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Published CUSIP Number: 00000XXX0
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of March 16, 2006
among
COLUMBUS XXXXXXXX CORPORATION,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS........................2
1.01. Defined Terms...............................................2
1.02. Other Interpretive Provisions..............................27
1.03. Accounting Terms...........................................28
1.04. Rounding...................................................28
1.05. Times of Day...............................................28
1.06. Letter of Credit Amounts...................................28
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS..................29
2.01. Committed Loans............................................29
2.02. Borrowings, Conversions and Continuations of
Committed Loans............................................29
2.03. Letters of Credit..........................................31
2.04. Swing Line Loans...........................................39
2.05. Prepayments................................................42
2.06. Termination or Reduction of Commitments....................43
2.07. Repayment of Loans.........................................44
2.08. Interest...................................................45
2.09. Fees.......................................................46
2.10. Computation of Interest and Fees...........................46
2.11. Evidence of Debt...........................................47
2.12. Payments Generally; Administrative Agent's Clawback........47
2.13. Sharing of Payments by Lenders.............................49
2.14. Increase in Commitments....................................50
2.15. Collateral Security........................................51
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY.................51
3.01. Taxes......................................................51
3.02. Illegality.................................................53
3.03. Inability to Determine Rates...............................54
3.04. Increased Costs; Reserves on Eurodollar Rate Loans.........54
3.05. Compensation for Losses....................................56
3.06. Mitigation Obligations; Replacement of Lenders.............56
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3.07. Survival...................................................57
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS..............57
4.01. Conditions of Initial Credit Extension.....................57
4.02. Conditions to all Credit Extensions........................59
ARTICLE V. REPRESENTATIONS AND WARRANTIES.........................60
5.01. Existence, Qualification and Power.........................60
5.02. Authorization; No Contravention............................60
5.03. Governmental Authorization; Other Consents.................60
5.04. Binding Effect.............................................61
5.05. Financial Statements; No Material Adverse Effect;
No Internal Control Event..................................61
5.06. Litigation.................................................62
5.07. No Default.................................................62
5.08. Ownership of Property; Liens...............................62
5.09. Environmental Compliance...................................62
5.10. Insurance..................................................62
5.11. Taxes......................................................62
5.12. ERISA Compliance...........................................63
5.13. Subsidiaries; Equity Interests.............................63
5.14. Margin Regulations; Investment Company Act;
Public Utility Holding Company Act.........................63
5.15. Disclosure.................................................64
5.16. Compliance with Laws.......................................64
5.17. Taxpayer Identification Number.............................64
5.18. Intellectual Property; Licenses, Etc.......................64
5.19. Perfection of Security Interest............................65
5.20. Properties.................................................65
5.21. Solvency...................................................65
5.22. Bank Accounts..............................................65
5.23. Obligations as Senior Debt.................................65
5.24. Use of Proceeds............................................65
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ARTICLE VI. AFFIRMATIVE COVENANTS..................................66
6.01. Financial Statements.......................................66
6.02. Certificates; Other Information............................67
6.03. Notices....................................................68
6.04. Payment of Obligations.....................................69
6.05. Preservation of Existence, Etc.............................69
6.06. Maintenance of Properties..................................69
6.07. Maintenance of Insurance...................................70
6.08. Compliance with Laws, Organizational Documents
and Contractual Obligations................................70
6.09. Books and Records..........................................70
6.10. Inspection Rights..........................................70
6.11. Use of Proceeds............................................70
6.12. Additional Guarantors and Pledgors.........................70
6.13. Mortgages..................................................71
6.14. Post-Closing Deliveries....................................71
ARTICLE VII. NEGATIVE COVENANTS.....................................72
7.01. Liens......................................................72
7.02. Investments................................................73
7.03. Indebtedness...............................................73
7.04. Fundamental Changes........................................75
7.05. Dispositions...............................................75
7.06. Restricted Payments........................................76
7.07. Change in Nature of Business...............................77
7.08. Transactions with Affiliates...............................77
7.09. Burdensome Agreements......................................77
7.10. Use of Proceeds............................................77
7.11. Financial Covenants........................................77
7.12. Modifications of Certain Documents; Designation
of Senior Debt.............................................78
7.13. Sale-Leaseback Transactions................................78
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ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES.........................78
8.01. Events of Default..........................................78
8.02. Remedies Upon Event of Default.............................80
8.03. Application of Funds.......................................81
ARTICLE IX. ADMINISTRATIVE AGENT...................................82
9.01. Appointment and Authority..................................82
9.02. Rights as a Lender.........................................82
9.03. Exculpatory Provisions.....................................82
9.04. Reliance by Administrative Agent...........................83
9.05. Delegation of Duties.......................................83
9.06. Resignation of Administrative Agent........................84
9.07. Non-Reliance on Administrative Agent and Other Lenders.....85
9.08. No Other Duties, Etc.......................................85
9.09. Administrative Agent May File Proofs of Claim..............85
9.10. Collateral and Guaranty Matters............................86
9.11. Intercreditor Agreement....................................86
ARTICLE X. MISCELLANEOUS..........................................86
10.01. Amendments, Etc............................................86
10.02. Notices; Effectiveness; Electronic Communication...........88
10.03. No Waiver; Cumulative Remedies.............................89
10.04. Expenses; Indemnity; Damage Waiver.........................90
10.05. Payments Set Aside.........................................92
10.06. Successors and Assigns.....................................92
10.07. Treatment of Certain Information; Confidentiality..........97
10.08. Right of Setoff............................................97
10.09. Interest Rate Limitation...................................98
10.10. Counterparts; Integration; Effectiveness...................98
10.11. Survival of Representations and Warranties.................98
10.12. Severability...............................................99
10.13. Replacement of Lenders.....................................99
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10.14. Governing Law; Jurisdiction; Etc..........................100
10.15. Waiver of Jury Trial......................................100
10.16. No Advisory or Fiduciary Responsibility...................101
10.17. USA PATRIOT Act Notice....................................102
10.18. Time of the Essence.......................................102
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SCHEDULES
2.01 Commitments and Applicable Percentages
5.05 Material Indebtedness and Other Liabilities at January 1, 2006
5.06 Litigation
5.09 Environmental Matters
5.13 Subsidiaries; Other Equity Investments
5.18 Intellectual Property Matters
5.20 Fee and Leasehold Real Property Assets
5.22 Bank Accounts
6.13 Material Leasehold Real Estate Assets
7.01 Existing Liens
7.03 Existing Indebtedness
7.05 Permitted Exclusive Licenses of IP Rights
7.09 Burdensome Agreements
10.02 Administrative Agent's Office; Certain Addresses for Notices
10.06 Processing and Recordation Fees
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption
F Guaranty
G Opinion Matters
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED CREDIT AGREEMENT ("AGREEMENT") is dated as
of March 16, 2006, among COLUMBUS XXXXXXXX CORPORATION, a New York corporation
(the "BORROWER"), each lender from time to time party hereto (collectively, the
"LENDERS" and individually, a "LENDER"), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.
WHEREAS, the Borrower has previously entered into that certain Credit
Agreement dated as of March 31, 1998 (as amended, the "ORIGINAL CREDIT
AGREEMENT"), among the Borrower, the lenders named therein, and Fleet National
Bank, as Agent;
WHEREAS, the Borrower, Larco Industrial Services Ltd, a business
corporation organized under the laws of the Province of Ontario, Columbus
XxXxxxxx Limited, a business corporation organized under the laws of Canada, the
Guarantors named therein, the lenders from time to time party thereto, Fleet
Capital Corporation, as Administrative Agent, Fleet National Bank, as L/C Issuer
and Fleet Securities, Inc., as Arranger have previously entered into that
certain Amended and Restated Credit and Security Agreement, dated as of November
21, 2002 (as amended, by the First Amendment, dated as of June 5, 2003 and the
Second Amendment, dated as of July 21, 2003, the "FIRST AMENDED AND RESTATED
CREDIT AGREEMENT"), which First Amended and Restated Credit Agreement amended
and restated the Original Credit Agreement and, together with the Loan Documents
(as defined therein) evidenced the rights, obligations, liens, security
interests, and collateral security assigned pursuant to the Assignment (as
defined below);
WHEREAS, pursuant to a certain Assignment and Acceptance, dated November
21, 2002 (the "ASSIGNMENT"), among the Borrower, the lenders party to the
Original Credit Agreement, the Administrative Agent and the Lenders party to the
First Amended and Restated Credit Agreement, (i) the lenders under the Original
Credit Agreement assigned to the Lenders under the First Amended and Restated
Credit Agreement the outstanding loans and other obligations under the Original
Credit Agreement and (ii) the Agent under the Original Credit Agreement assigned
to the Administrative Agent under the First Amended and Restated Credit
Agreement all of its liens, security interests, and collateral security under
the Original Credit Agreement;
WHEREAS, the Borrower, Larco Industrial Services Ltd, a business
corporation organized under the laws of the Province of Ontario, Columbus
XxXxxxxx Limited, a business corporation organized under the laws of Canada, the
Guarantors named therein, the lenders from time to time party thereto, Fleet
Capital Corporation, as Administrative Agent, Fleet National Bank, as L/C Issuer
and Fleet Securities, Inc., as Arranger have previously entered into that
certain Second Amended and Restated Credit and Security Agreement, dated as of
November 21, 2002 and amended and restated as of January 2, 2004, (as amended by
that certain First Amendment to the Second Amended and Restated Credit
Agreement, dated as of April 29, 2005, and by that certain Second Amendment to
the Second Amended and Restated Credit Agreement, dated as of August 5, 2005,
and by that certain Third Amendment to the Second Amended and Restated Credit
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Agreement, dated as of August 22, 2005, and by that certain Fourth Amendment to
Second Amended and Restated Credit Agreement, dated as of October 17, 2005, the
"SECOND AMENDED AND RESTATED CREDIT AGREEMENT"), which Second Amended and
Restated Credit Agreement amended and restated the First Amended and Restated
Credit Agreement and, together with the Loan Documents (as defined therein)
evidenced the rights, obligations, liens, security interests, and collateral
security assigned pursuant to the Assignment;
WHEREAS, pursuant to a certain Assignment and Assumption Agreement, dated
the Closing Date (as defined below), among the Borrower, the lenders party to
the Second Amended and Restated Credit Agreement, the Administrative Agent and
Bank of America, N.A., as Lender, the lenders under the Second Amended and
Restated Credit Agreement assigned to the Administrative Agent, the outstanding
loans and other obligations under the Second Amended and Restated Credit
Agreement and, as further described in SECTION 2.01(B) of this Agreement, the
Administrative Agent shall make a subsequent assignment of the Commitments
hereunder to the Lenders party hereto in the amounts set forth on SCHEDULE 2.01
to this Agreement; and
WHEREAS, it is the intention and desire of the parties that the loans and
other obligations under the Second Amended and Restated Credit Agreement be
amended and restated as set forth herein such that the obligations of the Credit
Parties (as defined therein) and the rights, liens, security interests, and
collateral security of the Administrative Agent and the Lenders thereunder shall
hereafter be evidenced by this Agreement, the Assignment and the other Loan
Documents referred to herein.
NOW, THEREFORE, the parties agree that, effective as of the Closing Date
(as defined below), the Second Amended and Restated Credit Agreement shall be
amended and restated as set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01. DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"ADDITIONAL SUBORDINATED INDEBTEDNESS" means Indebtedness subordinated to
the Obligations on terms and conditions satisfactory to the Administrative Agent
in an aggregate amount not in excess of $75,000,000 during the term of this
Agreement permitted to be incurred pursuant to SECTION 7.03 and used by a Loan
Party within 90 days after the incurrence of such Indebtedness or such longer
period as may be agreed, in writing, by the Administrative Agent to (a)
repurchase and/or refinance the Senior Notes or (b) purchase assets or equity
interests so long as such acquisitions are permitted pursuant to SECTION 7.02.
"ADMINISTRATIVE AGENT" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
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"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's address
and, as appropriate, account as set forth on SCHEDULE 10.02, or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"AGGREGATE COMMITMENTS" means the Commitments of all the Lenders.
"AGREEMENT" means this Credit Agreement.
"APPLICABLE PERCENTAGE" means with respect to any Lender at any time, the
percentage (carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender's Commitment at such time. If the commitment of each
Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to SECTION 8.02 or if the Aggregate
Commitments have expired, then the Applicable Percentage of each Lender shall be
determined based on the Applicable Percentage of such Lender most recently in
effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on
SCHEDULE 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.
"APPLICABLE RATE" means, from time to time, the following percentages per
annum, based upon the Senior Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to SECTION
6.02(A):
------- ---------------------------- ---------- ---------- ---------- ---------
LEVEL SENIOR LEVERAGE RATIO COMMITMENT EURODOLLAR LETTER OF BASE RATE
FEE RATE + CREDIT FEE +
------- ---------------------------- ---------- ---------- ---------- ---------
I Greater than or equal to 0.250% 1.750% 1.750% 0.750%
2.50x
------- ---------------------------- ---------- ---------- ---------- ---------
II Less than 2.50x but 0.200% 1.500% 1.500% 0.500%
greater than or equal to
2.00x
------- ---------------------------- ---------- ---------- ---------- ---------
III Less than 2.00x but 0.175% 1.250% 1.250% 0.250%
greater than or equal to
1.50x
------- ---------------------------- ---------- ---------- ---------- ---------
IV Less than 1.50x but 0.150% 1.000% 1.000% 0%
greater than or equal to
1.00x
------- ---------------------------- ---------- ---------- ---------- ---------
V Less than 1.00x 0.125% 0.875% 0.875% 0%
------- ---------------------------- ---------- ---------- ---------- ---------
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Any increase or decrease in the Applicable Rate resulting from a change in
the Senior Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to
SECTION 6.02(A); provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then Pricing Level I shall
apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered. The Applicable Rate in effect
from the Closing Date through March 31, 2006 shall be determined based upon
Pricing Level IV.
"APPROVED RESTRUCTURING CHARGES" means cash or non-cash restructuring
charges incurred by the Borrower and/or its Subsidiaries in an aggregate amount
not to exceed $3,750,000 during the term of this Agreement; PROVIDED however,
amounts in excess of $2,000,000 in restructuring charges for any one facility,
plant or other Property shall not constitute Approved Restructuring Charges
unless approved, in writing, by the Administrative Agent.
"ARRANGER" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"ASSIGNEE GROUP" means two or more Eligible Assignees that are Affiliates
of one another.
"ASSIGNMENTS OF MORTGAGE" means the several Assignments of Mortgage, made
in favor the Administrative Agent, with respect to certain of the real property
assets of the Loan Parties.
"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 10.06(B), and accepted by the Administrative Agent, in
substantially the form of EXHIBIT E or any other form approved by the
Administrative Agent.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"AUDITED FINANCIAL STATEMENTS" means the audited consolidated balance sheet
of the Borrower and its Subsidiaries for the fiscal year ended March 31, 2005,
and the related consolidated statements of income or operations, shareholders'
equity and cash flows for such fiscal year of the Borrower and its Subsidiaries,
including the notes thereto.
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"AUDUBON EUROPE" means Audubon Europe S.A.R.L., a private limited liability
company ("societe a responsabilite limitee") incorporated and existing under the
laws of Luxembourg, with its registered office at X-0000 Xxxxxxxxxx, 00 xxx xx
Xxxx, registered with the Luxembourg Register of commerce and companies under
number B 88,221, whose corporate capital is fixed at EUR 4,268,000.00.
"AVAILABILITY PERIOD" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to SECTION 2.06, and (c) the date of termination
of the commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to SECTION 8.02.
"BANK OF AMERICA" means Bank of America, N.A. and its successors.
"BASE RATE" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"BASE RATE COMMITTED LOAN" means a Committed Loan that is a Base Rate Loan.
"BASE RATE LOAN" means a Loan that bears interest based on the Base Rate.
"BORROWER" has the meaning specified in the introductory paragraph hereto.
"BORROWER MATERIALS" has the meaning specified in SECTION 6.02.
"BORROWER SECURITY AGREEMENT" means that certain Security Agreement, dated
as of the date hereof, from the Borrower to the Administrative Agent, for the
benefit of the Lenders.
"BORROWING" means a Committed Borrowing or a Swing Line Borrowing, as the
context may require.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"CALCULATION DATE" has the meaning specified in SECTION 2.07(C)(II).
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
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conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"CASH COLLATERALIZE" has the meaning specified in SECTION 2.03(G).
"CASUALTY EVENT" means, with respect to any property of any Person, any
loss of or damage to, or any condemnation or other taking of, such property for
which such Person or any of its Subsidiaries receives insurance proceeds, or
proceeds of a condemnation award or other compensation.
"CHANGE IN LAW" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"CHANGE OF CONTROL" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit
plan of such person or its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such plan)
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be deemed
to have "beneficial ownership" of all securities that such person or group has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time (such right, an "OPTION RIGHT")), directly or
indirectly, of 25% or more of the equity securities of the Borrower entitled to
vote for members of the board of directors or equivalent governing body of the
Borrower on a fully-diluted basis (and taking into account all such securities
that such person or group has the right to acquire pursuant to any option
right);
(b) during any period of 24 consecutive months, a majority of the members
of the board of directors or other equivalent governing body of the Borrower
cease to be composed of individuals (i) who were members of that board or
equivalent governing body on the first day of such period, (ii) whose election
or nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case of
both clause (ii) and clause (iii), any individual whose initial nomination for,
or assumption of office as, a member of that board or equivalent governing body
occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or
group other than a solicitation for the election of one or more directors by or
on behalf of the board of directors);
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(c) any Person or two or more Persons acting in concert shall have acquired
by contract or otherwise, or shall have entered into a contract or arrangement
that, upon consummation thereof, will result in its or their acquisition of the
power to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower, or control over the equity securities of
the Borrower entitled to vote for members of the board of directors or
equivalent governing body of the Borrower on a fully-diluted basis (and taking
into account all such securities that such Person or group has the right to
acquire pursuant to any option right) representing 25% or more of the combined
voting power of such securities;
(d) the Borrower shall cease to have beneficial ownership (as defined in
Rule 13d-3 under the Exchange Act) of 100% of the aggregate voting power of the
Capital Stock of each other Loan Party, free and clear of all Liens (other than
any Liens granted hereunder and Permitted Liens); or
(e) a "Change of Control" shall occur under the Senior Subordinated Note
Indenture or the Senior Note Indenture.
