
Revolving Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to
which such Lender shall have assumed its Revolving Commitment, as applicable. The initial
aggregate amount of the Lenders’ Revolving Commitments is $300,000,000.
“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.
“Revolving Loan” means a Loan made pursuant to Section 2.01.
“S&P” means Standard & Poor’s.
“Sale and Leaseback Transaction” means any sale or other transfer of Property by any
Person with the intent to lease such Property as lessee.
“Secured Creditors” has the meaning assigned to that term in the Pledge Agreement.
“Senior Notes” has the meaning assigned to that term in the Pledge Agreement.
“Single Employer Plan” means a Plan subject to Title IV of ERISA maintained by the
Borrower or any member of the Controlled Group for employees of the Borrower or any member of the
Controlled Group, other than a Multiemployer Plan.
“Solvent” means, when used with respect to a Person, that (a) the fair saleable value
of the assets of such Person is in excess of the total amount of the present value of its
liabilities (including for purposes of this definition all liabilities (including loss reserves as
determined by such Person), whether or not reflected on a balance sheet prepared in accordance with
Agreement Accounting Principles and whether direct or indirect, fixed or contingent, secured or
unsecured, disputed or undisputed), (b) such Person is able to pay its debts or obligations in the
ordinary course as they mature and (c) such Person does not have unreasonably small capital to
carry out its business as conducted and as proposed to be conducted. “Solvency” shall have a
correlative meaning.
“Specified Party” means the Administrative Agent, the Issuing Bank, the Swingline
Lender or any other Lender.
16
“Splitco Notes” means the Borrower’s senior notes issued pursuant to that certain
Indenture dated as of August 4, 2008, as in effect on August 4, 2008.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject, with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under such Regulation D
or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
“Subordinated Indebtedness” of a Person means any Indebtedness of such Person the
payment of which is subordinated to payment of the Obligations to the written satisfaction of the
Administrative Agent.
“subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent.
“Subsidiary” means any subsidiary of the Borrower.
“Subsidiary Guaranty” means that certain Subsidiary Guaranty, dated as of the date
hereof, duly executed and delivered by the Guarantors in favor of the Administrative Agent, on
behalf of the Lenders, as the same may be amended, supplemented or otherwise modified from time to
time.
“Substantial Portion” means, with respect to the Property of the Borrower and its
Subsidiaries, Property which (a) represents more than 15% of the consolidated tangible assets of
the Borrower and its Subsidiaries, as would be shown in the consolidated financial statements of
the Borrower and its Subsidiaries as at the end of the Fiscal Quarter next preceding the date on
which such determination is made, or (b) is responsible for more than 10% of the consolidated Net
Income from continuing operations of the Borrower and its Subsidiaries for the 12-month period
ending as of the end of the Fiscal Quarter next preceding the date of determination.
17
“Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a
Swap Agreement.
“Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.
“Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of
Swingline Loans hereunder.
“Swingline Loan” means a Loan made pursuant to Section 2.05.
“Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
“Term Borrowing” means a Borrowing comprised of Term Loans.
“Term Commitment” means, with respect to each Lender, the commitment of such Lender to
make a Term Loan hereunder, expressed as an amount representing the maximum aggregate principal
amount of such Lender’s Term Loan. The amount of each Lender’s Term Commitment is set forth on
Schedule 2.01. The initial aggregate amount of the Lenders’ Term Commitments is $200,000,000.
“Term Loan” means, with respect to each Lender, such Lender’s pro-rata portion of the
term loan Borrowing made by the Lenders pursuant to Section 2.01(b) and, with respect to all
Lenders, the aggregate of all such pro-rata portions.
“Termination Event” means, with respect to a Plan which is subject to Title IV of
ERISA, (a) a Reportable Event, (b) the withdrawal of the Borrower or any other member of the
Controlled Group from such Plan during a plan year in which the Borrower or any other member of the
Controlled Group was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or was
deemed such under Section 4068(f) of ERISA, (c) the termination of such Plan, the filing of a
notice of intent to terminate such Plan or the treatment of an amendment of such Plan as a
termination under Section 4041 of ERISA, (d) the institution by the PBGC of proceedings to
terminate such Plan or (e) any event or condition which might constitute grounds under Section 4042
of ERISA for the termination of, or appointment of a trustee to administer, such Plan.
“Thomson” means Thomson BankWatch Inc.
“Three Month Secondary CD Rate” means, for any day, the secondary market rate for
three month certificates of deposit reported as being in effect on such day (or, if such day is not
a Business Day, the next preceding Business Day) by the Board through the public
18
information telephone line of the Federal Reserve Bank of New York (which rate will, under the
current practices of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day) or, if such rate is not so reported on such day or such next
preceding Business Day, the average of the secondary market quotations for three month certificates
of deposit of major money center banks in New York City received at approximately 10:00 a.m., New
York City time, on such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit dealers of recognized
standing selected by it.
“Total Assets” means all assets and properties of the Borrower and its Subsidiaries,
on a consolidated basis, reflected on a balance sheet prepared in accordance with Agreement
Accounting Principles.
“Total Debt” means (a) all Indebtedness of the Borrower and its Subsidiaries, on a
consolidated basis, reflected on a balance sheet prepared in accordance with Agreement Accounting
Principles, plus, without duplication (b) the sum of (i) the face amount of all outstanding
letters of credit in respect of which the Borrower or any Subsidiary has any reimbursement
obligation and the principal amount of all Contingent Obligations of the Borrower and its
Subsidiaries and (ii) the aggregate principal amount of all Indebtedness of any special purpose
Subsidiary of the Borrower formed in connection with the sale of accounts receivable or other forms
of off-balance sheet financing, minus (c) to the extent included in clause (b)(i) above,
the Xxxxxxx Obligations.
“Transactions” means the execution, delivery and performance by the Borrower of this
Agreement, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of
Credit hereunder.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.
“Unfunded Liability” means the amount (if any) by which a Single Employer Plan’s
actuarial accrued liability exceeds its actuarial asset value, as determined by the then most
recent valuation for such plan used to determine the measures of funded status required to be
reported to the Internal Revenue Service.
“Wholly-Owned Subsidiary” of a Person means (a) any subsidiary all of the outstanding
voting securities of which shall at the time be owned or controlled, directly or indirectly, by
such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or
more Wholly-Owned Subsidiaries of such Person, or (b) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled (other than in the case
of foreign Subsidiaries, director’s qualifying shares and/or other nominal amounts of shares
required to be held by Persons other than the Borrower and its Subsidiaries under applicable law).
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SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type
(e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving
Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving
Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g.,
a “Eurodollar Revolving Borrowing”).
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, amended and restated, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person’s successors and assigns, (c) the
words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer
to this Agreement in its entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the word “asset” shall be
construed to have the same meaning as “Property”.
SECTION 1.04. Accounting Terms. Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance with Agreement
Accounting Principles.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and conditions set forth herein,
each Lender agrees to make Revolving Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in (i) such Lender’s
Revolving Credit Exposure exceeding such Lender’s Revolving Commitment or (ii) the sum of the total
Revolving Credit Exposures exceeding the total Revolving Commitments. Within the foregoing limits
and subject to the terms and conditions set forth herein (including, without limitation, the
repayment restrictions set forth in Section 2.12(a) of this Agreement), the Borrower may borrow,
prepay and reborrow Revolving Loans.
(b) Subject to the terms and conditions set forth herein, each Lender agrees to make a Term
Loan to the Borrower on the date of the initial Borrowing in a principal amount that will not
result in (i) such Lender’s Term Loan exceeding such Lender’s Term Commitment or (ii) the sum of
the Term Loans exceeding the total Term Commitments. No amount of the Term Loan which is repaid
or prepaid by the Borrower may be reborrowed hereunder.
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SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as part of
a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their
respective Revolving Commitments. Each Term Loan shall be made as part of a Borrowing consisting
of Term Loans made by the Lenders ratably in accordance with their respective Term Commitments.
The failure of any Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender’s failure to make Loans as
required.
(b) Subject to Section 2.15, each Revolving Borrowing shall be comprised entirely of ABR
Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan
shall be an ABR Loan, except to the extent otherwise agreed upon between the Swingline Lender and
the Borrower pursuant to Section 2.14(a). Each Lender at its option may make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the Borrower
to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $5,000,000; provided
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Revolving Commitments or that is required to finance the reimbursement of an
LC Disbursement as contemplated by Section 2.06(e). Each Swingline Loan shall be in an amount
that is an integral multiple of $100,000 and not less than $100,000. Borrowings of more than one
Type and Class may be outstanding at the same time; provided that there shall not at any time be
more than a total of eight Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing (other than a Swingline
Loan), the Borrower shall notify the Administrative Agent of such request by telephone (a) in the
case of a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, three Business Days
before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
1:00 p.m., New York City time, on the date of the proposed Borrowing; provided that any
such notice of an ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.06(e) may be given not later than 10:00 a.m., New York City time, on the
date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following information in compliance
with Section 2.02:
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(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and
(v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.07.
If no election as to the Type of such Borrowing is specified, then the requested Borrowing shall be
an ABR Borrowing. If no Interest Period is specified with respect to any such requested Eurodollar
Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.
SECTION 2.04. [Intentionally Omitted]
SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time
during the Availability Period, in an aggregate principal amount at any time outstanding that will
not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding
$45,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total Revolving
Commitments; provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline
Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 1:00 p.m., New York City time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from
the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by
means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in
the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided
in Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
22
outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which
Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage
of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for the account of the
Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each
Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default or reduction or
termination of the Revolving Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds, in the same
manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07
shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from
the Lenders. The Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any
amounts received by the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of
a sale of participations therein shall be promptly remitted to the Administrative Agent; any such
amounts received by the Administrative Agent shall be promptly remitted by the Administrative
Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the
Swingline Lender, as their interests may appear; provided that any such payment so remitted shall
be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the
extent such payment is required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of
any default in the payment thereof.
SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its own
account, in a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any
time and from time to time during the Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions of any form of
letter of credit application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing Bank) to
the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a
23
Business Day), the date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrower also shall submit a
letter of credit application on the Issuing Bank’s standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $60,000,000 and (ii) the sum of the total Revolving
Credit Exposures shall not exceed the total Revolving Commitments. By their execution of this
Agreement, the parties hereto agree that the Existing Letters of Credit may be reissued under this
Agreement such that the rights and obligations of the Issuing Bank and the account parties
thereunder shall be subject to the terms hereof so long as (i) the conditions set forth in the
immediately preceding sentence are satisfied in connection with such reissuance, (ii) the
conditions set forth in paragraphs (a) and (b) of Section 4.02 are satisfied in connection with
such reissuance, (iii) the Borrower shall have delivered to the Administrative Agent not less than
30 days (or such lesser time as the Administrative Agent shall agree) advance written notice of
such reissuance and (iv) the Existing Credit Agreement shall be terminated substantially
contemporaneously with such reissuance.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on (i) the earlier of (a) the date one year after the date of the issuance of such Letter
of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (b) the date that is five Business Days prior to the Maturity Date or (ii) such
later date as the Administrative Agent shall agree (not to exceed 12 months after the Maturity
Date) to the extent that such Letter of Credit is cash collateralized in the manner described in
paragraph (j) of this Section.
