EXHIBIT 99.1
================================================================================
REVOLVING CREDIT AGREEMENT
Dated as of March 31, 2005
among
XXXXXX CORPORATION,
as the Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
and
SUNTRUST BANK,
as Administrative Agent, L/C Issuer and Swingline Lender,
and
CITICORP USA, INC. and WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents
and
FLEET NATIONAL BANK and HSBC BANK USA, NATIONAL ASSOCIATION,
as Co-Documentation Agents
and
SUNTRUST XXXXXXXX XXXXXXXX, A DIVISION OF SUNTRUST CAPITAL MARKETS, INC.,
as Lead Arranger and Book Manager
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS..................................................... 1
1.01 Defined Terms.............................................................................. 1
1.02 Other Interpretive Provisions.............................................................. 18
1.03 Accounting Terms........................................................................... 18
1.04 Rounding................................................................................... 19
1.05 References to Agreements and Laws.......................................................... 19
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS................................................ 19
2.01 Committed Loans............................................................................ 19
2.02 Borrowings, Conversions and Continuations of Committed Loans............................... 19
2.03 Competitive Bid Loans...................................................................... 21
2.04 Negotiated Bid Loans....................................................................... 24
2.05 Letters of Credit.......................................................................... 25
2.06 Prepayments................................................................................ 32
2.07 Optional Reduction or Termination of Commitments........................................... 32
2.08 Repayment of Loans......................................................................... 33
2.09 Interest................................................................................... 33
2.10 Fees....................................................................................... 34
2.11 Computation of Interest and Fees........................................................... 34
2.12 Evidence of Debt........................................................................... 35
2.13 Payments Generally......................................................................... 35
2.14 Sharing of Payments........................................................................ 37
2.15 Swingline Commitment....................................................................... 38
2.16 Procedure for Swingline Borrowing; Etc..................................................... 38
2.17 Increase in Commitments; Additional Lenders................................................ 39
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY............................................... 41
3.01 Taxes...................................................................................... 41
3.02 Illegality................................................................................. 43
3.03 Inability to Determine Rates............................................................... 43
3.04 Increased Cost and Reduced Return; Capital Adequacy Reserves on Eurodollar Rate Loans...... 43
3.05 Funding Losses............................................................................. 44
3.06 Matters Applicable to all Requests for Compensation........................................ 45
3.07 Applicability to Negotiated Bid Loans...................................................... 45
3.08 Survival................................................................................... 45
3.09 Change in Lending Office; Limitation on Increased Costs.................................... 46
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS............................................ 46
4.01 Conditions of Initial Credit Extension..................................................... 46
4.02 Conditions to all Credit Extensions........................................................ 48
ARTICLE V. REPRESENTATIONS AND WARRANTIES....................................................... 48
-i-
5.01 Existence, Qualification................................................................... 48
5.02 Authorization; No Contravention............................................................ 48
5.03 Governmental Authorization................................................................. 49
5.04 Binding Effect............................................................................. 49
5.05 Financial Statements; No Material Adverse Change........................................... 49
5.06 Litigation................................................................................. 49
5.07 ERISA Compliance........................................................................... 49
5.08 Real Property.............................................................................. 50
5.09 Margin Regulations; Investment Company Act; Public Utility Holding Company Act............. 50
5.10 Outstanding Loans.......................................................................... 51
5.11 Taxes...................................................................................... 51
5.12 Intellectual Property; License, Etc........................................................ 51
5.13 Disclosure................................................................................. 51
5.14 Solvency................................................................................... 51
5.15 Patriot Act................................................................................ 51
5.16 OFAC....................................................................................... 52
ARTICLE VI. AFFIRMATIVE COVENANTS................................................................ 52
6.01 Reporting Requirements..................................................................... 52
6.02 Corporate Existence........................................................................ 54
6.03 Compliance with Laws, Etc.................................................................. 54
6.04 Certificates............................................................................... 54
6.05 Covenant to Secure Notes Equally........................................................... 54
6.06 Maintenance of Properties.................................................................. 55
6.07 Maintenance of Insurance................................................................... 55
6.08 Taxes and Other Claims..................................................................... 55
6.09 Environmental Laws......................................................................... 55
6.10 Books and Records.......................................................................... 56
6.11 Compliance with ERISA...................................................................... 56
6.12 Visitation, Inspection, Etc................................................................ 56
ARTICLE VII. NEGATIVE COVENANTS................................................................... 56
7.01 Liens...................................................................................... 56
7.02 Merger, Consolidation and Sale of Assets................................................... 59
7.03 Sale and Leaseback......................................................................... 60
7.04 Certain Investments........................................................................ 60
7.05 Use of Proceeds............................................................................ 60
7.06 Financial Covenants........................................................................ 60
7.07 Restrictive Agreements..................................................................... 60
7.08 Hedging Transactions....................................................................... 61
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES....................................................... 61
8.01 Events of Default.......................................................................... 61
ARTICLE IX. ADMINISTRATIVE AGENT................................................................. 64
9.01 Appointment and Authorization of Administrative Agent...................................... 64
-ii-
9.02 Delegation of Duties....................................................................... 65
9.03 Liability of Administrative Agent.......................................................... 65
9.04 Reliance by Administrative Agent........................................................... 65
9.05 Notice of Default.......................................................................... 66
9.06 Credit Decision; Disclosure of Information by Administrative Agent......................... 66
9.07 Indemnification of Administrative Agent.................................................... 67
9.08 Administrative Agent in its Individual Capacity............................................ 67
9.09 Successor Administrative Agent............................................................. 67
9.10 Other Agents; Lead Managers................................................................ 68
ARTICLE X. MISCELLANEOUS........................................................................ 68
10.01 Amendments, Etc............................................................................ 68
10.02 Notices and Other Communications; Facsimile Copies; General................................ 69
10.03 No Waiver; Cumulative Remedies............................................................. 70
10.04 Attorney Costs, Expenses and Taxes......................................................... 71
10.05 Indemnification by the Borrower............................................................ 71
10.06 Payments Set Aside......................................................................... 72
10.07 Successors and Assigns..................................................................... 72
10.08 Confidentiality............................................................................ 75
10.09 Set-off.................................................................................... 76
10.10 Interest Rate Limitation................................................................... 77
10.11 Counterparts............................................................................... 77
10.12 Integration................................................................................ 77
10.13 Survival of Representations and Warranties................................................. 77
10.14 Severability............................................................................... 77
10.15 Removal and Replacement of Lenders......................................................... 78
10.16 Governing Law.............................................................................. 78
10.17 Waiver of Right to Trial by Jury........................................................... 79
10.18 Waiver of Right to Consequential Damages................................................... 79
10.19 ENTIRE AGREEMENT........................................................................... 79
10.20 Patriot Act Notice......................................................................... 80
SCHEDULES
2.01 Commitments and Pro Rata Shares
2.05 Existing Letters of Credit
5.06 Litigation
5.12 Intellectual Property
10.02 Eurodollar and Domestic Lending Offices, Addresses for Notices
EXHIBITS
FORM OF
A Committed Loan Notice
B-1 Competitive Bid Request
-iii-
B-2 Competitive Bid Offer
C-1 Committed Loan Note
C-2 Competitive Bid Loan Note
C-3 Negotiated Bid Loan Note
C-4 Swingline Note
D Compliance Certificate
E Assignment and Acceptance
F Closing Date Opinion of Counsel (content summary)
G Swingline Notice
-iv-
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT (this "Agreement") is made and entered
into as of March 31, 2005, by and among XXXXXX CORPORATION, a Delaware
corporation (the "Borrower"), each lender from time to time party hereto
(collectively, the "Lenders" and individually, a "Lender"), and SUNTRUST BANK,
in its capacity as administrative agent for the Lenders (the "Administrative
Agent"), as issuing bank for letters of credit (the "L/C Issuer") and as
swingline lender (the "Swingline Lender").
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders provide a
$500,000,000 revolving credit facility in favor of the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders, the L/C Issuer and the Swingline Lender to the extent of their
respective Commitments as defined herein, are willing severally to establish the
requested revolving credit facility, letter of credit subfacility and the
swingline subfacility in favor of the Borrower.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, 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:
"Absolute Rate" means a fixed rate of interest expressed in multiples of
1/100th of one basis point.
"Absolute Rate Loan" means a Competitive Bid Loan that bears interest at a
rate determined with reference to an Absolute Rate.
"Acquisition" means the acquisition of (a) a controlling equity interest
in another Person (including the purchase of an option, warrant or convertible
or similar type security to acquire such a controlling interest at the time it
becomes exercisable by the holder thereof), whether by purchase of such equity
interest or upon exercise of an option or warrant for, or conversion of
securities into, such equity interest, or (b) assets of another Person which
constitute all or substantially all of the assets of such Person or a line or
lines of business conducted by such Person.
"Additional Commitment Amount" has the meaning set forth in Section
2.17(a).
"Additional Lender" has the meaning set forth in Section 2.17(b).
"Administrative Agent" means SunTrust Bank in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"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.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 10% or more of the securities having ordinary voting power for the
election of directors or managing general partners; or (b) to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise.
"Agent-Related Persons" means the Administrative Agent (including any
successor administrative agent), together with its Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Aggregate Commitments" shall mean, collectively, all Commitments of all
Lenders at any time outstanding.
"Agreement" has the meaning set forth in the first paragraph hereof.
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Senior Debt Rating existing at such time:
Eurodollar Rate and
Pricing Senior Debt Letters of Facility
Level Ratings Credit Fee
-------------- ---------------- ------------------- --------
I A-/A3 or better .3000% .1000%
II BBB+/Baa1 .4000% .1000%
III BBB/Baa2 .5000% .1250%
IV BBB-/Baa3 .6250% .1250%
V BB+/Ba1 or lower 1.050% .2000%
"Senior Debt Rating" means the senior debt rating assigned to the senior,
unsecured long-term debt securities of the Borrower by either S&P or Xxxxx'x
without third-party credit enhancement, whether or not any such debt securities
are actually outstanding, and any rating assigned to any other debt security of
the Borrower shall be disregarded. The rating in effect on any date is that in
effect at the close of business on such date. If the Borrower is split-rated and
(1) the ratings differential is one category, the higher of the two ratings will
apply, (2) the ratings differential is two categories, the rating which falls
between them shall apply or (3) the ratings differential is three categories or
more, the rating immediately above the lower of the two ratings shall apply. If
only one of S&P and Xxxxx'x shall have in effect a senior debt rating for the
Borrower, the Applicable Rate shall be determined by reference to the available
rating. If neither
-2-
Xxxxx'x nor S&P has rated the Borrower, then the Applicable Rate shall be
established by reference to Pricing Level V.
Initially, the Applicable Rate shall be set at Pricing Level III.
Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in the Senior Debt Rating shall be effective, in the case of an
upgrade, during the period commencing on the date of public announcement thereof
and ending on the date immediately preceding the effective date of the next such
change and, in the case of a downgrade, during the period commencing on the date
of the public announcement thereof and ending on the date immediately preceding
the effective date of the next such change.
"Assignment and Acceptance" means an Assignment and Acceptance
substantially in the form of Exhibit E.
"Attorney Costs" means and includes all fees and disbursements of any law
firm or other external counsel and all disbursements of internal counsel
"Attributable Indebtedness" means, on any date, in respect of any
Synthetic Lease Obligation, the capitalized amount of any 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 July 2,
2004, and the related consolidated statements of income and cash flows for such
fiscal year.
"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 SunTrust Bank
as its prime lending rate. Such rate is a rate set by SunTrust Bank based upon
various factors, including SunTrust Bank'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.
The SunTrust Bank prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
SunTrust Bank may make commercial loans or other loans at rates of interest at,
above, or below the SunTrust Bank prime lending rate. Any change in such rate
announced by SunTrust Bank shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Base Rate Loan" means a Committed Loan that bears interest based on the
Base Rate.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" has the meaning set forth in the introductory paragraph hereto.
"Borrowing" means a Committed Borrowing, a Competitive Bid Borrowing, a
Negotiated Bid Borrowing, or a Swingline Borrowing, as the context may require.
-3-
"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
applicable offshore Dollar interbank market.
"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 shall have corresponding meaning. The Borrower hereby
grants the Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, a Lien on all such cash and deposit account balances. Cash collateral
shall be maintained in blocked, non-interest bearing deposit accounts at
SunTrust Bank, or other institutions satisfactory to the Required Lenders.
"Change of Control" means, with respect to any Person, 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, or 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 such a person or group
shall be deemed to have "beneficial ownership" of all securities that such
person or group has the right to acquire (such right, "option right"), whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of 25% or more of the equity securities of such Person
entitled to vote for members of the board of directors or equivalent governing
body 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); or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of such
Person cease to be composed of individuals (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 a duly authorized committee of such board or 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. For purposes of determining a majority
of the members of the board of directors or other equivalent governing body,
vacant seats shall not be included.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
-4-
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation (a) to make
Committed Loans to the Borrower pursuant to Section 2.01 and (b) to purchase
participations in L/C Obligations and Swingline 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, as such amount may be reduced or 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 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 Note" means a promissory note made by the Borrower in
favor of a Lender evidencing Committed Loans made by such Lender, substantially
in the form of Exhibit C-1.
"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 Committed Loans as the same Type, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.
"Commonly Controlled Entity" means an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group which includes the Borrower and which is
treated as a single employer under Section 414 of the Code.
"Competitive Bid" means a written offer by a Lender to make one or more
Competitive Bid Loans, substantially in the form of Exhibit B-2, duly completed
and signed by a Lender.
"Competitive Bid Borrowing" means a borrowing consisting of simultaneous
Competitive Bid Loans of the same Type from each of the Lenders whose offer to
make one or more Competitive Bid Loans as part of such borrowing has been
accepted under the auction bidding procedures described in Section 2.03.
"Competitive Bid Loan" has the meaning specified in Section 2.03(a).
"Competitive Bid Loan Note" means a promissory note made by the Borrower
in favor of a Lender evidencing Competitive Bid Loans made by such Lender,
substantially in the form of Exhibit C-2.
"Competitive Bid Loan Sublimit" means an amount equal to the principal
amount of the Aggregate Commitments. The Competitive Bid Loan Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Competitive Bid Request" means a written request for one or more
Competitive Bid Loans substantially in the form of Exhibit B-1.
-5-
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP, an
amount equal to the sum of (a) Consolidated Net Income for such period plus (b)
to the extent deducted in determining Consolidated Net Income for such period,
(i) Consolidated Interest Charges, (ii) income tax expense, (iii) depreciation
and amortization, determined on a consolidated basis in accordance with GAAP in
each case for such period, (iv) other non-cash losses or deductions (including
purchased in-process research and development, impairment charges, expensing of
stock options or stock awards, write-offs or restructuring charges), and (v)
fees, costs, write-offs and other expenses associated with any Acquisition.
"Consolidated Interest Charges" means, for any period, for the Borrower
and its Subsidiaries determined on a consolidated basis in accordance with GAAP,
total interest expense with respect to Debt including, without limitation, the
interest component of any payments in respect of capital leases capitalized or
expensed during such period (whether or not actually paid during such period).
"Consolidated Net Income" means, for any period, for the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP, the net
income (or loss) of the Borrower and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any non-cash extraordinary gains or
losses, (ii) any gains attributable to write-ups of assets and (iii) any equity
interest of the Borrower or any Subsidiary of the Borrower in the unremitted
earnings of any Person that is not a Subsidiary.
"Consolidated Net Interest Expense" means, for any period, for the
Borrower and its Subsidiaries determined on a consolidated basis in accordance
with GAAP, (i) Consolidated Interest Charges less (ii) interest income of the
Borrower and its Subsidiaries for such period.
"Consolidated Total Assets" means, at any time, the total consolidated
assets of the Borrower and its Subsidiaries determined on a consolidated basis
in accordance with GAAP, as reflected on the Borrower's consolidated balance
sheet as of the last day of the fiscal quarter ending on or before the date of
determination, after eliminating all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries.