"CLOSING DATE" means the first date all the conditions precedent in SECTION
4.01 are satisfied or waived in accordance with SECTION 10.01.
"CODE" means the Internal Revenue Code of 1986.
"COLLATERAL" means all of the property, rights and interests of the Loan
Parties and their Subsidiaries that are or are intended to be subject to the
Liens created by the Security Documents.
"COMMITMENT" means, as to each Lender, its obligation to (a) make Committed
Loans to the Borrower pursuant to SECTION 2.01, (b) purchase participations in
L/C Obligations, and (c) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender's name on SCHEDULE 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this
Agreement.
"COMMITTED BORROWING" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders pursuant to SECTION
2.01.
"COMMITTED LOAN" has the meaning specified in SECTION 2.01.
"COMMITTED LOAN NOTICE" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a continuation
of Eurodollar Rate Loans, pursuant to SECTION 2.02(A), which, if in writing,
shall be substantially in the form of EXHIBIT A.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form of
EXHIBIT D.
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"CONSOLIDATED EBITDA" means, for any period and without duplication, (a)
the net income of the Borrower and its Subsidiaries (determined on a
consolidated basis in accordance with GAAP) for such period, PLUS (b) to the
extent deducted in calculating net income (i) income taxes expensed during such
period, (ii) Interest Expense during such period, (iii) depreciation,
amortization and other Non-Cash Charges accrued for such period, (iv) Approved
Restructuring Charges incurred during such period, (v) the amount of any premium
paid on the repurchase of the Senior Subordinated Notes, (vi) the amount of any
premium paid on the repurchase of the Senior Notes and (vii) non-cash losses
from any Casualty Event, Disposition or discontinued operation during such
period MINUS (c) to the extent such items were added in calculating net income
(i) extraordinary gains during such period, (ii) gains from any Casualty Event,
Disposition, or discontinued operation during such period, (iii) interest and
other income (excluding interest and other income related to CM Insurance
Company, Inc.) during such period, (iv) Federal, state, local and foreign income
tax credits of the Borrower and its Subsidiaries for such period and (v) all
non-cash items increasing Consolidated Net Income for such period.
"CONSOLIDATED NET INCOME" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"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.
"COPYRIGHT MORTGAGE" means any grant of security interest in copyrights,
made by any Loan Party in favor of the Administrative Agent, or any of its
predecessors, including, without limitation that certain Memorandum of Grant of
Security Interest in Copyrights, dated as of November 21, 2002, between Yale
Industrial Products, Inc. and Fleet Capital Corporation (n/k/a Bank of America,
N.A.) as agent, as amended, restated, replaced or assigned from time to time,
including as amended by that certain First Amendment to Memorandum of Grant of
Security Interest in Copyrights, dated as of the Closing Date.
"CREDIT EXTENSION" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"DEFAULT" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
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"DEFAULT RATE" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate PLUS (ii) the
Applicable Rate, if any, applicable to Base Rate Loans PLUS (iii) 2% per annum;
PROVIDED, HOWEVER, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used
with respect to Letter of Credit Fees, a rate equal to the Applicable Rate PLUS
2% per annum.
"DEFAULTING LENDER" means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder unless such
failure has been cured, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within one Business Day of the date when due, unless the subject of
a good faith dispute or unless such failure has been cured, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"DISPOSITION" or "DISPOSE" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"DOLLAR" and "$" mean lawful money of the United States.
"DOLLAR EQUIVALENT" means, on any particular date, with respect to any
amount denominated in Dollars, such amount of Dollars, and with respect to any
amount denominated in a currency other than Dollars, the amount (as conclusively
ascertained by the Administrative Agent absent manifest error) of Dollars which
could be purchased by the Administrative Agent with such amount or currency (in
accordance with its normal banking practices) in the applicable foreign currency
deposit markets with such amount of such currency at the spot rate of exchange
prevailing at or about 11:00 a.m. (Boston time) on such date.
"DOMESTIC SUBSIDIARY" means any Subsidiary that is organized under the laws
of any political subdivision of the United States.
"ELIGIBLE ASSIGNEE" means any Person that meets the requirements to be an
assignee under SECTION 10.06(B)(III), (V) and (VI) (subject to such consents, if
any, as may be required under SECTION 10.06(B)(III)).
"ENVIRONMENTAL INDEMNITY AGREEMENT" means that certain Environmental
Indemnity Agreement, dated as of the date hereof, among the Borrower, Yale
Industrial Products, Inc., Crane Equipment & Service, Inc. and the
Administrative Agent.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
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hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"EQUITY INTERESTS" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"EURODOLLAR RATE" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., Xxxxxx
X-00
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"EURODOLLAR RATE LOAN" means a Committed Loan that bears interest at a rate
based on the Eurodollar Rate.
"EVENT OF DEFAULT" has the meaning specified in SECTION 8.01.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under SECTION 10.13), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
SECTION 3.01(E), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to SECTION 3.01(A).
"EXISTING CREDIT AGREEMENT" has the meaning assigned to such term in the
Recitals.
"EXISTING LETTERS OF CREDIT" means any Letter of Credit issued by the
Administrative Agent under the Second Amended and Restated Credit Agreement.
"EXTRAORDINARY RECEIPTS" means any cash received by the Borrower or any of
its Subsidiaries not in the ordinary course of business (and not consisting of
proceeds described in SECTIONS 2.06 (B), (D) or (E) hereof), including, without
limitation, (a) pension plan reversions, (b) proceeds of insurance, (c)
judgments, proceeds of settlements or other consideration of any kind in
connection with any cause of action, (d) condemnation awards (and payments in
lieu thereof), and (e) indemnity payments; provided that, notwithstanding the
foregoing, (i) amounts received with respect to any claim made by the Borrower
for over-billing against Blue Cross and Blue Shield and (ii) amounts received by
any Loan Party from the proceeds of that certain escrow account established by
Spreckles Industries, Inc. (with such account currently being held by Yale
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Industrial Products, Inc.) to cover worker's compensation claims made against
Spreckles Industries, Inc., shall not constitute Extraordinary Receipts.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; PROVIDED that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"FEE LETTER" means the letter agreement, dated February 15, 2006, among the
Borrower, the Administrative Agent and the Arranger.
"FIRST AMENDED AND RESTATED CREDIT AGREEMENT" has the meaning assigned to
such term in the Recitals.
"FIXED CHARGE COVERAGE RATIO" means, for any Reference Period, the ratio of
(a) (i) Consolidated EBITDA for such Reference Period MINUS (ii) the aggregate
amount of all Capital Expenditures during such Reference Period MINUS (iii) the
aggregate amount paid, or required to be paid (without duplication), in cash
(but in no event less than zero in the aggregate) in respect of the current
portion of all income taxes for such Reference Period to (b) the sum for the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of (i) the aggregate amount of Interest
Expense for such Reference Period, MINUS, to the extent included in Interest
Expense, the amortization during such Reference Period of financing costs
incurred in connection with Indebtedness, PLUS (ii) the aggregate amount of
regularly scheduled payments of principal in respect of Indebtedness for
borrowed money (including the principal component of any payments in respect of
Capital Lease Obligations) paid or required to be paid during such Reference
Period PLUS (iii) all Restricted Payments made under SECTION 7.06(F) during such
period.
"FOREIGN LC EXPOSURE" means, at any time, the sum of the Dollar Equivalent
amounts of (a) 100% of the aggregate undrawn amount of all outstanding Letters
of Credit issued in an Optional Currency at such time, PLUS (b) the aggregate
amount of all Letters of Credit issued in an Optional Currency that have not yet
been reimbursed by or on behalf of any Loan Party at such time.
"FOREIGN LENDER" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Borrower organized under
the laws of any jurisdiction other than the United States of America or any
State thereof.
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"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"FUND" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"GOVERNMENTAL AUTHORITY" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"GRANTING LENDER" has the meaning specified in SECTION 10.06(H).
"GUARANTEE" means, as to any Person, any (a) obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
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"GUARANTORS" means, collectively, each Subsidiary of the Borrower listed as
"Guarantor" on the signature pages hereto and each other Person which becomes a
Guarantor hereunder after the Closing Date by complying with the requirements of
SECTION 6.12.
"GUARANTOR SECURITY AGREEMENTS" means, collectively (a) each Security
Agreement, dated as of the date hereof, from a Guarantor to the Administrative
Agent, for the benefit of the Lenders and (b) each additional security agreement
executed by a Guarantor pursuant to SECTION 6.12.
"GUARANTY" means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders, substantially in the form of EXHIBIT F.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"INDEBTEDNESS" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations
of such Person evidenced by bonds, debentures, notes, loan agreements or other
similar instruments;
(b) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers' acceptances, bank
guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course
of business and, in each case, not past due for more than 90 days after the date
on which such trade account payable was created);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited in
recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Equity Interest in such Person or
any other Person, valued, in the case of a redeemable preferred interest, at the
greater of its voluntary or involuntary liquidation preference PLUS accrued and
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unpaid dividends; and (h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITEES" has the meaning specified in SECTION 10.04(B).
"INFORMATION" has the meaning specified in SECTION 10.07.
"INTELLECTUAL PROPERTY SECURITY AGREEMENTS" means each Trademark Agreement,
Patent Agreement or Copyright Mortgage.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement, dated as of
July 22, 2003, among the Borrower, the Administrative Agent and the Senior Note
Indenture Trustee.
"INTEREST EXPENSE" means, for any period, the sum, without duplication, for
the Borrower and its Subsidiaries (determined on a consolidated basis in
accordance with GAAP), of the following: (a) all interest in respect of
Indebtedness accrued or paid during such period (whether or not actually paid
during such period), PLUS (b) the net amounts payable (or MINUS the net amounts
receivable) in respect of Swap Contracts accrued during such period (whether or
not actually paid or received during such period) excluding reimbursement of
legal fees and other similar transaction costs and excluding payments required
by reason of the early termination of Hedging Agreements in effect on the
Closing Date, PLUS (c) all fees, including letter of credit fees and expenses,
(but excluding reimbursement of legal fees), PLUS (d) the amortization of
financing costs incurred in connection with Indebtedness
"INTEREST PAYMENT DATE" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; PROVIDED, HOWEVER, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the 15th day of each January, April, July and October and the Maturity Date.
"INTEREST PERIOD" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Committed Loan Notice;
PROVIDED that:
(i) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day unless
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such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
no Interest Period shall extend beyond the Maturity Date.
"INTERNAL CONTROL EVENT" means a material weakness in, or fraud that
involves management or other employees who have a significant role in, the
Borrower's internal controls over financial reporting, in each case as described
in the Securities Laws.
"INVESTMENT" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"IP RIGHTS" has the meaning specified in SECTION 5.18.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"ISSUER DOCUMENTS" means with respect to any Letter of Credit, the Letter
of Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor the L/C
Issuer and relating to such Letter of Credit.
"LAWS" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
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"L/C ADVANCE" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Applicable
Percentage.
"L/C BORROWING" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Committed Borrowing.
"L/C CREDIT EXTENSION" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C ISSUER" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C OBLIGATIONS" means, as at any date of determination, the aggregate
Dollar Equivalent amount available to be drawn under all outstanding Letters of
Credit PLUS the aggregate of all Unreimbursed Amounts, including all L/C
Borrowings. For purposes of computing the amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with SECTION 1.06. For all purposes of this Agreement, if on any date
of determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"LENDER" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the Swing Line Lender.
"LENDING OFFICE" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"LETTER OF CREDIT" means any letter of credit or banker's acceptance issued
hereunder and any Existing Letter of Credit.
"LETTER OF CREDIT APPLICATION" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"LETTER OF CREDIT EXPIRATION DATE" means the day that is five days prior to
the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day).
"LETTER OF CREDIT FEE" has the meaning specified in SECTION 2.03(I).
"LETTER OF CREDIT SUBLIMIT" means an amount equal to $20,000,000, up to
$10,000,000 of which may be denominated in an Optional Currency pursuant to
SECTION 2.03(A)(I). The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Commitments.
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
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a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"LOAN" means an extension of credit by a Lender to the Borrower under
ARTICLE II in the form of a Committed Loan or a Swing Line Loan.
"LOAN DOCUMENTS" means this Agreement, each Note, each Issuer Document, the
Fee Letter, and each of the Security Documents.
"LOAN PARTIES" means, collectively, the Borrower and each Guarantor.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, assets,
liabilities (actual or contingent), condition (financial or otherwise) or
prospects of the Borrower or the Borrower and its Subsidiaries taken as a whole;
(b) a material impairment of the ability of any Loan Party to perform its
obligations under any Loan Document to which it is a party; or (c) a material
adverse effect upon the legality, validity, binding effect, enforceability or
rights and remedies of the Administrative Agent or the Lenders against any Loan
Party under any Loan Document to which it is a party.
"MATERIAL RENTAL OBLIGATION" means the obligation of the Loan Parties to
pay rent under any one or more operating leases with respect to any real or
personal property that is material to the business of the Loan Parties and as to
which the aggregate amount of all rents payable during any fiscal year exceeds
$500,000.
"MATURITY DATE" means February 22, 2010; PROVIDED THAT if, on or prior to
February 22, 2010, (i) the maturity date of the Senior Notes or any Additional
Subordinated Indebtedness is modified to be no earlier than September 22, 2011
or (ii) a reserve consisting of cash and unused borrowing availability under
this Agreement is established and maintained at all times in an amount
sufficient, as defined by the Administrative Agent in its sole discretion, to
refinance the Senior Notes upon their maturity or the Senior Notes are paid in
full with the proceeds of Additional Subordinated Indebtedness or otherwise,
"Maturity Date" shall mean February 22, 2011; PROVIDED, FURTHER, that, in each
case, if such date is not a Business Day, the Maturity Date shall be the next
preceding Business Day.
"MORTGAGES" means, collectively, the several security instruments (whether
designated as a deed of trust or a mortgage, leasehold mortgage, assignment of
leases and rents or by any similar title) executed and delivered by any Loan
Party to the Administrative Agent, in such form as may be approved by the Agent
in its sole and reasonable discretion, in each case with such changes thereto as
may be recommended by the Administrative Agent's local counsel based on local
laws or customary local practices, with respect to the real property owned or
leased by a Loan Party, in each case as such security instrument or amendment
may be amended, supplemented or otherwise modified from time to time, including,
without limitation, any mortgages granted to the Administrative Agent after the
Closing Date pursuant to SECTION 6.12.
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"MULTIEMPLOYER PLAN" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"NET CASH PROCEEDS" means:
(a) with respect to the sale of any asset by any Loan Party, the excess, if
any, of (i) the sum of cash and cash equivalents received in connection with
such sale (including any cash received by way of deferred payment pursuant to,
or by monetization of, a note receivable or otherwise, but only as and when so
received) over (ii) the sum of (A) the principal amount of any Indebtedness that
is secured by such asset, so long as the lien securing such Indebtedness is
permitted pursuant to SECTION 7.01, and that is required to be repaid in
connection with the sale thereof (other than Indebtedness under the Loan
Documents), (B) the out-of-pocket expenses incurred by such Loan Party in
connection with such sale and (C) income taxes reasonably estimated to be
actually payable within two years of the date of the relevant asset sale as a
result of any gain recognized in connection therewith; and
(b) with respect to the sale of any capital stock or other equity interest
or the incurrence of any Indebtedness by any Loan Party, the excess of (i) the
sum of the cash and cash equivalents received in connection with such sale or
incurrence over (ii) the underwriting discounts and commissions, and other
out-of-pocket expenses, incurred by such Loan Party in connection with such sale
or incurrence.
"NON-CASH CHARGES" means, with respect to any calculation of net income for
any period, all non-cash extraordinary losses and charges deducted in such
calculation (as determined in accordance with GAAP (excluding inventory and
account receiveable write-downs and charge-offs), including, without limitation,
non-cash recognition of unrealized declines in the market value of marketable
securities recorded in accordance with FASB Statement No. 115, non-cash asset
impairment charges recorded in accordance with FASB Statement No. 142 and FASB
Statement No. 144, and non-cash restructuring charges.
"NOTE" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of EXHIBIT C.
"OBLIGATIONS" means (i) all indebtedness, obligations and liabilities of
the Borrower and its Subsidiaries to any of the Lenders, the Administrative
Agent, the L/C Issuer and cash management service providers, individually or
collectively, existing on the Closing Date or arising thereafter, direct or
indirect, joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract, operation
of law or otherwise, arising or incurred under this Agreement or any of the
other Loan Documents or in respect of any of the Loans, the Notes, the Letters
of Credit or other instruments at any time evidencing any thereof, including,
without limitation, the aggregate outstanding principal balance of and all
interest on the Loans made by the Lenders to the Borrower (including any
interest accruing after the commencement of any proceeding by or against the
Borrower under the federal bankruptcy laws, as now or hereafter constituted, or
any other applicable federal or state bankruptcy, insolvency or other similar
law, and any other interest that would have accrued but for the commencement of
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such proceeding, whether or not any such interest is allowed as a claim
enforceable against the Borrower in any such proceeding), and all reimbursement
obligations in respect of Letters of Credit, (ii) all LC Disbursements, (iii)
all fees, costs, charges, expenses and other obligations from time to time owing
to the Lenders, the L/C Issuer, the Administrative Agent, cash management
service providers or any of their Affiliates by the Loan Parties or any of their
Subsidiaries hereunder or under any other Loan Document, and (iv) all overdraft
obligations, fees, costs, charges, expenses and other obligations from time to
time owing to the Lenders, the L/C Issuer, the Administrative Agent, cash
management service providers or any of their Affiliates by the Loan Parties or
any of their Subsidiaries in respect of any Swap Contract, cash management
agreement (including ACH transactions), operating or deposit account, or other
banking product from time to time made available to the Loan Parties or any of
their Subsidiaries by the Administrative Agent, the L/C Issuer, cash management
service providers, any Lender or any of their Affiliates.