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof), or in the case of the Existing Letters of Credit,
on the applicable date indicated by the Borrower to the Administrative Agent, and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to
each Lender, and each Lender hereby acquires from the Issuing Bank, a participation in such Letter
of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the
account of the Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by
the Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the Borrower for any
reason. Each Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of
the Commitments, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
24
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of
a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York
City time, on the date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date, then not later than
12:00 noon, New York City time, on (i) the Business Day that the Borrower receives such notice, if
such notice is received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii)
the Business Day immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that the
Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with
Section 2.03 or 2.05 that such payment be financed with an ABR Revolving Borrowing or Swingline
Loan in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make
such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing or
Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent
shall notify each Lender of the applicable LC Disbursement, the payment then due from the Borrower
in respect thereof and such Lender’s Applicable Percentage thereof. Promptly following receipt of
such notice, each Lender shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from the Borrower, in the same manner as provided in Section 2.07 with respect to
Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the
Issuing Bank the amounts so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that
Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such
Lenders and the Issuing Bank as their interests may appear. Any payment made by a Lender pursuant
to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of
ABR Revolving Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and
shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or 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, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in
the preceding sentence), or any error, omission, interruption, loss
25
or delay in transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from causes beyond the
control of the Issuing Bank; provided that the foregoing shall not be construed to excuse
the Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the Borrower to the extent
permitted by applicable law) suffered by the Borrower that are caused by the Issuing Bank’s
failure to exercise care when determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the
absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents presented which appear
on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing
Bank may, in its sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.14(c) shall apply. Interest accrued pursuant to this paragraph shall be
for the account of the Issuing Bank, except that interest accrued on and after the date of payment
by any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for
the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of the Issuing Bank. At the time any such replacement shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.13(b). From and after the effective date of any such replacement, (i) the successor Issuing
Bank shall have all the rights and obligations of the
26
Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor
or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing
Bank shall remain a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be continuing,
on the Business Day that the Borrower receives notice from the Administrative Agent or the
Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower
described in clause (f) or (g) of Article VII. Such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the obligations of the Borrower under this
Agreement. The Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and sole discretion of
the Administrative Agent and at the Borrower’s risk and expense, 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 Bank
for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall
be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure
at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence 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.
SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately available funds by
2:00 p.m., New York City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be
made as provided in Section 2.05. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York City and designated by the Borrower
in the applicable Borrowing Request; provided that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
27
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative
Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with paragraph (a) of this Section and
may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.
SECTION 2.08. Interest Elections. (a) Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurodollar Revolving Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and,
in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to Swingline Borrowings, which may
not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;
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(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative Agent, at the request
of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Revolving Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.09. Termination and Reduction of Commitments; Increase of Commitments. (a)
Unless previously terminated, the Revolving Commitments shall terminate on the Maturity Date.
Unless previously terminated, the Term Commitments shall terminate upon the making of the Term Loan
on the date of the initial Borrowing.
(b) The Borrower may at any time terminate, or from time to time reduce, the Revolving
Commitments; provided that (i) each reduction of the Revolving Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the
Borrower shall not terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.12, the sum of the
Revolving Credit Exposures would exceed the total Revolving Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Revolving Commitments under paragraph (b) of this Section at least three Business Days prior
to the effective date of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Revolving Commitments
delivered by the Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the Borrower (by notice to
the Administrative Agent on or prior to the specified
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effective date) if such condition is not satisfied. Any termination or reduction of the
Revolving Commitments shall be permanent. Each reduction of the Revolving Commitments shall be
made ratably among the Lenders in accordance with their respective Revolving Commitments.
(d) After the Effective Date, the Borrower may, at its option, on up to five occasions, seek
to increase the Revolving Commitments and/or establish new term loan commitments under this
Agreement (the “Incremental Term Commitments”) by up to an aggregate amount of
$150,000,000 in a minimum amount of $25,000,000 and in integral multiples of $5,000,000 in excess
thereof, upon at least three (3) Business Days’ prior written notice to the Administrative Agent,
which notice shall (i) specify (a) the amount of any such increase of Revolving Commitments and/or
the amount of Incremental Term Commitments and (b) whether such offering is in the Revolving
Commitments, the Incremental Term Commitments or a combination of any thereof, (ii) be delivered
at a time when no Default has occurred and is continuing and (iii) specify the effective date of
any incremental Revolving Commitments or any Incremental Term Commitments and the effective date
of any incremental term loans (the “Incremental Term Loans”) to be made pursuant to such
Incremental Term Commitments. The Borrower may, after giving such notice, offer the increase of
Revolving Commitments or Incremental Term Commitments (which may be declined by any Lender in its
sole discretion) on either a ratable basis to the Lenders or on a non pro-rata basis to one or
more Lenders and/or to other Lenders or entities reasonably acceptable to the Administrative
Agent; provided, however, that in the case of Incremental Term Commitments, such
offer shall first be made ratably to the then existing Lenders. No increase in the Revolving
Commitments or Incremental Term Commitments shall become effective until the existing or new
Lenders extending such incremental Revolving Commitments or Incremental Term Commitments and the
Borrower shall have delivered to the Administrative Agent a document in form and substance
reasonably satisfactory to the Administrative Agent pursuant to which each such existing Lender
states the amount of its Revolving Commitment increase or its Incremental Term Loans, each such
new Lender becomes a party hereto, states its Revolving Commitment or Incremental Term Loan amount
and agrees to assume and accept the obligations and rights of a Lender hereunder and the Borrower
accepts such incremental Revolving Commitments or Incremental Term Loans and certifies that on
such date the conditions for a new Loan pursuant to Section 4.02 are satisfied. In the event of
an increase in the Revolving Commitments pursuant to this Section, the Lenders with Revolving
Commitments (new or existing) shall accept an assignment from the existing Lenders with Revolving
Commitments, and the existing Lenders with Revolving Commitments shall make an assignment to the
new or existing Lenders with Revolving Commitments accepting a new or increased Revolving
Commitment, of an interest in each then outstanding Revolving Loan, Swingline Loan, Letter of
Credit and LC Disbursement such that, after giving effect thereto, all Revolving Loans, Swingline
Loans, Letters of Credit and LC Disbursements are held ratably by the Lenders with Revolving
Commitments in proportion to their respective Revolving Commitments. Assignments pursuant to the
preceding sentence shall be made in exchange for the principal amount assigned plus accrued and
unpaid interest and shall not be subject to the assignment fee set forth in Section
9.04(b)(ii)(C). The Borrower shall make any payments under Section 2.17 resulting from such
assignments. In the event of an establishment of Incremental Term Commitments pursuant to this
Section, (a) each Lender accepting a portion of such Incremental Term Commitments shall, on the
effective date of the Incremental Term Commitments, make an Incremental Term Loan to the Borrower
in the amount of its portion of such increase, (b) the
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Incremental Term Loans shall be payable in full on the Maturity Date except that the fees and
interest rates applicable thereto shall be as agreed by the Borrower and the Lenders making such
Term Loans and (c) the Borrower, the Administrative Agent and each Lender shall enter into such
amendments of the Loan Documents as may reasonably be requested by the Borrower and the
Administrative Agent to make conforming changes consistent with this Section. Any such increase
of the Revolving Commitments or establishment or increase of Incremental Term Commitments shall be
subject to receipt by the Administrative Agent from the Borrower of such supplemental opinions,
resolutions, certificates and other documents as the Administrative Agent may reasonably request.
From and after the making of an Incremental Term Loan or Revolving Loan pursuant to this Section,
such Loan shall be deemed a “Loan”, “Term Loan” and/or “Revolving Loan”, as applicable, hereunder
for all purposes hereof, and, except as set forth above with respect to fees and interest, shall
be subject to the same terms and conditions as each other Term Loan or Revolving Loan made
pursuant to this Agreement.
SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each applicable
Lender the then unpaid principal amount of each Revolving Loan on the Maturity Date, (ii) to the
Administrative Agent for the account of each applicable Lender the unpaid principal amount of each
Term Loan of such Lender as provided in Section 2.11, and (iii) to the Swingline Lender the then
unpaid principal amount of each Swingline Loan on the earlier of the Maturity Date and the first
date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at
least two Business Days after such Swingline Loan is made; provided that on each date that a
Revolving Borrowing is made, the Borrower shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period 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
Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; 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 obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent.
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Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 9.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
(f) If at any time the aggregate Revolving Credit Exposure of the Lenders exceeds the total
Revolving Commitments of the Lenders, then in either case, the Borrower shall immediately prepay
the Revolving Loans in the amount of such excess. To the extent that, after the prepayment of all
Revolving Loans an excess of the Revolving Credit Exposure over the applicable amount referenced
in clause (a) or (b) above still exists, the Borrower shall promptly cash collateralize the
Letters of Credit in the manner described in Section 2.06(j) in an amount sufficient to eliminate
such excess.
SECTION 2.11. Amortization of Term Loans. (a) The Borrower shall repay Term
Borrowings on the last Business Day of each calendar quarter set forth below in the aggregate
principal amount indicated (and in addition, to the extent that any Incremental Term Loans shall be
made pursuant to Section 2.09(d), in an additional amount equal to the corresponding amount
required to be amortized with respect to the other Term Loans based on the initial aggregate
principal amount of such Incremental Term Loans on the last Business Day of each calendar quarter
from and including the calendar quarter immediately succeeding the calendar quarter in which such
Incremental Term Loans are made):
(i) on the last Business Day of each calendar quarter ending after the calendar quarter
in which the Effective Date occurs to and including the fourth such calendar quarter, the
Borrower shall make an aggregate payment equal to 1.25% of the initial aggregate principal
amount of the Term Loan;
(ii) on the last Business Day of each of the fifth through twelfth calendar quarters
next following the calendar quarter in which the Effective Date occurs, the Borrower shall
make an aggregate payment equal to 2.5% of the initial aggregate principal amount of the
Term Loan;
(iii) on the last Business Day of each of the thirteenth through sixteenth calendar
quarters next following the calendar quarter in which the Effective Date occurs, the
Borrower shall make an aggregate payment equal to 3.75% of the initial aggregate principal
amount of the Term Loan;
(iv) on the last Business Day of each of the seventeenth through twentieth calendar
quarters next following the calendar quarter in which the Effective Date occurs, the
Borrower shall make an aggregate payment equal to 15.00% of the initial aggregate principal
amount of the Term Loan; and
(v) on the Maturity Date, the Borrower shall pay the entire remaining unpaid principal
amount of the Term Loan.
SECTION 2.12. Prepayment of Loans. (a) The Borrower shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section; provided that the Borrower shall not be
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permitted to prepay any Revolving Loans until the earlier of (i) such time as there shall have
been $0 outstanding under the Existing Credit Agreement for at least 30 consecutive days and (ii)
the date of termination of the Existing Credit Agreement and payment in full of all amounts owing
thereunder. Optional prepayments of the Term Loan shall be applied to the principal installments
thereon due pursuant to Section 2.11 in inverse order of maturity.
(b) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 1:00 p.m., New
York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment
of an ABR Borrowing, not later than 1:00 p.m., New York City time, on the date of prepayment or
(iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid;
provided that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.09(c), then such notice of
prepayment may be revoked if such notice of termination is revoked in accordance with Section
2.09(c). Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of
any Borrowing shall be in an amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied
by accrued interest to the extent required by Section 2.14.
(c) In addition to the repayments of the Term Loans required by Section 2.10(a), the Borrower
shall make mandatory prepayment of the Term Loans as follows:
(i) Within two (2) Business Days of the receipt by the Borrower or any Subsidiary of
any Net Proceeds (in excess of $25,000,000 in the aggregate per calendar year) from (A) any
Asset Disposition or (B) any casualty or other insured damage to, or any taking under power
of eminent domain or by condemnation or similar proceeding of, any Property or asset of the
Borrower or any Subsidiary, the Borrower shall make a mandatory prepayment of the Term Loans
in an amount equal to 100% of such Net Proceeds (or, if less, the aggregate outstanding
principal amount of the Term Loans).
(ii) Within two (2) Business Days of the receipt by the Borrower or any Subsidiary of
any Net Proceeds from the incurrence of any Indebtedness that is not permitted by Section
6.02, the Borrower shall make a mandatory prepayment of the Term Loans in an amount equal to
100% of such Net Proceeds (or, if less, the aggregate outstanding principal amount of the
Term Loans).