"Consolidated Total Indebtedness" means, at any time, without duplication,
the sum of (a) all amounts which would be included as indebtedness of the
Borrower and its Subsidiaries determined on a consolidated basis in accordance
with GAAP at such time, plus (b) the amount of Attributable Indebtedness of the
Borrower and its Subsidiaries at such time.
"Credit Extension" means (a) a Committed Borrowing, a Competitive Bid
Borrowing, a Negotiated Bid Borrowing or a Swingline Borrowing and (b) an L/C
Credit Extension.
"Debt" means, as to any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services in respect of which such Person is liable,
contingently or otherwise, as obligor, guarantor or otherwise, or in respect of
which such Person otherwise assures a creditor against loss, (other
-6-
than current liabilities incurred in the ordinary course of business and payable
in accordance with customary practices) or which is evidenced by a note, bond,
debenture or similar instrument, (b) all obligations of such Person under any
lease of property, real or personal, the obligations of the lessee in respect of
which are required in accordance with GAAP to be capitalized on a balance sheet
of the lessee and (c) all Synthetic Lease Obligations.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event that, with the giving of any notice, the passage
of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to (a) with respect to Base
Rate Loans, the Base Rate plus 2% per annum; (b) with respect to Eurodollar Rate
Loans, the Eurodollar Rate plus the Applicable Rate applicable to Eurodollar
Rate Loans plus 2% per annum; provided, however, that for any Eurodollar Rate
Loans, at the end of the applicable Interest Period, interest shall accrue at
the Base Rate plus 2% per annum, and (c) with respect to Swingline Loans, the
Base Rate (or if greater such other rate as agreed to by the Borrower and the
Swingline Lender with respect to such Swingline Loans) plus 2% per annum, in
each case to the fullest extent permitted by applicable Laws.
"Divestiture" has the meaning set forth in Section 7.02(b).
"Dollar" and "$" means lawful money of the United States of America.
"Eligible Assignee" has the meaning specified in Section 10.07(h).
"Environmental Laws" means any and all Federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees or
requirements of any Governmental Authority regulating, relating to or imposing
liability or standards of conduct concerning environmental protection matters
(including, without limitation, any hazardous materials, hazardous wastes,
hazardous constituents, hazardous or toxic substances or petroleum products
(including crude oil or any fraction thereof)) as now or at any time hereafter
in effect.
"ERISA" means the Employee Retirement Income Security Act of 1974 and any
regulations promulgated thereunder.
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any Commonly Controlled Entity 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
Commonly Controlled Entity from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) with respect to a Pension Plan or
Multiemployer Plan that does not hold assets that equal or exceed its
liabilities, the filing of a notice of intent to terminate under
-7-
Section 4041(a)(2) of ERISA if the Pension Plan's liabilities exceed its assets
as of the date of the filing of such notice, the treatment of a Plan amendment
as a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate such Pension Plan or Multiemployer Plan;
(e) an event or condition which might reasonably be expected to constitute
grounds under Section 4042(a)(1)-(3) 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 PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any Commonly Controlled Entity that would cause a Material Adverse Effect.
"Eurodollar Bid Margin" means the margin above or below the Eurodollar
Rate to be added to or subtracted from the Eurodollar Rate, which margin shall
be expressed in multiples of 1/100th of one basis point.
"Eurodollar Margin Competitive Bid Loan" means a Competitive Bid Loan that
bears interest at a rate based upon the Eurodollar Rate.
"Eurodollar Rate" means, with respect to each Interest Period for a
Eurodollar Rate Loan, LIBOR for such Interest Period.
"Eurodollar Rate Committed Loan" means a Committed Loan that bears
interest at a rate based on the Eurodollar Rate.
"Eurodollar Rate Loan" means a Eurodollar Rate Committed Loan or a
Eurodollar Margin Competitive Bid Loan.
"Event of Default" has the meaning specified in Article VIII.
"Excluded Taxes" means in the case of the Administrative Agent or any
Lender (i) taxes imposed on or measured by its net income, 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 the Administrative Agent
or such Lender, as the case may be, is organized or maintains a lending office,
(ii) taxes imposed as a result of a present or former connection between the
jurisdiction of the government or taxing authority imposing such tax (or any
political subdivision or taxing authority thereof or therein) and the
Administrative Agent or such Lender (excluding a connection arising principally
as a result of the Administrative Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
any Loan Document), and (iii) in the case of a Foreign Lender, any withholding
tax that (A) is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement, (B) is imposed on amounts
payable to such Foreign Lender at any time that such Foreign Lender designates a
new lending office, other than taxes that have accrued prior to the designation
of such lending office that are otherwise not Excluded Taxes, and (C) is
attributable to such Foreign Lender's failure to comply with Section 3.01(e).
"Existing Credit Facility" means that certain Revolving Credit Agreement,
dated as of October 15, 2003, among the Borrower, the lenders party thereto, and
SunTrust Bank as administrative agent, L/C issuer and swingline lender and the
other parties thereto.
-8-
"Existing Letters of Credit" means the letters of credit issued and
outstanding under the Existing Credit Facility as set forth on Schedule 2.05.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with member banks of the
Federal Reserve System arranged by Federal funds brokers, as published by the
Federal Reserve Bank of New York on the next succeeding Business Day or if such
rate is not so published for any Business Day, the Federal Funds Rate for such
day shall be the average rounded upwards, if necessary, to the next 1/100th of
1% of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
"Fee Letter" means that certain fee letter, dated as of February 15, 2005,
executed by SunTrust Xxxxxxxx Xxxxxxxx, a division of SunTrust Capital Markets,
Inc. and SunTrust Bank, and accepted by the Borrower.
"Foreign Lender" means each Lender that is a "foreign corporation,
partnership or trust" within the meaning of the Code.
"GAAP" means generally accepted accounting principles 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, that are
applicable to the circumstances as of the date of determination, consistently
applied.
"Government Contract" means any contract with or made at the request of
any Governmental Authority.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, department,
instrumentality, commission, regulatory body, court, administrative tribunal,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Hazardous Materials" means any hazardous materials, hazardous wastes,
hazardous constituents, hazardous or toxic substances or petroleum products
(including crude oil or any fraction thereof), defined or regulated as such in
or under any Environmental Law.
"Hedging Arrangements" 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
-9-
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.
"Hostile Acquisition" means (a) any transaction which is subject to
Section 13 (other than an Investment Transaction) or Section 14 of the
Securities Exchange Act of 1934, unless, prior to the time such transaction
becomes subject to such Section 13 or 14, the board of directors or other
governing body of the acquiree has adopted a resolution approving such
transaction and approving any "change of control" with respect to such Person
whereby the Borrower may acquire control of such Person, and (b) any purchase or
attempt to purchase, any Person by means of a public debt or equity tender offer
or other unsolicited takeover (or the equivalent thereof in any jurisdiction),
or any attempt to engage in a proxy contest (or the equivalent thereof in any
jurisdiction) for control of the board of directors (or the functional
equivalent thereof) of any Person, in either case which has not been approved
and recommended by the board of directors (or the functional equivalent thereof)
of the Person being acquired or proposed to be acquired or which is the subject
of such proxy contest. For purposes of this definition, (x) a "change of
control" means, for any Person, an Acquisition with respect to such Person and
(y) an "Investment Transaction" means a transaction subject to Section 13(d),
but not Section 16, of the Securities Exchange Act of 1934, provided that in
connection with such a transaction Borrower or any applicable Subsidiary (as the
case may be) has reported and at all times continues to report to the Securities
and Exchange Commission that such transaction is undertaken for investment
purposes only and not for any of the purposes specified in clauses 4(a) through
(j), inclusive, of the special instructions for complying with Schedule 13D
under the Securities Exchange Act of 1934.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Insolvency" means, with respect to any Multiemployer Plan, the condition
that such plan is insolvent within the meaning of Section 4245 of ERISA.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan or a Negotiated Bid Loan, the last day of each Interest Period applicable
to such Loan; 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; (b) as to any Base Rate Loan, the last Business Day of each
March, June, September and December and the Maturity Date; and (c) as to any
Negotiated Bid Loan, the date(s) agreed upon by the Borrower and the applicable
Lender with respect thereto.
"Interest Period" means (a) as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or (in the case of
any Eurodollar Rate Committed Loan) 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 or Competitive Bid
Request, as the case may be, or, in the case of Eurodollar Rate
-10-
Committed Loans, such other period that is twelve months or less requested by
the Borrower and consented to by all the Lenders; (b) as to each Absolute Rate
Loan, a period of not less than 14 days and not more than 180 days as selected
by the Borrower in its Competitive Bid Request; and (c) as to any Swingline
Loan, such period as the Swingline Lender and the Borrower shall mutually agree,
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, in the case of a Eurodollar Rate Loan, such Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the scheduled Maturity
Date.
"IP Rights" has the meaning set forth in Section 5.12.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes,
executive orders 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.
"L/C Advance" means, with respect to each Lender, such Lender's
participation in any L/C Borrowing in accordance with its Pro Rata Share.
"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 renewal or
increase of the amount thereof.
"L/C Issuer" means SunTrust Bank 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
undrawn face amount of all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all L/C Borrowings.
-11-
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the L/C Issuer and the Swingline Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, 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 issued hereunder and any of
the Existing Letters of Credit. A Letter of Credit may be a commercial letter of
credit or a standby letter of credit.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a letter of credit hereunder in the form from time to
time in use by the L/C Issuer.
"Letter of Credit Subfacility Expiration Date" means the day that is seven
days prior to the Maturity Date (or, if such day is not a Business Day, the next
preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to $75,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"LIBOR" means, for any applicable Interest Period with respect to any
Eurodollar Rate Loan, the British Bankers' Association Interest Settlement Rate
per annum for deposits in Dollars for a period equal to such Interest Period
appearing on the Bloomberg Page (or such other page or such other service
designated by the British Bankers' Association for the display of such
Association's Interest Settlement Rates for Dollar deposits) as of 11:00 a.m.
(London, England time) on the day that is two Business Days prior to the first
day of the Interest Period or if such page or service is unavailable for any
reason at such time, the rate which appears on the Reuters Screen ISDA Page as
of such date and such time; provided, that if the Administrative Agent
determines that the relevant foregoing sources are unavailable for the relevant
Interest Period, LIBOR shall mean the rate of interest determined by the
Administrative Agent to be the average (rounded upward, if necessary, to the
nearest 1/100th of 1%) of the rates per annum at which deposits in Dollars are
offered to the Administrative Agent (or the applicable Competitive Bid Loan
Lender, as the case may be) two (2) Business Days preceding the first day of
such Interest Period by leading banks in the London interbank market as of 10:00
a.m. (London, England time) for delivery on the first day of such Interest
Period, for the number of days comprised therein and in an amount comparable to
the amount of the Eurodollar Rate Loan of the Administrative Agent.
"Lien" means any mortgage, pledge, security interest, assignment, deposit
arrangement, encumbrance, lien (statutory or otherwise), preference, priority or
charge of any kind or nature whatsoever (including, without limitation, any
agreement to give any of the foregoing, any conditional sale or other title
retention agreement, the filing of or agreement to give any financing statement
under the Uniform Commercial Code of any jurisdiction or any other similar
recording or notice statute, and any lease having substantially the same effect
as any of the foregoing).
-12-
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Committed Loan, a Competitive Bid Loan, a Negotiated
Bid Loan or a Swingline Loan.
"Loan Documents" means this Agreement, each Note, the Fee Letter, each
Request for Credit Extension and each Compliance Certificate, and any and all
other instruments, documents and agreements executed by the Borrower in
connection with any of the foregoing.
"Margin Stock" has the meaning set forth in Regulation U issued by the
Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, property, condition (financial or otherwise), or
results of operations of the Borrower and its Subsidiaries taken as a whole, (b)
the ability of the Borrower to perform its obligations under any Loan Document
or (c) the validity or enforceability of any Loan Document or the rights or
remedies of the Lenders hereunder or thereunder.
"Material Subsidiary" means, at any time, any Subsidiary of the Borrower,
the assets of which represent 10% or more of Consolidated Total Assets (or the
equivalent thereof in another currency), based upon the most recent financial
statements delivered to the Administrative Agent pursuant to Sections 6.01(a)
and (b).
"Maturity Date" means (a) March 31, 2010, or (b) such earlier date upon
which the Commitments are terminated in accordance with the terms hereof.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means a multiemployer plan of the type described in
Section 4001(a)(3) of ERISA, to which the Borrower or any Commonly Controlled
Entity makes or is obligated to make contributions, or during the preceding
three calendar years, has made or been obligated to make contributions.
"Negotiated Bid Borrowing" means a borrowing consisting of a Negotiated
Bid Loan from a Lender whose offer to make such a Negotiated Bid Loan has been
accepted in accordance with the procedures described in Section 2.04.
"Negotiated Bid Loan" has the meaning set forth in Section 2.04(a).
"Negotiated Bid Loan Note" means a promissory note made by the Borrower in
favor of a Lender evidencing Negotiated Bid Loans made by such Lender,
substantially in the form of Exhibit C-3.
"Negotiated Bid Loan Sublimit" means an amount equal to the principal
amount of the Aggregate Commitments. The Negotiated Bid Loan Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Notes" means, collectively, the Committed Loan Notes, the Competitive Bid
Loan Notes, the Negotiated Bid Loan Notes and the Swingline Note.
-13-
"OFAC" means the U.S. Department of the Treasury's Office of Foreign
Assets Control.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, the Borrower arising under any Loan Document, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest that accrues after the commencement by or against the
Borrower or any of its Subsidiaries of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws; (b) with respect to any
limited liability company, the articles of formation 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 and any agreement, instrument, filing or notice with respect thereto
filed in connection with its formation with the secretary of state or other
department in the state of its formation, in each case as amended from time to
time.
"Outstanding Amount" means (i) with respect to Committed Loans,
Competitive Bid Loans, Negotiated Bid Loans and Swingline Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Committed Loans, Competitive Bid
Loans, Negotiated Bid Loans and Swingline Loans, as the case may be, occurring
on such date; and (ii) with respect to any L/C Obligations on any date, the
amount of such L/C Obligations on such date after giving effect to any L/C
Credit Extension occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing under Letters of Credit
taking effect on such date.
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"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 Commonly Controlled Entity or to which the Borrower or any Commonly
Controlled Entity contributes or has an obligation to contribute, or in the case
of a multiple employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding five plan years.
"Permitted Liens" means only those Liens permitted by subsections (a)
through (q) of Section 7.01.
"Person" means any individual, trustee, corporation, general partnership,
limited partnership, limited liability company, joint stock company, trust,
unincorporated organization, bank, business association, firm, joint venture or
other legally recognized entity or Governmental Authority.
-14-
"Plan" means, at a particular time, an employee benefit plan as defined in
Section 3(3) of ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is an "employer" as defined in Section 3(5) of ERISA, or would
be deemed a "contributing sponsor" under Section 4069 of ERISA if such plan were
terminated.
"Properties" has the meaning set forth in Section 5.08.
"Pro Rata Share" means, with respect to each Lender, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments set forth
opposite the name of such Lender on Schedule 2.01, as such share may be adjusted
as contemplated herein.
"Register" has the meaning set forth in Section 10.07(c).
"Reorganization" means, with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under the regulations promulgated under Section 4043 of ERISA.
"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 a Swingline Loan, a Swingline Notice, (c) with respect to a
Competitive Bid Loan, a Competitive Bid Request, and (d) with respect to an L/C
Credit Extension, a Letter of Credit Application.
"Required Lenders" means, as of any date of determination, at least two
Lenders whose Voting Percentages aggregate more than 50%.
"Responsible Officer" means the chief executive officer, president, vice
president, chief financial officer, treasurer or assistant treasurer of the
Borrower. Any document delivered hereunder that is signed by a Responsible
Officer of the Borrower shall be conclusively presumed to have been authorized
by all necessary corporate, partnership and/or other action on the part of the
Borrower and such Responsible Officer shall be conclusively presumed to have
acted on behalf of the Borrower.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and any successor thereto.