"OPTIONAL CURRENCY" means any of the following currencies: Mexican peso,
Canadian dollars, Danish crowns, or the "Euro", Japanese yen, United Kingdom
pounds sterling or Chinese yuan.
"ORGANIZATION DOCUMENTS" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"ORIGINAL CREDIT AGREEMENT" has the meaning assigned to such term in the
Recitals.
"OTHER TAXES" means all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"OUTSTANDING AMOUNT" means (i) with respect to Committed Loans and Swing
Line Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Committed Loans
and Swing Line Loans, as the case may be, occurring on such date; and (ii) with
respect to any L/C Obligations on any date, the Dollar Equivalent amount of such
L/C Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements by the
Borrower of Unreimbursed Amounts.
"PARTICIPANT" has the meaning specified in SECTION 10.06(D).
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"PATENT AGREEMENT" means any grant of security interest in patents, made by
any Loan Party in favor of the Administrative Agent, or any of its predecessors,
including, without limitation that certain Patent Collateral Assignment and
Security Agreement, dated as of November 21, 2002, by and among the Borrower,
Yale Industrial Products, Inc. and Fleet Capital Corporation (n/k/a Bank of
America, N.A.) as agent, as amended, restated, replaced or assigned from time to
time, including as amended by that certain First Amendment to Patent Collateral
Assignment and Security Agreement, dated as of the Closing Date.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PCAOB" means the Public Company Accounting Oversight Board.
"PENSION PLAN" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"PLAN" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"PLATFORM" has the meaning specified in SECTION 6.02.
"PLEDGE AGREEMENT" means any pledge agreement, between a Loan Party and the
Administrative Agent, pursuant to which any Loan Party pledges any stock, other
equity interests or intercompany notes held by it, including, without limitation
that certain Pledge Agreement, dated as of November 21, 2002, by and among the
Borrower, Audubon West, Inc., Crane Equipment & Service, Inc. and Fleet Capital
Corporation (n/k/a Bank of America, N.A.) as agent, as amended, restated,
replaced or assigned from time to time, including, as amended by that certain
First Amendment to Pledge Agreement, dated as of the Closing Date.
"REFERENCE PERIOD" means, as of any date of determination, the period of
four (4) consecutive fiscal quarters of the Borrower and its Subsidiaries ending
on such date, or if such date is not a fiscal quarter end date, the period of
four (4) consecutive fiscal quarters most recently ended (in each case treated
as a single accounting period).
"REGISTER" has the meaning specified in SECTION 10.06(C).
"REGISTERED PUBLIC ACCOUNTING FIRM" has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed by the
Securities Laws.
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"RELATED PARTIES" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"RELATED REAL ESTATE DOCUMENTS" - with respect to any real estate subject
to a Mortgage, the following, in form and substance reasonably satisfactory to
Administrative Agent and received by Administrative Agent for review at least 15
days prior to the effective date of the Mortgage (or such shorter length of time
acceptable to Administrative Agent in its reasonable discretion): (a) a
mortgagee title policy (or binder therefor) covering Administrative Agent's
interest under the Mortgage, in a form and amount and by an insurer reasonably
acceptable to Administrative Agent, which must be fully paid on such effective
date; (b) such assignments of leases, rents, estoppel letters, attornment
agreements, consents, waivers and releases as Administrative Agent may require
with respect to other Persons having an interest in the real estate; (c) a
current, as-built survey of the real estate, containing a metes-and-bounds
property description and flood plain certification, and certified by a licensed
surveyor reasonably acceptable to Administrative Agent; (d) flood insurance in
an amount, with endorsements and by an insurer reasonably acceptable to
Administrative Agent, if the real estate is within a flood plain; (e) a current
appraisal of the real estate, prepared by an appraiser reasonably acceptable to
Administrative Agent, and in form and substance satisfactory to Required
Lenders; (f) a Phase I (and to the extent appropriate, Phase II) environmental
assessment report, prepared by an environmental consulting firm reasonably
satisfactory to Administrative Agent, and accompanied by such reports,
certificates, studies or data as Administrative Agent may reasonably require,
which shall all be in form and substance reasonably satisfactory to
Administrative Agent; and (g) an environmental indemnity agreement and such
other documents, instruments or agreements as Administrative Agent may
reasonably require with respect to any environmental risks regarding the real
estate.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"REQUEST FOR CREDIT EXTENSION" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.
"REQUIRED LENDERS" means, as of any date of determination, Lenders having
more than 50% of the Aggregate Commitments or, if the commitment of each Lender
to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions
have been terminated pursuant to SECTION 8.02, Lenders holding in the aggregate
more than 50% of the Total Outstandings (with the aggregate amount of each
Lender's risk participation and funded participation in L/C Obligations and
Swing Line Loans being deemed "held" by such Lender for purposes of this
definition); PROVIDED that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"RESET DATE" has the meaning specified in SECTION 2.07(C)(II).
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"RESPONSIBLE OFFICER" means the chief executive officer, president, chief
financial officer, treasurer, secretary, assistant treasurer or controller of a
Loan Party. Any document delivered hereunder that is signed by a Responsible
Officer of a Loan Party shall be conclusively presumed to have been authorized
by all necessary corporate, partnership and/or other action on the part of such
Loan Party and such Responsible Officer shall be conclusively presumed to have
acted on behalf of such Loan Party.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock or
other Equity Interest of the Borrower or any 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 capital stock or other Equity Interest,
or on account of any return of capital to the Borrower's stockholders, partners
or members (or the equivalent Person thereof), (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock of, or other equity interest
in, any Loan Party or any of its Subsidiaries now or hereafter outstanding,
(iii) any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of stock of, or
other equity interest in, any Loan Party or any of its Subsidiaries, (iv) any
payment or prepayment of principal of, premium, if any, or interest on, or
redemption purchase, retirement, defeasance (including economic or legal
defeasance), sinking fund or similar payment with respect to the Senior
Subordinated Notes, Senior Notes, Additional Subordinated Indebtedness and/or
any intercompany Indebtedness owing by the Borrower or any Guarantor, and (v)
any payment made to any Affiliates of any Loan Party or any of its Subsidiaries
in respect of management, consulting or other similar services provided to any
Loan Party or any of its Subsidiaries.
"XXXXXXXX-XXXXX" means the Xxxxxxxx-Xxxxx Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"SECOND AMENDED AND RESTATED CREDIT AGREEMENT" has the meaning assigned to
such term in the Recitals.
"SECURITIES LAWS" means the Securities Act of 1933, the Securities Exchange
Act of 1934, Xxxxxxxx-Xxxxx and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the PCAOB.
"SECURITY DOCUMENTS" means collectively, the Mortgages, the Guaranty, the
Pledge Agreements, the Borrower Security Agreement, the Guarantor Security
Agreements, the Environmental Indemnity Agreement, the Intellectual Property
Security Agreements, any assignments of intercompany Indebtedness and all other
security agreements, UCC financing statements, and any other instruments or
documents required by the Administrative Agent to be executed or delivered
hereunder to secure the Obligations.
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"SENIOR LEVERAGE RATIO" means, as of any date of determination, the ratio
of (a) Senior Net Funded Indebtedness of the Borrower and its Subsidiaries
outstanding on such date TO (b) Consolidated EBITDA for Reference Period ended
on such date.
"SENIOR NET FUNDED INDEBTEDNESS" means, at any time of determination, the
sum of Total Funded Indebtedness (which shall include the L/C Obligations) MINUS
the principal amount of the Senior Subordinated Notes or Additional Subordinated
Indebtedness outstanding at such time.
"SENIOR NOTE DOCUMENTS" means the Senior Notes, the Senior Note Indenture
and all other documents, instruments and agreements executed and delivered with
respect to the Senior Notes or Senior Note Indenture, in each case, as the same
shall be further amended, supplemented or otherwise modified and in effect from
time to time."
"SENIOR NOTE INDENTURE" means the Indenture dated as of July 22, 2003,
between the Borrower and the Senior Note Indenture Trustee, as in effect as of
the date hereof and as thereafter amended from time to time in accordance with
the provisions hereof.
"SENIOR NOTE INDENTURE TRUSTEE" means U.S. Bank Trust National Association,
or any successor thereto as trustee under the Senior Note Indenture.
"SENIOR NOTES" means the Borrower's 10% senior secured notes, due 2010,
issued pursuant to the Senior Note Indenture, as such notes may be modified,
supplement or amended from time to time in accordance with the provisions
hereof.
"SENIOR SUBORDINATED NOTE DOCUMENTS" means the Senior Subordinated Note
Indenture, the Senior Subordinated Notes and all other documents, instruments
and agreements executed and delivered in connection with the Senior Subordinated
Notes, in each case, as the same shall, subject to the terms and conditions of
this Agreement, be amended, supplemented or otherwise modified and in effect
from time to time.
"SENIOR SUBORDINATED NOTE INDENTURE" means the Columbus XxXxxxxx
Corporation 8 ?% Senior Subordinated Notes Due 2013 Indenture, dated as of
September 2, 2005, between the Borrower, as issuer, and U.S. Bank, as trustee,
as the same shall, subject to the terms and conditions of this Agreement, be
further amended, supplemented or otherwise modified and in effect from time to
time.
"SENIOR SUBORDINATED NOTES" means the Borrower's 8 ?% senior subordinated
notes due 2013, issued pursuant to the Senior Subordinated Note Indenture, as
the same shall, subject to the terms and conditions of this Agreement, be
amended, supplemented or otherwise modified and in effect from time to time.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Borrower which
accounts for more than fifteen percent of one or more of:
(a) the book value of the consolidated assets of the Borrower and its
Subsidiaries; or
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(b) the consolidated revenues of the Borrower and its Subsidiaries,
all as shown in the financial statements most recently delivered under
SECTION 6.01(A) or (B).
"SIGNIFICANT DOMESTIC SUBSIDIARY" means any Domestic Subsidiary that is a
Significant Subsidiary.
"SOLVENT" means, with respect to any Person on a particular date, that, at
fair valuations, (a) the sum of such Person's assets is greater than (x) all of
such Person's consolidated liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities) and (y) the amount required to pay such
liabilities as they become absolute, matured or otherwise become due in the
normal course of business, (b) such Person has the ability to pay its debts and
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities) as they become absolute, matured or otherwise become due in the
normal course of business and (c) such Person does not have an unreasonably
small amount of capital with which to conduct its business.
"SPC" has the meaning specified in SECTION 10.06(H).
"SUBSIDIARY" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"SWAP CONTRACT" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "MASTER AGREEMENT"), including
any such obligations or liabilities under any Master Agreement.
"SWAP TERMINATION VALUE" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
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determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"SWING LINE" means the revolving credit sub-facility made available by the
Swing Line Lender pursuant to SECTION 2.04.
"SWING LINE BORROWING" means a borrowing of a Swing Line Loan pursuant to
SECTION 2.04.
"SWING LINE LENDER" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"SWING LINE LOAN" has the meaning specified in SECTION 2.04(A).
"SWING LINE LOAN NOTICE" means a notice of a Swing Line Borrowing pursuant
to SECTION 2.04(B), which, if in writing, shall be substantially in the form of
EXHIBIT B.
"SWING LINE SUBLIMIT" means an amount equal to the lesser of (a) $7,500,000
and (b) the Aggregate Commitments. The Swing Line Sublimit is part of, and not
in addition to, the Aggregate Commitments.
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"TAXES" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"THRESHOLD AMOUNT" means $2,000,000.
"TOTAL FUNDED INDEBTEDNESS" means, with respect to the Borrower and its
Subsidiaries, the sum, without duplication, of (a) the aggregate amount of
Indebtedness of the Borrower and its Subsidiaries determined on a consolidated
basis in accordance with GAAP, relating to (i) the borrowing of money or the
obtaining of credit, including the issuance of notes or bonds, (ii) the deferred
purchase price of assets (other than trade payables incurred in the ordinary
course of business), (iii) in respect of any Synthetic Lease Obligations or any
Capital Lease Obligations, and (iv) the maximum drawing amount of all letters of
credit outstanding, plus (b) Indebtedness of the type referred to in clause (a)
of another Person guaranteed by the Borrower or any of its Subsidiaries.
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"TOTAL OUTSTANDINGS" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
"TRADEMARK AGREEMENT" means any grant of security interest in trademarks,
made by any Loan Party in favor of the Administrative Agent, or any of its
predecessors, including, without limitation that certain Trademark Collateral
Security and Pledge Agreement, dated as of November 21, 2002, by and among the
Borrower, Yale Industrial Products, Inc. and Fleet Capital Corporation (n/k/a
Bank of America, N.A.) as agent, as amended, restated, replaced or assigned from
time to time, including as amended by that certain First Amendment to Trademark
Collateral Security and Pledge Agreement, dated as of the Closing Date.
"TYPE" means, with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan.
"UNFUNDED PENSION LIABILITY" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"UNITED STATES" and "U.S." mean the United States of America.
"UNREIMBURSED AMOUNT" has the meaning specified in SECTION 2.03(C)(I).
1.02. OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"INCLUDE," "includes" and "INCLUDING" shall be deemed to be followed by the
phrase "without limitation." The word "WILL" shall be construed to have the same
meaning and effect as the word "SHALL." Unless the context requires otherwise,
(i) any definition of or reference to any agreement, instrument or other
document (including any Organization Document) shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (iii) the words "HEREIN," "HEREOF" and
"HEREUNDER," and words of similar import when used in any Loan Document, shall
be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in
which such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words "ASSET" and "PROPERTY" shall
be construed to have the same meaning and effect and to refer to any and all
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tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later
specified date, the word "FROM" means "FROM AND INCLUDING;" the words "TO" and
"UNTIL" each mean "TO BUT EXCLUDING;" and the word "THROUGH" means "TO AND
INCLUDING."
(c) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.03. ACCOUNTING TERMS. (a) GENERALLY. All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, EXCEPT as otherwise specifically prescribed
herein.
(b) CHANGES IN GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
PROVIDED THAT, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.
1.04. ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05. TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.06. LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time.
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ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01. COMMITTED LOANS. (a) Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "COMMITTED
LOAN") to the Borrower from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Commitment; PROVIDED, HOWEVER, that
after giving effect to any Committed Borrowing, (i) the Total Outstandings shall
not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount
of the Committed Loans of any Lender, PLUS such Lender's Applicable Percentage
of the Outstanding Amount of all L/C Obligations, PLUS such Lender's Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment. Within the limits of each Lender's Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this SECTION 2.01, prepay under SECTION 2.05, and reborrow under this SECTION
2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.
(b) As of the Closing Date, there are $0 of Loans outstanding and Letters
of Credit with a face amount of $7,497,893.63 outstanding under the Second
Amended and Restated Credit Agreement. Pursuant to a separate Assignment and
Assumption Agreement, dated as of the Closing Date, the lenders under the Second
Amended and Restated Credit Agreement have assigned such Loans to Bank of
America, N.A., effective as of the Closing Date. Effective as of the Closing
Date, (i) such Loans under the Second Amended and Restated Credit Agreement
shall be amended and restated as Loans hereunder and (ii) Bank of America, N.A.
hereby assigns a portion of the Commitment to the Lenders hereunder such that,
after giving effect to such assignment, the Commitments of the Lenders shall be
as set forth on SCHEDULE 2.01. The terms and provisions of Annex 1 of Exhibit E
(Assignment and Assumption) are hereby incorporated herein by reference such
that the foregoing assignment shall be subject to the terms and conditions of
such Annex 1 of Exhibit E (Assignment and Assumption).
2.02. BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each Committed Borrowing, each conversion of Committed Loans from one
Type to the other, and each continuation of Eurodollar Rate Loans shall be made
upon the Borrower's irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans
or of any conversion of Eurodollar Rate Loans to Base Rate Committed Loans, and
(ii) on the requested date of any Borrowing of Base Rate Committed Loans. Each
telephonic notice by the Borrower pursuant to this SECTION 2.02(A) must be
confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole
multiple of $500,000 in excess thereof. Except as provided in SECTIONS 2.03(C)
and 2.04(C), each Borrowing of or conversion to Base Rate Committed Loans shall
be in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall
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specify (i) whether the Borrower is requesting a Committed Borrowing, a
conversion of Committed Loans from one Type to the other, or a continuation of
Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued, (iv)
the Type of Committed Loans to be borrowed or to which existing Committed Loans
are to be converted, and (v) if applicable, the duration of the Interest Period
with respect thereto. If the Borrower fails to specify a Type of Committed Loan
in a Committed Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Committed Loans
shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation
of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify
an Interest Period, it will be deemed to have specified an Interest Period of
one month.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount of its Applicable Percentage of
the applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans
described in the preceding subsection. In the case of a Committed Borrowing,
each Lender shall make the amount of its Committed Loan available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in SECTION 4.02 (and, if such Borrowing is the initial Credit
Extension, SECTION 4.01), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; PROVIDED,
HOWEVER, that if, on the date the Committed Loan Notice with respect to such
Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then
the proceeds of such Borrowing, FIRST, shall be applied to the payment in full
of any such L/C Borrowings, and SECOND, shall be made available to the Borrower
as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. At any time prior to the
date on which the Commitments have been terminated, the Administrative Agent
shall notify the Borrower and the Lenders of any change in Bank of America's
prime rate used in determining the Base Rate promptly following the public
announcement of such change.
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(e) After giving effect to all Committed Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations of Committed
Loans as the same Type, there shall not be more than ten Interest Periods in
effect with respect to Committed Loans.
2.03. LETTERS OF CREDIT.
(a) THE LETTER OF CREDIT COMMITMENT.