(d) All such amounts pursuant to Section 2.12(c) shall be applied to prepay the Term Loans in
inverse order of maturity.
SECTION 2.13. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at the Applicable
33
Rate on the daily amount of the difference between the Revolving Commitment of such Lender and
the Revolving Credit Exposure (excluding Swingline Exposure) of such Lender during the period from
and including the date hereof to but excluding the date on which such Revolving Commitment
terminates. Accrued commitment fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Revolving Commitments terminate,
commencing on the first such date to occur after the date hereof. All commitment fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender
a participation fee with respect to its participations in Letters of Credit, which shall accrue at
the same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date on which such Lender’s Commitment terminates and the
date on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting
fee, which shall accrue at the rate or rates per annum separately agreed upon between the Borrower
and the Issuing Bank on the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date of termination of the Revolving Commitments and the
date on which there ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through and including the last
day of March, June, September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) All fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the Lenders. Fees paid
shall not be refundable under any circumstances.
SECTION 2.14. Interest. (a) The Loans comprising each ABR Borrowing (other than
Swingline Loans) shall bear interest at the Alternate Base Rate plus the Applicable Rate. Each
Swingline Loan shall bear interest at the Alternate Base Rate or such other rate per annum from
time to time agreed upon by the Swingline Lender and the Borrower.
34
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this
Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as
provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Commitments;
provided that (i) interest accrued pursuant to paragraph (d) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Loan prior to the end of the Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of
such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a
leap year), and in each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate
shall be determined by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.15. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate for such Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective
35
and (ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall
be made as an ABR Borrowing; provided that if the circumstances giving rise to such notice
affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.16. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of
Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s or the
Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company,
if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below
that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company
could have achieved but for such Change in Law (taking into consideration such Lender’s or the
Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company
with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Borrower shall pay such Lender or the Issuing
Bank, as the case may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the
36
Issuing Bank’s right to demand such compensation; provided that the Borrower shall
not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the date that such Lender or
the Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim
compensation therefor; provided further that, if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the 270-day period referred to above shall
be extended to include the period of retroactive effect thereof.
SECTION 2.17. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.12(b) and is
revoked in accordance therewith) or (d) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.20, then, in any such event, the Borrower shall compensate each Lender for
the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender
to be the excess, if any, of (i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the interest rate which
such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.18. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or Issuing Bank (as
the case may be) receives an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
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(c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender or the Issuing Bank, or
by the Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall
be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without withholding or at a
reduced rate.
(f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.18,
it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section 2.18 with respect to the Taxes or
Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative
Agent or such Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the Borrower, upon the request
of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower
(plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to
the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower or any other
Person.
SECTION 2.19. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The
Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.16, 2.17
or 2.18, or otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without set off or counterclaim. Any amounts
38
received after such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at its offices at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.16,
2.17, 2.18 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on
a day that is not a Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then due to such
parties.
(c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements, its Term Loans or its Swingline Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and
participations in LC Disbursements, Term Loans and Swingline Loans and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Revolving Loans and
participations in LC Disbursements, Term Loans and Swingline Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective
Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans;
provided that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the provisions of this
paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to the Borrower or
any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
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(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or the
Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be,
the amount due. In such event, if the Borrower has not in fact made such payment, then each of
the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is distributed to it
to but excluding the date of payment to the Administrative Agent, at the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.19(d) or 9.03(c), then the Administrative Agent may,
in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts
thereafter received by the Administrative Agent for the account of such Lender for the benefit of
the Administrative Agent, the Swingline Lender or the Issuing Bank to satisfy such Lender’s
obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or
(ii) hold any such amounts in a segregated account as cash collateral for, and application to, any
future funding obligations of such Lender under any such Section, in the case of each of clauses
(i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
SECTION 2.20. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.16, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.18, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.16 or
2.18, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.16, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.18, or if any Lender becomes a Defaulting Lender, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment); provided that (i) the Borrower shall have received
the prior written consent of the Administrative Agent (and if a Commitment is being assigned, the
Issuing Bank), which
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consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of
an amount equal to the outstanding principal of its Loans and participations in LC Disbursements
and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.16 or payments required to be
made pursuant to Section 2.18, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
SECTION 2.21. Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, the following provisions shall apply for
so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such
Defaulting Lender pursuant to Section 2.13(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not
be included in determining whether the Required Lenders have taken or may take any action hereunder
(including any consent to any amendment, waiver or other modification pursuant to Section 9.02);
provided, that (i) a Defaulting Lender’s Revolving Commitment may not be increased or extended
without its consent and (ii) the principal amount of, or interest or fees payable on, Loans or LC
Disbursements may not be reduced or excused or the scheduled date of payment may not be postponed
as to such Defaulting Lender without such Defaulting Lender’s consent;
(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a
Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such
Defaulting Lender shall be reallocated among the non-Defaulting Lenders in
accordance with their respective Applicable Percentages but only to the extent the
sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting
Lender’s Swingline Exposure and LC Exposure does not exceed the total of all
non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within one Business Day following notice
by the Administrative Agent (x) first, prepay such Swingline Exposure and (y)
second, cash collateralize for the benefit of the Issuing Bank only the Borrower’s
obligations corresponding to such Defaulting Lender’s LC Exposure (after giving
effect to any partial reallocation pursuant to clause (i) above) in accordance with
the procedures set forth in Section 2.06(j) for so long as such LC Exposure is
outstanding;
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(iii) if the Borrower cash collateralizes any portion of such Defaulting
Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be
required to pay any fees to such Defaulting Lender pursuant to Section 2.13(b) with
respect to such Defaulting Lender’s LC Exposure during the period such Defaulting
Lender’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant
to clause (i) above, then the fees payable to the Lenders pursuant to Section
2.13(a) and Section 2.13(b) shall be adjusted in accordance with such non-Defaulting
Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then,
without prejudice to any rights or remedies of the Issuing Bank or any other Lender
hereunder, all commitment fees that otherwise would have been payable to such
Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s
Revolving Commitment that was utilized by such LC Exposure) and letter of credit
fees payable under Section 2.13(b) with respect to such Defaulting Lender’s LC
Exposure shall be payable to the Issuing Bank until and to the extent that such LC
Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required
to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase
any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s
then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the
non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with
Section 2.21(c), and participating interests in any newly made Swingline Loan or any newly issued
or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner
consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein).
If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the
date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the
Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations
under one or more other agreements in which such Lender commits to extend credit, the Swingline
Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required
to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank,
as the case may be, shall have entered into arrangements with the Borrower or such Lender,
satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk
to it in respect of such Lender hereunder.
In the event that the Administrative Agent, the Borrower, the Swingline Lender and the Issuing
Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall
be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such
Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as
the Administrative Agent shall determine may be
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necessary in order for such Lender to hold such Loans in accordance with its Applicable
Percentage.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent and the Lenders that:
SECTION 3.01. Corporate Existence and Standing. The Borrower, each Material
Subsidiary and Mattnick each is a corporation duly incorporated, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation and is duly qualified and
in good standing as a foreign corporation and is duly authorized to conduct its business in each
jurisdiction in which its business is conducted or proposed to be conducted except where the
failure to be so qualified or authorized could not reasonably be expected to have a Material
Adverse Effect.
SECTION 3.02. Authorization and Validity. The Borrower and each Guarantor have all
requisite power and authority (corporate and otherwise) and legal right to execute and deliver (or
file, as the case may be) each of the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery (or filing, as the case may be) by the Borrower
and each Guarantor of the Loan Documents to which it is a party and the performance of their
respective obligations thereunder have been duly authorized by proper corporate proceedings and the
Loan Documents constitute legal, valid and binding obligations of the Borrower or such Guarantor,
as applicable, enforceable against the Borrower or such Guarantor, as applicable, in accordance
with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally or by general principles of equity.
SECTION 3.03. Compliance with Laws and Contracts. The Borrower and its Subsidiaries
have complied with all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof, having jurisdiction over
the conduct of their respective businesses or the ownership of their respective Properties, except
where the failure to so comply could not reasonably be expected to have a Material Adverse Effect.
Neither the execution and delivery by the Borrower or any Guarantor of the Loan Documents to which
it is a party, the application of the proceeds of the Loans and the Letters of Credit, the
consummation of any transaction contemplated in the Loan Documents, nor compliance with the
provisions of the Loan Documents will, or at the relevant time did, (a) violate any law, rule,
regulation (including Regulation T, Regulation U and Regulation X), order, writ, judgment,
injunction, decree or award binding on the Borrower or any Subsidiary or the Borrower’s or any
Subsidiary’s charter, articles or certificate of incorporation or by-laws, (b) violate the
provisions of or require the approval or consent of any party to any indenture, instrument or
agreement to which the Borrower or any Subsidiary is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, or result in the creation
or imposition of any Lien (other than Liens permitted by, the Loan Documents) in, of or on the
Property of the Borrower or any Subsidiary pursuant to the terms of any such indenture, instrument
or agreement, or (c) require any consent of the stockholders of any Person.
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SECTION 3.04. Governmental Consents. No order, consent, approval, qualification,
license, authorization, or validation of, or filing, recording or registration with, or exemption
by, or other action in respect of, Governmental Authority, or any subdivision thereof, any
securities exchange or other Person is or at the relevant time was required to authorize, or is or
at the relevant time was required in connection with the execution, delivery, consummation or
performance of, or the legality, validity, binding effect or enforceability of, any of the Loan
Documents, the application of the proceeds of the Loans or the Letters of Credit or any other
transaction contemplated in the Loan Documents.
SECTION 3.05. Financial Statements. The Borrower has heretofore furnished to each of
the Lenders the audited consolidated financial statements of the Borrower and its Subsidiaries as
of and for the fiscal year ended September 30, 2009 and the unaudited consolidated financial
statements of the Borrower and its Subsidiaries as of and for the fiscal quarters ended December
31, 2009 and March 31, 2010 (collectively, the “Financial Statements”). Each of the
Financial Statements was prepared in accordance with Agreement Accounting Principles and fairly
presents the consolidated financial condition and operations of the Borrower and its Subsidiaries
at such dates and the consolidated results of their operations for the respective periods then
ended (except, in the case of such unaudited statements, for normal year-end audit adjustments).
SECTION 3.06. Material Adverse Change. Since September 30, 2009, there has been no
change from that reflected in the Financial Statements, in the business, Property, condition
(financial or otherwise) or results of operations of the Borrower and its Subsidiaries taken as a
whole which could reasonably be expected to have a Material Adverse Effect.
SECTION 3.07. Taxes. The Borrower and its Subsidiaries have filed or caused to be
filed in correct form all United States federal and applicable foreign, state and local tax returns
and all other material tax returns which are required to be filed and have paid all taxes due
pursuant to said returns or pursuant to any assessment received by the Borrower or any Subsidiary,
except such taxes, if any, as are being contested in good faith and as to which adequate reserves
have been provided in accordance with Agreement Accounting Principles and as to which no Lien
exists. No tax liens have been filed and no claims are being asserted with respect to any such
taxes which could reasonably be expected to have a Material Adverse Effect. The charges, accruals
and reserves on the books of the Borrower and its Subsidiaries in respect of any taxes or other
governmental charges are in accordance with Agreement Accounting Principles.
SECTION 3.08. Litigation and Contingent Obligations. There is no litigation,
arbitration, proceeding, inquiry or governmental investigation (including, without limitation, by
the Federal Trade Commission) pending or, to the knowledge of any of their officers, threatened
against or affecting the Borrower or any Subsidiary or any of their respective Properties which
could reasonably be expected to have a Material Adverse Effect or to prevent, enjoin or unduly
delay the making of the Loans or the issuance of Letters of Credit under this Agreement. Neither
the Borrower nor any Subsidiary has any material Contingent Obligations except as set forth on
Schedule 3.08.