"Securitization" means any agreement or arrangement providing for sales,
transfers or conveyances to a special purpose Subsidiary or special purpose
entity of accounts receivable, notes, chattel paper, other rights to payment and
related property, whether or not for recourse and whether or not treated as a
sale for purposes of FAS 140, but not including the sale or transfer of a single
note or notes or receivable undertaken on an isolated, non-programmatic basis.
For purposes hereof, the "applicable amount" of any Securitization at any time
shall be equal to the greater of (a) the outstanding principal amount of any
Debt at such time incurred by the Borrower or any Subsidiary pursuant to any
such Securitization, or (b) the face amount or book value (whichever is greater)
of any and all receivables, notes, chattel paper, other rights to
-15-
payment and related property sold or transferred pursuant to such Securitization
and outstanding at such time.
"Senior Debt Rating" has the meaning set forth in the definition of
"Applicable Rate."
"Single Employer Plan" means any plan maintained for employees of the
Borrower or any Commonly Controlled Entity that is subject to Title IV of ERISA,
but which is not a Multiemployer Plan.
"Solvent" and "Solvency" means, with respect to any Person on a particular
date, that on such date (a) the fair saleable value of the assets of such Person
is greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) such Person is able to meet its
obligations as those obligations mature, and (c) such Person is not engaged in
business or a transaction for which such Person's assets would constitute an
unreasonably small capital. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"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.
"SunTrust Bank" means SunTrust Bank.
"Swingline Borrowing" means a borrowing consisting of a Swingline Loan
from the Swingline Lender made pursuant to Section 2.15.
"Swingline Commitment" means the commitment of the Swingline Lender to
make Swingline Loans in an aggregate principal amount at any time outstanding
not to exceed $20,000,000. The Swingline Commitment is part of, and not in
addition to, the Aggregate Commitments.
"Swingline Exposure" means, with respect to each Lender, the principal
amount of the Swingline Loans in which such Lender is legally obligated either
to make a Base Rate Loan or to purchase a participation in accordance with
Section 2.16, which shall equal such Lender's Pro Rata Share of all outstanding
Swingline Loans.
"Swingline Lender" means SunTrust Bank, or any other Lender that may agree
to make Swingline Loans hereunder.
"Swingline Loan" means a loan made to the Borrower by the Swingline Lender
under the Swingline Commitment.
-16-
"Swingline Note" means the promissory note of the Borrower payable to the
order of the Swingline Lender in the principal amount of the Swingline
Commitment, substantially the form of Exhibit C-4.
"Swingline Notice" means a notice of Swingline Loan, delivered pursuant to
Section 2.16, which, if in writing, shall be substantially in the form of
Exhibit G.
"Swingline Termination Date" means the day that is seven days prior to the
Maturity Date (or, if such day is not a Business Day, the next preceding
Business Day).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under a so-called synthetic, off-balance sheet or tax retention lease that does
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).
"Threshold Amount" means $50,000,000.
"Total Capital" means, at any date, the sum of (a) Consolidated Total
Indebtedness as of such date, plus (b) Total Shareholders' Equity as of the last
day of the most recently ended fiscal quarter for which the Borrower has or is
required hereunder to have delivered its financial statements.
"Total Shareholders' Equity" means, as of any date, the total
shareholders' equity of the Borrower and its Subsidiaries that would be
reflected on the Borrower's consolidated balance sheet as of such date prepared
in accordance with GAAP, but without reduction for the minority interest in
Subsidiaries that are not wholly owned by the Borrower.
"Type" means (a) with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurodollar Rate Committed Loan, and (b) with respect to a
Competitive Bid Loan, its character as an Absolute Rate Loan or a Eurodollar
Margin Competitive Bid Loan.
"Unreimbursed Amount" has the meaning set forth in Section 2.05(c)(i).
"Vendor Finance Investment" means any loan, advance, lease (whether
structured as a capital lease or an operating lease) or guaranty entered into by
the Borrower pursuant to, in connection with or for the purpose of facilitating
the sale or provision of goods and services of the Borrower to its customers, in
each case arising outside of the Borrower's ordinary course of business as
existing on the date hereof.
"Voting Percentage" means, as to any Lender, (a) at any time prior to the
Maturity Date, such Lender's Pro Rata Share and (b) at any time after the
Maturity Date, the percentage (carried out to the ninth decimal place) which (i)
the sum of (A) the Outstanding Amount of such Lender's Committed Loans,
Competitive Bid Loans and Negotiated Bid Loans, plus (B) such Lender's Pro Rata
Share of the Outstanding Amount of L/C Obligations and Swingline Exposure, then
comprises of (ii) the Outstanding Amount of all Loans and L/C Obligations;
provided, however, that if any Lender has failed to fund any portion of the
Committed Loans, participations in L/C Obligations or Swingline Exposure
required to be funded by it hereunder, such Lender's Voting Percentage shall be
deemed to be -0-, and the respective Pro Rata Shares
-17-
and Voting Percentages of the other Lenders shall be recomputed for purposes of
this definition and the definition of "Required Lenders" without regard to such
Lender's Commitment or the outstanding amount of its Committed Loans, Swingline
Loans and L/C Advances, as the case may be.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
any other Loan Document, unless otherwise specified herein or in such other Loan
Document:
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) (i) The words "herein" and "hereunder" and words of similar import
when used in any Loan Document shall refer to such Loan Document as a whole and
not to any particular provision thereof.
(i) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such references appear.
(ii) The term "including" is by way of example and not limitation.
(iii) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in electronic or
physical form.
(c) 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."
(d) 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) All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data 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) 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
-18-
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 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan Document; and
(b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 COMMITTED LOANS. 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 period
from the Closing Date to the Maturity Date, 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 aggregate
Outstanding Amount of all Loans and L/C Obligations shall not exceed the
Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations and Swingline Exposure 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 2.06, and reborrow under this
Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans,
as further provided herein.
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 Committed Loans as the same Type
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 (x) 11:00 a.m., New York time, three
Business Days prior to the requested date of any Committed Borrowing of,
conversion to or continuation of Eurodollar Rate Committed Loans or of any
conversion of Eurodollar Rate Committed Loans to Base Rate Loans, and (y) 11:00
a.m., New York time, on the requested date of any Committed Borrowing of Base
Rate Loans. Each such telephonic notice 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 Committed
Borrowing of, conversion to or continuation of Eurodollar Rate Committed Loans
shall be in a principal amount of $5,000,000 or a whole multiple of
-19-
$1,000,000 in excess thereof (or, if less, an aggregate principal amount equal
to the remaining balance of the available Commitments). Each Committed Borrowing
of or conversion to Base Rate Loans shall be in a principal amount of $500,000
or a whole multiple of $100,000 in excess thereof (or, if less, an aggregate
amount equal to the remaining balance of the available Commitments). Each
Committed Loan Notice (whether telephonic or written) shall 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 Committed Loans as the
same Type, (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, (v) if applicable, the duration of the Interest Period with respect
thereto and (vi) if applicable, the Committed Loan from which the requested
Committed Loan will be converted or continued. 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 or continued 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 Committed Loans. If the Borrower requests a Borrowing
of, conversion to, or continuation of Eurodollar Rate Committed 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 its Pro Rata Share 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
2:00 p.m., New York time, 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, by no later than 3:00 p.m., New York
time, 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 SunTrust Bank with the amount of such funds or (ii)
wire transfer of such funds, in each case in accordance with instructions
provided to the Administrative Agent by the Borrower; provided, however, that
if, on the date of the Committed Borrowing there are L/C Borrowings outstanding,
then the proceeds of such Borrowing shall be applied, first, to the payment in
full of any such L/C Borrowings and second, to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Committed
Loan may be continued or converted only on the last day of the Interest Period
for such Eurodollar Rate Committed Loan. During the existence of a Default or
Event of Default, no Committed Loans may be requested as, converted to or
continued as Eurodollar Rate Committed Loans without the consent of the Required
Lenders, and the Required Lenders may demand that any or all of the then
outstanding Eurodollar Rate Committed Loans be converted to Base Rate Loans at
the end of the respective Interest Periods related to such Loans.
-20-
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Eurodollar Rate Committed Loan
upon determination of such interest rate. The determination of the Eurodollar
Rate by the Administrative Agent shall be conclusive in the absence of manifest
error. The Administrative Agent shall notify the Borrower and the Lenders of any
change in SunTrust Bank's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(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 twelve Interest Periods in
effect with respect to Committed Loans.
2.03 COMPETITIVE BID LOANS.
(a) General. Subject to the terms and conditions set forth herein, each
Lender agrees that the Borrower may from time to time request the Lenders to
submit offers to make loans (each such loan, a "Competitive Bid Loan") to the
Borrower prior to the Maturity Date pursuant to this Section 2.03; provided,
however, that after giving effect to any Competitive Bid Borrowing, (i) the
aggregate Outstanding Amount of all Loans and L/C Obligations shall not exceed
the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of all
Competitive Bid Loans shall not exceed the Competitive Bid Loan Sublimit. There
shall not be more than ten different Interest Periods in effect with respect to
Competitive Bid Loans at any time. The Borrower shall have no obligation to
accept any Competitive Bid.
(b) Requesting Competitive Bids. The Borrower may request the submission
of Competitive Bids by delivering a Competitive Bid Request to the
Administrative Agent not later than 12:00 noon, New York time, (i) one Business
Day prior to the requested date of any Competitive Bid Borrowing that is to
consist of Absolute Rate Loans, or (ii) four Business Days prior to the
requested date of any Competitive Bid Borrowing that is to consist of Eurodollar
Margin Competitive Bid Loans. Each Competitive Bid Request shall specify (i) the
requested date of the Competitive Bid Borrowing (which shall be a Business Day),
(ii) the aggregate principal amount of Competitive Bid Loans requested (which
must be $10,000,000 or a whole multiple of $1,000,000 in excess thereof), (iii)
the Type of Competitive Bid Loans requested, and (iv) the duration of the
Interest Period with respect thereto, and shall be signed by a Responsible
Officer of the Borrower. No Competitive Bid Request shall contain a request for
(A) more than one Type of Competitive Bid Loan or (B) Competitive Bid Loans
having more than four different Interest Periods. Unless the Administrative
Agent otherwise agrees in its sole and absolute discretion, the Borrower may not
submit a Competitive Bid Request if it has submitted another Competitive Bid
Request within the prior five Business Days.
(c) Submitting Competitive Bids.
(i) The Administrative Agent shall promptly notify each Lender of
each Competitive Bid Request received by it from the Borrower and the
contents of such Competitive Bid Request.
(ii) Each Lender may (but shall have no obligation to) submit a
Competitive Bid containing an offer to make one or more Competitive Bid
Loans in response to such
-21-
Competitive Bid Request. Such Competitive Bid must be delivered to the
Administrative Agent not later than 10:30 a.m., New York time, (A) on the
requested date of any Competitive Bid Borrowing that is to consist of
Absolute Rate Loans (or such other date as the Company and Administrative
Agent shall have mutually agreed and of which such Lenders have been
notified), and (B) three Business Days prior to the requested date of any
Competitive Bid Borrowing that is to consist of Eurodollar Margin
Competitive Bid Loans (or such other date as the Company and
Administrative Agent shall have mutually agreed and of which such Lenders
have been notified); provided, however, that any Competitive Bid submitted
by SunTrust Bank in its capacity as a Lender in response to any
Competitive Bid Request must be submitted to the Administrative Agent not
later than 10:15 a.m., New York time, on the date on which Competitive
Bids are required to be delivered by the other Lenders in response to such
Competitive Bid Request. Each Competitive Bid shall specify (A) the
proposed date of the Competitive Bid Borrowing; (B) the principal amount
of each Competitive Bid Loan for which such Competitive Bid is being made,
which principal amount (x) may be equal to, greater than or less than the
Commitment of the bidding Lender, (y) must be $5,000,000 or in a whole
multiple of $1,000,000 in excess thereof, and (z) may not exceed the
principal amount of Competitive Bid Loans for which Competitive Bids were
requested; (C) if the proposed Competitive Bid Borrowing is to consist of
Absolute Rate Loans, the Absolute Rate offered for each such Competitive
Bid Loan and the Interest Period applicable thereto; (D) if the proposed
Competitive Bid Borrowing is to consist of Eurodollar Margin Competitive
Bid Loans, the Eurodollar Bid Margin with respect to each such Eurodollar
Margin Competitive Bid Loan and the Interest Period applicable thereto;
and (E) the identity of the bidding Lender.
(iii) Any Competitive Bid shall be disregarded if it (A) is received
after the applicable time specified in clause (ii) above, (B) is not
substantially in the form of a Competitive Bid as specified herein, (C)
contains qualifying, conditional or similar language, (D) proposes terms
other than or in addition to those set forth in the applicable Competitive
Bid Request, or (E) is otherwise not responsive to such Competitive Bid
Request. Any Lender may correct a Competitive Bid containing a manifest
error by submitting a corrected Competitive Bid (identified as such) not
later than the applicable time required for submission of Competitive
Bids. Any such submission of a corrected Competitive Bid shall constitute
a revocation of the Competitive Bid that contained the manifest error. The
Administrative Agent may, but shall not be required to, notify any Lender
of any manifest error it detects in a Lender's Competitive Bid.
(iv) Subject only to the provisions of Sections 3.02, 3.03 (in the
case of a Eurodollar Rate Competitive Bid Loan) and 4.02 and clause (iii)
above, each Competitive Bid shall be irrevocable.
(d) Notice to Borrower of Competitive Bids. Not later than 11:00 a.m.,
New York time, (i) on the requested date of any Competitive Bid Borrowing that
is to consist of Absolute Rate Loans, or (ii) three Business Days prior to the
requested date of any Competitive Bid Borrowing that is to consist of Eurodollar
Margin Competitive Bid Loans, the Administrative Agent shall notify the Borrower
of the identity of each Lender that has submitted a Competitive
-22-
Bid that complies with Section 2.03(c) and of the terms of the offers contained
in each such Competitive Bid.
(e) Acceptance of Competitive Bids. Not later than 11:30 a.m., New York
time, (i) on the requested date of any Competitive Bid Borrowing that is to
consist of Absolute Rate Loans, and (ii) three Business Days prior to the
requested date of any Competitive Bid Borrowing that is to consist of Eurodollar
Margin Competitive Bid Loans, the Borrower shall notify the Administrative Agent
of its acceptance or rejection of the offers notified to it pursuant to Section
2.03(d). The Borrower shall be under no obligation to accept any Competitive Bid
and may in its sole and absolute discretion choose to reject all Competitive
Bids. In the case of acceptance, such notice shall specify the aggregate
principal amount of Competitive Bids for each Interest Period that is accepted.
The Borrower may accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Competitive Bid
Borrowing may not exceed the applicable amount set forth in the related
Competitive Bid Request;
(ii) the principal amount of each Competitive Bid Loan must be
$5,000,000 or in a whole multiple of $1,000,000 in excess thereof;
(iii) the acceptance of offers may be made only on the basis of
ascending Absolute Rates or Eurodollar Bid Margins within each Interest
Period; and
(iv) the Borrower may not accept any offer that is described in
Section 2.03(c)(iii) or that otherwise fails to comply with the
requirements hereof.
(f) Procedure for Identical Bids. If two or more Lenders have submitted
Competitive Bids at the same Absolute Rate or Eurodollar Bid Margin, as the case
may be, for the same Interest Period, and the result of accepting all of such
Competitive Bids in whole (together with any other Competitive Bids at lower
Absolute Rates or Eurodollar Bid Margins, as the case may be, accepted for such
Interest Period in conformity with the requirements of Section 2.03(e)(iii))
would be to cause the aggregate outstanding principal amount of the applicable
Competitive Bid Borrowing to exceed the amount specified therefor in the related
Competitive Bid Request, then, unless otherwise agreed by the Borrower, the
Administrative Agent and such Lenders, such Competitive Bids shall be accepted
as nearly as possible in proportion to the amount offered by each such Lender in
respect of such Interest Period, at such Absolute Rate or Eurodollar Bid Margin,
without regard to the requirements of Section 2.03(e)(ii).
(g) Notice to Lenders of Acceptance or Rejection of Bids. The
Administrative Agent shall promptly notify each Lender having submitted a
Competitive Bid whether or not its offer has been accepted and, if its offer has
been accepted, of the amount of the Competitive Bid Loan or Competitive Bid
Loans to be made by it on the date of the applicable Competitive Bid Borrowing.