(i) Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the Lenders set forth in
this SECTION 2.03, (1) from time to time on any Business Day during the
period from the Closing Date until the Letter of Credit Expiration Date, to
issue Letters of Credit for the account of the Borrower or its
Subsidiaries, and to amend or extend Letters of Credit previously issued by
it, in accordance with subsection (b) below, and (2) to honor drawings
under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of the Borrower or
its Subsidiaries and any drawings thereunder; PROVIDED that after giving
effect to any L/C Credit Extension with respect to any Letter of Credit,
(x) the Total Outstandings shall not exceed the Aggregate Commitments, (y)
the aggregate Outstanding Amount of the Committed Loans of any Lender, PLUS
such Lender's Applicable Percentage of the Outstanding Amount of all L/C
Obligations, PLUS such Lender's Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender's Commitment,
and (z) the Outstanding Amount of the L/C Obligations shall not exceed the
Letter of Credit Sublimit. Subject to the other terms and conditions set
forth herein, the Borrower may request the issuance of such Letters of
Credit in an Optional Currency; PROVIDED, however, that, in addition to the
other conditions to the issuance of Letters of Credit set forth in this
SECTION 2.03(A)(I), after giving effect to such request, the Dollar
Equivalent of the Foreign LC Exposure shall not exceed $10,000,000 at any
one time. Such Letters of Credit issued in an Optional Currency hereunder
shall constitute utilization of the Aggregate Commitments in the amount of
the Dollar Equivalent of such Letter of Credit. Each request by the
Borrower for the issuance or amendment of a Letter of Credit shall be
deemed to be a representation by the Borrower that the L/C Credit Extension
so requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the terms
and conditions hereof, the Borrower's ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed. All Existing
Letters of Credit shall be deemed to have been issued pursuant hereto, and
from and after the Closing Date shall be subject to and governed by the
terms of and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to SECTION 2.03(B)(III), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last extension, unless the Required Lenders
have approved such expiry date; or
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(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good xxxxx
xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer applicable to letters of credit
generally;
(C) such Letter of Credit is to be denominated in a currency
other than Dollars or an Optional Currency;
(D) such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder; or
(E) a default of any Lender's obligations to fund under SECTION
2.03(C) exists or any Lender is at such time a Defaulting Lender
hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the Borrower or such Lender to eliminate the L/C
Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of
Credit if (A) the L/C Issuer would have no obligation at such time to issue
such Letter of Credit in its amended form under the terms hereof, or (B)
the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith,
and the L/C Issuer shall have all of the benefits and immunities (A)
provided to the Administrative Agent in ARTICLE IX with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of
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Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in ARTICLE IX included the L/C Issuer with
respect to such acts or omissions, and (B) as additionally provided herein
with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
the Borrower. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the Administrative Agent and
the L/C Issuer may agree in a particular instance in their sole discretion)
prior to the proposed issuance date or date of amendment, as the case may
be. In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any certificate to
be presented by such beneficiary in case of any drawing thereunder; and (G)
such other matters as the L/C Issuer may require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer
(A) the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may require.
Additionally, the Borrower shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Unless the L/C Issuer
has received written notice from any Lender, the Administrative Agent or
any Loan Party, at least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in ARTICLE IV shall not then be satisfied,
then, subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the
Borrower (or the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C
Issuer's usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C
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Issuer a risk participation in such Letter of Credit in an amount equal to
the product of such Lender's Applicable Percentage TIMES the amount of such
Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree
to issue a Letter of Credit that has automatic extension provisions (each,
an "AUTO-EXTENSION LETTER OF CREDIT"); PROVIDED that any such
Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving 30-days' prior
notice to the beneficiary thereof (the "NON-EXTENSION NOTICE DATE"). Unless
otherwise directed by the L/C Issuer, the Borrower shall not be required to
make a specific request to the L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be
deemed to have authorized (but may not require) the L/C Issuer to permit
the extension of such Letter of Credit at any time to an expiry date not
later than the Letter of Credit Expiration Date; PROVIDED, HOWEVER, that
the L/C Issuer shall not permit any such extension if (A) the L/C Issuer
has determined that it would not be permitted, or would have no obligation,
at such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of clause
(ii) or (iii) of SECTION 2.03(A) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that
is five Business Days before the Non-Extension Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit
such extension or (2) from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in SECTION
4.02 is not then satisfied, and in each such case directing the L/C Issuer
not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) DRAWINGS AND REIMBURSEMENTS; FUNDING OF PARTICIPATIONS.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. Not later than
11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an "HONOR DATE"), the Borrower shall reimburse the
L/C Issuer through the Administrative Agent in Dollars in an amount equal
to the Dollar Equivalent amount of such drawing. If the Borrower fails to
so reimburse the L/C Issuer by such time, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the Dollar Equivalent amount
of the unreimbursed drawing (the "UNREIMBURSED AMOUNT"), and the amount of
such Lender's Applicable Percentage thereof. In such event, the Borrower
shall be deemed to have requested a Committed Borrowing of Base Rate Loans
to be disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in SECTION
2.02 for the principal amount of Base Rate Loans, but subject to the amount
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of the unutilized portion of the Aggregate Commitments and the conditions
set forth in SECTION 4.02 (other than the delivery of a Committed Loan
Notice). Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this SECTION 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; PROVIDED that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each Lender shall upon any notice pursuant to SECTION 2.03(C)(I)
make funds available to the Administrative Agent for the account of the L/C
Issuer at the Administrative Agent's Office in an amount equal to its
Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m.
on the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of SECTION 2.03(C)(III), each Lender
that so makes funds available shall be deemed to have made a Base Rate
Committed Loan to the Borrower in such amount. The Administrative Agent
shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of Base Rate Loans because the
conditions set forth in SECTION 4.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to SECTION 2.03(C)(II) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this SECTION 2.03.
(iv) Until each Lender funds its Committed Loan or L/C Advance
pursuant to this SECTION 2.03(C) to reimburse the L/C Issuer for any amount
drawn under any Letter of Credit, interest in respect of such Lender's
Applicable Percentage of such amount shall be solely for the account of the
L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this SECTION 2.03(C), shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against the L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; PROVIDED, HOWEVER, that each Lender's obligation to make
Committed Loans pursuant to this SECTION 2.03(C) is subject to the
conditions set forth in SECTION 4.02 (other than delivery by the Borrower
of a Committed Loan Notice). No such making of an L/C Advance shall relieve
or otherwise impair the obligation of the Borrower to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.
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(vi) If any Lender fails to make available to the Administrative Agent
for the account of the L/C Issuer any amount required to be paid by such
Lender pursuant to the foregoing provisions of this SECTION 2.03(C) by the
time specified in SECTION 2.03(C)(II), the L/C Issuer shall be entitled to
recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the L/C Issuer in accordance
with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by the L/C
Issuer in connection with the foregoing. If such Lender pays such amount
(with interest and fees as aforesaid), the amount so paid shall constitute
such Lender's Committed Loan included in the relevant Committed Borrowing
or L/C Advance in respect of the relevant L/C Borrowing, as the case may
be. A certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.
(d) REPAYMENT OF PARTICIPATIONS.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with SECTION 2.03(C), if the
Administrative Agent receives for the account of the L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Applicable Percentage thereof in
the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to SECTION 2.03(C)(I) is required to be
returned under any of the circumstances described in SECTION 10.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Applicable Percentage thereof on demand of
the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per
annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the payment in
full of the Obligations and the termination of this Agreement.
(e) OBLIGATIONS ABSOLUTE. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any
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Person for whom any such beneficiary or any such transferee may be acting),
the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit
or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit so long as the L/C Issuer has not acted
with gross negligence or willful misconduct; or any payment made by the L/C
Issuer under such Letter of Credit to any Person purporting to be a trustee
in bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will promptly notify the L/C Issuer. The Borrower shall be conclusively
deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) ROLE OF L/C ISSUER. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; PROVIDED, HOWEVER, that this assumption is not intended to, and shall
not, preclude the Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer shall
be liable or responsible for any of the matters described in clauses (i) through
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(v) of SECTION 2.03(E); PROVIDED, HOWEVER, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and, in the absence of the L/C
Issuer's gross negligence or willful misconduct, the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) CASH COLLATERAL. Upon the request of the Administrative Agent, (i) if
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of
the Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrower shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations. SECTIONS 2.05 and 8.02(C)
set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this SECTION 2.03, SECTION 2.05 and SECTION 8.02(C), "CASH
COLLATERALIZE" means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the
L/C Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders). Derivatives of such
term have corresponding meanings. The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.
(h) APPLICABILITY OF ISP AND UCP. Unless otherwise expressly agreed by the
L/C Issuer and the Borrower when a Letter of Credit is issued (including any
such agreement applicable to an Existing Letter of Credit), (i) the rules of the
ISP shall apply to each standby Letter of Credit, and (ii) the rules of the
Uniform Customs and Practice for Documentary Credits, as most recently published
by the International Chamber of Commerce at the time of issuance shall apply to
each commercial Letter of Credit.
(i) LETTER OF CREDIT FEES. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage a Letter of Credit fee (the "LETTER OF CREDIT FEE") for each Letter
of Credit equal to the Applicable Rate TIMES the daily amount available to be
drawn under such Letter of Credit. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with SECTION 1.06. Letter of Credit
Fees shall be (i) due and payable in Dollars on the fifth Business Day of each
of March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Letter of Credit
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Expiration Date and thereafter on demand and (ii) computed on a quarterly basis
in arrears. If there is any change in the Applicable Rate during any quarter,
the daily amount available to be drawn under each Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect. Notwithstanding anything
to the contrary contained herein, upon the request of the Required Lenders,
while any Event of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.
(j) FRONTING FEE AND DOCUMENTARY AND PROCESSING CHARGES PAYABLE TO L/C
ISSUER. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit, at the rate per annum
specified in the Fee Letter, computed on the daily amount available to be drawn
under such Letter of Credit on a quarterly basis in arrears. Such fronting fee
shall be due and payable on the tenth Business Day after the end of each March,
June, September and December in respect of the most recently-ended quarterly
period (or portion thereof, in the case of the first payment), commencing with
the first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with SECTION
1.06. In addition, the Borrower shall pay directly to the L/C Issuer for its own
account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to
letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.
(k) CONFLICT WITH ISSUER DOCUMENTS. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) LETTERS OF CREDIT ISSUED FOR SUBSIDIARIES. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower's business derives substantial benefits from the
businesses of such Subsidiaries.
2.04. SWING LINE LOANS.
(a) THE SWING LINE. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of the other
Lenders set forth in this SECTION 2.04, to make loans (each such loan, a "SWING
LINE LOAN") to the Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Applicable Percentage of the Outstanding
Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may exceed the amount of such Lender's Commitment; PROVIDED, HOWEVER,
that after giving effect to any Swing Line Loan, (i) the Total Outstandings
shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding
Amount of the Committed Loans of any Lender, PLUS such Lender's Applicable
Percentage of the Outstanding Amount of all L/C Obligations, PLUS such Lender's
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Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall
not exceed such Lender's Commitment, and PROVIDED, FURTHER, that the Borrower
shall not use the proceeds of any Swing Line Loan to refinance any outstanding
Swing Line Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrower may borrow under this SECTION 2.04, prepay under
SECTION 2.05, and reborrow under this SECTION 2.04. Each Swing Line Loan shall
be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a risk participation in such Swing Line Loan
in an amount equal to the product of such Lender's Applicable Percentage TIMES
the amount of such Swing Line Loan.
(b) BORROWING PROCEDURES. Each Swing Line Borrowing shall be made upon the
Borrower's irrevocable notice to the Swing Line Lender and, provided that the
Swing Line Lender is not the same entity as the Administrative Agent, the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must
be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after
receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the
Swing Line Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has also received such Swing Line Loan
Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line
Lender has received notice (by telephone or in writing) from the Administrative
Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of
the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of SECTION 2.04(A), or (B) that one or more of the
applicable conditions specified in ARTICLE IV is not then satisfied, then,
subject to the terms and conditions hereof, the Swing Line Lender will, not
later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Borrower at its
office by crediting the account of the Borrower on the books of the Swing Line
Lender in immediately available funds.
(c) REFINANCING OF SWING LINE LOANS.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each
Lender make a Base Rate Committed Loan in an amount equal to such Lender's
Applicable Percentage of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be
deemed to be a Committed Loan Notice for purposes hereof) and in accordance
with the requirements of SECTION 2.02, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans,
but subject to the unutilized portion of the Aggregate Commitments and the
conditions set forth in SECTION 4.02. The Swing Line Lender shall furnish
the Borrower with a copy of the applicable Committed Loan Notice promptly
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after delivering such notice to the Administrative Agent. Each Lender shall
make an amount equal to its Applicable Percentage of the amount specified
in such Committed Loan Notice available to the Administrative Agent in
immediately available funds for the account of the Swing Line Lender at the
Administrative Agent's Office not later than 1:00 p.m. on the day specified
in such Committed Loan Notice, whereupon, subject to SECTION 2.04(C)(II),
each Lender that so makes funds available shall be deemed to have made a
Base Rate Committed Loan to the Borrower in such amount. The Administrative
Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Committed Borrowing in accordance with SECTION 2.04(C)(I), the
request for Base Rate Committed Loans submitted by the Swing Line Lender as
set forth herein shall be deemed to be a request by the Swing Line Lender
that each of the Lenders fund its risk participation in the relevant Swing
Line Loan and each Lender's payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to SECTION 2.04(C)(I) shall be
deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this SECTION
2.04(C) by the time specified in SECTION 2.04(C)(I), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per
annum equal to the greater of the Federal Funds Rate and a rate determined
by the Swing Line Lender in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees
customarily charged by the Swing Line Lender in connection with the
foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender's Committed
Loan included in the relevant Committed Borrowing or funded participation
in the relevant Swing Line Loan, as the case may be. A certificate of the
Swing Line Lender submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.
(iv) Each Lender's obligation to make Committed Loans or to purchase
and fund risk participations in Swing Line Loans pursuant to this SECTION
2.04(C) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Line
Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing; PROVIDED,
HOWEVER, that each Lender's obligation to make Committed Loans pursuant to
this SECTION 2.04(C) is subject to the conditions set forth in SECTION
4.02. No such funding of risk participations shall relieve or otherwise
impair the obligation of the Borrower to repay Swing Line Loans, together
with interest as provided herein.
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(d) REPAYMENT OF PARTICIPATIONS.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Applicable Percentage thereof in the same
funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in SECTION
10.05 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each Lender shall pay to the Swing Line Lender
its Applicable Percentage thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such amount
is returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing
Line Lender. The obligations of the Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this
Agreement.
(e) INTEREST FOR ACCOUNT OF SWING LINE LENDER. The Swing Line Lender shall
be responsible for invoicing the Borrower for interest on the Swing Line Loans.
Until each Lender funds its Base Rate Committed Loan or risk participation
pursuant to this SECTION 2.04 to refinance such Lender's Applicable Percentage
of any Swing Line Loan, interest in respect of such Applicable Percentage shall
be solely for the account of the Swing Line Lender.
(f) PAYMENTS DIRECTLY TO SWING LINE LENDER. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05. PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at any time
or from time to time voluntarily prepay Committed Loans in whole or in part
without premium or penalty; PROVIDED that (i) such notice must be received by
the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior
to any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurodollar Rate
Loans shall be in a principal amount of $2,000,000 or a whole multiple of
$500,000 in excess thereof; and (iii) any prepayment of Base Rate Committed
Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000
in excess thereof or, in each case, if less, the entire principal amount thereof
then outstanding. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Committed Loans to be prepaid and, if Eurodollar
Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender's Applicable Percentage of such
prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to SECTION 3.05. Each such
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prepayment shall be applied to the Committed Loans of the Lenders in accordance
with their respective Applicable Percentages.
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to
the Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; PROVIDED that
(i) such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by
the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, the Borrower shall promptly prepay Loans
and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to
such excess; PROVIDED, HOWEVER, that the Borrower shall not be required to Cash
Collateralize the L/C Obligations pursuant to this SECTION 2.05(C) unless after
the prepayment in full of the Loans the Total Outstandings exceed the Aggregate
Commitments then in effect.
2.06. TERMINATION OR REDUCTION OF COMMITMENTS. (a) The Borrower may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or from
time to time permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00
a.m. five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments, and (iv) if, after giving effect to any reduction of
the Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be
automatically reduced by the amount of such excess. The Administrative Agent
will promptly notify the Lenders of any such notice of termination or reduction
of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall
be applied to the Commitment of each Lender according to its Applicable
Percentage. All fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.
(b) DISPOSITIONS. If the Borrower or any Subsidiary makes any Disposition
other than Dispositions permitted by SECTION 7.05 the Loan shall be repaid and
the Aggregate Commitments reduced in the amount of the Net Cash Proceeds
(determined as of the date of such Disposition, whether or not such Net Cash
Proceeds are then received by the Borrower or such Subsidiary) from such
Disposition. Nothing in this SECTION 2.06(B) shall permit any Disposition that
is not permitted by SECTION 7.05.
(c) EXTRAORDINARY RECEIPTS. Upon the receipt by any Loan Party or any of
its Subsidiaries of any Extraordinary Receipts, the Loans shall be repaid and
Aggregate Commitments shall be reduced by an amount equal to 100% of such
Extraordinary Receipts, net of any actual expenses incurred in collecting such
Extraordinary Receipts; PROVIDED, that in the case of insurance proceeds
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received in connection with a Casualty Event with respect to Property having an
aggregate market value less than $1,500,000 (or such larger amount approved, in
writing, by the Administrative Agent), so long as, at the time of receipt and
use of such insurance proceeds, no Event of Default shall have occurred and be
continuing, the Loan Parties shall be entitled to use such insurance proceeds
(in an amount not in excess of $1,500,000 (or such larger amount approved, in
writing, by the Administrative Agent)) to repair or replace the Property
affected by such Casualty Event, PROVIDED, further, that (A) until so used, such
insurance proceeds shall be, if so directed by the Administrative Agent,
deposited into a cash collateral account (and when so deposited such insurance
proceeds shall constitute Collateral for the Obligations then outstanding) or
applied to repay the Loans, (B) such insurance proceeds may be used solely to
repair or replace the Property that was the subject of such Casualty Event with
other Property of the same type unless otherwise agreed, in writing, by the
Administrative Agent, (C) such insurance proceeds must be used and such Property
must be repaired or replaced within 180 days after the date of receipt thereof
unless otherwise agreed, in writing, by the Administrative Agent, and (D) upon
the occurrence and during the continuance of an Event of Default or after such
180 day period or any extension thereof approved, in writing, by the
Administrative Agent shall have expired, such insurance proceeds, if not so
used, shall be applied to the prepayment of Loans and cover for L/C Obligations
as provided in this subsection 2.06(c).