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SECTION 3.09. Subsidiaries and Capitalization. Schedule 3.09 hereto contains an
accurate list of all of the existing Subsidiaries as of the date of this Agreement, setting forth
their respective jurisdictions of incorporation and the percentage of their capital stock owned by
the Borrower or other Subsidiaries. All of the issued and outstanding shares of capital stock of
each Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable,
and are free and clear of all Liens, other than the Liens created by the Loan Documents. No
authorized but unissued or treasury shares of capital stock of the Borrower or any Subsidiary are
subject to any option, warrant, right to call or commitment of any kind or character. Except as
set forth on Schedule 3.09, neither the Borrower nor any Subsidiary has any outstanding stock or
securities convertible into or exchangeable for any shares of its capital stock, or any right
issued to any Person (either preemptive or other) to subscribe for or to purchase, or any options
for the purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or
any calls, commitments or claims of any character relating to any of its capital stock or any stock
or securities convertible into or exchangeable for any of its capital stock other than as expressly
set forth in the certificate or articles of incorporation of the Borrower or such Subsidiary.
Neither the Borrower nor any Subsidiary is subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of its capital stock or any convertible
securities, rights or options of the type described in the preceding sentence except as otherwise
set forth on Schedule 3.09. Except as set forth on Schedule 3.09, as of the date hereof the
Borrower does not own or hold, directly or indirectly, any capital stock or equity security of, or
any equity or partnership interest in any Person other than such Subsidiaries.
SECTION 3.10. ERISA. Each of the Borrower and each member of the Controlled Group has
fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect to
each Plan. Neither the Borrower nor any other member of the Controlled Group has incurred, or is
reasonably expected to incur, any withdrawal liability to any Multiemployer Plan which could
reasonably be expected to have a Material Adverse Effect. Each Plan complies in all respects with
all applicable requirements of law and regulations, except where the failure to so comply could not
reasonably be expected to cause the relevant Plan to become disqualified under the Code. Neither
the Borrower nor any member of the Controlled Group has, with respect to any Plan, failed to make
any contribution or pay any amount required under Section 412 of the Code or Section 302 of ERISA
or the terms of such Plan. There are no pending or, to the knowledge of the Borrower, threatened
claims, actions, investigations or lawsuits against any Plan, any fiduciary thereof, or the
Borrower or any member of the Controlled Group with respect to a Plan which could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any member of the Controlled
Group has engaged in any prohibited transaction (as defined in Section 4975 of the Code or Section
406 of ERISA) in connection with any Plan which would subject such Person to any material
liability. Within the last five years neither the Borrower nor any member of the Controlled Group
has engaged in a transaction which resulted in a Single Employer Plan with an Unfunded Liability
being transferred out of the Controlled Group. No Termination Event has occurred or is reasonably
expected to occur with respect to any Plan which is subject to Title IV of ERISA.
SECTION 3.11. Defaults. No Default or Event of Default has occurred and is
continuing.
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SECTION 3.12. Federal Reserve Regulations. Neither the Borrower nor any Subsidiary is
engaged, directly or indirectly, principally, or as one of its important activities, in the
business of extending, or arranging for the extension of, credit for the purpose of purchasing or
carrying Margin Stock. Neither the making of any Loan or issuance of any Letters of Credit
hereunder, the use of the proceeds thereof, will violate or be inconsistent with the provisions of
Regulation T, Regulation U or Regulation X. Following the application of the proceeds of the
Loans, less than 25% of the value (as determined by any reasonable method) of the assets of the
Borrower and its Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder taken as a whole have been, and will continue to be, represented by Margin
Stock.
SECTION 3.13. Investment Company Act. Neither the Borrower nor any Subsidiary is, or
after giving effect to any Loan will be, an “investment company” or a company “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.
SECTION 3.14. Certain Fees. Other than as disclosed on Schedule 3.14, no broker’s or
finder’s fee or commission was, is or will be payable by the Borrower or any Subsidiary with
respect to the transactions contemplated by this Agreement. The Borrower hereby agrees to
indemnify the Administrative Agent and the Lenders against and agrees that it will hold each of
them harmless from any claim, demand or liability for broker’s or finder’s fees or commissions
alleged to have been incurred by the Borrower in connection with any of the transactions
contemplated by this Agreement and any expenses (including, without limitation, attorneys’ fees and
time charges of attorneys for the Administrative Agent or any Lender, which attorneys may be
employees of the Administrative Agent or any Lender) arising in connection with any such claim,
demand or liability.
SECTION 3.15. Solvency. As of the date hereof, after giving effect to the
consummation of the transactions contemplated by the Loan Documents and the payment of all fees,
costs and expenses payable by the Borrower or its Subsidiaries with respect to the transactions
contemplated by the Loan Documents, each of the Borrower and each Guarantor is Solvent.
SECTION 3.16. Ownership of Properties. (a) Except as set forth on Schedule 3.16
hereto, the Borrower and its Subsidiaries have a subsisting leasehold interest in, or good and
marketable title, free of all Liens, other than those permitted by Section 6.08 or by any of the
other Loan Documents, to all of the Properties and assets reflected in the Financial Statements as
being owned by it, except for assets sold, transferred or otherwise disposed of in the ordinary
course of business since the date thereof. There are no actual, threatened or alleged defaults
with respect to any leases of real property under which the Borrower or any Subsidiary is lessee or
lessor which could reasonably be expected to have a Material Adverse Effect. The Borrower and its
Subsidiaries own or possess rights to use all material licenses, patents, patent applications,
copyrights, service marks, trademarks and trade names necessary to continue to conduct their
business as heretofore conducted, and no such license, patent or trademark has been declared
invalid, been limited by order of any court or by agreement or is the subject of any infringement,
interference or similar proceeding or challenge, except for proceedings and challenges which could
not reasonably be expected to have a Material Adverse Effect.
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(b) Each of the Borrower and its Subsidiaries owns, is licensed or otherwise has the right to
use, all trademarks, tradenames, copyrights, patents and other intellectual property material to
its business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the
rights of any other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.17. Indebtedness. Attached hereto as Schedule 3.17 is a complete and
correct list of all Indebtedness of the Borrower and its Subsidiaries outstanding on the date of
this Agreement (other than Indebtedness in a principal amount not exceeding $100,000 for a single
item of Indebtedness and $500,000 in the aggregate for all such Indebtedness), showing the
aggregate principal amount which was outstanding on such date.
SECTION 3.18. Subordinated Indebtedness. The principal of and interest on the Loans
and all other Obligations will constitute “senior debt” as that or any similar term is or may be
used in any other instrument evidencing or applicable to any Subordinated Indebtedness of the
Borrower.
SECTION 3.19. Employee Controversies. There are no strikes, work stoppages or
controversies pending or threatened between the Borrower or any Subsidiary and any of its
employees, other than strikes, work stoppages or controversies arising in the ordinary course of
business, which, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
SECTION 3.20. Material Agreements. Neither the Borrower nor any Subsidiary is a party
to any agreement or instrument or subject to any charter or other corporate restriction (a) which
could reasonably be expected to have a Material Adverse Effect or (b) which (other than (u) the
Existing Credit Agreement as in effect on the date hereof, (v) the note purchase agreements for the
Senior Notes as in effect on the date hereof, (w) the indenture for the Splitco Notes, as in effect
on August 4, 2008, (x) the note purchase agreement for the May 2009 Senior Notes, as in effect on
May 28, 2009, (y) the indenture for the August 2009 Senior Notes, as in effect on August 11, 2009
and (z) other agreements or instruments governing Indebtedness of the Borrower or any Subsidiaries
permitted to be incurred pursuant to Section 6.02(g) so long as the restrictions contained therein
are not materially less favorable to the Lenders, taken as a whole, than the restrictions contained
in this Agreement), restricts or imposes conditions upon the ability of the Borrower or any
Subsidiary to (i) pay dividends or make other distributions on its capital stock (ii) make loans or
advances to the Borrower, (iii) repay loans or advances from Borrower or (iv) grant Liens to the
Administrative Agent to secure the Obligations. Neither the Borrower nor any Subsidiary is in
default in the performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement to which it is a party, which default could reasonably be
expected to have a Material Adverse Effect.
SECTION 3.21. Environmental Laws. The Borrower, each Material Subsidiary and Mattnick
each conduct in the ordinary course of business a review of the effects of then existing
Environmental Laws and then existing Environmental Claims on its business, condition (financial and
other), results of operations and Property, and as a result thereof the Borrower, each Material
Subsidiary and Mattnick have reasonably concluded that the application of such
47
Environmental Laws and the existence of such Environmental Claims, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 3.22. Insurance. The Borrower and its Subsidiaries maintain with financially
sound and reputable insurance companies insurance on their Property in such amounts and covering
such risks as is consistent with sound business practice.
SECTION 3.23. Disclosure. None of the (a) information, exhibits or reports furnished
or to be furnished by the Borrower or any Subsidiary to the Administrative Agent or to any Lender
in connection with the negotiation of the Loan Documents, or (b) representations or warranties of
the Borrower or any Subsidiary contained in this Agreement, the other Loan Documents or any
certificate or other written information furnished to the Administrative Agent or the Lenders by or
on behalf of the Borrower or any Subsidiary pursuant to a request from the Administrative Agent or
the Lenders permitted hereunder and for use in connection with the transactions contemplated by
this Agreement, contained, contains or will contain any untrue statement of a material fact or
omitted, omits or will omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in which the same were
made. The pro forma financial information contained in such materials is based upon good faith
estimates and assumptions believed by the Borrower to be reasonable at the time made. There is no
fact known to the Borrower (other than matters of a general economic nature) that has had or could
reasonably be expected to have a Material Adverse Effect and that has not been disclosed herein or
in such other documents, certificates and other written information furnished to the Lenders for
use in connection with the transactions contemplated by this Agreement.
SECTION 3.24. Material Foreign Subsidiaries. Except as set forth on Schedule 3.24
hereto, as of the Effective Date, the Borrower has no Material Foreign Subsidiaries.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each party
hereto and to the other Loan Documents either (i) a counterpart of the Loan Documents signed
on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy or electronic transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of the Loan Documents.
(b) The Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of (i) Xxxxxxx X.
Xxxxxxxxx, General Counsel for the Borrower and the Guarantors and (ii)
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Xxxxx Xxxx XXX, special counsel for the Borrower and the Guarantors, covering such
matters relating to the Borrower, the Guarantors, this Agreement, the other Loan Documents
and the Transactions as the Administrative Agent shall reasonably request, such opinions to
be in form and substance satisfactory to the Administrative Agent. The Borrower hereby
requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the Borrower and the Guarantors, the authorization of the
Transactions and any other legal matters relating to the Borrower and the Guarantors, this
Agreement or the Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by an Authorized Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received a copy of a letter, in form and
substance acceptable to the Administrative Agent, from the Borrower to the Pledgee notifying
the Pledgee that this Agreement and the Subsidiary Guaranty shall be “Permitted Debt
Agreements” under the Pledge Agreement.
(f) The Lenders, the Administrative Agent and the Lead Arrangers shall have received
all fees and other amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out of pocket expenses required to be
reimbursed or paid by the Borrower hereunder.
(g) All material governmental, shareholder and material third party consents and
approvals necessary in connection with the Transactions shall have been obtained and all
such consents and approvals shall be in force and effect.
(h) The Lenders shall have received (i) U.S. GAAP audited consolidated balance sheets
and related statements of income, stockholders’ equity and cash flows of each of the
Borrower and AIPC for the 2009, 2008 and 2007 fiscal years and (ii) U.S. GAAP unaudited
consolidated balance sheets and related statements of income, stockholders’ equity and cash
flows of each of the Borrower and AIPC for each subsequent fiscal quarter ended at least 45
days before the Effective Date.