Any Competitive Bid or portion thereof that is not accepted by the Borrower by
the applicable time specified in Section 2.03(e) shall be deemed rejected.
(h) Notice of Eurodollar Rate. If any Competitive Bid Borrowing is to
consist of Eurodollar Margin Loans, the Administrative Agent shall determine the
Eurodollar Rate for the relevant Interest Period, and promptly after making such
determination, shall notify the Borrower
-23-
and the Lenders that will be participating in such Competitive Bid Borrowing of
such Eurodollar Rate.
(i) Funding of Competitive Bid Loans. Each Lender that has received
notice pursuant to Section 2.03(g) that all or a portion of its Competitive Bid
has been accepted by the Borrower shall make the amount of its Competitive Bid
Loan(s) available to the Administrative Agent in immediately available funds at
the Administrative Agent's Office not later than 1:00 p.m., New York time, on
the date of the requested Competitive Bid Borrowing. Upon satisfaction of the
applicable conditions set forth in Section 4.02, the Administrative Agent shall,
by no later than 3:00 p.m., New York time, make all funds so received available
to the Borrower in like funds as received by the Administrative Agent.
(j) Notice of Range of Bids. After each Competitive Bid auction pursuant
to this Section 2.03, the Administrative Agent shall notify each Lender that
submitted a Competitive Bid in such auction of the ranges of bids submitted
(without the bidder's name) and accepted for each Competitive Bid Loan and the
aggregate amount of each Competitive Bid Borrowing.
2.04 NEGOTIATED BID LOANS.
(a) General. Subject to the terms and conditions set forth herein, each
Lender agrees to entertain requests made by the Borrower from time to time to
make Loans (each such loan, a "Negotiated Bid Loan") to the Borrower prior to
the Maturity Date pursuant to this Section 2.04; provided, however, that (i) the
Lenders shall have no obligation to make any Negotiated Bid Loans, (ii) the
Borrower shall have no obligation to accept any offer to make any Negotiated Bid
Loan, and (iii) after giving effect to any Negotiated Bid Loan Borrowing, (A)
the aggregate Outstanding Amount of all Loans and L/C Obligations shall not
exceed the Aggregate Commitments, and (B) the aggregate Outstanding Amount of
all Negotiated Bid Loans shall not exceed the Negotiated Bid Loan Sublimit.
(b) Terms. Each Negotiated Bid Loan shall be made on terms agreed to by
the Borrower and the applicable Lender with respect thereto; provided that (i)
no Negotiated Bid Loan shall have a maturity date occurring subsequent to the
Maturity Date, (ii) no Negotiated Bid Loan shall be denominated in any currency
other than Dollars, and (iii) no obligations of the Borrower arising in
connection with any Negotiated Bid Loan shall at any time be secured by any Lien
upon any property, assets or revenues of the Borrower, any of its Subsidiaries
or any other Person, other than any right of set-off an applicable Lender may
have with respect to deposit accounts maintained by the Borrower with such
Lender.
(c) Notice to the Administrative Agent. Not later than 3:00 p.m., New
York time, on the date of any requested Negotiated Bid Loan Borrowing, the
Borrower shall deliver to the Administrative Agent (i) a notice specifying (A)
the identity of the respective Lender that has agreed to fund such Negotiated
Bid Loan Borrowing, (B) the anticipated date of such Negotiated Bid Loan
Borrowing, (C) the anticipated aggregate principal amount of such Negotiated Bid
Loan Borrowing, and (D) the anticipated maturity date of such Negotiated Bid
Loan; and (ii) such documents, instruments and other information with respect to
such Negotiated Bid Loan as the Administrative Agent may from time to time
reasonably request.
-24-
(d) Funding of Negotiated Bid Loans. Each Lender that has agreed to fund
such Negotiated Bid Loan Borrowing shall make the amount of its Negotiated Bid
Loan available to the Borrower by no later than 3:00 p.m., New York time, on the
date of such Borrowing.
2.05 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 other Lenders
set forth in this Section 2.05, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Subfacility Expiration Date, to issue Letters of Credit for the account of
the Borrower, and to amend or renew Letters of Credit previously issued by
it, in accordance with subsection (b) below, and (2) to honor drafts under
the Letters of Credit; and (B) the Lenders severally agree to participate
in Letters of Credit issued for the account of the Borrower; provided that
the L/C Issuer shall not be obligated to make any L/C Credit Extension
with respect to any Letter of Credit, and no Lender shall be obligated to
participate in, any Letter of Credit if as of the date of such L/C Credit
Extension, (x) the Outstanding Amount of all L/C Obligations and all Loans
would exceed the Aggregate Commitments, (y) the aggregate Outstanding
Amount of the Committed Loans of any Lender, plus such Lender's Pro Rata
Share of the Outstanding Amount of all L/C Obligations and Swingline
Exposure would exceed such Lender's Commitment, or (z) the Outstanding
Amount of the L/C Obligations would exceed the Letter of Credit Sublimit.
Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrower's ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrower may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or
that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall be under no 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) subject to Section 2.05(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last renewal, unless the Required Lenders
have approved such expiry date;
-25-
(C) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Subfacility Expiration Date, unless
all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one
or more policies of the L/C Issuer; or
(E) such Letter of Credit is in a face amount less than
$100,000, in the case of a commercial Letter of Credit, or $500,000,
in the case of any other type of Letter of Credit, or is to be
denominated in a currency other than Dollars.
(iii) 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.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Evergreen 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., New
York time, at least two Business Days (or such later date and time as the
L/C Issuer may agree in a particular instance in its sole discretion)
prior to the proposed issuance date or date of amendment, as the case may
be. In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (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.
(ii) Promptly after its receipt of any Letter of Credit
Application, but in any event no later than two Business Days prior to the
proposed issuance date, 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. Upon receipt by the L/C Issuer of confirmation from
the Administrative Agent that the requested issuance or amendment is
permitted in accordance with the terms
-26-
hereof, 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 enter into the applicable amendment, as the case may be,
in each case in accordance with the L/C Issuer's usual and customary
business practices. Immediately upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a participation in
such Letter of Credit in an amount equal to the product of such Lender's
Pro Rata Share times the amount of such Letter of Credit. In addition and
without limiting the foregoing, on the Closing Date, each Lender shall be
deemed to have purchased a participation in each Existing Letter of Credit
in an amount equal to the product of such Lender's Pro Rata Share times
the amount of such Existing Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in it sole and absolute discretion, agree
to issue a Letter of Credit that has automatic renewal provisions (each,
an "Evergreen Letter of Credit"); provided that any such Evergreen Letter
of Credit must permit the L/C Issuer to prevent any such renewal at least
once in each twelve-month period (commencing with the date of issuance of
such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the "Nonrenewal Notice Date") in each such
twelve-month period to be agreed upon at the time such Letter of Credit is
issued and have a final expiry date that is not later than the Letter of
Credit Subfacility Expiration 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 renewal. Once an Evergreen 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 renewal of such Letter of Credit
at any time to a date not later than the Letter of Credit Subfacility
Expiration Date; provided, however, that the L/C Issuer shall not permit
any such renewal if (A) the L/C Issuer would have no obligation at such
time to issue such Letter of Credit in its renewed form under the terms
hereof, or (B) it has received notice (which may be by telephone or in
writing) on or before the Business Day immediately preceding the
Nonrenewal Notice Date (1) from the Administrative Agent that the Required
Lenders have elected not to permit such renewal 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.
Notwithstanding anything to the contrary contained herein, the L/C Issuer
shall have no obligation to permit the renewal of any Evergreen Letter of
Credit at any time.
(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 any drawing under any Letter of Credit, the L/C Issuer
shall notify the Borrower and the Administrative Agent thereof. Not later
than 1:00 p.m., New York time, 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
-27-
Administrative Agent in an amount equal to the amount of such drawing. If
the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date,
the amount of the unreimbursed drawing (the "Unreimbursed Amount"), and
such Lender's Pro Rata Share 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 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 2.05(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 (including the Lender acting as L/C Issuer) shall
upon any notice pursuant to Section 2.05(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 Pro Rata Share of
the Unreimbursed Amount not later than 3:00 p.m., New York time, on the
Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.05(c)(iii), each Lender
that so makes funds available shall be deemed to have made a Base Rate
Loan to the Borrower in such amount. The Administrative Agent shall remit
the funds so received to the L/C Issuer.
(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 2.05(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 2.05.
(iv) Until each Lender funds its Committed Loan or L/C Advance
pursuant to this Section 2.05(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such
Lender's Pro Rata Share 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 2.05(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A)
any set-off, 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 Event of Default, or (C) any other occurrence, event or condition
including, without limitation, the existence (or alleged existence) of any
Material Adverse Effect, whether or not similar to
-28-
any of the foregoing. Any such reimbursement shall not relieve or
otherwise impair the obligation of the Borrower to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid by
such Lender pursuant to the foregoing provisions of this Section 2.05(c)
by the time specified in Section 2.05(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
Federal Funds Rate from time to time in effect. 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 2.05(c), if
the Administrative Agent receives for the account of the L/C Issuer any
payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), or any payment of interest thereon,
the Administrative Agent will distribute to such Lender its Pro Rata Share
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 2.05(c)(i) is required to be
returned, each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Pro Rata Share 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.
(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 and each drawing under a Letter of Credit that is refinanced by a
Borrowing of Committed Loans, 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 agreement or instrument relating
thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that the Borrower may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any
such beneficiary or any such transferee may be acting), the L/C Issuer or
any other Person, whether in connection with this
-29-
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; 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.
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. No Agent-Related Person
nor any of the respective correspondents, participants or assignees 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 Letter of Credit Application. 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. No Agent-Related Person, nor any of the
respective correspondents, participants or assignees of the L/C Issuer, shall be
liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.05(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
-30-
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 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 that has not
been converted into a Borrowing under the terms hereof, or (ii) if, as of the
Letter of Credit Subfacility Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount).
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by
the L/C Issuer and the Borrower when a Letter of Credit is issued, (i) the rules
of the "International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce (the "ICC")
at the time of issuance (including the ICC decision published by the Commission
on Banking Technique and Practice on April 6, 1998 regarding the European single
currency (euro)) 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 Pro Rata Share a
letter of credit fee equal to the margin listed under the heading "Letters of
Credit" in the definition of Applicable Rate multiplied by the actual daily
maximum amount available to be drawn under all outstanding Letters of Credit.
Such fee shall be due and payable on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, and on the Letter of Credit Subfacility
Expiration Date. If there is any change in the Applicable Rate during any
quarter, the actual daily amount of each standby 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.
(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 in an amount (i) with respect to each commercial Letter of Credit,
a per annum rate equal to 0.125% of the amount of such Letter of Credit, due and
payable upon the issuance thereof, and (ii) with respect to each standby Letter
of Credit, a per annum rate equal to 0.125% on the daily maximum amount
available to be drawn thereunder, due and payable quarterly in arrears on the
last Business Day of each March, June, September and December, commencing with
the first such date to occur after the issuance of such Letter of Credit, and on
the Letter of Credit Subfacility
-31-
Expiration Date. 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 fees and
charges are due and payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.06 PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Committed Loans and Swingline Loans
in whole or in part without premium or penalty; provided that (i) such notice
must be received by the Administrative Agent (A) not later than 11:00 a.m., New
York time, three Business Days prior to any date of prepayment of Eurodollar
Rate Committed Loans, and (B) not later than 9:00 a.m., New York time, on the
date of prepayment of Base Rate Loans and Swingline Loans; (ii) any prepayment
of Eurodollar Rate Committed Loans shall be in a principal amount of $5,000,000
or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of
Base Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple
of $1,000,000 in excess thereof; (iv) any prepayment of Swingline Loans shall be
in an amount that would be permitted in the case of an advance of a Swingline
Loan pursuant to Section 2.16, or, in the case of (ii), (iii) and (iv) if a
lesser amount, the remaining principal amount of the applicable Loans in any
outstanding Borrowing. Each such notice shall specify the date and amount of
such prepayment and the Type(s) of Committed Loans or Swingline Loans to be
prepaid. The Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of such Lender's Pro Rata Share 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 thereon, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Committed Loans or Swingline Loans, as the case may be, of the
Lenders in accordance with their respective Pro Rata Shares.
(b) No Competitive Bid Loan may be prepaid without the prior consent of
the applicable Lender of such Competitive Bid Loan.
(c) The Borrower may prepay Negotiated Bid Loans only in accordance with
the respective terms and conditions agreed to by the Borrower and the applicable
Lender in respect of any such Negotiated Bid Loan.
(d) If for any reason the Outstanding Amount of all Loans and L/C
Obligations at any time exceeds the Aggregate Commitments then in effect, the
Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess.
2.07 OPTIONAL REDUCTION OR TERMINATION OF COMMITMENTS. The Borrower may,
at any time or from time to time upon notice to the Administrative Agent,
terminate the Aggregate Commitments, or permanently reduce the Aggregate
Commitments to an amount not less than
-32-
the then Outstanding Amount of all Loans and L/C Obligations; provided that (a)
the Borrower shall not be obligated to pay any amount as a penalty in connection
with any such reduction or termination of the Aggregate Commitments, except as
required by Section 3.05 due to any repayment of Loans arising from such
reduction or termination, (b) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m., New York time, three Business
Days prior to the date of termination or reduction, and (c) 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. The Administrative Agent shall promptly notify the
Lenders of any such notice of reduction or termination of the Aggregate
Commitments. Once reduced in accordance with this Section, the Commitments may
not be increased. Any reduction of the Aggregate Commitments shall be applied to
the Commitment of each Lender according to its Pro Rata Share. All facility fees
accrued until the effective date of any termination of the Aggregate Commitments
shall be paid on the effective date of such termination. Unless otherwise agreed
to by the Swingline Lender or the L/C Issuer, as the case may be, any reduction
in the Aggregate Commitments shall result in a proportionate reduction in the
Swingline Commitment and the Letter of Credit Sublimit. The Commitment of a
Lender may also be terminated under the provisions of Section 10.15.
2.08 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 Swingline Borrowing on the earlier of
(i) the last day of the Interest Period applicable to such Borrowing and (ii)
the Swingline Termination Date.
(c) The Borrower shall repay each Competitive Bid Loan on the last day
of the Interest Period in respect thereof.
(d) The Borrower shall repay each Negotiated Bid Loan on the date agreed
to by the Borrower and the relevant Lender with respect to such Negotiated Bid
Loan.
2.09 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Committed 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 margin listed under the
heading "Eurodollar Rate" in the definition of Applicable Rate; (ii) each Base
Rate Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Base Rate; (iii)
each Competitive Bid 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 (or minus) the Eurodollar Bid
Margin, or at the Absolute Rate for such Interest Period, as the case may be;
(iv) each Swingline Loan shall bear interest on the outstanding principal amount
thereof at the Base Rate, or such other rate as the Swingline Lender and the
Borrower shall agree to, with respect thereto; and (v) each Negotiated Bid Loan
shall bear interest on the outstanding principal amount thereof at a rate per
annum agreed to by the Lender making such Loan and the Borrower with respect
thereto.
-33-
(b) If any Event of Default exists under Section 8.01(a) or after
acceleration, the Borrower shall, and for all other Events of Default shall at
the option of the Required Lenders, pay interest on the principal amount of all
outstanding Obligations at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Law.
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 Swingline Loan shall be payable on the maturity
date of such Loan, which shall be the last day of the Interest Period applicable
thereto, and on the Swingline Termination Date.
(d) Interest on each Loan (other than a Negotiated Bid Loan or Swingline
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
on each Negotiated Bid Loan shall be due and payable in accordance with the
terms agreed to by the Lender making such Loan and the Borrower with respect
thereto. 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.