(d) ADDITIONAL INDEBTEDNESS. If the Borrower or any Subsidiary incurs
Indebtedness, other than Additional Subordinated Indebtedness and Indebtedness
permitted to be incurred pursuant to SECTION 7.03 (other than SECTION 7.03(K)),
the Loans shall be repaid and the Aggregate Commitments shall be permanently
reduced by the amount of the Net Cash Proceeds from the incurrence of such
Indebtedness. Nothing in this SECTION 2.06(D) shall permit the incurrence of any
Indebtedness that is not permitted by SECTION 7.03.
(e) ISSUANCE OF ADDITIONAL EQUITY INTERESTS. Upon the issuance by the
Borrower or any Subsidiary of any additional Equity Interests, if the Senior
Leverage Ratio as of the fiscal quarter most recently then ended, calculated on
a pro forma basis after giving effect to such equity issuance is greater than or
equal to 4.0 to 1, the Loans shall be repaid and the Aggregate Commitments shall
be reduced by an amount equal to 50% of the Net Cash Proceeds from such
issuance.
2.07. REPAYMENT OF LOANS.
(a) The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Committed Loans outstanding on such date.
(b) The Borrower shall repay each Swing Line Loan on the earlier to occur
of (i) the date ten Business Days after such Loan is made and (ii) the Maturity
Date.
(c) CURRENCY MATTERS.
(i) Dollars are the currency of account and payment for each and every
sum at any time due from the Loan Parties hereunder. No payment to the
Administrative Agent, any Lender or the L/C Issuer (whether under any
judgment or court order or otherwise) shall discharge the obligation or
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liability in respect of which it was made unless and until the
Administrative Agent or such Lender shall have received payment in full of
the Dollar Equivalent of the amount of such obligation or liability, and to
the extent that the amount of any such payment shall, on actual conversion
into Dollars, fall short of such obligation or liability actual or
contingent expressed in Dollars, the Borrower shall indemnify and hold
harmless the Administrative Agent, the L/C Issuer or such Lender, as the
case may be, with respect to the amount of the shortfall.
(ii) Not later than 1:00 p.m. on the last Business Day of each
calendar month (the "CALCULATION DATE") or such other date as the
Administrative Agent may from time to time specify, the Administrative
Agent shall determine the Dollar Equivalent of the L/C Obligations as of
such date. The Dollar Equivalent so determined shall become effective on
the first Business Day immediately following such determination (a "RESET
DATE") and shall remain effective until the next succeeding Reset Date.
(iii) If, on any Reset Date, the Dollar Equivalent of the aggregate
outstanding amount of all Loans and the L/C Obligations exceeds the
Aggregate Commitments, then the Borrower shall repay or prepay the Loans in
accordance with this Agreement in an aggregate principal amount such that,
after giving effect thereto, the aggregate outstanding amount (expressed in
Dollars) of all Loans PLUS the L/C Obligations no longer exceeds the
Aggregate Commitments.
(iv) If on any Reset Date, the Dollar Equivalent of the Foreign LC
Exposure exceeds $10,000,000, then the Borrower shall immediately upon
demand provide cash collateral to the Administrative Agent in the amount of
such excess.
2.08. INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period PLUS the Applicable Rate; (ii) each Base Rate Committed Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate PLUS the
Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate PLUS the Applicable Rate.
(b) (i) If any amount of principal of any Loan is not paid when due,
whether at stated maturity, by acceleration or otherwise, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the
Borrower under any Loan Document is not paid when due, whether at stated
maturity, by acceleration or otherwise, then upon the request of the
Required Lenders, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate
to the fullest extent permitted by applicable Laws.
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(iii) Upon the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the principal amount of
all outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09. FEES. In addition to certain fees described in subsections (i) and
(j) of SECTION 2.03:
(a) COMMITMENT FEE. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Applicable Percentage, a
commitment fee equal to the Applicable Rate TIMES the actual daily amount by
which the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of
Committed Loans (other than Swing Line Loans) and (ii) the Outstanding Amount of
L/C Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in ARTICLE IV is not met, and shall be due and payable quarterly in
arrears on the 15th day of each January, April, July and October, or if the 15th
day of such month is not a Business Day, on the next Business Day thereafter,
commencing with the first such date to occur after the Closing Date, and on the
last day of the Availability Period. The commitment fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) OTHER FEES. (i) The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have
been separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
2.10. COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
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day on which the Loan or such portion is paid, PROVIDED that any Loan that is
repaid on the same day on which it is made shall, subject to SECTION 2.12(A),
bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.11. EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans. In the event
of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.12. PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) GENERAL. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
Lender's Lending Office. All payments received by the Administrative Agent after
2:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made
by the Borrower shall come due on a day other than a Business Day, payment shall
be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.
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(b) (i) FUNDING BY LENDERS; PRESUMPTION BY ADMINISTRATIVE AGENT. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Committed Borrowing of Eurodollar Rate Loans (or, in the
case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the
date of such Committed Borrowing) that such Lender will not make available to
the Administrative Agent such Lender's share of such Committed Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with SECTION 2.02 (or, in the case of a Committed
Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by SECTION 2.02) and may, in reliance
upon such assumption, make available to the Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable
Committed Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount in immediately available funds
with interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be made by such Lender,
the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily
charged by the Administrative Agent in connection with the foregoing, and (B) in
the case of a payment to be made by the Borrower, the interest rate applicable
to Base Rate Loans. If the Borrower and such Lender shall pay such interest to
the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower the amount of such
interest paid by the Borrower for such period. If such Lender pays its share of
the applicable Committed Borrowing to the Administrative Agent, then the amount
so paid shall constitute such Lender's Committed Loan included in such Committed
Borrowing. Any payment by the Borrower shall be without prejudice to any claim
the Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.
(ii) PAYMENTS BY BORROWER; PRESUMPTIONS BY ADMINISTRATIVE AGENT.
Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the Lenders or the L/C Issuer, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of
the Lenders or the L/C Issuer, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in immediately available
funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
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(c) FAILURE TO SATISFY CONDITIONS PRECEDENT. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this ARTICLE II, and such funds are not
made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in ARTICLE IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(d) OBLIGATIONS OF LENDERS SEVERAL. The obligations of the Lenders
hereunder to make Committed Loans, to fund participations in Letters of Credit
and Swing Line Loans and to make payments pursuant to SECTION 10.04(C) are
several and not joint. The failure of any Lender to make any Committed Loan, to
fund any such participation or to make any payment under SECTION 10.04(C) on any
date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Committed Loan, to purchase its
participation or to make its payment under SECTION 10.04(C).
(e) FUNDING SOURCE. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.13. SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of the Committed Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in
such Lender's receiving payment of a proportion of the aggregate amount of such
Committed Loans or participations and accrued interest thereon greater than its
pro rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the Committed Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Committed Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to
(x) any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Committed Loans or subparticipations in L/C Obligations or Swing Line
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary thereof (as to which the provisions of this Section shall
apply).
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Each Loan Party 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 such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
2.14. INCREASE IN COMMITMENTS.
(a) REQUEST FOR INCREASE. Provided there exists no Default, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), the Borrower
may on a one-time basis, request an increase in the Aggregate Commitments by an
amount not exceeding (a) in the event that the Senior Notes have been repaid in
full or will be repaid in full contemporaneously with such increase, $50,000,000
or (b) in the event that any Senior Notes remain outstanding, $25,000,000;
PROVIDED that any such request for an increase shall be in a minimum amount of
$5,000,000. At the time of sending such notice, the Borrower (in consultation
with the Administrative Agent) shall specify the time period within which each
Lender is requested to respond (which shall in no event be less than ten
Business Days from the date of delivery of such notice to the Lenders).
(b) LENDER ELECTIONS TO INCREASE. Each Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to, greater than,
or less than its Applicable Percentage of such requested increase. Any Lender
not responding within such time period shall be deemed to have declined to
increase its Commitment.
(c) NOTIFICATION BY ADMINISTRATIVE AGENT; ADDITIONAL LENDERS. The
Administrative Agent shall notify the Borrower and each Lender of the Lenders'
responses to each request made hereunder. To achieve the full amount of a
requested increase and subject to the approval of the Administrative Agent, the
L/C Issuer and the Swing Line Lender (which approvals shall not be unreasonably
withheld), the Borrower may also invite additional Eligible Assignees to become
Lenders pursuant to a joinder agreement in form and substance satisfactory to
the Administrative Agent and its counsel; PROVIDED THAT the opportunity to
increase its Commitment is first offered to each existing Lender in accordance
with this SECTION 2.14.
(d) EFFECTIVE DATE AND ALLOCATIONS. If the Aggregate Commitments are
increased in accordance with this Section, the Administrative Agent and the
Borrower shall determine the effective date (the "INCREASE EFFECTIVE DATE") and
the final allocation of such increase. The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such increase and
the Increase Effective Date.
(e) CONDITIONS TO EFFECTIVENESS OF INCREASE. As a condition precedent to
such increase, the Borrower shall deliver to the Administrative Agent a
certificate of each Loan Party dated as of the Increase Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of such Loan
Party (i) certifying and attaching the resolutions adopted by such Loan Party
approving or consenting to such increase, (ii) in the case of the Borrower,
certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in ARTICLE V and the other Loan
Documents are true and correct on and as of the Increase Effective Date, except
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to the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and except that for purposes of this SECTION 2.14, the representations and
warranties contained in subsections (a) and (b) of SECTION 5.05 shall be deemed
to refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of SECTION 6.01, and (B) no Default exists and (iii) in the
case of a request for an increase of the Aggregate Commitments in an amount
greater than $25,000,000, evidence of repayment in full of the Senior Notes in
form and substance satisfactory to the Administrative Agent. The Borrower shall
prepay any Committed Loans outstanding on the Increase Effective Date (and pay
any additional amounts required pursuant to SECTION 3.05) to the extent
necessary to keep the outstanding Committed Loans ratable with any revised
Applicable Percentages arising from any nonratable increase in the Commitments
under this Section.
(f) CONFLICTING PROVISIONS. This Section shall supersede any provisions in
SECTION 2.13 or 10.01 to the contrary.
2.15. COLLATERAL SECURITY. The Obligations shall be secured by a perfected
first priority security interest (subject only to Liens permitted by SECTION
7.01 entitled to priority under applicable law) in (i) all of the assets of the
Loan Parties, whether now owned or hereafter acquired, including, without
limitation all real, leasehold and personal property of each Loan Party, (ii)
all Equity Interests of all first-tier Subsidiaries of the Borrower and each
Guarantor; PROVIDED that, with respect to Foreign Subsidiaries, such equity
pledge shall be limited to 65% of the capital stock of such Foreign Subsidiary
to the extent the pledge of any greater percentage would result in material
adverse tax consequences to any Loan Party, (iii) all present and future
intercompany debt of the Borrower and each Guarantor and (iv) all proceeds and
products of the property and assets described in (i), (ii) and (iii) above.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01. TAXES.
(a) PAYMENTS FREE OF TAXES. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, PROVIDED that if the Borrower shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
L/C Issuer, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall timely pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) PAYMENT OF OTHER TAXES BY THE BORROWER. Without limiting the provisions
of subsection (a) above, the Borrower shall timely pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
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(c) INDEMNIFICATION BY THE BORROWER. The Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d) EVIDENCE OF PAYMENTS. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) STATUS OF LENDERS. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
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shareholder" of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a "controlled foreign corporation" described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue
Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal withholding
tax duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower to determine the
withholding or deduction required to be made.
(f) TREATMENT OF CERTAIN REFUNDS. If the Administrative Agent, any Lender
or the L/C Issuer determines, 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, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), PROVIDED that the Borrower, upon the
request of the Administrative Agent, such Lender or the L/C Issuer, 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, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.
3.02. ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender
to make or continue Eurodollar Rate Loans or to convert Base Rate Committed
Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted.
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3.03. INABILITY TO DETERMINE RATES. If the Required Lenders determine that
for any reason in connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan , or
(c) the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Committed Borrowing of Base Rate Loans in the amount specified therein.
3.04. INCREASED COSTs; RESERVES ON EURODOLLAR RATE LOANS.
(a) INCREASED COSTS GENERALLY. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in
by, any Lender (except any reserve requirement contemplated by SECTION
3.04(E)) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Rate Loan made by it,
or change the basis of taxation of payments to such Lender or the L/C
Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by SECTION 3.01 and the imposition of, or any change in the rate
of, any Excluded Tax payable by such Lender or the L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurodollar Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining
its obligation to make any such Loan), or to increase the cost to such Lender or
the L/C Issuer of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
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(b) CAPITAL REQUIREMENTS. If any Lender or the L/C Issuer determines that
any Change in Law affecting such Lender or the L/C Issuer or any Lending Office
of such Lender or such Lender's or the L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the L/C Issuer's capital or on the capital of such
Lender's or the L/C Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer or
such Lender's or the L/C Issuer's holding company for any such reduction
suffered.
(c) CERTIFICATES FOR REIMBURSEMENT. A certificate of a Lender or the L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) DELAY IN REQUESTS. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or the L/C Issuer's right
to demand such compensation, PROVIDED that the Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
nine months prior to the date that such Lender or the L/C Issuer, as the case
may be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
(e) RESERVES ON EURODOLLAR RATE LOANS. The Borrower shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall
be due and payable on each date on which interest is payable on such Loan,
PROVIDED the Borrower shall have received at least 10 days' prior notice (with a
copy to the Administrative Agent) of such additional interest from such Lender.
If a Lender fails to give notice 10 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 10 days from receipt of
such notice.
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3.05. COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy to
the Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by the Borrower
pursuant to SECTION 10.13;
including any loss of anticipated profits and any loss or expense arising
from the liquidation or reemployment of funds obtained by it to maintain such
Loan or from fees payable to terminate the deposits from which such funds were
obtained. The Borrower shall also pay any customary administrative fees charged
by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders
under this SECTION 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.
3.06. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) DESIGNATION OF A DIFFERENT LENDING OFFICE. If any Lender requests
compensation under SECTION 3.04, or the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to SECTION 3.01, or if any Lender gives a notice pursuant to
SECTION 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to SECTION 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to SECTION 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any 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) REPLACEMENT OF LENDERS. If any Lender requests compensation under
SECTION 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
SECTION 3.01, the Borrower may replace such Lender in accordance with SECTION
10.13.
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3.07. SURVIVAL. All of the Borrower's obligations under this ARTICLE III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01. CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) executed counterparts of this Agreement, the Borrower Security
Agreement, the Guarantor Security Agreements and the Guaranty, sufficient
in number for distribution to the Administrative Agent, each Lender and the
Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) Intentionally Omitted;
(iv) confirmation of each Security Document (other than the Guaranty,
Borrower Security Agreement and Guarantor Security Agreements) in form and
substance satisfactory to the Administrative Agent;
(v) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each Loan
Party as the Administrative Agent may require evidencing the identity,
authority and capacity of each Responsible Officer thereof authorized to
act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or
formed, and that each Loan Party is validly existing, in good standing and
qualified to engage in business in each jurisdiction where its ownership,
lease or operation of properties or the conduct of its business requires
such qualification, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect;
(vii) a favorable opinion of Xxxxxxxx Xxxxx LLP, counsel to the Loan
Parties, addressed to the Administrative Agent and each Lender, as to the
matters set forth in EXHIBIT G and such other matters concerning the Loan
Parties and the Loan Documents as the Administrative Agent may reasonably
request;
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(viii) a favorable opinion of the Law Office of Xxxxx Lawyers,
Oklahoma local counsel to Crane Equipment & Service, Inc., addressed to the
Administrative Agent and each Lender;
(ix) Intentionally Omitted;
(x) a certificate of a Responsible Officer of each Loan Party either
(A) attaching copies of all consents, licenses and approvals required in
connection with the execution, delivery and performance by such Loan Party
and the validity against such Loan Party of the Loan Documents to which it
is a party, and such consents, licenses and approvals shall be in full
force and effect, or (B) stating that no such consents, licenses or
approvals are so required;
(xi) a certificate signed by a Responsible Officer of the Borrower
certifying (A) that the conditions specified in SECTIONS 4.02(A) and (B)
have been satisfied, (B) that there has been no event or circumstance since
March 31, 2005 that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect, (C) that there
shall not have been a material adverse change to the facts and information
regarding the Loan Parties provided to the Administrative Agent and the
Lenders by the Borrowers on or prior to March 31, 2005 and (D) an officer's
certificate in form and substance satisfactory to the Administrative Agent
certifying as to the absence of any action, suit, investigation or
proceeding pending or, to the knowledge of any Loan Party, threatened in
any court or before any arbitrator or governmental authority that could
reasonably be expected to have a Material Adverse Effect;
(xii) a duly completed Compliance Certificate as of the last day of
the fiscal quarter of the Borrower ended on January 1, 2006, signed by a
Responsible Officer of the Borrower;
(xiii) evidence that all insurance required to be maintained pursuant
to the Loan Documents has been obtained and is in effect;
(xiv) Administrative Agent shall be satisfied that the Security
Documents shall be effective to create in favor of the Administrative Agent
a legal, valid and enforceable first (except for Liens permitted pursuant
to SECTION 7.01 and entitled to priority under applicable law) security
interest in and Lien upon the Collateral, along with, in form and substance
satisfactory to the Lenders, evidence that all filings, recordings,
deliveries of instruments and other actions necessary or desirable in the
opinion of the Administrative Agent to protect and preserve such security
interests shall have been duly effected;
(xv) a completed and fully executed perfection certificate (or a
bringdown of the perfection certificate provided with respect to the First
Amended and Restated Credit Agreement) with respect to each Loan Party and
the results of UCC searches (and the equivalent thereof in all applicable
foreign jurisdictions) and other evidence satisfactory to the
Administrative Agent that there are no Liens upon the Collateral, other
than Liens permitted pursuant to SECTION 7.01 and otherwise in form and
substance satisfactory to the Lenders;
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(xvi) completed environmental questionnaires and such other
environmental reports, audits, certifications and information as the
Administrative Agent may reasonably require, in each case in form and
substance satisfactory to the Administrative Agent;
(xvii) the Administrative Agent and the Lenders shall have completed a
confirmatory legal and business due diligence investigation, the results of
which shall be satisfactory to the Administrative Agent and the Lenders;
(xviii) the Administrative Agent shall have received the
fully-executed Assignment and Assumption Agreement contemplated by SECTION
2.01(B);
(xix) assignments to the Administrative Agent for the benefit of the
Lenders, of all notes and instruments evidencing intercompany Indebtedness
among the Borrower and its Subsidiaries;
(xx) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender
or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid
all fees, charges and disbursements of counsel to the Administrative Agent
(directly to such counsel if requested by the Administrative Agent) to the
extent invoiced prior to or on the Closing Date, plus such additional amounts of
such fees, charges and disbursements as shall constitute its reasonable estimate
of such fees, charges and disbursements incurred or to be incurred by it through
the closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrower and the
Administrative Agent).