(i) The Lenders shall have received a pro forma consolidated balance sheet and related
pro forma consolidated statements of income of the Borrower as of and for the twelve-month
period ending on the last day of the most recently completed four-fiscal-quarter period for
which financial statements have been delivered pursuant to clause (g) above, prepared after
giving effect to the AIPC Transaction and the other transactions contemplated hereby as if
such transactions had occurred as of such date (in the case of such balance sheet) or at the
beginning of such period (in the case of such other financial statements).
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(j) The Tender Offer (as defined in the Commitment Letter) shall have been consummated
and the Effective Date shall occur simultaneously with the initial funding date under the
Facility in accordance with applicable law and on the terms described in this summary of
terms and conditions, in the AIPC Transaction Agreement and in the tender offer statement
made available to the Administrative Agent immediately prior to the commencement of the
Tender Offer. No provision of the AIPC Transaction Agreement or term or condition of the
Tender Offer shall have been amended, modified or waived in any respect materially adverse
to the Lenders without the prior written consent of the Administrative Agent (it being
agreed that any material increase in the Acquisition Consideration (as defined in the
Commitment Letter) or any change in the Minimum Condition (as defined in the Commitment
Letter) shall be deemed to be materially adverse to the Lenders).
(k) The Administrative Agent shall be satisfied that the Borrower is in pro forma
compliance with the financial covenants contained in Section 6.17 after giving effect to the
AIPC Transaction and the other transactions contemplated hereby. The Borrower shall have
delivered to the Administrative Agent a certificate of an Authorized Officer of the Borrower
certifying as to compliance with the financial covenants referenced in the preceding
sentence and demonstrating (in reasonable detail) the calculations required by such
covenants.
(l) The Revolving Commitments shall be drawn on the Effective Date to the full extent
of the aggregate Revolving Commitments on such date.
(m) The Administrative Agent shall have received such other documents as the
Administrative Agent, any Lender or their counsel may have reasonably requested.
The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02)
at or prior to 3:00 p.m., New York City time, on July 27, 2010 (and, in the event such conditions
are not so satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower and the Guarantors set forth in
the Loan Documents shall be true and correct on and as of the date of such Borrowing or the
date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.
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Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:
SECTION 5.01. Financial Reporting. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance with generally
accepted accounting principles, consistently applied, and furnish to the Lenders:
(a) As soon as practicable and in any event within 95 days after the close of each of its
Fiscal Years, an unqualified audit report certified by independent certified public accountants,
acceptable to the Lenders, prepared in accordance with Agreement Accounting Principles on a
consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such
period and related statements of income, retained earnings and cash flows accompanied by a
certificate of said accountants that, in the course of the examination necessary for their
certification of the foregoing, they have obtained no knowledge of any Default, or if, in the
opinion of such accountants, any Default shall exist, stating the nature and status thereof.
(b) As soon as practicable and in any event within 50 days after the close of the first three
Fiscal Quarters of each of its Fiscal Years, for itself and its Subsidiaries, consolidated
unaudited balance sheets as at the close of each such period and consolidated statements of
income, retained earnings and cash flows for the period from the beginning of such Fiscal Year to
the end of such quarter, all certified by an Authorized Officer.
(c) Together with the financial statements required by clauses (a) and (b)
above, a compliance certificate in substantially the form of Exhibit B hereto signed by an
Authorized Officer showing the calculations necessary to determine compliance with this Agreement
and stating that no Default exists, or if any Default exists, stating the nature and status
thereof.
(d) Within 270 days after the close of each Fiscal Year, a statement of the Unfunded
Liabilities of each Single Employer Plan, certified as correct by an actuary enrolled under ERISA.
(e) As soon as possible and in any event within 10 days after the Borrower knows that any
Termination Event has occurred with respect to any Plan, a statement, signed by an Authorized
Officer of the Borrower, describing said Termination Event and the action which the Borrower
proposes to take with respect thereto.
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(f) As soon as possible and in any event within 10 days after the Borrower learns thereof,
notice of the assertion or commencement of any claims, action, suit or proceeding against or
affecting the Borrower or any Subsidiary which could reasonably be expected to have a Material
Adverse Effect.
(g) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all
financial statements, reports and proxy statements so furnished; provided,
however, that such information shall be deemed to have been furnished to the Lenders if
such information is readily available through XXXXX.
(h) Promptly upon the filing thereof, copies of all registration statements and annual,
quarterly, monthly or other regular reports which the Borrower or any of its Subsidiaries files
with the Securities and Exchange Commission; provided, however, that such
information shall be deemed to have been furnished to the Lenders if such information is readily
available through XXXXX.
(i) Such other information (including non-financial information) as the Administrative Agent
or any Lender may from time to time reasonably request.
SECTION 5.02. Use of Proceeds. The Borrower will, and will cause each Subsidiary to,
use the proceeds of the Loans to meet the general corporate and working capital needs of the
Borrower and its Subsidiaries, including financing, in part, the AIPC Transaction, the making of
stock redemptions and repurchases, dividends on its capital stock, Investments and non-hostile
Purchases, all as and to the extent permitted hereunder. The Borrower will not, nor will it permit
any Subsidiary to, use any of the proceeds of the Loans or any Letter of Credit to purchase or
carry any “margin stock” (as defined in Regulation U) or to finance the Purchase of any Person
which has not been approved and recommended by the board of directors (or functional equivalent
thereof) of such Person.
SECTION 5.03. Notice of Default. The Borrower will give prompt notice in writing to
the Lenders of the occurrence of (a) any Default, (b) the filing or commencement of any action,
suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that could reasonably be expected to result in a Material Adverse
Effect and (c) of any other event or development, financial or other, relating specifically to the
Borrower or any of its Subsidiaries (and not of a general economic or political nature) which could
reasonably be expected to have a Material Adverse Effect.
SECTION 5.04. Conduct of Business. The Borrower will, and will cause each Subsidiary
(i) to (other than Mattnick) carry on and conduct its business in substantially the same manner as
is presently conducted or in other consumer products markets and the manufacturing of ingredients
therefor and (ii) to do all things necessary to remain duly incorporated, validly existing and in
good standing as a domestic corporation in its jurisdiction of incorporation and maintain all
requisite authority to conduct its business in each jurisdiction in which its business is
conducted, except where the failure to maintain such authority could not reasonably be expected to
have a Material Adverse Effect. The Borrower will, and will cause each of its Subsidiaries to, do
or cause to be done all things necessary to preserve, renew and keep in full force and effect the
rights, licenses, permits, privileges and franchises relating to the conduct of its business,
52
except where the failure to maintain such rights, licenses, permits, privileges or franchises
could not reasonably be expected to have a Material Adverse Effect. Mattnick shall engage
exclusively in the business of acting as a captive insurance company insuring the risks of the
Borrower and its Subsidiaries.
SECTION 5.05. Taxes. The Borrower will, and will cause each Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state and local tax returns
required by applicable law and pay when due all taxes, assessments and governmental charges and
levies upon it or its income, profits or Property, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves have been set aside.
SECTION 5.06. Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on all their Property
in such amounts and covering such risks as is consistent with sound business practice for similarly
situated businesses in the industries in which the Borrower and its Subsidiaries operate, and the
Borrower will furnish to the Administrative Agent and any Lender upon request full information as
to the insurance carried.
SECTION 5.07. Compliance with Laws and Material Contractual Obligations. The Borrower
will, and will cause each Subsidiary to comply with (a) all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject, the failure to comply
with which could reasonably be expected to have a Material Adverse Effect and (b) all of its
material contractual obligations, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to do all things necessary to maintain, preserve, protect and keep its Property in good
repair, working order and condition, and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be properly conducted at
all times, except where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
SECTION 5.09. Inspection. The Borrower will, and will cause each Subsidiary to,
permit the Administrative Agent and the Lenders, by their respective representatives and agents, to
inspect any of the Property, corporate books and financial records of the Borrower and each
Subsidiary, to examine and make copies of the books of accounts and other financial records of the
Borrower and each Subsidiary, and to discuss the affairs, finances and accounts of the Borrower and
each Subsidiary with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Lenders may designate; provided, however,
that so long as no Event of Default has occurred, (i) the Administrative Agent or any Lender
exercising any rights pursuant to this Section 5.09 shall give the Borrower or any applicable
Subsidiary advance written notice of its intention to exercise such rights and (ii) the Borrower
shall have no obligation to reimburse the Administrative Agent for the costs and/or expenses of
more than one inspection or audit described in this Section 5.09 in any Fiscal Year. The Borrower
will keep or cause to be kept, and cause each Subsidiary to keep or cause to be kept, appropriate
records and books of account in which complete entries are to be made reflecting its
53
and their business and financial transactions, such entries to be made in accordance with
Agreement Accounting Principles consistently applied.
SECTION 5.10. Environmental Matters. The Borrower shall and shall cause each of its
Material Subsidiaries and Mattnick to conduct in the ordinary course of its business reviews of the
effects of then existing Environmental Laws and then existing Environmental Claims on its business,
condition (financial and other), results of operations and Property and to take all actions
required by such Environmental Laws and in respect of such Environmental Claims, except where the
failure to so act could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.11. Material Subsidiaries. The Borrower shall cause each of its
Subsidiaries which (a) becomes a Material Subsidiary on or after the date hereof or (b) becomes a
guarantor of the Senior Notes, the Existing Credit Agreement, the Splitco Notes, the May 2009
Senior Notes, the August 2009 Senior Notes or any other obligations of the Borrower and its
Subsidiaries permitted to be incurred pursuant to Section 6.02(g) on or after the date hereof to
join the Subsidiary Guaranty as a Guarantor pursuant to a joinder agreement in the form attached to
the Subsidiary Guaranty within thirty (30) days of such Person becoming a Material Subsidiary or
becoming such a guarantor, as applicable, provided that, if, as a result of the
consummation of the AIPC Transaction, AIPC or any of its Subsidiaries would become a Material
Subsidiary, the Borrower shall cause each such Person to join the Subsidiary Guaranty as a
Guarantor pursuant to a joinder agreement in the form attached to the Subsidiary Guaranty on the
earlier of (i) thirty (30) days following the consummation of the Merger (as defined in the AIPC
Transaction Agreement) or (ii) ninety (90) days following the date of the initial purchase of
Equity Interests of AIPC pursuant to the Offer (as defined in the AIPC Transaction Agreement).
SECTION 5.12. Material Foreign Subsidiaries. Within thirty (30) days after any Person
becomes a Material Foreign Subsidiary, the Borrower shall, or shall cause its applicable Subsidiary
to, pledge to the Pledgee 65% (or, to the extent that such pledge can be accomplished without an
adverse tax or other financial consequence to the Borrower or any of its Subsidiaries in any
material respect, 100%) of the Equity Interests of such Person to secure the Obligations and shall
deliver such documents as the Pledgee may reasonably require in connection therewith; provided,
that the Administrative Agent shall be authorized to release the foregoing pledge following the
date of termination of the Existing Credit Agreement and payment in full of all amounts owing
thereunder so long as (a) no Default or Event of Default shall then exist (and the Administrative
Agent shall have received a certificate signed by an Authorized Officer of the Borrower certifying
to such upon request) and (b) the Administrative Agent shall have received satisfactory evidence
that the Liens securing the other Indebtedness secured thereby are also substantially
contemporaneously released (or that arrangements for such release satisfactory to the
Administrative Agent shall have been made). Following any such release of all Liens under the
Pledge agreement, the Borrower shall have no further obligations under this Section 5.12.