2.10 FEES. In addition to certain fees described in subsections (i) and
(j) of Section 2.05:
(a) Facility Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a facility fee
equal to the amount set forth under the heading "Facility Fee" in the definition
of Applicable Rate times the actual daily amount of the Aggregate Commitments,
regardless of usage. The facility fee shall accrue at all times from the Closing
Date until the Maturity Date and shall be due and payable quarterly in arrears
on the last Business Day of each March, June, September and December, commencing
with the first such date to occur after the Closing Date, and on the Maturity
Date. The facility 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. The facility
fee shall accrue at all times, including at any time during which one or more of
the conditions in Article IV is not met.
(b) Fee Letter. The Borrower shall pay to SunTrust Bank and SunTrust
Xxxxxxxx Xxxxxxxx, a division of SunTrust Capital Markets, Inc. the fees set
forth in the Fee Letter, for their own account in the amounts and at the times
specified in the Fee Letter. Such fees shall be fully earned when paid and shall
be nonrefundable for any reason whatsoever.
(c) Lenders' Upfront Fee. On the Closing Date, the Borrower shall pay to
the Administrative Agent, for the account of the Lenders, the upfront fee
previously agreed upon by the Borrower, the Lenders and the Administrative
Agent. The upfront fee paid to each Lender is solely for its own account and is
nonrefundable for any reason whatsoever.
2.11 COMPUTATION OF INTEREST AND FEES. Interest on Base Rate Loans and
Swingline Loans and facility fees shall be calculated on the basis of a year of
365 or 366 days, as the case
-34-
may be, and the actual number of days elapsed. Computation of all other types of
interest and all fees (other than interest in respect of any Negotiated Bid
Loans and other than facility fees) shall be calculated on the basis of a year
of 360 days and the actual number of days elapsed, which results in a higher
yield to the payee thereof than a method based on a year of 365 or 366 days.
Interest shall accrue on each Loan for the day on which the Loan is made, and
shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the same
day on which it is made shall bear interest for one day. All calculations of
interest in respect of any Negotiated Bid Loan shall be on such basis as the
Lender making such Loan and the Borrower shall agree in connection with the
arrangement thereof; provided that, in the event of any dispute, such interest
shall be calculated on the basis of a 360-day year for the actual number of days
(including the first day but excluding the last day) elapsed.
2.12 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 Loans or L/C
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 such Lender shall
control. Upon the request of any Lender made through the Administrative Agent,
such Lender's Loans may be evidenced by a Committed Loan Note, a Swingline Note,
a Competitive Bid Loan Note or a Negotiated Bid Loan Note, as applicable, in
addition to such accounts or records. Each Lender may attach schedules to its
Note(s) and endorse thereon the date, Type (if applicable), amount and maturity
of the applicable 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 Swingline 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.
2.13 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or set-off.
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.,
New York time, on the date specified herein. The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable share
as provided herein) of such
-35-
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., New
York time, shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. Without limiting the
generality of the foregoing, the Borrower shall make each payment in respect of
a Negotiated Bid Loan not later than 3:00 p.m. (local time at the place of
payment) on the day when due to or for the account of the Lender making such
Loan at such location as may be agreed by the Borrower and such Lender in
connection with the making of such Negotiated Bid Loan, upon such terms as such
Lender and the Borrower shall agree in connection with the making thereof.
(b) Subject to the definition of "Interest Period," 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.
(c) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward costs and expenses (including Attorney Costs and amounts payable under
Article III) incurred by the Administrative Agent and each Lender, (ii) second,
toward repayment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (iii) third, toward repayment of principal and L/C
Borrowings then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and L/C Borrowings then due to such
parties.
(d) Unless the Borrower or any Lender has notified the Administrative
Agent prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately
available funds, together with interest thereon in respect of each day
from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to
the Administrative Agent in immediately available funds, at the Federal
Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent
to the Borrower to the date such amount is recovered by the Administrative
Agent (the "Compensation Period") at a rate per annum equal to the Federal
Funds Rate from time to time in effect. If such Lender pays such
-36-
amount to the Administrative Agent, then such amount shall constitute such
Lender's Committed Loan or Competitive Bid Loan, as the case may be,
included in the applicable Borrowing. If such Lender does not pay such
amount within two Business Days after the Administrative Agent's demand
therefor, the Administrative Agent may make a demand therefor upon the
Borrower, and the Borrower shall pay such amount to the Administrative
Agent, together with interest thereon for the Compensation Period at a
rate per annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender with respect to
any amount owing under this subsection (d) shall be conclusive, absent
manifest error.
(e) 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 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.
(f) The obligations of the Lenders hereunder to make Committed Loans and
to fund participations in Letters of Credit and Swingline Loans are several and
not joint. The failure of any Lender to make any Committed Loan or to fund any
such participation 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 or purchase its participation.
(g) Subject to Section 3.09, 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.
2.14 SHARING OF PAYMENTS. If, other than as expressly provided elsewhere
herein, any Lender shall obtain on account of any Committed Loans made by it, or
the participations in L/C Obligations or Swingline Exposure held by it, any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Committed Loans or Swingline Loans made by them and/or
such subparticipations in the participations in L/C Obligations held by them as
shall be necessary to cause such purchasing Lender to share the excess payment
in respect of such Loans or such participations, as the case may be, pro rata
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender, such purchase shall
to that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender's ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the
-37-
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Administrative Agent will keep
records (which shall be conclusive and binding in the absence of manifest error)
of participations purchased under this Section 2.14 and will in each case notify
the Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this Section shall from and after such
purchase have the right to give all notices, requests, demands, directions and
other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
2.15 SWINGLINE COMMITMENT. Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower,
from time to time from the Closing Date to the Swingline Termination Date, in an
aggregate principal amount outstanding at any time not to exceed the lesser of
(i) the Swingline Commitment then in effect and (ii) the difference between the
Aggregate Commitments and the sum of (x) the Outstanding Amount of all Loans and
L/C Obligations; provided, that the Swingline Lender shall not be required to
make a Swingline Loan to refinance an outstanding Swingline Loan. The Borrower
shall be entitled to borrow, repay and reborrow Swingline Loans in accordance
with the terms and conditions of this Agreement.
2.16 PROCEDURE FOR SWINGLINE BORROWING; ETC.
(a) The Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Swingline Borrowing
substantially in the form of Exhibit G attached hereto ("Notice of Swingline
Borrowing") prior to 10:00 a.m., New York time, on the requested date of each
Swingline Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and
shall specify: (i) the principal amount of such Swingline Loan, (ii) the date of
such Swingline Loan (which shall be a Business Day) and (iii) the account of the
Borrower to which the proceeds of such Swingline Loan should be credited. The
Administrative Agent will promptly advise the Swingline Lender of each Notice of
Swingline Borrowing. Each Swingline Loan shall accrue interest at the Base Rate
or any other interest rate as agreed between the Borrower and the Swingline
Lender and shall have an Interest Period (subject to (a)(i) and (iii) to the
definition thereof) as agreed between the Borrower and the Swingline Lender. The
aggregate principal amount of each Swingline Loan shall be not less than
$100,000 or a larger multiple of $50,000, or such other minimum amounts agreed
to by the Swingline Lender and the Borrower. The Swingline Lender will make the
proceeds of each Swingline Loan available to the Borrower in Dollars in
immediately available funds at the account specified by the Borrower in the
applicable Notice of Swingline Borrowing not later than 1:00 p.m., New York
time, on the requested date of such Swingline Loan.
(b) The Swingline Lender, at any time and from time to time in its sole
discretion, may, on behalf of the Borrower (which hereby irrevocably authorizes
and directs the Swingline Lender to act on its behalf), give a Committed Loan
Notice to the Administrative Agent requesting the Lenders (including the
Swingline Lender) to make Base Rate Loans in an amount
-38-
equal to the unpaid principal amount of any Swingline Loan. Each Lender will
make the proceeds of its Base Rate Loan included in such Borrowing available to
the Administrative Agent for the account of the Swingline Lender in accordance
with Section 2.02, which will be used solely for the repayment of such Swingline
Loan.
(c) If for any reason a Base Rate Borrowing may not be (as determined in
the sole discretion of the Administrative Agent), or is not, made in accordance
with the foregoing provisions, then each Lender (other than the Swingline
Lender) shall purchase an undivided participating interest in such Swingline
Loan in an amount equal to its Pro Rata Share thereof on the date that such Base
Rate Borrowing should have occurred. On the date of such required purchase, each
Lender shall promptly transfer, in immediately available funds, the amount of
its participating interest to the Administrative Agent for the account of the
Swingline Lender. If such Swingline Loan bears interest at a rate other than the
Base Rate, such Swingline Loan shall automatically become a Base Rate Loan on
the effective date of any such participation and interest shall become payable
on demand.
(d) Each Lender's obligation to make a Base Rate Loan pursuant to Section
2.16(b) or to purchase the participating interests pursuant to Section 2.16(c)
shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any set-off, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Commitment, (iii) any breach of this Agreement or
any other Loan Document by the Borrower, the Administrative Agent or any Lender
or (iv) any other circumstance, happening or event whatsoever including, without
limitation, the existence (or alleged existence) of any Material Adverse Effect,
whether or not similar to any of the foregoing. If such amount is not in fact
made available to the Swingline Lender by any Lender, the Swingline Lender shall
be entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof (i) at the
Federal Funds Rate until the second Business Day after such demand and (ii) at
the Base Rate at all times thereafter. Until such time as such Lender makes its
required payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its Loans and
any other amounts due to it hereunder, to the Swingline Lender to fund the
amount of such Lender's participation interest in such Swingline Loans that such
Lender failed to fund pursuant to this Section, until such amount has been
purchased in full.
2.17 INCREASE IN COMMITMENTS; ADDITIONAL LENDERS.
(a) So long as no Event of Default has occurred and is continuing, from
time to time after the Closing Date, Borrower may, upon at least 30 days'
written notice to the Administrative Agent (who shall promptly provide a copy of
such notice to each Lender), propose to increase the Aggregate Commitments by an
amount not to exceed $250,000,000 (the amount of any such increase, the
"Additional Commitment Amount"), provided, however, that at no time shall the
Aggregate Commitments exceed $750,000,000. Each Lender shall have the right for
a period of 15 days following receipt of such notice, to elect by written notice
to the Borrower and the
-39-
Administrative Agent to increase its Commitment by a principal amount equal to
its Pro Rata Share of the Additional Commitment Amount. No Lender (or any
successor thereto) shall have any obligation to increase its Commitment or its
other obligations under this Agreement and the other Loan Documents, and any
decision by a Lender to increase its Commitment shall be made in its sole
discretion independently from any other Lender. Any Lender that fails to respond
to such notice shall be deemed to have declined to increase its Commitment.
(b) If any Lender shall not elect to increase its Commitment pursuant to
subsection (a) of this Section 2.17, the Borrower may designate another bank or
other financial institution (which may be, but need not be, one or more of the
existing Lenders) which at the time agrees to, in the case of any such Person
that is an existing Lender, increase its Commitment and in the case of any other
such Person (an "Additional Lender"), become a party to this Agreement;
provided, however, that any new bank or financial institution must be acceptable
to the Administrative Agent, which acceptance will not be unreasonably withheld
or delayed. The sum of the increases in the Commitments of the existing Lenders
pursuant to this subsection (b) plus the Commitments of the Additional Lenders
shall not in the aggregate exceed the unsubscribed amount of the Additional
Commitment Amount.
(c) An increase in the aggregate amount of the Commitments pursuant to
this Section 2.17 shall become effective upon the receipt by the Administrative
Agent of a supplement or joinder in form and substance satisfactory to the
Administrative Agent executed by the Borrower, and by each Additional Lender and
by each other Lender whose Commitment is to be increased, setting forth the new
Commitments of such Lenders and setting forth the agreement of each Additional
Lender to become a party to this Agreement and to be bound by all the terms and
provisions hereof, together with Notes evidencing such increase in the
Commitments, and such evidence of appropriate corporate authorization on the
part of the Borrower with respect to the increase in the Commitments and such
opinions of counsel for the Borrower with respect to the increase in the
Commitments as the Administrative Agent may reasonably request.
(d) Upon the acceptance of any such agreement by the Administrative Agent,
each Additional Lender shall automatically be deemed a Lender for all purposes
hereunder, the Aggregate Commitments shall automatically be increased by the
amount of the Commitments added through such agreement and Schedule 2.01 shall
automatically be deemed amended to reflect the Commitments of all Lenders after
giving effect to the addition of such Commitments.
(e) Upon any increase in the aggregate amount of the Commitments pursuant
to this Section 2.17 that is not pro rata among all Lenders, (x) within five
Business Days, in the case of any Base Rate Loans then outstanding, and at the
end of the then current Interest Period with respect thereto, in the case of any
Eurodollar Rate Loans then outstanding, the Borrower shall prepay such Loans in
their entirety and, to the extent the Borrower elects to do so and subject to
the conditions specified in Article IV, the Borrower shall reborrow Loans from
the Lenders in proportion to their respective Commitments after giving effect to
such increase, until such time as all outstanding Loans are held by the Lenders
in proportion to their respective Commitments after giving effect to such
increase and (y) effective upon such increase, the amount of the participations
held by each Lender in each Letter of Credit then outstanding shall
automatically be adjusted such that, after giving effect to such adjustments,
the Lenders shall hold participations in each such Letter of Credit in
proportion to their respective Commitments.
-40-
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments made by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto incurred in connection with,
or as a direct or indirect result of, any Borrowing or payment on a Borrowing,
or other payments made pursuant to this Agreement, excluding the Excluded Taxes
(all such taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities, other than the Excluded Taxes,
being hereinafter referred to as "Taxes"). If the Borrower shall be required by
any Laws to deduct any Taxes from or in respect of any sum payable under any
Loan Document to the Administrative Agent or any Lender, (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 and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions, (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) within 30 days after the date of such payment, the Borrower shall
furnish to the Administrative Agent (which shall forward the same to such
Lender) the original or a certified copy of a receipt evidencing payment thereof
or other evidence of payment reasonably satisfactory to the Administrative
Agent.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent (for the account of such Lender) or to such Lender, at the
time interest is paid, such additional amount that such Lender specifies as
necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income, and all available tax
credits) such Lender would have received if such Taxes or Other Taxes had not
been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, in each case
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. In the event that such Taxes or
Other Taxes referred to in
-41-
clause (iii) shall exceed $100,000, the Lender subject to such Tax or Other Tax
shall (x) notify the Borrower of such imposition or assertion and (y) the
Borrower, solely at its own expense, may cause such Lender to contest the
imposition or assertion of such Tax or Other Tax as to which there exists no
reasonable basis. The Borrower shall fully indemnify such Lender for all costs
(including any liabilities, penalties, interest and expenses) incurred by such
Lender in connection with any such contest to the extent necessary to preserve
such Lender's after-tax yield. Nothing contained in this Section (A) obligates
the Administrative Agent or any Lender (or any of their respective Affiliates)
to disclose to the Borrower any of its tax records or materials relating
thereto, (B) shall interfere with the right of the Administrative Agent or any
Lender (or any of their respective Affiliates) to arrange its taxation and
financial affairs in whatever manner it deems appropriate, or (C) obligates the
Administrative Agent or any Lender (or any of their respective Affiliates) to
claim relief from taxation on its corporate profits or, subject to clause (y)
above, to claim any credits, deductions or other relief otherwise available to
it with respect to its tax affairs. Payment under this subsection (d) shall be
made within 30 days after the date the Lender or the Administrative Agent makes
a demand therefor.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the Code or any treaty to which the United States is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable Law, such properly completed and executed documentation
prescribed by applicable Law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
Without limiting the generality of the foregoing, each Foreign Lender agrees
that it will deliver to the Administrative Agent and the Borrower (or in the
case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2) duly completed copies of (i)
Internal Revenue Service Form W-8 ECI, or any successor form thereto, certifying
that the payments received from the Borrower hereunder are effectively connected
with such Foreign Lender's conduct of a trade or business in the United States;
or (ii) Internal Revenue Service Form W-8 BEN, or any successor form thereto,
certifying that such Foreign Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest; or (iii) Internal Revenue Service Form
W-8 BEN, or any successor form prescribed by the Internal Revenue Service,
together with a certificate (A) establishing that the payment to the Foreign
Lender qualifies as "portfolio interest" exempt from U.S. withholding tax under
Code section 871(h) or 881(c), and (B) stating that (1) the Foreign Lender is
not a bank for purposes of Code section 881(c)(3)(A), or the obligation of the
Borrower hereunder is not, with respect to such Foreign Lender, a loan agreement
entered into in the ordinary course of its trade or business, within the meaning
of that section; (2) the Foreign Lender is not a 10% shareholder of the Borrower
within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the
Foreign Lender is not a controlled foreign corporation that is related to the
Borrower within the meaning of Code section 881(c)(3)(C); or (iv) such other
Internal Revenue Service forms as may be applicable to the Foreign Lender,
including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to
the Borrower and the Administrative Agent such forms on or before the date that
it becomes a party to this Agreement (or in the case of a Participant, on or
before the date such Participant purchases the related participation). In
addition, each such Foreign Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Foreign
Lender. Each such Foreign Lender shall promptly notify the Borrower and the
-42-
Administrative Agent at any time that it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any
other form of certification adopted by the Internal Revenue Service for such
purpose). Unless a Foreign Lender complies with the provisions of this Section
3.01(e) (including the immediately preceding sentence), the Borrower shall not
be required to make any payment to a Foreign Lender.