(d) The Closing Date shall have occurred on or before March 31, 2006.
Without limiting the generality of the provisions of SECTION 9.04, for
purposes of determining compliance with the conditions specified in this SECTION
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02. CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender to
honor any Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of the Borrower and each other Loan
Party contained in ARTICLE V or any other Loan Document, or which are contained
in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct on and as of the date of such Credit
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Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this SECTION
4.02, the representations and warranties contained in subsections (a) and (b) of
SECTION 5.05 shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of SECTION 6.01.
(b) No Default or Event of Default shall exist, or would result from such
proposed Credit Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed
to be a representation and warranty that the conditions specified in SECTIONS
4.02(A) or (B) have been satisfied on and as of the date of the applicable
Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
5.01. EXISTENCE, QUALIFICATION AND POWER. Each Loan Party and each
Subsidiary thereof (a) is duly organized or formed, validly existing and, as
applicable, in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own or lease its assets and carry on its business and (ii) execute, deliver and
perform its obligations under the Loan Documents to which it is a party, and (c)
is duly qualified and is licensed and, as applicable, in good standing under the
Laws of each jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification or license; except in
each case referred to in clause (b)(i) or (c), to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect.
5.02. AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any Contractual Obligation to which such Person is
a party or affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject;
or (c) violate any Law.
5.03. GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
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Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.
5.04. BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms.
5.05. FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT; NO INTERNAL CONTROL
EVENT.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries dated January 1, 2006, and the related
consolidated and consolidating statements of income or operations, shareholders'
equity and cash flows for the fiscal quarter ended on that date (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein, and (ii) fairly
present the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby,
subject, in the case of clauses (i) and (ii), to the absence of footnotes and to
normal year-end audit adjustments. SCHEDULE 5.05 sets forth all material
indebtedness and other liabilities, direct or contingent, of the Borrower and
its consolidated Subsidiaries as of the date of such financial statements,
including liabilities for taxes, material commitments and Indebtedness.
(c) Since the date of the Audited Financial Statements, there has been no
event or circumstance, either individually or in the aggregate, that has had or
could reasonably be expected to have a Material Adverse Effect.
(d) To the best knowledge of the Borrower, no Internal Control Event exists
or has occurred since the date of the Audited Financial Statements that has
resulted in or could reasonably be expected to result in a misstatement in any
material respect, in any financial information delivered or to be delivered to
the Administrative Agent or the Lenders, of (i) covenant compliance calculations
provided hereunder or (ii) the assets, liabilities, financial condition or
results of operations of the Borrower and its Subsidiaries on a consolidated
basis.
(e) The consolidated and consolidating forecasted balance sheet and
statements of income and cash flows of the Borrower and its Subsidiaries
delivered pursuant to SECTION 6.01(C) were prepared in good faith on the basis
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of the assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and represented,
at the time of delivery, the Borrower's best estimate of its future financial
condition and performance.
5.06. LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Borrower after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrower or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (b) except as specifically disclosed in
SCHEDULE 5.06, either individually or in the aggregate, if determined adversely,
could reasonably be expected to have a Material Adverse Effect, and there has
been no adverse change in the status, or financial effect on any Loan Party or
any Subsidiary thereof, of the matters described on SCHEDULE 5.06.
5.07. NO DEFAULT. Neither any Loan Party nor any Subsidiary thereof is in
default under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08. OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of the Borrower and its Subsidiaries is subject to
no Liens, other than Liens permitted by SECTION 7.01.
5.09. ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries conduct
in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof the Borrower has reasonably concluded
that, except as specifically disclosed in SCHEDULE 5.09, such Environmental Laws
and claims could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
5.10. INSURANCE. The properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Borrower, in such amounts (after giving effect to any insurance coverage
from CM Insurance Company, Inc. compatible with the following standards) with
such deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
the Borrower or the applicable Subsidiary operates.
5.11. TAXES. The Borrower and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
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faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is
party to any tax sharing agreement.
5.12. ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Section 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA.
5.13. SUBSIDIARIES; EQUITY INTERESTS. The Borrower has no Subsidiaries
other than those specifically disclosed in Part (a) of SCHEDULE 5.13, and all of
the outstanding Equity Interests in such Subsidiaries have been validly issued,
are fully paid and nonassessable and are owned by a Loan Party in the amounts
specified on Part (a) of SCHEDULE 5.13 free and clear of all Liens. The Borrower
has no equity investments in any other corporation or entity other than those
specifically disclosed in Part(b) of SCHEDULE 5.13. All of the outstanding
Equity Interests in the Borrower have been validly issued and are fully paid and
nonassessable.
5.14. MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
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stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.15. DISCLOSURE. The Borrower has disclosed to the Administrative Agent
and the Lenders all agreements, instruments and corporate or other restrictions
to which it or any of its Subsidiaries is subject, and all other matters known
to it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf of
any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
5.16. COMPLIANCE WITH LAWS. Each Loan Party and each Subsidiary thereof is
in compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.17. TAXPAYER IDENTIFICATION NUMBER. The Borrower's true and correct U.S.
taxpayer identification number is set forth on SCHEDULE 10.02.
5.18. INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, "IP RIGHTS") that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person. To the best knowledge of the
Borrower, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by the Borrower or any Subsidiary infringes upon any rights held by
any other Person. Set forth on SCHEDULE 5.18 hereto is a complete list of all
patents, trademarks and copyrights of the Borrower and its Subsidiaries. No
claim or litigation regarding any of the foregoing is pending or, to the best
knowledge of the Borrower, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
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5.19. PERFECTION OF SECURITY INTEREST. All filings, assignments, pledges
and deposits of documents or instruments have been made and all other actions
have been taken that are necessary or advisable, under applicable law, to
establish and perfect the Administrative Agent's first priority security
interest in the Collateral. The Collateral and the Administrative Agent's rights
with respect to the Collateral are not subject to any setoff, claims,
withholdings or other defenses. The Borrower and each Guarantor is the owner of
the Collateral free from any Lien, except for Liens permitted pursuant to
SECTION 7.01.
5.20. PROPERTIES.
(a) Each of the Borrower and its Subsidiaries has good and marketable
title to, or valid, subsisting and enforceable leasehold interests in, all
of its Properties material to its business. All machinery and equipment of
each of the Borrower and its Subsidiaries is in good operating condition
and repair, and all necessary replacements of and repairs thereto have be
made so as to preserve and maintain the value and operating efficiency of
such machinery and equipment.
(b) As of the Closing Date, SCHEDULE 5.20 annexed hereto contains a
true, accurate and complete list of all fee and leasehold real property
assets of the Borrower and its Subsidiaries.
5.21. SOLVENCY. Upon and immediately after consummation of the transactions
contemplated hereby, each of the Loan Parties is Solvent.
5.22. BANK ACCOUNTS. SCHEDULE 5.22 lists all banks and other financial
institutions at which the Borrower and each of its Domestic Subsidiaries
maintains deposits and/or other accounts as of the Closing Date, and such
Schedule correctly identifies the name and address of each depository, the name
in which the account is held, a description of the purpose of the account, and
the complete account number.
5.23. OBLIGATIONS AS SENIOR DEBT. The Obligations constitute Senior
Indebtedness (as defined in the Senior Note Indenture) and Designated Senior
Indebtedness (as defined in the Senior Subordinated Note Indenture). As such,
all of the Obligations (and the Administrative Agent and Lenders) are entitled
to the benefits of each of the subordination and other provisions contained in
the (A) Senior Note Indenture which are available in respect of Senior
Indebtedness (and to the holders thereof), (b) the Intercreditor Agreement, and
(c) the Senior Subordinated Note Indenture which are available in respect of
Designated Senior Indebtedness (and to the holders thereof), and each of such
subordination and other provisions is in full force and effect and enforceable
in accordance with its terms.
5.24. USE OF PROCEEDS. The Borrower and its Subsidiaries will use the
proceeds of the Loans for the purposes specified in SECTION 6.11 and not for any
other purpose.
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ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall, and shall (except in the
case of the covenants set forth in SECTIONS 6.01, 6.02, and 6.03) cause each
Subsidiary to:
6.01. FINANCIAL STATEMENTS. Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Borrower and its Subsidiaries, a consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal year, and the related consolidated and consolidating statements
of income or operations, shareholders' equity and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, such consolidated statements to be audited and accompanied by (i) a report
and opinion of a Registered Public Accounting Firm of nationally recognized
standing reasonably acceptable to the Required Lenders, which report and opinion
shall be prepared in accordance with generally accepted auditing standards and
applicable Securities Laws and shall not be subject to any "going concern" or
like qualification or exception or any qualification or exception as to the
scope of such audit or with respect to the absence of any material misstatement
and (ii) an opinion of such Registered Public Accounting Firm independently
assessing the Borrower's internal controls over financial reporting in
accordance with Item 308 of SEC Regulation S-K, PCAOB Auditing Standard Xx. 0,
xxx Xxxxxxx 000 xx Xxxxxxxx-Xxxxx expressing a conclusion that contains no
statement that there is a material weakness in such internal controls, except
for such material weaknesses as to which the Administrative Agent does not
object, and such consolidating statements to be certified by the chief executive
officer, chief financial officer, treasurer or controller of the Borrower to the
effect that such statements are fairly stated in all material respects when
considered in relation to the consolidated financial statements of the Borrower
and its Subsidiaries;
(b) as soon as available, but in any event within 45 days after the end of
each of the first three fiscal quarters of each fiscal year of the Borrower and
its Subsidiaries, a consolidated and consolidating balance sheet of the Borrower
and its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated and consolidating statements of income or operations, shareholders'
equity and cash flows for such fiscal quarter and for the portion of the
Borrower's fiscal year then ended, setting forth in each case in comparative
form the figures for the corresponding fiscal quarter of the previous fiscal
year and the corresponding portion of the previous fiscal year, all in
reasonable detail and certified by the chief executive officer, chief financial
officer, treasurer or controller of the Borrower as fairly presenting the
financial condition, results of operations, shareholders' equity and cash flows
of the Borrower and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes; and
(c) as soon as available, but in any event no later than 30 days after the
start of each fiscal year of the Borrower, budgets prepared by management of the
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Borrower, in form satisfactory to the Administrative Agent, of consolidated and
consolidating balance sheets and statements of income or operations and cash
flows of the Borrower and its Subsidiaries on a quarterly basis for such fiscal
year.
As to any information contained in materials furnished pursuant to SECTION
6.02(C), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
6.02. CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative Agent
and each Lender, in form and detail satisfactory to the Administrative Agent and
the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to
in SECTIONS 6.01(A) AND (B) commencing with the delivery of the financial
statements for the fiscal quarter year ended March 31, 2006, a duly completed
Compliance Certificate signed by the chief executive officer, chief financial
officer, treasurer or controller of the Borrower;
(b) promptly after any request by the Administrative Agent or any Lender,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of the Borrower by independent accountants in connection with the
accounts or books of the Borrower or any Subsidiary, or any audit of any of
them;
(c) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the Borrower, and copies of all annual, regular, periodic and
special reports and registration statements which the Borrower may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any statement or
report furnished to any holder of debt securities of any Loan Party or any
Subsidiary thereof pursuant to the terms of any indenture, loan or credit or
similar agreement and not otherwise required to be furnished to the Lenders
pursuant to SECTION 6.01 or any other clause of this SECTION 6.02;
(e) promptly, and in any event within five Business Days after receipt
thereof by any Loan Party or any Subsidiary thereof, copies of each notice or
other correspondence received from the SEC (or comparable agency in any
applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other
operational results of any Loan Party or any Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial
or corporate affairs of the Borrower or any Subsidiary, or compliance with the
terms of the Loan Documents, as the Administrative Agent or any Lender may from
time to time reasonably request.
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Documents required to be delivered pursuant to SECTION 6.01(A) or (B) or
SECTION 6.02(C) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on SCHEDULE 10.02; or (ii)
on which such documents are posted on the Borrower's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); PROVIDED that: (i) the Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender that requests
the Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrower shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and provide
to the Administrative Agent by electronic mail electronic versions (I.E., soft
copies) of such documents. Except for Compliance Certificates required by
SECTION 6.02(A), the Administrative Agent shall have no obligation to request
the delivery or to maintain copies of the documents referred to above, and in
any event shall have no responsibility to monitor compliance by the Borrower
with any such request for delivery, and each Lender shall be solely responsible
for requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Arranger will make available to the Lenders and the L/C Issuer materials
and/or information provided by or on behalf of the Borrower hereunder
(collectively, "BORROWER Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "PLATFORM") and (b) certain
of the Lenders may be "public-side" Lenders (I.E., Lenders that do not wish to
receive material non-public information with respect to the Borrower or its
securities) (each, a "PUBLIC LENDER"). The Borrower hereby agrees that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that
the word "PUBLIC" shall appear prominently on the first page thereof; (x) by
marking Borrower Materials "PUBLIC," the Borrower shall be deemed to have
authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (PROVIDED, HOWEVER,
that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (y) all Borrower Materials marked
"PUBLIC" are permitted to be made available through a portion of the Platform
designated "Public Investor;" and (z) the Administrative Agent and the Arranger
shall be entitled to treat any Borrower Materials that are not marked "PUBLIC"
as being suitable only for posting on a portion of the Platform not designated
"Public Investor."
6.03. NOTICES. Promptly notify the Administrative Agent and each Lender of:
(a) the occurrence of any Default;
(b) any matter that has resulted or could reasonably be expected to result
in a Material Adverse Effect, including (i) breach or non-performance of, or any
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default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii)
any dispute, litigation, investigation, proceeding or suspension between the
Borrower or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws;
(c) the occurrence of any ERISA Event;
(d) any material change in accounting policies or financial reporting
practices by the Borrower or any Subsidiary; and
(e) the determination by the Registered Public Accounting Firm providing
the opinion required under SECTION 6.01(A)(II) (in connection with its
preparation of such opinion) or the Borrower's determination at any time of the
occurrence or existence of any Internal Control Event.
Each notice pursuant to this SECTION 6.03 shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. Each notice pursuant to SECTION
6.03(A) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
6.04. PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the Borrower or such Subsidiary; (b) all
lawful claims which, if unpaid, would by law become a Lien upon its property;
and (c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
6.05. PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
SECTION 7.04 or 7.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.
6.06. MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted; (b) make
all necessary repairs thereto and renewals and replacements thereof except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.
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6.07. MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts(after giving effect to any insurance coverage
from CM Insurance Company, Inc. compatible with the following standards) as are
customarily carried under similar circumstances by such other Persons and
providing for not less than 30 days' prior notice to the Administrative Agent of
termination, lapse or cancellation of such insurance.
6.08. COMPLIANCE WITH LAWS, ORGANIZATIONAL DOCUMENTS AND CONTRACTUAL
OBLIGATIONS. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its
business or property, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
Comply with all Organization Documents and, except where the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect,
all material Contractual Obligations.
6.09. BOOKS AND RECORDS. (a) Maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower or such Subsidiary, as the case may be; and
(b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.
6.10. INSPECTION RIGHTS. Permit representatives and independent contractors
of the Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the expense of the Borrower and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Borrower; PROVIDED, HOWEVER, that when an Event of Default
exists the Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the
expense of the Borrower at any time during normal business hours and without
advance notice.
6.11. USE OF PROCEEDS. Use the proceeds of the Credit Extensions for (a)
general corporate purposes, including working capital, capital expenditures and
other lawful corporate purposes, (b) to refinance Indebtedness existing as of
the Closing Date, (c) to finance acquisitions permitted pursuant to Section 7.02
and (d) to repurchase the Senior Notes, Senior Subordinated Notes, Additional
Subordinated Indebtedness and other Indebtedness for borrowed money, so long as
such Indebtedness and such repurchases are otherwise permitted under this
Agreement, and not for any other purpose or in contravention of any Law or of
any Loan Document.
6.12. ADDITIONAL GUARANTORS AND PLEDGORS. Notify the Administrative Agent
at the time that any Person becomes a Subsidiary and promptly thereafter (and in
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any event within 30 days), (a) unless such Person is not a Significant
Subsidiary of any Loan Party or, if such Subsidiary is a Foreign Subsidiary,
executing a Guaranty would result in a materially adverse tax consequence to the
Loan Parties or such Subsidiary, cause such Person to become a Guarantor by
executing and delivering to the Administrative Agent a counterpart of the
Guaranty or such other document as the Administrative Agent shall deem
appropriate for such purpose, (b) if such Subsidiary is a Significant Domestic
Subsidiary or a first-tier Foreign Subsidiary, the parent entity of such Person
shall pledge the equity of such Subsidiary as security for the Obligations;
PROVIDED THAT, with respect to Foreign Subsidiaries, such equity pledge shall be
limited to 65% of the capital stock of such Foreign Subsidiary to the extent the
pledge of any greater percentage would result in material adverse tax
consequences to any Loan Party, (c) deliver to the Administrative Agent
documents of the types referred to in clauses (v) and (vi) of SECTION 4.01(A)
and favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to in clauses (a) and (b)), all in form, content and
scope reasonably satisfactory to the Administrative Agent.