SECTION 5.13. Payment of Obligations. The Borrower will, and will cause each
Subsidiary to, pay or discharge all Material Indebtedness and all other material liabilities and
obligations, including Taxes, before the same shall become delinquent or in default, except where
(a) the validity or amount thereof is being contested in good faith by appropriate
54
proceedings, (b) the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. Capital Stock and Dividends. The Borrower will not, nor will it permit
any Subsidiary to issue or have outstanding any preferred stock, other than preferred stock not
having mandatory redemption, retirement and other repurchase dates commencing less than 91 days
after the Maturity Date.
SECTION 6.02. Indebtedness. The Borrower will not, nor will it permit any Subsidiary
to, create, incur or suffer to exist any Indebtedness, except:
(a) the Loans;
(b) Indebtedness existing on the date hereof and described in Schedule 3.17;
(c) Contingent Obligations permitted by Section 3.08;
(d) Indebtedness arising in connection with the Accounts Receivable Financing Program;
(e) Indebtedness under the Existing Credit Agreement;
(f) Indebtedness pursuant to the Splitco Notes;
(g) other Indebtedness so long as immediately after giving effect to the incurrence of such
Indebtedness, the Borrower is in compliance with the financial covenants set forth in Section
6.17.
SECTION 6.03. Merger; Fundamental Changes. The Borrower will not, nor will it permit
any Subsidiary to, merge or consolidate with or into any other Person, or liquidate or dissolve,
except that (i) a Wholly-Owned Subsidiary may merge into the Borrower or any Wholly-Owned
Subsidiary of the Borrower, (ii) the Borrower or any Subsidiary may merge or consolidate with any
other Person so long as the Borrower or such Subsidiary is the continuing or surviving corporation
and, prior to and after giving effect to such merger or consolidation, no Default or Event of
Default shall exist, (iii) any Subsidiary may enter into a merger or consolidation as a means of
effecting a disposition permitted by Section 6.04 and (iv) Merger Sub may consummate the Merger (as
defined in the AIPC Transaction Agreement).
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SECTION 6.04. Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell, transfer or otherwise dispose of its Property to any other Person
except for (a) sales of inventory or unused or obsolete equipment in the ordinary course of
business and (b) leases, sales, transfers or other dispositions of its Property that, together with
all other Property of the Borrower and its Subsidiaries previously leased, sold, transferred or
otherwise disposed of (other than inventory or unused or obsolete equipment sold in the ordinary
course of business and accounts receivables transactions permitted by Section 6.05) as permitted by
this Section 6.04 since the date hereof, do not constitute a Substantial Portion of the Property of
Borrower and its Subsidiaries.
SECTION 6.05. Sale of Accounts. The Borrower will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any notes receivable or accounts receivable, with or
without recourse, except that the Borrower or any Subsidiary may sell or otherwise grant an
interest in its accounts receivable to other Persons, in each case pursuant to an Accounts
Receivable Financing Program.
SECTION 6.06. Investments and Purchases. The Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Investments (including, without limitation, loans
and advances to, and other Investments in, Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or joint venture, or to make any
Purchases, except:
(a) Short-term obligations of, or fully guaranteed by, the United States of America and
short-term obligations of United States government agencies;
(b) Commercial paper rated A-1 or better by S&P or P-1 or better by Xxxxx’x;
(c) Demand deposit and money market bank accounts maintained in the ordinary course of
business with Initial Lenders or with commercial banks which are members of the Federal Deposit
Insurance Corporation;
(d) Bankers acceptances and certificates of deposit issued by and time deposits with Initial
Lenders or with commercial banks (whether domestic or foreign) rated B or better by Thomson, A or
better by S&P or A2 or better by Xxxxx’x;
(e) Repurchase agreements with Initial Lenders or with commercial banks (whether domestic or
foreign) rated B or better by Thomson, A or better by S&P or A2 or better by Xxxxx’x, so long at
least 102% of the principal amount of each repurchase agreement is collateralized by obligations
of, or fully guaranteed by, the United States of America or by commercial paper rated A-1 or
better by S&P or P-1 or better by Xxxxx’x;
(f) Loan participations and master notes with corporations rated A-1 or better by S&P or P-1
or better by Xxxxx’x and with Initial Lenders or with commercial banks rated B or better by
Thomson, A or better by S&P or A2 or better by Xxxxx’x;
(g) Money market preferred stock accounts in corporations rated A or better by S&P or A2 or
better by Xxxxx’x or in other corporations so long as such Investments are
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secured by letters of credit issued by Initial Lenders or by commercial banks rated B or
better by Thomson, A or better by S&P or A2 or better by Xxxxx’x;
(h) Existing Investments in Subsidiaries and additional Investments in Guarantors and Pledged
Subsidiaries;
(i) Other Investments in existence on the date hereof and described in Schedule 6.06 hereto;
(j) Other Investments in Persons or Subsidiaries which are not Guarantors or Pledged
Subsidiaries (including, without limitation, (i) any Investment in a joint venture and (ii) the
creation of and the Investment in any Subsidiary that is not a Guarantor) in an aggregate amount
not in excess of 7.5% of Total Assets;
(k) Investments in, and the creation of, any special purpose Subsidiary created for the
purpose of entering into the Accounts Receivable Financing Program;
(l) (i) Non-hostile Purchases in the same line of business or related or ancillary businesses
as the Borrower (including but not limited to consumer packaged goods), not exceeding $100,000,000
in the case of any single Purchase or series of related Purchases, provided that (A) there
shall exist no Default either immediately before or immediately after giving effect to any such
Purchase and (B) the representations and warranties contained in Article III are true and correct
both immediately before and immediately after giving effect to any such Purchases, or (ii)
non-hostile Purchases in the same line of business or related or ancillary businesses as the
Borrower (including but not limited to consumer packaged goods), in excess of $100,000,000 in the
case of any single Purchase or series of related Purchases (including, for the avoidance of
doubt, Merger Sub’s purchases of the Equity Interests of AIPC in connection with the AIPC
Transaction (including during any Subsequent Offering Period (as defined in the AIPC Transaction
Agreement) and including any “top-up” purchases pursuant to Section 2.04 of the AIPC Transaction
Agreement)), provided that (A) there shall exist no Default either immediately before or
immediately after giving effect to any such Purchases, (B) the representations and warranties
contained in Article III are true and correct both immediately before and immediately after giving
effect to any such Purchases, and (C) the Borrower submits pro forma financial statements for the
most recent period of four consecutive Fiscal Quarters for which financial statements have been
furnished or are due pursuant to Section 5.01 and a certificate executed by an Authorized Officer
of the Borrower prior to closing any such transaction showing that the Borrower is in compliance
with Section 6.17 (treating such Purchase as having occurred on the first day of such four-quarter
period);
(m) United States mutual funds that invest solely in any of the Investments described in
subsections (a) through (g) above;
(n) Investments by the Borrower in Mattnick in an aggregate amount not in excess of
$20,000,000;
(o) Investments by Mattnick in the Borrower or any Guarantor in the form of unsecured loans
in an aggregate principal amount at no time exceeding $25,000,000 and having a maturity at least
ninety-one (91) days after the Maturity Date; and
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(p) Investments by Mattnick in the Borrower or any Guarantor in the form of loans secured by
the Mattnick Mortgages.
SECTION 6.07. Contingent Obligations. The Borrower will not, nor will it permit any
Subsidiary to, make or suffer to exist any Contingent Obligation (including, without limitation,
any Contingent Obligation with respect to the obligations of a Subsidiary), except (a) by
endorsement of instruments for deposit or collection in the ordinary course of business, (b) the
Subsidiary Guaranty, (c) the Xxxxxxx Obligations, (d) other Contingent Obligations not to exceed
$35,000,000 in the aggregate at any time outstanding, (e) guarantees of the obligations of the
Borrower or any Subsidiary under (i) the Existing Credit Agreement as in effect on the date hereof,
(ii) the note purchase agreements for the Senior Notes as in effect on the date hereof, (iii) the
indenture for the Splitco Notes, as originally in effect, (iv) the indenture for the August 2009
Senior Notes, as in effect on August 11, 2009, (v) the note purchase agreement for the May 2009
Senior Notes, as in effect on May 28, 2009 and (vi) other agreements governing the Indebtedness
(including, but not limited to, any guarantees) of the Borrower or any Subsidiary permitted to be
incurred pursuant to Section 6.02(g) and (f) Contingent Obligations of Mattnick consisting of
obligations to the Borrower and its Subsidiaries arising out of insurance policies or other
contracts of insurance.
SECTION 6.08. Liens. The Borrower will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the Borrower or any of its
Subsidiaries, except:
(a) Liens for taxes, assessments or governmental charges or levies on its Property if the
same shall not at the time be delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings and for which adequate reserves in
accordance with generally accepted principles of accounting shall have been set aside on its
books;
(b) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ liens and other
similar liens arising in the ordinary course of business which secure the payment of obligations
not more than 60 days past due or which are being contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment
insurance, old age pensions, or other social security or retirement benefits, or similar
legislation;
(d) Liens arising out of good faith deposits in connection with or to secure performance of
statutory obligations, surety and appeal bonds, government contracts, leases otherwise permitted
hereunder, performance and return of money bonds and other similar obligations incurred in the
ordinary course of business;
(e) Easements, minor defects or irregularities in title, building restrictions and such other
encumbrances or charges against real property, all of which as are of a nature generally existing
with respect to Properties of a similar character and which do not in any
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material way affect (i) the marketability of the same or (ii) interfere with the use thereof
in the business of the Borrower or the Subsidiaries;
(f) Liens existing on the date hereof and described in Schedule 6.08 hereto, including
extensions, renewals and replacements thereof in whole or in part, so long as the principal amount
of the Indebtedness secured thereby at the time of such extension, renewal or replacement is
limited to all or any part of the Property (including improvements thereon) securing the Lien so
extended, renewed or replaced;
(g) Liens on the Property of a Subsidiary of the Borrower and exclusively securing
Indebtedness of such Subsidiary to the Borrower or any Guarantor;
(h) Liens of purchasers or providers of financing under an Accounts Receivable Financing
Program in accordance with Section 6.05 herein;
(i) Liens on the capital stock of any Material Foreign Subsidiary and exclusively securing
Indebtedness permitted by Section 6.02, so long as such Liens are pari passu or junior to the
Liens granted pursuant to Section 5.12 or the Pledge Agreement;
(j) Other Liens securing aggregate principal Indebtedness at no time exceeding (i)
$35,000,000 minus (ii) the aggregate amount of proceeds of any Sale and Leaseback
Transactions permitted by Section 6.16 and consummated prior to such time;
(k) Liens pursuant to the Mattnick Mortgages securing loans from Mattnick in an aggregate
principal amount at no time exceeding $25,000,000; and
(l) Liens granted by Merger Sub to AIPC on Equity Interests of AIPC acquired by Merger Sub
pursuant to non-cash “top-up” purchases of Equity Interests pursuant to Section 2.04(b) of the
AIPC Transaction Agreement.
SECTION 6.09. Affiliates. The Borrower will not, and will not permit any Subsidiary
to, enter into any transaction (including, without limitation, the purchase or sale of any Property
or service) with, or make any payment or transfer to, any Affiliate except (a) in the ordinary
course of business and pursuant to the reasonable requirements of the Borrower’s or such
Subsidiary’s business and upon fair and reasonable terms no less favorable to the Borrower or such
Subsidiary than the Borrower or such Subsidiary would obtain in a comparable arms-length
transaction, (b) transactions among the Borrower and Guarantors, (c) in connection with the
Accounts Receivable Financing Program, (d) the merger of Merger Sub with and into AIPC and (e) any
“top-up” purchases of Equity Interests of AIPC by Merger Sub pursuant to Section 2.04 of the AIPC
Transaction Agreement.