3.02 ILLEGALITY. If the introduction, interpretation or administration of
any Law shall, after the date hereof, make it unlawful, or if any Governmental
Authority asserts that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or if any such
circumstance materially restricts the authority of such Lender to purchase or
sell, or to take deposits of, Dollars in the applicable offshore Dollar market,
or to determine or charge interest rates based upon the Eurodollar Rate, then,
on notice thereof by such Lender to the Borrower through the Administrative
Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans
or to convert Base Rate Loans to Eurodollar Rate Committed 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 thereof, 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 interest on the amount so
prepaid or converted. Each Lender agrees to designate a different Lending Office
if such designation will avoid the need for such notice and will not, in the
good faith judgment of such Lender, otherwise be materially disadvantageous to
such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Administrative Agent determines
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 applicable offshore Dollar 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 such Eurodollar Rate Loan, or (c)
the Eurodollar Rate for such Eurodollar Rate Loan does not adequately and fairly
reflect the cost to the Lenders of funding such Eurodollar Rate Loan, the
Administrative Agent will promptly, but in any event not later than the first
day of the Interest Period related to such Loan (or the conversion or
continuation thereof, as the case may be), notify the Borrower and all Lenders.
Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended until the Administrative Agent revokes such notice.
Upon receipt of such notice, the Borrower may revoke any pending request for a
Committed Borrowing, conversion 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 COST AND REDUCED RETURN; CAPITAL ADEQUACY RESERVES ON
EURODOLLAR RATE LOANS.
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law (by a Governmental Authority),
or such Lender's compliance
-43-
therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Loans or (as the case may
be) issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this subsection (a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section
3.01 shall govern), (ii) changes in the basis of taxation of overall net income
or overall gross income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or has its Lending Office, and (iii) reserve requirements contemplated
by Section 3.04(c)), then from time to time upon demand of such Lender (with a
copy of such demand to the Administrative Agent), the Borrower shall pay to such
Lender such additional amounts as will compensate such Lender for such increased
cost or reduction.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such reduction.
(c) The Borrower shall pay to each Lender, as long as such Lender shall be
required pursuant to regulations issued by the Board (or any Governmental
Authority succeeding to any of its principal functions) to maintain reserves
(including, without limitation, any emergency, supplemental, special or other
marginal reserves) with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities" under Regulation D of the Board), additional costs 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 that
the Borrower shall have received at least 15 days' prior notice (with a copy to
the Administrative Agent) of such additional interest from such Lender. If a
Lender fails to give notice 15 days prior to the relevant Interest Payment Date,
such additional interest shall be due and payable 15 days from receipt of such
notice.
3.05 FUNDING 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 actual 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
-44-
(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 10.15;
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.
Notwithstanding the foregoing, the Borrower shall have no obligation to pay any
Lender any amount arising under subsection (a) to the extent that such amount
exceeds the amount, if any, by which (i) the present value of the additional
interest which would have been payable to such Lender if the applicable Loan had
not been prematurely continued, converted, paid or prepaid exceeds (ii) the
present value of the interest which would have been receivable by such Lender as
a result of placing the amount so received by such Lender as a consequence of
the continuation, conversion, payment or prepayment of such Loan on deposit in
the applicable offshore Dollar interbank market for a term equal to the number
of days remaining in the Interest Period related to such Loan. For purposes of
calculating the present value of any interest payments referred in the
immediately preceding sentence, such interest payments shall be discounted at a
rate equal to the sum of (x) the Eurodollar Rate in effect on the date two
Business Days prior to the date the Borrower continues, converts, pays or
prepays any Loan in the manner described in subsection (a), and (y) the margin
listed under the heading "Eurodollar Rate" in the definition of "Applicable
Rate." The Borrower shall also pay any customary administrative fees charged by
such Lender in connection with the foregoing. The foregoing indemnity shall not
apply to any special, incidental or consequential damages.
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 Committed Loan made by it at the Eurodollar Rate for such Loan
by a matching deposit or other borrowing in the applicable offshore Dollar
interbank market for a comparable amount and for a comparable period, whether or
not such Eurodollar Rate Committed Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth in reasonable detail the
basis for computing the additional amount or amounts to be paid to it hereunder
shall be provided to the Borrower and shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section 3.01
or 3.04, the Borrower may remove or replace such Lender in accordance with
Section 10.15.
3.07 APPLICABILITY TO NEGOTIATED BID LOANS. The terms of Article III shall
apply to all Negotiated Bid Loans made by any Lender to the Borrower hereunder,
except to the extent otherwise agreed by the Borrower and any such Lender with
respect to any such Loan.
3.08 SURVIVAL. All of the Borrower's obligations (and each Lenders' and
the Administrative Agent's obligation of notice) under this Article III shall
survive termination of the Commitments and payment in full of all the other
Obligations.
-45-
3.09 CHANGE IN LENDING OFFICE; LIMITATION ON INCREASED COSTS.
(a) Each Lender agrees that it will use reasonable efforts to designate an
alternate lending office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.01, 3.02, or 3.04 to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion; provided that nothing in this Section 3.09 shall
affect or postpone any of the obligations of the Borrower or the right of any
Lender provided in such Sections.
(b) Notwithstanding Section 3.04, the Borrower shall only be obligated to
compensate the Lenders for amounts arising under Section 3.04 to the extent such
amounts arose during (i) any time or period commencing not more than 6 months
prior to the date on which such Lender notifies the Administrative Agent and the
Borrower that such Lender proposes to demand compensation under Section 3.04 and
(ii) any time or period during which, because of the unannounced retroactive
application of any statute, regulation or other basis, such Lender could not
have known that such amount might arise or accrue.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. (a) The obligation of each
Lender to make its initial Credit Extension hereunder, and the right of the
Borrower to request the making of the initial Competitive Bid Loan, Swingline
Loan and Negotiated Bid Loan, are subject to satisfaction of the following
conditions precedent. (a) Unless waived by all the Lenders (or by the
Administrative Agent with respect to immaterial matters or items specified in
clause (vii) below with respect to which the Borrower has given assurances
satisfactory to the Administrative Agent that such items shall be delivered
promptly following the Closing Date), the Administrative Agent's receipt of the
following, each of which shall be originals or facsimiles (followed promptly by
originals) unless otherwise specified, each properly executed by a Responsible
Officer of the Borrower (where applicable), 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 its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number
for distribution to the Administrative Agent, each Lender and the
Borrower;
(ii) Committed Loan Notes executed by the Borrower in favor of each
Lender requesting such a Note, each in a principal amount equal to such
Lender's Commitment;
(iii) Competitive Bid Loan Notes executed by the Borrower in favor
of each Lender requesting such a Note;
(iv) Negotiated Bid Loan Notes executed by the Borrower in favor of
each Lender requesting such a Note;
(v) A Swingline Note executed by the Borrower in favor of the
Swingline Lender, in the principal amount of the Swingline Commitment;
-46-
(vi) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of the Secretary or Assistant
Secretary of the Borrower as the Administrative Agent may require to
establish the identities of and verify the 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 the
Borrower is a party;
(vii) such evidence as the Administrative Agent may reasonably
require to verify that the Borrower is duly organized or formed, validly
existing, in good standing and qualified to engage in business in each
jurisdiction (A) in which it is incorporated or has any headquarter
function, or (B) in which it has a substantial operating facility;
including certified copies of the Borrower's Organization Documents and
certificates of good standing and qualification to engage in business;
(viii) 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 the date of the Audited Financial Statements which has or could be
reasonably expected to have a Material Adverse Effect; and (C) the current
Senior Debt Ratings;
(ix) an affirmative opinion of counsel to the Borrower addressing
such matters as are set forth in Exhibit F hereto;
(x) evidence (A) that all amounts outstanding under the Existing
Credit Facility have been paid (including, without limitation, principal,
interest and fees), provided that all such amounts may be simultaneously
repaid with Loan(s) advanced under this Agreement, and (B) that the
"commitments" of the lenders under the Existing Credit Facility have been
or concurrently with the Closing Date are being terminated;
(xi) a duly executed Request for Credit Extension for any Credit
Extension made on the Closing Date;
(xii) a duly executed funds disbursement agreement, if applicable;
(xiii) certified copies of any consents, approvals, authorizations,
registrations or filings required to be made or obtained by the Borrower
in connection with the execution, delivery, performance, validity and
enforceability of the Loan Documents, or any of the transactions
contemplated thereby, and such consents, approvals, authorizations,
registrations, filings and orders shall be in full force and effect and
all applicable waiting periods shall have expired and no investigation or
inquiry by any Governmental Authority regarding the Loan Documents or the
transactions contemplated thereby shall be ongoing;
(xiv) certificates of insurance issued on behalf of insurers of the
Borrower, describing in reasonable detail the types and amounts of
insurance (property and liability) maintained by the Borrower; and
-47-
(xv) such other assurances, certificates, documents or consents as
the Administrative Agent, the L/C Issuer or the Required Lenders
reasonably may require.
(b) Any fees required to be paid on or before the Closing Date in
connection herewith shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have
paid all Attorney Costs of the Administrative Agent to the extent invoiced prior
to or on the Closing Date, plus such additional amounts of Attorney Costs as
shall constitute the Administrative Agent's reasonable estimates of Attorney
Costs incurred or to be incurred by each of them through the closing proceedings
(provided that such estimate shall not thereafter preclude a final settling of
accounts between the Borrower and the Administrative Agent).
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 Committed Loans as the same Type) is subject to the following
conditions precedent:
(a) The representations and warranties of the Borrower contained in
Article V, or which are contained in any Loan Document, shall be true and
correct in all material respects on and as of the date of such Credit 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.
(b) No Default or Event of Default shall exist, or would result from such
proposed Credit Extension.
(c) The Administrative Agent and, if applicable, the L/C Issuer, 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 Committed Loans as the same Type) submitted by the Borrower
shall be deemed to be a representation and warranty that the conditions
specified in Sections 4.02(a) and (b) have been satisfied on and as of the date
of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
5.01 EXISTENCE, QUALIFICATION. The Borrower is a corporation duly
incorporated, validly existing and in good standing under the Laws of its
jurisdiction of incorporation and is in good standing under the Laws of the
State of Florida.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by the Borrower of each Loan Document are within its corporate
powers, have been duly authorized by all necessary corporate action, and do not
contravene (a) the Borrower's Organization
-48-
Documents, (b) any applicable Laws or (c) any material contractual restriction
binding on or affecting the Borrower.
5.03 GOVERNMENTAL AUTHORIZATION. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or any
other Person is required for the due execution, delivery and performance by the
Borrower of any Loan Document.
5.04 BINDING EFFECT. This Agreement is, and each other Loan Document when
delivered hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against it in accordance with its respective terms except
that such enforcement may be limited by applicable bankruptcy, insolvency and
other similar laws affecting creditors' rights generally.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE CHANGE.
(a) The Audited Financial Statements, copies of which have been furnished
to the Lenders, fairly present in all material respects the consolidated
financial condition of the Borrower and its Subsidiaries as of July 2, 2004 and
the results of the operations of the Borrower and its Subsidiaries for the
fiscal year ended on such date, all in accordance with GAAP consistently
applied.
(b) Since the date of the Audited Financial Statements, there has been no
change in such conditions or operations that could reasonably be expected to
have a Material Adverse Effect.
5.06 LITIGATION. Except as set forth on Schedule 5.06, on the date hereof
there is no pending or, to the Borrower's knowledge, threatened action,
investigation or proceeding affecting the Borrower or any of its Subsidiaries
before any court, Governmental Authority or arbitrator which if adversely
determined could reasonably be expected to have a Material Adverse Effect.
5.07 ERISA COMPLIANCE. No Reportable Event has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan, and each Single Employer
Plan has, during this five-year period, complied in all material respects with
the applicable provisions of ERISA and the Code. There is no outstanding Lien
under ERISA or the Code with respect to any Single Employer Plan. The present
value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund the Plans as determined by the Plan's actuary) did not,
as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits. Neither the Borrower nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan with respect to which there is an outstanding liability, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in Reorganization or Insolvency.
Notwithstanding the foregoing, none of the events, acts or failures to act
-49-
described in this Section 5.07 shall be deemed to be a breach of a
representation or warranty unless it could reasonably be expected to have a
Material Adverse Effect.
5.08 REAL PROPERTY. To the Borrower's knowledge, each of the
representations and warranties set forth in paragraphs (a) through (e) of this
Section 5.08 is true and correct with respect to each parcel or real property
owned or operated by the Borrower and its Subsidiaries (the "Properties"),
except to the extent that the facts and circumstances giving rise to any such
failure to be so true and correct would not reasonably be expected to have a
Material Adverse Effect:
(a) The Properties do not contain, and have not previously contained, in,
on, or under such Properties, including without limitation, the soil and
groundwater thereunder, any Hazardous Materials in concentrations which violate
Environmental Laws.
(b) The Properties and all operations and facilities at the Properties are
in compliance with all Environmental Laws, and there is no Hazardous Materials
contamination or violation of any Environmental Law which could interfere with
the continued operation of any of the Properties or impair the fair saleable
value of any thereof.
(c) Neither the Borrower nor any of its Subsidiaries has received any
complaint, notice of violation, alleged violation, investigation or advisory
action or of potential liability or of potential responsibility regarding
environmental protection matters or permit compliance with regard to the
Properties, nor is the Borrower aware that any Governmental Authority is
contemplating delivery to the Borrower or any of its Subsidiaries of any such
notice.
(d) Hazardous Materials have not been generated, treated, stored, disposed
of, at, on or under any of the Properties, nor have any Hazardous Materials been
transferred from the Properties to any other location, in either case, in a
manner that violates any Environmental Law.
(e) There are no governmental, administrative actions or judicial
proceedings pending or contemplated under any Environmental Laws to which the
Borrower or any of its Subsidiaries is or will be named as a party with respect
to the Properties, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements, outstanding under any Environmental Law with respect to
any of the Properties.
5.09 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) The Borrower is not generally engaged in the business of extending
credit or in the business of purchasing or carrying Margin Stock (within the
meaning of Regulation U issued by the Board), and the Borrowings hereunder will
not be used for the purpose of carrying Margin Stock in a manner which (i) would
violate or result in a violation of Regulations T, U or X issued by the Board,
or (ii) would constitute a Hostile Acquisition involving 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
-50-
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.
5.10 OUTSTANDING LOANS. The aggregate principal amount of Loans
outstanding to the Lenders under the Commitments (including all Competitive Bid
Loans, Swingline Loans and Negotiated Bid Loans outstanding thereunder) does not
exceed the Aggregate Commitments.
5.11 TAXES. The Borrower and its Subsidiaries have filed all Federal,
state and other tax returns and reports required to be filed, and have paid all
Federal, state and other taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except (a) those the failure to so file or pay would not in the
aggregate have a Material Adverse Effect or which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP, and (b) those required, levied or imposed by
foreign governments if, in the opinion of the board of directors of the
Borrower, the filing or payment thereof shall no longer be advantageous to the
Borrower or such Subsidiary in the conduct of its business and the failure to so
file or pay would not in the aggregate have a Material Adverse Effect. There is
no proposed tax assessment against the Borrower or any Subsidiary that would, if
made, have a Material Adverse Effect.