6.13. MORTGAGES. The Obligations shall be secured by Mortgages upon (i) all
fee real estate assets of the Loan Parties located in the United States, other
than the real estate located at 0000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx and the property located at Allin Street, Chattanooga, Tennessee, and
(ii) material leasehold real estate assets of the Loan Parties described on
SCHEDULE 6.13. If any Loan Party acquires any fee or leasehold real estate
interest after the Closing Date, it shall promptly notify the Administrative
Agent thereof and shall, if such real estate interest is deemed by the
Administrative Agent to be material, execute, deliver and record a Mortgage
sufficient to create a first priority Lien in favor of Administrative Agent on
such real estate, and shall deliver all Related Real Estate Documents in
connection therewith that may be required by the Administrative Agent in its
reasonable discretion.
6.14. POST-CLOSING DELIVERIES. On or before April 16, 2006, or such later
date as may be agreed, in writing, by the Administrative Agent, deliver to the
Administrative Agent:
(a) confirmations assignments or amendments, as the case may be, executed
by the Borrower and/or the Guarantors, as applicable, and filed in the
appropriate foreign jurisdictions, each in form and substance satisfactory to
the Administrative Agent and its counsel, of the share pledges by the Borrower
or the relevant Guarantor of the equity interests of such entity in each of (a)
Audubon Europe, (b) Yale Industrial Products GmbH, (c) Larco Industrial
Services, Inc., (d) Societe D'Exploitation Des Raccords Gautier, (e) Univeyor
A/S and (f) Columbus XxXxxxxx Ltd.;
(b) amendments to each of the Mortgages, in form and substance suitable for
filing within applicable real estate records and otherwise in form and substance
satisfactory to the Administrative Agent and a bringdown to the Closing Date of
the title insurance policy covering each Mortgage for which a title insurance
policy is in place prior to the Closing Date, in form and substance satisfactory
to the Administrative Agent; and
(c) a favorable opinion of Linklaters Xxxxxx, Luxembourg local counsel to
Audubon Europe regarding each of the Loan Documents to which Audubon Europe is a
party.
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ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
7.01. LIENS. Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on SCHEDULE 7.01 and any
renewals or extensions thereof, PROVIDED that (i) the property covered thereby
is not changed, (ii) the amount secured or benefited thereby is not increased
except as contemplated by SECTION 7.03(B), (iii) the direct or any contingent
obligor with respect thereto is not changed, and (iv) any renewal or extension
of the obligations secured or benefited thereby is permitted by SECTION 7.03(B);
(c) Liens for taxes not yet due or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases
(other than Indebtedness), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting an
Event of Default under SECTION 8.01(H);
(i) Liens securing Indebtedness permitted under SECTION 7.03(E); PROVIDED
that (i) such Liens do not at any time encumber any property other than the
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property financed by such Indebtedness and (ii) the Indebtedness secured thereby
does not exceed the cost or fair market value, whichever is lower, of the
property being acquired on the date of acquisition; and
(j) second priority Liens on the Collateral in favor of the Senior Note
Indenture Trustee under any of the Senior Note Documents which are subject to
the Intercreditor Agreement and junior in priority to the Liens in favor of the
Administrative Agent under the Loan Documents.
7.02. INVESTMENTS. Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the form of cash
equivalents or short-term marketable debt securities;
(b) Investments of the Borrower and/or its Subsidiaries in any of the
Borrower's Subsidiaries which are not Domestic Subsidiaries; PROVIDED that the
aggregate amount of such Investments made after the Closing Date does not exceed
$10,000,000;
(c) advances to officers, directors and employees of the Borrower and
Subsidiaries in an aggregate amount not to exceed $500,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes;
(d) Investments of the Borrower in any Guarantor and Investments of any
Subsidiary in the Borrower or in another Guarantor;
(e) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(f) Guarantees permitted by SECTION 7.03;
(g) Investments held in the investment portfolio of CM Insurance Company,
Inc. of the type and in amounts in the ordinary course of business of CM
Insurance Company, Inc. and consistent with past practices; and
(h) other Investments not exceeding $25,000,000 in the aggregate during the
term of this Agreement.
7.03. INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on SCHEDULE 7.03
and any refinancings, refundings, renewals or extensions thereof; PROVIDED that
(i) the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder and (ii) the terms relating to
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principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing,
refunding, renewing or extending Indebtedness, and of any agreement entered into
and of any instrument issued in connection therewith, are no less favorable in
any material respect to the Loan Parties or the Lenders than the terms of any
agreement or instrument governing the Indebtedness being refinanced, refunded,
renewed or extended and the interest rate applicable to any such refinancing,
refunding, renewing or extending Indebtedness does not exceed the then
applicable market interest rate;
(c) Guarantees of the Borrower or any Guarantor in respect of Indebtedness
otherwise permitted hereunder of the Borrower or any other Guarantor;
(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary
existing or arising under any Swap Contract, provided that (i) such obligations
are (or were) entered into by such Person in the ordinary course of business for
the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably anticipated by
such Person, or changes in the value of securities issued by such Person, and
not for purposes of speculation or taking a "market view;" and (ii) such Swap
Contract does not contain any provision exonerating the non-defaulting party
from its obligation to make payments on outstanding transactions to the
defaulting party;
(e) Indebtedness of the Borrower in respect of capital leases, Synthetic
Lease Obligations and purchase money obligations for fixed or capital assets
within the limitations set forth in SECTION 7.01(I); PROVIDED, HOWEVER, that the
aggregate amount of all such Indebtedness at any one time outstanding shall not
exceed $6,000,000;
(f) Additional Subordinated Indebtedness;
(g) intercompany loans among the Borrower and the Loan Parties which are
Guarantors; provided, that (i) the Investment corresponding to such Indebtedness
is permitted pursuant to SECTION 7.02 hereof, (ii) such intercompany loan is
evidenced by a promissory note, (iii) such promissory note is pledged to the
Administrative Agent as security, and (iv) there are no restrictions whatsoever
on the ability of the applicable Loan Party to repay such loan;
(h) Indebtedness of any Foreign Subsidiary of the Borrower in an aggregate
amount for all such Indebtedness not to exceed the local currency equivalent (as
determined by the Administrative Agent form time to time by reference to the
Exchange Rate) of $30,000,000 in the aggregate at any one time outstanding;
PROVIDED THAT (i) the proceeds of such Indebtedness are used for working capital
needs, capital expenditures and the acquisition of assets or equity interests
permitted pursuant to SECTION 7.02, (ii) such Indebtedness is incurred solely by
such Foreign Subsidiary, (iii) such Indebtedness is either unsecured or, if such
Foreign Subsidiary is not a Guarantor is secured only by the assets of such
Foreign Subsidiary and (iv) except as permitted under SECTION 7.02(B) or SECTION
7.02(H), no guaranty or other credit support of any kind is provided by any
Person (including, without limitation, any Loan Party) of or for such
Indebtedness or any holder thereof; and provided, further, that the Borrower
shall notify the Administrative Agent in writing in advance prior to permitting
such Foreign Subsidiary to incur any Indebtedness under this SECTION 7.03(H);
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(i) Indebtedness of the Borrower in an aggregate principal amount not to
exceed $70,256,000, evidenced by or incurred under the Senior Note Documents;
(j) Indebtedness of the Borrower in an aggregate principal amount not to
exceed $136,000,000, evidenced by or incurred under the Senior Subordinated Note
Documents; and
(k) other unsecured Indebtedness in a principal amount outstanding at any
one time not exceeding $10,000,000.
7.04. FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, PROVIDED that the
Borrower shall be the continuing or surviving Person, or (ii) any one or more
other Subsidiaries, PROVIDED that when any Guarantor is merging with another
Subsidiary, the Guarantor shall be the continuing or surviving Person or the
surviving Person shall become a Guarantor; and
(b) any Subsidiary may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or to another
Subsidiary; PROVIDED that if the transferor in such a transaction is a
Guarantor, then the transferee must either be the Borrower or a Guarantor or
become a Guarantor.
7.05. DISPOSITIONS. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such
property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or to a
wholly-owned Subsidiary; PROVIDED that if the transferor of such property is a
Guarantor, the transferee thereof must either be the Borrower or a Guarantor or
become a Guarantor;
(e) Dispositions permitted by SECTION 7.04;
(f) other than as set forth on SCHEDULE 7.05, non-exclusive licenses of IP
Rights in the ordinary course of business and substantially consistent with past
practice for terms not exceeding five years;
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(g) Dispositions by the Borrower and its Subsidiaries not otherwise
permitted under this SECTION 7.05; PROVIDED that (i) at the time of such
Disposition, no Default shall exist or would result from such Disposition and
(ii) the aggregate book value of all property Disposed of in reliance on this
clause (g) in any fiscal year shall not exceed $2,000,000; and
(h) Dispositions of the real property owned by the Loan Parties on the
Closing Date and located in (i) Forrest City, Arkansas and (ii) Charlotte, North
Carolina.
PROVIDED, HOWEVER, that any Disposition pursuant to clauses (a) through (h)
shall be for fair market value.
7.06. RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that, so long as no Default shall have occurred and be continuing at the
time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower, the
Guarantors and any other Person that owns an Equity Interest in such Subsidiary,
ratably according to their respective holdings of the type of Equity Interest in
respect of which such Restricted Payment is being made;
(b) the Borrower and each Subsidiary may declare and make dividend payments
or other distributions payable solely in the common stock or other common Equity
Interests of such Person;
(c) the Borrower and each Subsidiary may purchase, redeem or otherwise
acquire Equity Interests issued by it with the proceeds received from the
substantially concurrent issue of new shares of its common stock or other common
Equity Interests;
(d) payments with respect to any intercompany loan permitted under SECTION
7.03(G);
(e) the Borrower may (i) declare or pay cash dividends to its stockholders
and (ii) purchase, redeem or otherwise acquire for cash Equity Interests issued
by it so long as, in each case, after giving effect thereto (A) no Default or
Event of Default has occurred and is continuing or would result therefrom and
(B) the aggregate amount of such dividends, purchases, redemptions, retirements
and acquisitions paid or made during any calendar year would not exceed 25% of
Consolidated Net Income for such year;
(f) the Borrower may make (i) so long as no Default or Event of Default has
occurred and is continuing or would result therefrom, regularly scheduled
payments of interest (but not principal or premium) in respect of the Senior
Subordinated Notes and Additional Subordinated Indebtedness on the dates and in
the amounts set forth in the applicable Subordinated Note Documents or in the
documents evidencing the Additional Subordinated Indebtedness, as the case may
be, and (ii) prepayments or purchases of principal in respect of the Senior
Subordinated Notes or Additional Subordinated Indebtedness, so long as (A) no
Default or Event of Default has occurred and is continuing or would result
therefrom, (B) the Fixed Charge Coverage Ratio as of the fiscal quarter of the
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Borrower most recently then ended (calculated on a pro forma basis after giving
effect to the making of such prepayment or purchase) will not be less than
1.25:1, (C) the Borrower has provided the Administrative Agent with a
certificate no later than the date of such payment evidencing compliance with
the requirements set forth in the foregoing clauses (A) and (B) and (D) the
amount of such prepayments in respect of the Senior Subordinated Notes and
Additional Subordinated Indebtedness shall not exceed $50,000,000 in the
aggregate from and after the Closing Date; and
(g) the Borrower may make (i) regularly scheduled payments of interest (but
not principal or premium) in respect of the Senior Notes on the dates and in the
amounts set forth in the applicable Senior Note Documents, as the case may be
and (ii) prepayments or purchases of principal in respect of the Senior Notes,
so long as no Default or Event of Default has occurred and is continuing or
would result therefrom, which such prepayments may be made, but are not required
to be made, with the proceeds of Additional Subordinated Indebtedness.
7.07. CHANGE IN NATURE OF BUSINESS. Engage in any material line of business
substantially different from those lines of business conducted by the Borrower
and its Subsidiaries on the date hereof or any business substantially related or
incidental thereto.
7.08. TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any kind
with any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the Borrower or such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm's length transaction with a Person
other than an Affiliate.
7.09. BURDENSOME AGREEMENTS. Except as set forth on SCHEDULE 7.09, enter
into any Contractual Obligation (other than this Agreement or any other Loan
Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to the Borrower or any Guarantor or to otherwise transfer property to
the Borrower or any Guarantor, (ii) of any Subsidiary to Guarantee the
Indebtedness of the Borrower or (iii) of the Borrower or any Subsidiary to
create, incur, assume or suffer to exist Liens on property of such Person;
PROVIDED, HOWEVER, that this clause (iii) shall not prohibit any negative pledge
incurred or provided in favor of any holder of Indebtedness permitted under
SECTION 7.03(E) solely to the extent any such negative pledge relates to the
property financed by or the subject of such Indebtedness; or (b) requires the
grant of a Lien to secure an obligation of such Person if a Lien is granted to
secure another obligation of such Person.
7.10. USE OF PROCEEDS. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
7.11. FINANCIAL COVENANTS.
(a) MINIMUM FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge Coverage
Ratio at any time during any period of four consecutive fiscal quarters of the
Borrower to be less than 1.25:1.
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(b) MAXIMUM SENIOR LEVERAGE RATIO. Permit the Senior Leverage Ratio at any
time during any period of four consecutive fiscal quarters of the Borrower to be
greater than 3.00:1.
7.12. MODIFICATIONS OF CERTAIN DOCUMENTS; DESIGNATION OF SENIOR DEBT.
Consent to any amendment or modification of or supplement to any of the
provisions of any documents or agreements evidencing or governing the Senior
Subordinated Notes, any other existing Indebtedness set forth on SCHEDULE 7.03,
or the Senior Notes. The Loan Parties will designate the Credit Agreement and
the Obligations hereunder as "Designated Senior Indebtedness" under the Senior
Subordinated Note Indenture, and will not designate any other Indebtedness other
than the Senior Notes as "Designated Senior Debt" under the Senior Subordinated
Note Indenture. The Loan Parties will designate the Credit Agreement and the
Obligations hereunder as "Senior Indebtedness" under the Senior Note Indenture,
and will not designate any other Indebtedness as "Senior Indebtedness" under the
Senior Note Indenture.
7.13. SALE-LEASEBACK TRANSACTIONS. Directly or indirectly, enter into any
arrangements with any Person whereby such Person shall sell or transfer (or
request another Person to purchase) any property, real, personal or mixed, used
or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property from any Person.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01. EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) NON-PAYMENT. The Borrower or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Loan or any
L/C Obligation, or (ii) within three days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any fee due hereunder or (iii)
within five days after the same becomes due, any other amount payable hereunder
or under any other Loan Document; or
(b) SPECIFIC COVENANTS. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of SECTION 6.01, 6.02, 6.03, 6.05, 6.06,
6.07, 6.10, 6.11, 6.12 or 6.13 or ARTICLE VII; or
(c) OTHER DEFAULTS. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days; or
(d) REPRESENTATIONS AND WARRANTIES. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading when made or deemed made; or
(e) CROSS-DEFAULT. (i) The Borrower or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any (x) Indebtedness or
Guarantee (other than Indebtedness hereunder and Indebtedness under Swap
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Contracts) having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than the Threshold Amount, or
(y) Material Rental Obligation, (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness, Material Rental
Obligation or Guarantee or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which
default or other event is to (x) cause, or to permit the holder or holders of
such Indebtedness or the beneficiary or beneficiaries of such Material Rental
Obligation or Guarantee (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) (y) cause, with the giving of notice if
required, such Indebtedness or Material Rental Obligation to be demanded or to
become due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded or (z) cause
or permit the lease with respect to any Material Rental Obligation of the
Borrower or any of its Subsidiaries to be terminated prior to its scheduled
expiration date; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event
of default under such Swap Contract as to which the Borrower or any Subsidiary
is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which the
Borrower or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than the Threshold Amount; or
(f) INSOLVENCY PROCEEDINGS, ETC. Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or
(g) INABILITY TO PAY DEBTS; ATTACHMENT. (i) The Borrower or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or execution
or similar process is issued or levied against all or any material part of the
property of any such Person and is not released, vacated or fully bonded within
30 days after its issue or levy; or
(h) JUDGMENTS. There is entered against the Borrower or any Subsidiary (i)
one or more final judgments or orders for the payment of money in an aggregate
amount (as to all such judgments or orders) exceeding the Threshold Amount (to
the extent not covered by CM Insurance Company, Inc. or independent third-party
insurance as to which CM Insurance Company, Inc. or such third-party insurer, as
the case may be, does not dispute coverage), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to have,
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individually or in the aggregate, a Material Adverse Effect and, in either case,
(A) enforcement proceedings are commenced by any creditor upon such judgment or
order, or (B) there is a period of 30 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not
in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount;
(j) INVALIDITY OF LOAN DOCUMENTS. Any provision of any Loan Document, at
any time after its execution and delivery and for any reason other than as
expressly permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or any
other Person contests in any manner the validity or enforceability of any
provision of any Loan Document; or any Loan Party denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any provision of any Loan Document; or
(k) CHANGE OF CONTROL. There occurs any Change of Control; or
(l) INVALIDITY OF LIENS. Any of the following shall occur: (i) the Liens
created hereunder or under the other Loan Documents shall at any time (other
than by reason of the Administrative Agent relinquishing such Lien) cease to
constitute valid and perfected Liens on any Collateral with an aggregate fair
market value in excess of $500,000 which is intended to be covered thereby other
than with the consent, in writing, of the Administrative Agent; (ii) except for
expiration in accordance with its respective terms, any Loan Document shall for
whatever reason be terminated, or shall cease to be in full force and effect
other than with the consent, in writing, of the Administrative Agent; or (iii)
the enforceability of any Loan Document shall be contested by the Borrower or
any of its Subsidiaries.