SECTION 6.10. Subordinated Indebtedness; Other Indebtedness. The Borrower will not,
and will not permit any Subsidiary to, make any amendment or modification to the indenture, note or
other agreement evidencing or governing any Subordinated Indebtedness, or directly or indirectly
voluntarily prepay, defease or in substance defease, purchase, redeem, retire or otherwise acquire,
any Subordinated Indebtedness.
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SECTION 6.11. Change in Corporate Structure; Fiscal Year. The Borrower shall not, nor
shall it permit any Subsidiary to, (a) permit any amendment or modification to be made to its
certificate or articles of incorporation or by-laws which is materially adverse to the interests of
the Lenders or (b) change its Fiscal Year to end on any date other than September 30 of each year.
SECTION 6.12. Inconsistent Agreements. The Borrower shall not, nor shall it permit
any Subsidiary to, enter into any indenture, agreement, instrument or other arrangement (other than
(u) the Existing Credit Agreement as in effect on the date hereof, (v) the note purchase agreements
for the Senior Notes as in effect on the date hereof, (w) the indenture for the Splitco Notes, as
originally in effect, (x) the note purchase agreement for the May 2009 Senior Notes, as in effect
on May 28, 2009, (y) the indenture for the August 2009 Senior Notes, as in effect on August 11,
2009 and (z) other agreements governing the Indebtedness (including, but not limited to, any
guarantees) of the Borrower or any Subsidiary permitted to be incurred pursuant to Section 6.02(g)
so long as the restrictions contained therein are not materially less favorable to the Lenders,
taken as a whole, than the restrictions contained in this Agreement) which, (a) directly or
indirectly prohibits or restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the incurrence of the Obligations, the granting of Liens to
secure the Obligations (other than agreements by the Borrower that it will grant Liens to secure
any Swap Agreement to the same extent as, and pari passu with, any Liens granted to secure the
Obligations), the provision of the Subsidiary Guaranty, the amending of the Loan Documents or the
ability of any Subsidiary (other than a special purpose Subsidiary created for the purpose of
entering into the Accounts Receivable Financing Program) to (i) pay dividends or make other
distributions on its capital stock, (ii) make loans or advances to the Borrower or (iii) repay
loans or advances from the Borrower or (b) contains any provision which would be violated or
breached by the making of Loans, by the issuance of Letters of Credit or by the performance by the
Borrower or any Subsidiary of any of its obligations under any Loan Document.
SECTION 6.13. ERISA Compliance.
With respect to any Plan, neither the Borrower nor any Subsidiary shall:
(a) engage in any “prohibited transaction” (as such term is defined in Section 406 of ERISA
or Section 4975 of the Code) for which a civil penalty pursuant to Section 502(i) of ERISA or a
tax pursuant to Section 4975 of the Code in excess of $10,000,000 could be imposed;
(b) permit the occurrence of any Termination Event which could result in a liability to the
Borrower or any other member of the Controlled Group in excess of $10,000,000; or
(c) permit the establishment or amendment of any Plan or fail to comply with the applicable
provisions of ERISA and the Code with respect to any Plan which could result in liability to the
Borrower or any other member of the Controlled Group which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
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SECTION 6.14. Restricted Payments. The Borrower will not, and will not permit any of
its Subsidiaries to, declare, pay or make, or agree to declare, pay or make, directly or
indirectly, any Restricted Payment, except (a) the Borrower may declare and pay dividends with
respect to its Equity Interests payable solely in additional shares of its common stock, (b)
Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests and (c)
so long as no Default exists immediately prior to or immediately after giving effect to such
Restricted Payment, the Borrower may make other Restricted Payments.
SECTION 6.15. Swap Agreements. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in
respect of Equity Interests of the Borrower or any of its Subsidiaries), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary.
SECTION 6.16. Sale and Leaseback Transactions. The Borrower will not, nor will it
permit any Subsidiary to, enter into or suffer to exist any Sale and Leaseback Transaction other
than Sale and Leaseback Transactions, the aggregate proceeds of which when added to the amount of
Indebtedness secured by Liens permitted under Section 6.08(j), do not exceed $35,000,000.
SECTION 6.17. Financial Covenants. The Borrower on a consolidated basis with its
Subsidiaries shall:
(a) Leverage Ratio. As of the end of each Fiscal Quarter, maintain a Leverage Ratio
of not more than 3.75:1.00; and
(b) Interest Expense Coverage Ratio. As of the end of each Fiscal Quarter, maintain
an Interest Expense Coverage Ratio of not less than 3.00:1.00.
SECTION 6.18. Borrowings under Existing Credit Agreement. The Borrower will not
request any Borrowings under the Existing Credit Agreement on any date unless the Revolving
Commitments are drawn on such date to the full extent of the aggregate Revolving Commitments on
such date.
ARTICLE VII
Events of Default
If any of the following events (“Events of Default”) shall occur:
(a) Any representation or warranty made or deemed made by or on behalf of the Borrower
or any of its Subsidiaries to the Lenders or the Administrative Agent under or in connection
with this Agreement, any other Loan Document, any Loan, any Letter of Credit or any
certificate or information delivered in connection with this Agreement or any other Loan
Document shall be false in any material respect on the date as of which made or deemed made;
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(b) Nonpayment of (i) any principal of any Loan or any reimbursement obligation in
respect of any LC Disbursement when due, or (ii) any interest upon any Loan or any
commitment fee or other fee or obligations under any of the Loan Documents within five days
after the same becomes due;
(c) The breach by the Borrower of any of the terms or provisions of Section 5.02,
Section 5.03(a), Section 5.10, Sections 6.01 through 6.12 and Sections 6.14 through Section
6.17;
(d) The breach by the Borrower (other than a breach which constitutes a Default under
clause (a), (b) or (c) of this Article) of any of the terms or provisions of this Agreement
which is not remedied within thirty (30) days after written notice from the Administrative
Agent or any Lender;
(e) Failure of the Borrower or any of its Subsidiaries to pay any Material Indebtedness
when due; or the default by the Borrower or any of its Subsidiaries in the performance of
any term, provision or condition contained in any agreement or agreements under which any
such Indebtedness was created or is governed, or the occurrence of any other event or
existence of any other condition, the effect of any of which is to cause, or to permit the
holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to
its stated maturity; or any such Indebtedness of the Borrower or any of its Subsidiaries
shall be declared to be due and payable or required to be prepaid (other than by a regularly
scheduled payment) prior to the stated maturity thereof;
(f) The Borrower or any of its Subsidiaries shall (i) have an order for relief entered
with respect to it under the federal bankruptcy laws as now or hereafter in effect, (ii)
make an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any Substantial Portion of its Property, (iv) institute any
proceeding seeking an order for relief under the federal bankruptcy laws as now or hereafter
in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material allegations of any
such proceeding filed against it, (v) take any corporate action to authorize or effect any
of the foregoing actions set forth in this clause (f), (vi) fail to contest in good faith
any appointment or proceeding described in clause (g) of this Article or (vii) become unable
to pay, not pay, or admit in writing its inability to pay, its debts generally as they
become due;
(g) Without the application, approval or consent of the Borrower or any of its
Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be
appointed for the Borrower or any of its Subsidiaries or any Substantial Portion of its
Property, or a proceeding described in clause (f)(iv) of this Article shall be instituted
against the Borrower or any of its Subsidiaries and such appointment continues undischarged
or such proceeding continues undismissed or unstayed for a period of thirty consecutive
days;
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(h) Any court, government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of (each a “Condemnation”), all or any
portion of the Property of the Borrower and its Subsidiaries which, when taken together with
all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated,
or taken custody or control of, during the twelve-month period ending with the month in
which any such Condemnation occurs, constitutes a Substantial Portion;
(i) The Borrower or any of its Subsidiaries shall fail within thirty days to pay, bond
or otherwise discharge any judgments or orders for the payment of an aggregate amount in
excess of $35,000,000, which is not covered by undisputed insurance or stayed on appeal or
otherwise being appropriately contested in good faith and as to which no enforcement actions
have been commenced;
(j) Any Change in Control shall occur;
(k) Except as otherwise expressly permitted hereby, the Subsidiary Guaranty shall fail
to remain in full force or effect or any action shall be taken to discontinue or to assert
the invalidity or unenforceability of the Subsidiary Guaranty, or any Guarantor shall fail
to comply with any of the terms or provisions of the Subsidiary Guaranty, or any Guarantor
denies that it has any further liability under the Subsidiary Guaranty, or gives notice to
such effect;
(l) Except as otherwise expressly permitted hereby, the Pledge Agreement shall cease to
be in full force and effect, or shall cease to give the Pledgee for the benefit of the
Secured Creditors, the Liens, rights, powers and privileges purported to be created thereby,
or any pledgor shall deny or disaffirm such pledgor’s obligations under the Pledge Agreement
or the Liens granted thereunder, or (ii) any pledgor shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed or observed
pursuant to the Pledge Agreement and such default shall continue beyond the period of grace,
if any, specifically applicable thereto pursuant to the terms of the Pledge Agreement;
(m) The Unfunded Liabilities of all Single Employer Plans shall exceed in the aggregate
an amount which could reasonably be expected to have a Material Adverse Effect or any
Reportable Event shall occur in connection with any Plan;
(n) The Borrower or any other member of the Controlled Group shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or
is being terminated, within the meaning of Title IV of ERISA, if as a result of such
reorganization or termination the aggregate annual contributions of the Borrower and the
other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which
are then in reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the respective plan years of each such
Multiemployer Plan immediately preceding the plan year in which the reorganization or
termination occurs by an amount exceeding $35,000,000; or
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(o) Mattnick shall (i) become subject to any conservation, rehabilitation or
liquidation order, directive or mandate issued by any Governmental Authority or (ii) become
subject to any other directive or mandate issued by any Governmental Authority which could
reasonably be expected to have a Material Adverse Effect which, in either case, is not
stayed within thirty (30) days.
then, and in every such event (other than an event with respect to the Borrower described in clause
(f) or (g) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower
described in clause (f) or (g) of this Article, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower. For purposes hereof, an Event of Default described in subsection (e) above
arising out of a breach by the Borrower of any financial covenant restricting any leverage ratio of
the Borrower contained in the note purchase agreements for the Senior Notes, the Existing Credit
Agreement, the indenture for the Splitco Notes, the note purchase agreement for the May 2009 Senior
Notes, the indenture for the August 2009 Senior Notes, any other agreement governing the
Indebtedness of the Borrower or any Subsidiary permitted to be incurred pursuant to Section 6.02(g)
or related documentation shall be deemed to be continuing hereunder notwithstanding its waiver,
whether accomplished by waiver, amendment or otherwise (a “Waiver”), by the lenders under
the Existing Credit Agreement and the holders of the Senior Notes, the Splitco Notes, the May 2009
Senior Notes, the August 2009 Senior Notes or such other Indebtedness permitted to be incurred
pursuant to Section 6.02(g), as applicable, unless (i) the holders of the applicable Indebtedness
receive no monetary or other consideration for such Waiver (including any prepayment of such
Indebtedness or agreement to prepay such Indebtedness) other than an amendment or waiver fee not
exceeding .10% of the aggregate principal amount of the applicable Indebtedness and (ii) the terms
of the applicable Indebtedness are not modified in any manner favorable to the holders of the
applicable Indebtedness in connection with such Waiver.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof, together
with such actions and powers as are reasonably incidental thereto.
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The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof
is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or
any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory
65
provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided for herein as well
as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent
which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon
the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the Administrative Agent’s resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them while it was acting as Administrative
Agent.
Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
The foregoing provisions of this Article VIII shall be applicable mutatis
mutandis to the Pledgee.