5.12 INTELLECTUAL PROPERTY; LICENSE, ETC. In all material respects, 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 (together, "IP
Rights") that are reasonably necessary for the operation of their respective
businesses, without, to the Borrower's knowledge, conflict with the rights of
any other Person. Except as specifically disclosed in Schedule 5.12, to the best
knowledge of the Borrower as of the Closing Date, (a) no claim or litigation
regarding any of the foregoing is pending or threatened and no patent,
invention, device, application, principle or any statute, law, rule, regulation,
standard or code is pending or proposed, and (b) 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; which, in either case, could
reasonably be expected to result in a Material Adverse Effect.
5.13 DISCLOSURE. No statement, information, report, representation, or
warranty made by the Borrower in any Loan Document or furnished to the
Administrative Agent or any Lender by or on behalf of the Borrower in connection
with any Loan Document when made contains any untrue statement of material fact
or omits any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading in any material respect.
5.14 SOLVENCY. Immediately following the making of each Borrowing and
after giving effect to the application of the proceeds of such Borrowing, the
Borrower and its Subsidiaries on a consolidated basis will be Solvent.
5.15 PATRIOT ACT. The Borrower and its Subsidiaries are in compliance with
(a) the Trading with the Enemy Act, as amended, and each of the foreign assets
control regulations of
-51-
the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) and any other enabling legislation or executive order relating thereto,
and (b) the Uniting And Strengthening America By Providing Appropriate Tools
Required To Intercept And Obstruct Terrorism (USA Patriot Act of 2001) (the
"Patriot Act"), except to the extent any such non-compliance or violation would
not reasonably be expected to have a Material Adverse Effect. No part of the
proceeds of the Loans will be used, directly or indirectly, for any payments to
any governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper
advantage, in violation of the United States Foreign Corrupt Practices Act of
1977, as amended.
5.16 OFAC. Neither the Borrower nor any of its Subsidiaries (a) is a
person whose property or interest in property is blocked or currently subject to
blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (b) knowingly
engages in any dealings or transactions prohibited by Section 2 of such
executive order, or is otherwise knowingly associated with any such person in
any manner violative of Section 2, or (c) is currently a person on the list of
Specially Designated Nationals and Blocked Persons or is currently subject to
the limitations or prohibitions under any other U.S. Department of Treasury's
Office of Foreign Assets Control regulation or executive order.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower shall, unless the Required Lenders shall
otherwise consent in writing:
6.01 REPORTING REQUIREMENTS.
Deliver to the Administrative Agent (with sufficient copies for
distribution to each Lender):
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Borrower, a consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income 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, audited and accompanied by a report and opinion of
Ernst & Young LLP, Deloitte & Touche USA LLP, PricewaterhouseCoopers LLP, KPMG
LLP or another independent certified public accountant of nationally recognized
standing reasonably acceptable to the Required Lenders, which report and opinion
shall be prepared in accordance with GAAP and shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any going
concern qualification;
-52-
(b) as soon as available, but in any event within 50 days after the end of
each of the first three fiscal quarters of each fiscal year of the Borrower
(commencing with the fiscal quarter ended nearest March 31, 2005), a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated statements of income for such
fiscal quarter and cash flows 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 or portion of the Borrower's fiscal year then ended
of the previous fiscal year and the corresponding portion of the previous fiscal
year, all in reasonable detail and certified by a Responsible Officer of the
Borrower as fairly presenting in all material respects the financial condition,
results of operations 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;
(c) promptly after the sending or filing thereof, copies of all material
reports which the Borrower sends to its stockholders generally, and copies of
all reports and registration statements which the Borrower or any Subsidiary
files with the Securities and Exchange Commission or any national securities
exchange; provided that the Borrower shall not be required to furnish copies of
registration statements filed on Form S-8, Form 144 or Forms 3, 4 or 5, or
exhibits to the reports and registration statements referred to in this
subsection (c);
(d) promptly subsequent to the rendering thereof and, upon a Responsible
Officer becoming aware thereof, notice of the rendering against the Borrower or
any of its Subsidiaries of any final judgment or order for the payment of money
in excess of the Threshold Amount (or its equivalent in another applicable
currency), together with a description in reasonable detail of the relevant
circumstances and the action which the Borrower proposes to take in response
thereto;
(e) promptly, notice of any Event of Default or any Default hereunder,
together with a description in reasonable detail of the relevant circumstances
and the action which the Borrower proposes to take in response thereto;
(f) promptly, (i) of the occurrence of any ERISA Event arising under
subsections (c), (d), (e) or (f) of the definition of "ERISA Event" and (ii) of
the occurrence of any other ERISA Event that has resulted or could reasonably be
expected to result in a Material Adverse Effect; in each case, together with a
description in reasonable detail of the relevant circumstances and the action
which the Borrower proposes to take in response thereto;
(g) promptly, of any announcement by Xxxxx'x or S&P of any downgrade or
possible downgrade in a Senior Debt Rating; and
(h) such other information respecting the conditions or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as any
Lender, through the Administrative Agent, may from time to time reasonably
request and subject to restrictions imposed by applicable security clearance
regulations.
Reports required to be delivered pursuant to Sections 6.01(a), (b) or (c)
shall be deemed to have been delivered on the date on which the Borrower posts
such reports on the Borrower's website on the Internet at the website address
listed on Schedule 10.02 hereof or when such
-53-
report is posted on the Securities and Exchange Commission's website at
xxx.xxx.xxx; provided that (x) the Borrower shall deliver paper copies of such
reports to the Administrative Agent upon request or to any Lender who requests
the Borrower to deliver such paper copies until written request to cease
delivering paper copies is given by the Administrative Agent or such Lender, and
(y) the Borrower shall, on or before the required delivery date, notify by
facsimile or electronic mail (unless requested by such Person to provide paper
copies of any such notice) the Administrative Agent and each Lender of the
posting of any such reports. The Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the reports 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
reports.
6.02 CORPORATE EXISTENCE. Maintain its corporate existence and good
standing in its jurisdiction of incorporation and maintain its qualification as
a foreign corporation and good standing in all jurisdictions where the failure
to so qualify would have a Material Adverse Effect.
6.03 COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its Subsidiaries
to comply, with all applicable laws, rules, regulations and orders where the
failure to so comply would have a Material Adverse Effect, such compliance to
include, without limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon its property,
except to the extent otherwise permitted by Section 6.08.
6.04 CERTIFICATES. Furnish to the Administrative Agent (in sufficient
copies for distribution to each Lender), concurrently with the delivery of the
financial statements referred to in Sections 6.01(a) and (b), a Compliance
Certificate signed by a Responsible Officer (a) stating that, to such
Responsible Officer's knowledge, the Borrower during such period has in all
material respects observed or performed all of its covenants and other
agreements and satisfied every condition contained in this Agreement and in each
other Loan Document to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Event of Default except as
specified in such certificate, and (b) showing in reasonable detail the
calculation supporting such statement in respect of Sections 7.01(q), 7.03 and
7.06.
6.05 COVENANT TO SECURE NOTES EQUALLY. Without affecting the obligations
of the Borrower under Section 7.01, if the Borrower or any of its Subsidiaries
shall create, assume, incur or suffer to exist any Lien upon any of their
respective property or assets, whether now owned or hereafter acquired, other
than Permitted Liens (unless prior written consent to the creation or assumption
thereof shall have been obtained from the Required Lenders pursuant to Section
10.01), then the Borrower shall make or cause to be made effective provisions
whereby the Obligations shall be secured by such Lien equally and ratably with
any and all other Debt or other obligations thereby secured, and such security
shall be created and conveyed by documentation satisfactory in scope, form and
substance to the Administrative Agent and shall continue in full force and
effect until the same is released by the Lenders, for as long as the Debt or
other obligations are secured thereby and in any case the Obligations shall have
the benefit, to the full extent that the holders may be entitled thereto under
applicable law, of an equitable lien on such property or assets equally and
ratably securing the Obligations.
-54-
6.06 MAINTENANCE OF PROPERTIES. Maintain all of its property in good
repair, working order and condition, reasonable wear and tear excepted, and from
time to time to make all proper repairs, renewals or replacements, betterments
and improvements thereto so that the business carried on in connection therewith
may be properly conducted at all times, and cause its Subsidiaries to do so,
except where the failure to maintain, make such repairs, renewals, replacements,
betterments or improvements would not, in the aggregate, have a Material Adverse
Effect.
6.07 MAINTENANCE OF INSURANCE. Keep, and cause each of its Subsidiaries to
keep, all of its insurable properties insured against loss or damage by theft,
fire, smoke, sprinklers, riot and explosion, such insurance to be in such form,
in such amount and against such other risks and hazards as are customarily
maintained by other Persons operating similar businesses and having similar
properties in the same general areas in which the Borrower and its Subsidiaries
own property.
6.08 TAXES AND OTHER CLAIMS. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (a)
all tax liabilities, assessments and governmental charges or levies imposed upon
it or its properties or assets, and (b) all known lawful claims which, if
unpaid, might by law become a Lien upon its property; provided that neither the
Borrower nor any of its Subsidiaries shall be required to pay or discharge (x)
any such tax, assessment, charge or claim which is being contested in good faith
and by proper proceedings and for which adequate reserves have been provided in
accordance with GAAP or (y) any such taxes or assessments levied by foreign
governments if, in the opinion of the board of directors of the Borrower,
payment thereof shall no longer be advantageous to the Borrower or such
Subsidiary in the conduct of its business and the failure to so pay would not in
the aggregate have a Material Adverse Effect.
6.09 ENVIRONMENTAL LAWS.
(a) Comply with, and use commercially reasonable efforts to ensure
compliance by all tenants and subtenants, if any, with all Environmental Laws
and obtain and comply with and maintain, and ensure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses, approvals,
registration or permits required by Environmental Laws, and cause each of its
Subsidiaries to do so, except to the extent that failure to do so would not be
reasonably expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of
all Governmental Authorities respecting Environmental Laws, and cause each of
its Subsidiaries to do so except to the extent that the same are being contested
in good faith by appropriate proceedings and the pendency of such proceedings or
the failure to so comply would not be reasonably expected to have a Material
Adverse Effect; and
(c) Defend, indemnify and hold harmless the Administrative Agent and each
Lender, and their respective employees, agents, officers and directors, from and
against any actual and direct claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of, or in any
-55-
way relating to the violation of or noncompliance with any Environmental Laws
applicable to the real property owned or operated by the Borrower or any of its
Subsidiaries, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification therefor;
provided that the indemnification provided for by this paragraph shall survive
the repayment of the Notes and the termination of the Commitments for a period
of five years.
6.10 BOOKS AND RECORDS. Keep, and cause each of its Material Subsidiaries
to keep, proper books of record and account, containing complete and accurate
entries of all their respective financial and business transactions.
6.11 COMPLIANCE WITH ERISA. Do, and cause each of its Commonly Controlled
Entities to do, each of the following: (a) maintain each Plan (other than a
Multiemployer Plan) in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state law; (b) cause each
Single Employer Plan which is qualified under Section 401(a) of the Code to
maintain such qualification; and (c) make all required contributions to any Plan
subject to Section 412 of the Code; except, in each case, where the failure to
do so could not reasonably be expected to result in a Material Adverse Effect.
6.12 VISITATION, INSPECTION, ETC. The Borrower will, and will cause each
of its Material Subsidiaries to, (a) permit any representative of the
Administrative Agent or the Required Lenders to visit and inspect its
properties, to examine its financial books and records and to make copies and
take extracts therefrom all at such reasonable times and as often as the
Administrative Agent or the Required Lenders may reasonably request after
reasonable prior notice to the Borrower, and (b) permit any representative of
the Administrative Agent or any Lender to discuss its affairs, finances and
accounts with any of its officers and with its independent certified public
accountants, all at such reasonable times and as often as the Administrative
Agent or any Lender may reasonably request after reasonable prior notice to the
Borrower; provided, however, if an Event of Default has occurred and is
continuing, no prior notice shall be required. Notwithstanding anything to the
contrary contained in this Section, the right of visitation and inspection shall
be subject to reasonable limitations for security related precautions and
subject to the confidentiality provisions contained in Section 10.08.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower shall not, without the written consent of
the Required Lenders:
7.01 LIENS. Create, assume, incur or suffer to exist, or allow any
Subsidiary to create, assume, incur or suffer to exist, except by a Subsidiary
in favor of the Borrower or another wholly-owned Subsidiary, any Lien on any of
its property or assets or any shares of capital stock or indebtedness of any
Subsidiary, whether now owned or hereafter acquired, or assigned, except:
-56-
(a) Liens incurred in connection with the Cash Collateralization of any
L/C Obligations;
(b) Liens for taxes not yet due, or Liens for taxes being contested in
good faith and by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP;
(c) Liens in respect of property or assets of the Borrower or any
Subsidiary imposed by law, which were incurred in the ordinary course of
business, such as carriers', warehousemen's and mechanics' liens and other
similar Liens arising in the ordinary course of business and (i) which do not in
the aggregate materially detract from the value of such property or assets or
materially impair the use thereof in the operations of the business of the
Borrower or any Subsidiary or (ii) which are being contested in good faith by
appropriate proceedings for which adequate reserves have been established in
accordance with GAAP and which proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to any such Lien;
(d) Intentionally omitted;
(e) Liens existing prior to the time of acquisition (other than Liens
created, assumed or incurred in anticipation of acquisition) upon any property
acquired by the Borrower or any Subsidiary through purchase, merger or
consolidation or otherwise, if the payment of the indebtedness secured thereby
or interest thereon will not become, by assumption or otherwise, a personal
obligation of the Borrower or a Subsidiary (other than a Person that becomes a
Subsidiary as a result of such acquisition);
(f) any Lien placed upon property hereafter acquired by the Borrower or
any Subsidiary or placed upon any equipment, land, buildings, or other
properties purchased or constructed which secures Debt incurred for its purchase
or construction; provided that (i) such Lien shall cover only hereafter acquired
property or property on which construction occurs, and (ii) any such Lien shall
be created within six months of the acquisition of such property; and provided,
further, that the amount of Debt secured by any such Lien shall not exceed 100%
of the lesser of the fair market value at the time of acquisition or the cost of
the encumbered property, equipment, land or building, or construction costs, as
the case may be;
(g) Liens (other than any Lien imposed pursuant to Sections 302 or 4068 of
ERISA or Section 412 of the Code) arising by reason of deposits with, or the
giving of any form of security to, any Governmental Authority or any body
created or approved by Law, which is required by Law as a condition to the
transaction of any business, or the exercise of any privilege or license, or to
enable the Borrower or a Subsidiary to maintain self-insurance or to participate
in any arrangements established by law to cover any insurance risks or in
connection with workmen's compensation, unemployment insurance, old age
pensions, social security or similar matters;
(h) judgment liens securing judgments, none of which individually exceed
the Threshold Amount, so long as the finality of any such judgment is being
contested in good faith and execution thereon is stayed and adequate reserves
have been established in accordance with GAAP;
-57-
(i) easements or similar encumbrances, the existence of which does not
materially impair the use or value of the property subject thereto for the
purposes for which it is held or was acquired;
(j) lessors' and landlords' Liens on fixtures and movable property (other
than computer equipment) located on premises leased in the ordinary course of
business, so long as the rent secured by said fixtures and movable property is
not in default, and any deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary
course of business;
(k) Liens consisting of leases (whether "true" leases or capitalized
leases) of computer or other office equipment entered into in the ordinary
course of business;
(l) Liens, pledges or deposits made in connection with Government
Contracts insofar as such Liens, pledges or deposits relate to property
manufactured, installed, constructed, acquired or to be supplied by, or property
furnished to, the Borrower or a Subsidiary pursuant to, or to enable the
performance of, such Government Contracts, or property the manufacture,
installation, construction or acquisition of which any Governmental Authority
thereof finances or guarantees the financing of, pursuant to, or to enable the
performance of, such Government Contracts; or deposits or Liens, made pursuant
to such Government Contracts, of or upon moneys advanced or paid pursuant to, or
in accordance with the provisions of, such Government Contracts, or of or upon
any materials or supplies acquired for the purposes of the performance of such
Government Contracts; or the assignment or pledge to any Person, to the extent
permitted by Law, of the right, title and interest of the Borrower or a
Subsidiary in and to any Government Contract, or in and to any payments due or
to become due thereunder, to secure indebtedness incurred and owing to such
Person for funds or other property supplied, constructed or installed for or in
connection with the performance by the Borrower or such Subsidiary of its
obligations under such Government Contract;
(m) any mortgage or other Lien in favor of the United States of America or
any State thereof, or political subdivision of the United States of America or
any State thereof, or any department, agency or instrumentality of the United
States of America or any State thereof, or any such political subdivision, to
secure Debt incurred for the purpose of financing the acquisition, construction
or improvement of all or any part of the property subject to such mortgage or
other Lien; provided, that (i) any such Lien shall cover only such acquired
property or property on which construction of improvements occurs, and (ii) any
such Lien shall be created within six months of the acquisition of or
construction or improvement on such property; and provided, further, that (x)
the amount of Debt secured by any such Lien shall not exceed 100% of the lesser
of the fair market value at the time of acquisition or construction or the cost
of the encumbered property, equipment, land or building, as the case may be and
(y) the aggregate amount of all Debt and other indebtedness secured by all such
Liens shall not exceed $50,000,000 at any time during the term of this
Agreement;
(n) any Lien securing Debt of a Subsidiary outstanding at the time it
became a Subsidiary (provided that such Lien was not created in connection with
or in contemplation of the acquisition of such Subsidiary), and any other Lien
created in connection with the
-58-
refinancing, renewal or extension of such Debt which is limited to the same
property, provided that the amount of the Debt secured by such refinancing,
renewal or extension Lien does not exceed the amount of Debt secured by the Lien
to be refinanced, renewed or extended and outstanding at the time of such
refunding, renewal or extension;
(o) any Lien created in connection with the refinancing, renewal or
extension of any obligations, Debt or claims secured by a Lien of the type
described in subsections (d), (e), (f), (g) and (m) above which is limited to
the same property; provided that the aggregate amount of the Debt or claims
secured by such refinancing, renewal or extension Lien does not exceed the
aggregate amount thereof secured by the Lien so refinanced, renewed or extended
and outstanding at the time of such refinancing, renewal or extension;
(p) Liens on accounts receivable, notes, chattel paper and related
property subject to a Securitization, provided that the applicable amount of any
and all such Securitizations at any time outstanding, shall not at any time
exceed the amount of $250,000,000 less any Vendor Finance Investments (other
than any Vendor Finance Investments to the extent covered by independent
third-party credit insurance as to which the insurer does not dispute coverage)
then maintained by the Borrower or its Subsidiaries; and
(q) any Liens other than Permitted Liens or Liens incurred in connection
with a Securitization, provided that the sum of (i) the aggregate amount of Debt
and other indebtedness secured by all such Liens permitted under this subsection
(q), (ii) the aggregate monetary obligations in respect of transactions
permitted pursuant to the proviso of Section 7.03 and (iii) the applicable
amount of all Securitizations of the Borrower and its Subsidiaries, shall not at
any time exceed 25% of Total Capital.