8.02. REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
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(c) require that the Borrower Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights
and remedies available to it, the Lenders and the L/C Issuer under the Loan
Documents;
PROVIDED, HOWEVER, that upon the occurrence of an actual or deemed entry of
an order for relief with respect to the Borrower under the Bankruptcy Code of
the United States, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable, and
the obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
8.03. APPLICATION OF FUNDS. After the exercise of remedies provided for in
SECTION 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to SECTION 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
FIRST, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
ARTICLE III) payable to the Administrative Agent in its capacity as such;
SECOND, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal, interest and Letter of
Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges
and disbursements of counsel to the respective Lenders and the L/C Issuer and
amounts payable under ARTICLE III), ratably among them in proportion to the
respective amounts described in this clause SECOND payable to them;
THIRD, to payment of that portion of the Obligations constituting accrued
and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and
other Obligations, ratably among the Lenders and the L/C Issuer in proportion to
the respective amounts described in this clause THIRD payable to them;
FOURTH, to payment of that portion of the Obligations constituting (i)
overdraft obligations, fees, costs, charges, expenses and other obligations in
respect of any Swap Contract, cash management agreement (including ACH
transactions), operating or deposit account, or other banking product from time
to time made available to the Loan Parties or any of their Subsidiaries by the
Administrative Agent, the L/C Issuer, cash management service providers, any
Lender or any of their Affiliates and (ii) unpaid principal of the Loans and L/C
Borrowings, ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause FOURTH held by them;
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FIFTH, to the Administrative Agent for the account of the L/C Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
LAST, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to SECTION 2.03(C), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause FIFTH above
shall be applied to satisfy drawings under such Letters of Credit as they occur.
If any amount remains on deposit as Cash Collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01. APPOINTMENT AND AUTHORITY. Each of the Lenders and the L/C Issuer
hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower
nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.
9.02. RIGHTS AS A LENDER. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
9.03. EXCULPATORY PROVISIONS. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent
is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), PROVIDED that the Administrative Agent
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shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Affiliates that
is communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in SECTIONS 10.01 and 8.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in ARTICLE IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed,
sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or the L/C Issuer unless the Administrative Agent shall have received
notice to the contrary from such Lender or the L/C Issuer prior to the making of
such Loan or the issuance of such Letter of Credit. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
9.05. DELEGATION OF DUTIES. The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
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other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
9.06. RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the L/C Issuer and the
Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; PROVIDED that if the Administrative Agent shall
notify the Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the
Loan Documents, the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent is
appointed) and (2) all payments, communications and determinations provided to
be made by, to or through the Administrative Agent shall instead be made by or
to each Lender and the L/C Issuer directly, until such time as the Required
Lenders appoint a successor Administrative Agent as provided for above in this
Section. Upon the acceptance of a successor's appointment as Administrative
Agent hereunder, such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Administrative
Agent's resignation hereunder and under the other Loan Documents, the provisions
of this Article and SECTION 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this
Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender. Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line
Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged
from all of their respective duties and obligations hereunder or under the other
Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit
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in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangements satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
9.07. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
9.08. NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Bookrunners or Arrangers listed on the cover page
hereof shall have any powers, duties or responsibilities under this Agreement or
any of the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the L/C Issuer hereunder.
9.09. ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the L/C
Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under SECTIONS 2.03(I) and (J), 2.09 and 10.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under SECTIONS 2.09
and 10.04.
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Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the L/C Issuer any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or the L/C
Issuer to authorize the Administrative Agent to vote in respect of the claim of
any Lender or the L/C Issuer in any such proceeding.
9.10. COLLATERAL AND GUARANTY MATTERS. The Lenders and the L/C Issuer
irrevocably authorize the Administrative Agent, at its option and in its
discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration or termination of all
Letters of Credit, (ii) that is sold or to be sold as part of or in connection
with any sale permitted hereunder or under any other Loan Document, or (iii)
subject to SECTION 10.01, if approved, authorized or ratified in writing by the
Required Lenders or otherwise permitted under this Agreement;
(b) to subordinate any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such
property that is permitted by SECTION 7.01(I); and
(c) to release any Guarantor from its obligations under the Guaranty if
such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this SECTION
9.10.
9.11. INTERCREDITOR AGREEMENT. The Lenders hereby agree to be bound by the
terms of the Intercreditor Agreement.
ARTICLE X.
MISCELLANEOUS
10.01. AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED, HOWEVER, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in SECTION 4.01(A) without the written
consent of each Lender;
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(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to SECTION 8.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment (excluding mandatory prepayments) of principal, interest, fees
or other amounts due to the Lenders (or any of them) hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (v) of the second proviso to
this SECTION 10.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; PROVIDED, HOWEVER, that only the consent of the Required Lenders shall
be necessary (i) to amend the definition of "Default Rate" or to waive any
obligation of the Borrower to pay interest or Letter of Credit Fees at the
Default Rate or (ii) to amend any financial covenant hereunder (or any defined
term used therein) even if the effect of such amendment would be to reduce the
rate of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;
(e) change SECTION 2.13 or SECTION 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder without the written
consent of each Lender;
(g) release all or substantially all of the value of the Guaranty without
the written consent of each Lender; or
(h) release all or substantially all of the Collateral in any transaction
or series of related transactions;
and, PROVIDED FURTHER, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the L/C Issuer in addition to the Lenders
required above, affect the rights or duties of the L/C Issuer under this
Agreement or any Issuer Document relating to any Letter of Credit issued or to
be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above,
affect the rights or duties of the Swing Line Lender under this Agreement; (iii)
no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; (iv) SECTION 10.06(H) may not be amended, waived or otherwise
modified without the consent of each Granting Lender all or any part of whose
Loans are being funded by an SPC at the time of such amendment, waiver or other
modification; and (v) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
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except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
10.02. NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) NOTICES GENERALLY. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Borrower, the Administrative Agent, the L/C Issuer or
the Swing Line Lender, to the address, telecopier number, electronic mail
address or telephone number specified for such Person on SCHEDULE 10.02;
and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its Administrative
Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) ELECTRONIC COMMUNICATIONS. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, PROVIDED that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to ARTICLE
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
PROVIDED that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), PROVIDED that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
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(c) THE PLATFORM. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"AGENT PARTIES") have any liability to the Borrower, any Lender, the L/C Issuer
or any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of the Borrower's or
the Administrative Agent's transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; PROVIDED, HOWEVER, that in no event shall any
Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
(d) CHANGE OF ADDRESS, ETC. Each of the Borrower, the Administrative Agent,
the L/C Issuer and the Swing Line Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the
other parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the
Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to
time to ensure that the Administrative Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail
address to which notices and other communications may be sent and (ii) accurate
wire instructions for such Lender.
(e) RELIANCE BY ADMINISTRATIVE AGENT, L/C ISSUER AND LENDERS. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Committed Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i)
such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower. All telephonic notices
to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
10.03. NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person
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in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.04. EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) COSTS AND EXPENSES. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer, and shall pay all fees and time charges for attorneys who may be
employees of the Administrative Agent, any Lender or the L/C Issuer, in
connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under
this Section, or (B) in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) INDEMNIFICATION BY THE BORROWER. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "INDEMNITEE") against, and hold each Indemnitee harmless from,
any and all losses, costs (including settlement costs), claims, damages,
liabilities and related expenses (including the fees, charges and disbursements
of any counsel (including allocated costs of internal counsel) for any
Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees
and time charges and disbursements for attorneys who may be employees of any
Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any
third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder, the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Administrative Agent (and
any sub-agent thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the
use or proposed use of the proceeds therefrom (including any refusal by the L/C
Issuer to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual 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
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claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto; PROVIDED that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim
brought by the Borrower or any other Loan Party against an Indemnitee for breach
in bad faith of such Indemnitee's obligations hereunder or under any other Loan
Document, if the Borrower or such Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.
(c) REIMBURSEMENT BY LENDERS. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
PROVIDED that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of SECTION 2.12(D).
(d) WAIVER OF CONSEQUENTIAL DAMAGES, ETC. To the fullest extent permitted
by applicable law, 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, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed to such unintended recipients by
such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for
direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnitee as determined by a final and nonappealable
judgment of a court of competent jurisdiction.
(e) PAYMENTS. All amounts due under this Section shall be payable not later
than ten Business Days after demand therefor.
(f) SURVIVAL. The agreements in this Section shall survive the resignation
of the Administrative Agent, the L/C Issuer and the Swing Line Lender, the
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replacement of any Lender, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
10.05. PAYMENTS SET ASIDE. To the extent that any payment by or on behalf
of the Borrower is made to the Administrative Agent, the L/C Issuer or any
Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its
right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.
10.06. SUCCESSORS AND ASSIGNS.
(a) SUCCESSORS AND ASSIGNS GENERALLY. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of this
Section, (iii) by way of pledge or assignment of a security interest subject to
the restrictions of subsection (f) of this Section, or (iv) to an SPC in
accordance with the provisions of subsection (h) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) ASSIGNMENTS BY LENDERS. Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans (including
for purposes of this subsection (b), participations in L/C Obligations and in
Swing Line Loans) at the time owing to it); PROVIDED that any such assignment
shall be subject to the following conditions:
(i) MINIMUM AMOUNTS.
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(A) in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender or an Affiliate of a Lender, no
minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the Commitment is not then in effect,
the principal outstanding balance of the Loans of the assigning Lender
subject to each such assignment, determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000 unless
each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); PROVIDED, HOWEVER,
that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single assignee (or to
an assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been
met.
(ii) PROPORTIONATE AMOUNTS. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not apply to the Swing Line
Lender's rights and obligations in respect of Swing Line Loans;
(iii) REQUIRED CONSENTS. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in
addition:
(A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender or an Affiliate of a Lender;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is
to a Person that is not a Lender;
(C) the consent of the L/C Issuer (such consent not to be unreasonably
withheld or delayed) shall be required if (i) such assignment is to a
Person that is not a Lender and (ii) the Aggregate Commitments have not
been terminated; and
(D) the consent of the Swing Line Lender (such consent not to be
unreasonably withheld or delayed) shall be required if (i) such assignment
is to a Person that is not a Lender and (ii) either the Aggregate
Commitments have not been terminated or there are any LC Obligations
outstanding.
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(iv) ASSIGNMENT AND ASSUMPTION. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee in the amount,
if any, required as set forth in SCHEDULE 10.06; PROVIDED, HOWEVER, that
the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment. The assignee,
if it is not a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
(v) NO ASSIGNMENT TO BORROWER. No such assignment shall be made to the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
(vi) NO ASSIGNMENT TO NATURAL PERSONS. No such assignment shall be
made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of SECTIONS 3.01, 3.04, 3.05, and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) REGISTER. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) PARTICIPATIONS. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "PARTICIPANT") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
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PROVIDED that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; PROVIDED that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
SECTION 10.01 that affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of SECTIONS 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of SECTION 10.08 as though it were a Lender, PROVIDED
such Participant agrees to be subject to SECTION 2.13 as though it were a
Lender.
(e) LIMITATIONS UPON PARTICIPANT RIGHTS. A Participant shall not be
entitled to receive any greater payment under SECTION 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of SECTION 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with SECTION 3.01(E) as though it were a
Lender.
(f) CERTAIN PLEDGES. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; PROVIDED
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) ELECTRONIC EXECUTION OF ASSIGNMENTS. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) SPECIAL PURPOSE FUNDING VEHICLES. Notwithstanding anything to the
contrary contained herein, any Lender (a "GRANTING Lender") may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower (an "SPC")
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the option to provide all or any part of any Committed Loan that such Granting
Lender would otherwise be obligated to make pursuant to this Agreement; PROVIDED
that (i) nothing herein shall constitute a commitment by any SPC to fund any
Committed Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Committed Loan, the Granting
Lender shall be obligated to make such Committed Loan pursuant to the terms
hereof or, if it fails to do so, to make such payment to the Administrative
Agent as is required under SECTION 2.12(B)(II). Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such option
shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrower under this Agreement (including its obligations
under SECTION 3.04), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be liable, and
(iii) the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Committed Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Committed Loan were made by such Granting Lender. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or join
any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof. Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the Borrower and the Administrative Agent and with the payment of a
processing fee in the amount of $2,500, assign all or any portion of its right
to receive payment with respect to any Committed Loan to the Granting Lender and
(ii) disclose on a confidential basis any non-public information relating to its
funding of Committed Loans to any rating agency, commercial paper dealer or
provider of any surety or Guarantee or credit or liquidity enhancement to such
SPC.
(i) RESIGNATION AS L/C ISSUER OR SWING LINE LENDER AFTER ASSIGNMENT.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon 30 days' notice to the Borrower and the
Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to the Borrower,
resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder; PROVIDED,
HOWEVER, that no failure by the Borrower to appoint any such successor shall
affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all
the rights, powers, privileges and duties of the L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Committed Loans or
fund risk participations in Unreimbursed Amounts pursuant to SECTION 2.03(C)).
If Bank of America resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line Loans
made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Committed Loans or
fund risk participations in outstanding Swing Line Loans pursuant to SECTION
2.04(C). Upon the appointment of a successor L/C Issuer and/or Swing Line
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Lender, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line
Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters
of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to Bank of
America to effectively assume the obligations of Bank of America with respect to
such Letters of Credit.
10.07. TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "INFORMATION" means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any Subsidiary,
PROVIDED that, in the case of information received from the Borrower or any
Subsidiary after the 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 of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrower or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
10.08. RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
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is hereby authorized at any time and from time to time, after obtaining the
prior written consent of the Administrative Agent, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account
of the Borrower or any other Loan Party against any and all of the obligations
of the Borrower or such Loan Party now or hereafter existing under this
Agreement or any other Loan Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer shall have made any
demand under this Agreement or any other Loan Document and although such
obligations of the Borrower or such Loan Party may be contingent or unmatured or
are owed to a branch or office of such Lender or the L/C Issuer different from
the branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, the L/C Issuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of
setoff) that such Lender, the L/C Issuer or their respective Affiliates may
have. Each Lender and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application, PROVIDED
that the failure to give such notice shall not affect the validity of such
setoff and application.
10.09. INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "MAXIMUM RATE"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
10.10. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in SECTION 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
10.11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
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shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12. SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13. REPLACEMENT OF LENDERS. If any Lender (i) requests compensation
under SECTION 3.04 or (ii) fails to agree to any amendment or waiver or give its
consent to any matter which has been approved by the Required Lenders, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to SECTION 3.01,
if any Lender is a Defaulting Lender, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by, SECTION
10.06), all of its interests, rights and obligations under this Agreement and
the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment),
provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment
fee specified in SECTION 10.06(B);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under SECTION 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under SECTION 3.04 or payments required to be made pursuant to
SECTION 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or 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.
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10.14. GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS 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 ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
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 COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING
ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
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RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16. NO ADVISORY OR FIDUCIARY RESPONSIBILITY. In connection with all
aspects of each transaction contemplated hereby, the Borrower and each other
Loan Party acknowledges and agrees, and acknowledges its Affiliates'
understanding, that: (i) the credit facility provided for hereunder and any
related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any
other Loan Document) are an arm's-length commercial transaction between the
Borrower, each other Loan Party and their respective Affiliates, on the one
hand, and the Administrative Agent and the Arranger, , on the other hand, and
the Borrower and each other Loan Party is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents (including any
amendment, waiver or other modification hereof or thereof); (ii) in connection
with the process leading to such transaction, the Administrative Agent and the
Arranger each is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary, for the Borrower, any other Loan Party or
any of their respective Affiliates, stockholders, creditors or employees or any
other Person; (iii) neither the Administrative Agent nor the Arranger has
assumed or will assume an advisory, agency or fiduciary responsibility in favor
of the Borrower or any other Loan Party with respect to any of the transactions
contemplated hereby or the process leading thereto, including with respect to
any amendment, waiver or other modification hereof or of any other Loan Document
(irrespective of whether the Administrative Agent or the Arranger has advised or
is currently advising the Borrower, any other Loan Party or any of their
respective Affiliates on other matters) and neither the Administrative Agent nor
the Arranger has any obligation to the Borrower, any other Loan Party or any of
their respective Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan
Documents; (iv) the Administrative Agent and the Arranger and their respective
Affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Borrower, the other Loan Parties and
their respective Affiliates, and neither the Administrative Agent nor the
Arranger has any obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship; and (v) the Administrative Agent and
the Arranger have not provided and will not provide any legal, accounting,
regulatory or tax advice with respect to any of the transactions contemplated
hereby (including any amendment, waiver or other modification hereof or of any
other Loan Document) and each of the Borrower and the other Loan Parties has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate. Each of the Borrower and the other Loan Parties
hereby waives and releases, to the fullest extent permitted by law, any claims
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that it may have against the Administrative Agent and the Arranger with respect
to any breach or alleged breach of agency or fiduciary duty.
10.17. USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (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 or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
10.18. TIME OF THE ESSENCE. Time is of the essence of the Loan Documents;
provided that this SECTION 10.18 shall not be construed to limit or deprive the
Loan Parties of any grace periods set forth in any Loan Document.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER:
---------
COLUMBUS XXXXXXXX CORPORATION
By: /S/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President - Finance and
Treasurer and Chief Financial
Officer
Signature Page to Credit Agreement
ACKNOWLEDGED AND AGREED BY THE GUARANTORS:
------------------------------------------
YALE INDUSTRIAL PRODUCTS, INC.
By: /S/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CRANE EQUIPMENT & SERVICE, INC.
By: /S/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
AUDUBON EUROPE S.A.R.L.
By: /S/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Manager
By: /S/ Romain Thillens
-----------------------------------------
Name: Romain Thillens
Title: Manager
Signature Page to Credit Agreement
LENDERS:
--------
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /S/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Signature Page to Credit Agreement
BANK OF AMERICA, N.A., AS A LENDER,
L/C ISSUER AND SWING LINE LENDER
By: /S/ Xxxxxxx X. X'Xxxxx
-----------------------------------------
Name: Xxxxxxx X'Xxxxx
Title: Vice President
Signature Page to Credit Agreement
CITIZENS BANK, N.A.
By: /S/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Signature Page to Credit Agreement
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /S/ Xxxxxx X. Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
Signature Page to Credit Agreement
JPMORGAN CHASE BANK, N.A.
By: /S/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Signature Page to Credit Agreement
NATIONAL CITY BANK OF PA
By: /S/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Signature Page to Credit Agreement
GREATER BUFFALO SAVINGS BANK
By: /S/ Xxx Xxxxx
-----------------------------------------
Name: Xxx Xxxxx
Title: Vice President
Signature Page to Credit Agreement