Without limiting the foregoing, if any collateral under any Pledge Agreement or any Subsidiary
is sold in a transaction permitted hereunder (excluding sales to the Borrower or a Subsidiary
thereof) then (a) as and to the extent provided in the Pledge Agreement, such collateral shall be
sold free and clear of the Liens created by the Pledge Agreement and (b) in the case of such a sale
of a Guarantor, such Guarantor and its subsidiaries shall be released from the Subsidiary Guaranty
and, in each case, the Administrative Agent shall be authorized to take any actions deemed
appropriate in order to effect the foregoing.
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to the Borrower or any Guarantor, to it at Ralcorp Holdings, Inc., 000 Xxxxxx
Xxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attention of Xxxxx Xxxxxxx, Corporate Vice
President, Treasurer and Corporate Development Officer (Telecopy No. (000) 000-0000);
(ii) if to the Administrative Agent or to JPMorgan Chase Bank, N.A. individually, to
JPMorgan Chase Bank, N.A., 00 Xxxxx Xxxxxxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxx 00000, Attention of
Sabana Xxxxxxx (Telecopy No. (000) 000-0000);
(iii) if to an Issuing Bank, to it c/o the Administrative Agent at the address set
forth in clause (ii) above;
(iv) if to the Swingline Lender, to it c/o the Administrative Agent at the address set
forth in clause (ii) above; and
(v) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by
the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may,
in its discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such procedures
may be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the Issuing Bank and the Lenders hereunder are
67
cumulative and are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom
shall in any event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing, the making of a
Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default,
regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice
or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without
the written consent of each Lender affected thereby, (iii) postpone the scheduled date of
amortization or payment of the principal amount of any Loan or LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment,
or postpone the scheduled date of expiration of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.19(b) or (c) or any other provision hereof in
a manner that would alter the pro rata sharing of payments required thereby (except for changes
pursuant to part (c) of the seventh sentence of Section 2.09(d)) or the definition of “Applicable
Percentage”, without the written consent of each Lender, (v) change any of the provisions of this
Section or the definition of “Required Lenders” or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder, without the written consent of each Lender or
(vi) release all or substantially all of the collateral under the Pledge Agreement(s) or release
any Guarantor from its obligations under the Subsidiary Guaranty, except as expressly permitted in
this Agreement, including, without limitation, in connection with the sale of a Guarantor or its
parent entity permitted under this Agreement, without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Issuing Bank or the Swingline Lender hereunder without the prior written
consent of the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all
reasonable out of pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent,
and all reasonable out of pocket expenses of the Lead Arrangers, in connection with the syndication
of the credit facilities provided for herein, the preparation and administration of this Agreement
or any actual or proposed amendments, modifications or waivers of the provisions hereof (whether or
not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any Lender,
including the fees, charges and
68
disbursements of any counsel for the Administrative Agent, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank, the Pledgee, the
Lead Arrangers and each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release
of Hazardous Materials on or from any Property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether such claim, litigation or proceeding is brought by the Borrower, any of its
Subsidiaries, their equity holders or creditors, a third party or an Indemnitee, or whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent jurisdiction by final and nonappealable judgment
to have resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank, the Swingline Lender or the Pledgee under paragraph (a) or
(b) of this Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing
Bank or the Swingline Lender, as the case may be, such Lender’s ratable share (determined as of
the time that the applicable unreimbursed expense or indemnity payment is sought by reference to
the aggregate outstanding Term Loans and Revolving Commitments (or, if such Revolving Commitments
have terminated, aggregate Revolving Credit Exposure)) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank or
the Swingline Lender in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument
69
contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after written demand
therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i)Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans at the time owing to it) with the
prior written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of
Default has occurred and is continuing, any other assignee;
(B) the Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment of (x) any Revolving Commitment to an assignee
that is a Lender with a Revolving Commitment immediately prior to giving effect to such
assignment and (y) all or any portion of a Term Loan to a Lender, an Affiliate of a Lender
or an Approved Fund; and
(C) the Issuing Bank, provided that no consent of the Issuing Bank shall be required
for an assignment of all or any portion of a Term Loan.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of
any Class, the amount of the Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000
or, in the case of a Term Loan, $1,000,000, unless each of the Borrower and the
Administrative Agent otherwise
70
consent, provided that no such consent of the Borrower shall be required if an
Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement, provided
that this clause shall not be construed to prohibit the assignment of a proportionate part
of all the assigning Lender’s rights and obligations in respect of one Class of Commitments
or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire in which the assignee designates one or more Credit
Contacts to whom all syndicate-level information (which may contain material non-public
information about the Borrower and its affiliates, the Guarantors and their related parties
or their respective securities) will be made available and who may receive such information
in accordance with the assignee’s compliance procedures and applicable laws, including
Federal and state securities laws.
For the purposes of this Section 9.04(b), the term “Approved Fund” has the following
meaning:
“Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.16, 2.17, 2.18 and 9.03).
Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the
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Lenders, and the Commitments of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be available
for inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register;
provided that if either the assigning Lender or the assignee shall have failed to
make any payment required to be made by it pursuant to Section 2.05(c), 2.06(d) or (e),
2.07(b), 2.19(d) or 9.03(c), the Administrative Agent shall have no obligation to accept
such Assignment and Assumption and record the information therein in the Register unless and
until such payment shall have been made in full, together with all accrued interest thereon.
No assignment shall be effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent, the
Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities
(a “Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, the Issuing Bank and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, modification
or waiver described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.16, 2.17 and 2.18 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08
as though it were a Lender, provided such Participant agrees to be subject to Section 2.19(c) as
though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Section
2.16 or 2.18 than the applicable Lender would have been entitled to receive with
72
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.18 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.18(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.16, 2.17, 2.18 and 9.03
and Article VIII shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this Agreement or any provision
hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
73
the extent of such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against
any of and all the obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of setoff) which such
Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its Property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right
that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement against the Borrower or its Properties in the
courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING
74
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank and
the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) 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), (b) to the extent requested by
any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the
extent such Information (i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent, the Issuing Bank or any Lender on a
non-confidential basis from a source other than the Borrower. For the purposes of this Section,
“Information” means all information received from the Borrower relating to the Borrower or
its business, other than any such information that is available to the Administrative Agent, the
Issuing Bank or any Lender on a non-confidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the date hereof,
such information is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND
ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-
75
PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE
WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER
AND ITS AFFILIATES, AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES) AND ITS SECURITIES.
ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS
IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT
MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND
APPLICABLE LAW.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.14. USA PATRIOT Act. Each Lender that is subject to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) hereby
notifies the Borrower that pursuant to the requirements of the Act, it is required to obtain,
verify and record information that identifies the Borrower, which information includes the name and
address of the Borrower and other information that will allow such Lender to identify the Borrower
in accordance with the Act.
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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.
RALCORP HOLDINGS, INC. | ||||||
By | ||||||
Name: | ||||||
Title: | ||||||
JPMORGAN CHASE BANK, N.A., individually, as Administrative Agent, Swingline Lender and Issuing Bank | ||||||
By | ||||||
Name: | ||||||
Title: | ||||||
BANK OF AMERICA, N.A. | ||||||
By | ||||||
Name: | ||||||
Title: | ||||||
SUNTRUST BANK | ||||||
By | ||||||
Name: | ||||||
Title: | ||||||
[OTHER BANKS] | ||||||
By | ||||||
Name: | ||||||
Title: |
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Schedule 1.01
PRICING SCHEDULE
Xxxxx X | Xxxxx XX | Xxxxx XXX | Xxxxx XX | |||||||||||||
Applicable Rate | Status | Status | Status | Status | ||||||||||||
Eurodollar
Spread |
2.00 | % | 2.25 | % | 2.50 | % | 2.75 | % | ||||||||
ABR
Spread |
1.00 | % | 1.25 | % | 1.50 | % | 1.75 | % | ||||||||
Commitment Fee
Rate |
.25 | % | .30 | % | .35 | % | .40 | % |
For the purposes of this Schedule, the following terms have the following meanings, subject to
the final paragraph of this Schedule:
“Financials” means the annual or quarterly financial statements of the Borrower delivered
pursuant to Section 5.01 of this Agreement.
“Level I Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, the Net Leverage Ratio is less than or equal to
2.50 to 1.00.
“Level II Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status and (ii) the Net Leverage Ratio is less than or equal to 3.00 to 1.00.
“Level III Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status or Level II Status and (ii) the Net Leverage Ratio is less than or equal to 3.50 to 1.00.
“Level IV Status” exists at any date if the Borrower has not qualified for Level I Status,
Level II Status or Level III Status.
“Status” means Level I Status, Level II Status, Level III Status or Level IV Status.
The Applicable Rate shall be determined in accordance with the foregoing table based on the
Borrower’s Status as reflected in the then most recent Financials. Adjustments, if any, to the
Applicable Rate shall be effective five Business Days after the Administrative Agent has received
the applicable Financials. If the Borrower fails to deliver the Financials to the Administrative
Agent at the time required pursuant to the Credit Agreement, then the Applicable Rate shall be the
highest Applicable Rate set forth in the foregoing table until five Business Days after such
Financials are so delivered. Until adjusted after delivery of the Financials for the Fiscal
Quarter ending December 31, 2010, Level III Status shall be deemed to exist.
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Schedule 2.01
Commitments
Revolving | Term | Total | ||||||||||
Lender | Commitment | Commitment | Commitment | |||||||||
JPMorgan Chase Bank, N.A. |
$ | 27,000,000 | $ | 18,000,000 | $ | 45,000,000 | ||||||
Bank of America, N.A. |
$ | 27,000,000 | $ | 18,000,000 | $ | 45,000,000 | ||||||
SunTrust Bank |
$ | 27,000,000 | $ | 18,000,000 | $ | 45,000,000 | ||||||
Deutsche Bank AG New York Branch |
$ | 22,500,000 | $ | 15,000,000 | $ | 37,500,000 | ||||||
Xxxxx Fargo Bank, N.A. |
$ | 22,500,000 | $ | 15,000,000 | $ | 37,500,000 | ||||||
The Bank of Tokyo—Mitsubishi UFJ, Ltd. |
$ | 22,500,000 | $ | 15,000,000 | $ | 37,500,000 | ||||||
AgFirst Farm Credit Bank |
$ | 22,500,000 | $ | 15,000,000 | $ | 37,500,000 | ||||||
CoBank, ACB |
$ | 22,500,000 | $ | 15,000,000 | $ | 37,500,000 | ||||||
Credit Suisse AG |
$ | 22,500,000 | $ | 15,000,000 | $ | 37,500,000 | ||||||
PNC Bank, National Association |
$ | 17,700,000 | $ | 11,800,000 | $ | 29,500,000 | ||||||
Bank of the West |
$ | 14,400,000 | $ | 9,600,000 | $ | 24,000,000 | ||||||
U.S. Bank, National Association |
$ | 14,400,000 | $ | 9,600,000 | $ | 24,000,000 | ||||||
BMO Bank of Montreal |
$ | 9,000,000 | $ | 6,000,000 | $ | 15,000,000 | ||||||
Farm Credit Bank of Texas |
$ | 9,000,000 | $ | 6,000,000 | $ | 15,000,000 | ||||||
Greenstone Farm Credit Services, ACA/FLCA |
$ | 7,500,000 | $ | 5,000,000 | $ | 12,500,000 | ||||||
Commerce Bank, N.A. |
$ | 6,000,000 | $ | 4,000,000 | $ | 10,000,000 | ||||||
FCS Financial, PCA |
$ | 6,000,000 | $ | 4,000,000 | $ | 10,000,000 | ||||||
Total |
$ | 300,000,000 | $ | 200,000,000 | $ | 500,000,000 |
2