7.02 MERGER, CONSOLIDATION AND SALE OF ASSETS.
(a) Merge or consolidate with or sell, assign, lease or otherwise 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 any
Person, or permit any of its Material Subsidiaries (or any group of its
Subsidiaries which taken as a whole would constitute a Material Subsidiary) to
do so, except that any such Subsidiary may merge into or consolidate with or
transfer assets to the Borrower or any other such Subsidiary and the Borrower
may merge with any other Person provided in each case that, immediately
thereafter and giving effect thereto, no event shall have occurred and be
continuing which constitutes a Default or an Event of Default and, in the case
of any such merger or consolidation to which the Borrower is a party, the
Borrower is the surviving corporation.
(b) Sell, assign, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of the
assets of any line of business or other division of the Borrower or its
Subsidiaries, including through a spin-off, reverse spin-off, split-off or
similar transaction (each, a "Divestiture"), except that the Borrower or any
Subsidiary may undertake any such Divestiture (i) to the Borrower or to any
wholly-owned Subsidiary of the Borrower, as applicable, provided that, after the
consummation of any such Divestiture, the Borrower shall not distribute any
dividend to the shareholders of the Borrower payable in capital stock of such
Subsidiary or any successor or assignee Subsidiary to which such assets have
-59-
subsequently been transferred except in compliance with Section 7.02(b)(ii), and
(ii) to the extent that, after giving effect to any such Divestiture, the
aggregate book value of all assets that have been transferred in connection with
any and all other Divestitures pursuant to this subsection (b) after the Closing
Date does not exceed as of the date of any such Divestiture 40% of Consolidated
Total Assets, based on the then-current financial statements delivered by the
Borrower pursuant to Section 6.01(a) or (b).
7.03 SALE AND LEASEBACK. Enter into any arrangement for a term exceeding
five years with any investor or to which such investor is a party providing for
the leasing by the Borrower or any Material Subsidiary of real or personal
property which has been or is to be sold or transferred by the Borrower or any
Material Subsidiary of the Borrower to such investor or to any Person to whom
funds have been or are to be advanced by such investor on the security of such
property or rental obligations of the Borrower or any Material Subsidiary;
provided that the Borrower or any Material Subsidiary may enter into any such
arrangement if the sum of (a) the aggregate monetary obligations in respect of
all such transactions, including the proposed sale-leaseback transaction, plus
(b) the aggregate amount of Debt secured by any Liens permitted by Section
7.01(q), plus (c) the applicable amount of all Securitizations of the Borrower
and all of its Subsidiaries, shall not exceed 25% of Total Capital.
7.04 CERTAIN INVESTMENTS. Make or maintain any Vendor Finance Investments
(other than Vendor Finance Investments to the extent covered by independent
third-party credit insurance as to which the insurer does not dispute coverage)
that exceed in the aggregate, together with all other Vendor Finance Investments
then outstanding $250,000,000 less the aggregate applicable amount of all
Securitizations of the Borrower and its Subsidiaries at any time outstanding.
7.05 USE OF PROCEEDS. Use, or allow any Subsidiary to use, directly or
indirectly, the proceeds of any Loan or any L/C Borrowing for purposes of
undertaking or accomplishing a Hostile Acquisition, or for any purpose in
contravention of applicable Laws.
7.06 FINANCIAL COVENANTS.
(a) Interest Coverage Ratio. Permit the ratio of Consolidated EBITDA to
Consolidated Net Interest Expense to be less than 3.00:1.00. The Borrower's
compliance with this requirement shall be calculated on a rolling four-quarter
basis, measured on the last day of each fiscal quarter commencing with the
fiscal quarter ending April 1, 2005.
(b) Consolidated Total Indebtedness to Total Capital. Permit the ratio of
Consolidated Total Indebtedness to Total Capital to be greater than 0.60:1.00.
The Borrower's compliance with this requirement shall be required at all times
and shall be reported for the last day of each fiscal quarter commencing with
the fiscal quarter ending April 1, 2005.
7.07 RESTRICTIVE AGREEMENTS. The Borrower will not, and will not permit
any Material Subsidiary to, directly or indirectly, enter into, incur or permit
to exist any agreement that prohibits, restricts or imposes any condition upon
the ability of any Material Subsidiary to pay dividends or other distributions
with respect to its common stock, to make or repay loans or advances to the
Borrower or any other Subsidiary or to transfer any of its property or assets to
-60-
the Borrower or any Subsidiary of the Borrower; provided, that (i) the foregoing
shall not apply to restrictions or conditions imposed by Law or by this
Agreement or any other Loan Document and (ii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Material Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale is not
prohibited hereunder.
7.08 HEDGING TRANSACTIONS. The Borrower will not, and will not permit any
of its Subsidiaries to, enter into any Hedging Arrangement, other than Hedging
Arrangements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities. Solely for the avoidance
of doubt, the Borrower acknowledges that a Hedging Arrangement entered into for
speculative purposes or of a speculative nature (which shall be deemed to
include any Hedging Arrangement under which the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (i) in connection with
the purchase by any third party of any common stock or any Debt or (ii) as a
result of changes in the market value of any common stock or any Debt; but
excluding any Hedging Arrangement tied to the market value of any common stock,
equity security or any Debt if the Borrower holds an investment in such common
stock, equity security or Debt at the time the Hedging Arrangement is executed)
is not a Hedging Arrangement entered into in the ordinary course of business to
hedge or mitigate risks.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) Non-Payment. The Borrower shall fail to pay (i) any amount of
principal of any Loan or any L/C Borrowing when due; (ii) any interest on any
Loan when due and such failure shall remain unremedied for five days; or (iii)
within ten days after the same becomes due and the Borrower shall have received
written notice thereof from the Administrative Agent or any Lender, any other
amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants.
(i) The Borrower shall have failed to perform or observe any term,
covenant or agreement contained in any of Sections 6.01(e), 6.02, 6.05,
7.02, 7.05 or 7.06; or
(ii) The Borrower shall have failed to perform or observe any term,
covenant or agreement contained in any of Sections 6.01(a) or (b), 6.04,
7.01, 7.03 or 7.04 and such failure continues for 30 days after a
Responsible Officer of the Borrower becomes aware or, through the exercise
of reasonable diligence, should become aware of such failure; or
(c) Other Defaults. The Borrower shall have failed to perform or observe
any other covenant or agreement (not specified in subsection (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days after written notice thereof shall have been given
to the Borrower by the Administrative Agent or any Lender; or
-61-
(d) Representations and Warranties. Any representation or warranty made or
deemed made by the Borrower herein or by the Borrower (or any of its officers)
in connection with this Agreement or any other Loan Document shall prove to have
been incorrect in any material respect when made or deemed made; or
(e) Payment of Debt. The Borrower or any of its Subsidiaries shall (i)
fail to make any principal payment on account of any Debt (excluding Debt
evidenced by the Notes) or Hedging Arrangement of the Borrower or such
Subsidiary (as the case may be) having an outstanding principal amount (or
notional amount in the case of a Hedging Arrangement) individually or in the
aggregate that exceeds $50,000,000 (including any interest or premium thereon),
when due (whether at scheduled maturity, upon required prepayment, acceleration,
demand or otherwise) and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such Debt
or Hedging Arrangement, or (ii) fail to perform or observe any term, covenant or
condition on its part to be performed or observed under any agreement or
instrument relating to any such Debt (but not including Hedging Arrangements)
when required to be performed or observed, and such failure shall continue after
the applicable grace period, if any, specified in such agreement or instrument,
if the effect of such failure to perform or observe is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or any such Debt that
aggregates to more than $50,000,000 shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required prepayment
and other than as a consequence of the sale, pledge or other disposition by the
Borrower of Margin Stock), prior to the stated maturity thereof; or
(f) Insolvency Proceedings, Etc. (i) The Borrower or any of its Material
Subsidiaries shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or the Borrower or any
of its Material Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Borrower or any of
its Material Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period in excess of 60 days; or (iii) there shall
be commenced against the Borrower or any of its Material Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Borrower or any of its
Material Subsidiaries shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clauses (i), (ii), or (iii) above; or (v) the Borrower or any of its Material
Subsidiaries shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(g) Judgments. A final judgment or order known to the Borrower for the
payment of money in excess of $50,000,000, or its equivalent in another
applicable currency, (exclusive of the amount thereof covered by insurance,
provided that the insurance carrier has acknowledged
-62-
coverage) shall be rendered against the Borrower or any of its Subsidiaries and
not paid and either (i) enforcement proceedings shall have been commenced upon
such judgment or order and such proceedings are not being contested in good
faith or (ii) a stay of enforcement of such judgment or order or similar relief,
by reason of a pending appeal or otherwise, shall not be in effect with respect
to such judgment or order for any period of 30 consecutive days; provided that
the circumstances described in clause (i) or (ii) above, as to such a judgment
or order which is rendered by any foreign Governmental Authority in an amount
not exceeding the Dollar equivalent of $100,000,000 and which has not been
confirmed in any way by any Governmental Authority in the United States shall
not give rise to any Event of Default under this subsection (g) if the Lenders
shall have been furnished (promptly after the Borrower shall have knowledge of
the commencement of any such proceedings or any such 30 day period and promptly
upon obtaining knowledge of any material change in such circumstances) with a
copy (certified by a Responsible Officer of the Borrower) of a resolution
adopted by the board of directors or the executive committee of the board of
directors of the Borrower to the effect that, having considered the advice of
counsel, it has been determined to be in the best interests of the Borrower to
permit such circumstances to exist and directing the appropriate officers of the
Borrower to notify the Lenders of all material developments relating to such
judgment or order (including any significant modification of such
determination); or
(h) ERISA. (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Single Employer Plan for which a statutory or class exemption is not available
or a private exemption therefore has not previously been obtained, (ii) any
"accumulated funding deficiency" (as defined in Section 302 of ERISA), whether
or not waived, shall exist with respect to any Single Employer Plan, (iii) a
Reportable Event shall occur with respect to any Single Employer Plan, or
proceedings shall commence to have any Single Employer Plan terminated or to
have a trustee appointed, or a trustee shall be appointed, to administer any
Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Administrative
Agent, likely to result in the termination of such Plan for purposes of Title IV
of ERISA, (iv) any Single Employer Plan shall terminate in a "distress
termination" (as defined in Section 4041(c) of ERISA), (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Administrative Agent is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist, with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could reasonably be
expected to subject the Borrower or any of its Subsidiaries to any tax, penalty
or other liabilities in the aggregate in excess of $50,000,000; or
(i) Invalidity of Loan Documents. Any provision of the Credit Agreement or
any material provision of any other Loan Document, at any time after its
execution and delivery and for any reason other than the agreement of all the
Lenders or satisfaction in full of all the Obligations, ceases to be in full
force and effect, or is declared by a court of competent jurisdiction to be null
and void, invalid or unenforceable in any respect; or the Borrower denies that
it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or
(j) Change of Control. There occurs any Change of Control;
-63-
then, and in every such event (other than an event with respect to the Borrower
described in subsection (f) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrower, take any of the following
actions, at the same or different times: (i) 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; (ii) 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; (iii) require that the Borrower
Cash Collateralize the L/C Obligations (in an amount equal to the then
Outstanding Amount thereof); and (iv) exercise on behalf of itself and the
Lenders all rights and remedies available to it and the Lenders under the Loan
Documents or applicable law; provided, however, that upon the occurrence of any
event specified in subsection (f) above with respect to the Borrower or any
Material Subsidiary, 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.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably (subject to Section 9.09) appoints,
designates and authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere herein or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any Lender or participant, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and in
the other Loan Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties.
(b) 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 until such
time (and except for so long) as the Administrative Agent may agree at the
request of the Required Lenders to act for the L/C Issuer with respect thereto;
provided, however, that the L/C Issuer shall have all of the
-64-
benefits and immunities (i) provided to the Administrative Agent in this Article
IX with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent" as used in this
Article IX included the L/C Issuer with respect to such acts or omissions, and
(ii) as additionally provided herein with respect to the L/C Issuer.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person shall (a)
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by the Borrower or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
the Borrower or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Lender or participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Borrower or any of its Affiliates.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Borrower), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders or all the Lenders if applicable and, if it so requests, it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Required Lenders or all the Lenders, if required hereunder, and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
the Lenders and participants. Where this
-65-
Agreement expressly permits or prohibits an action unless the Required Lenders
or all the Lenders if applicable otherwise determine, the Administrative Agent
shall, and in all other instances, the Administrative Agent may, but shall not
be required to, initiate any solicitation for the consent or a vote of the
Lenders.
(b) For purposes of determining compliance with the conditions specified
in 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 either sent by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written notice from a Lender
or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be directed by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE AGENT.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of the Borrower or any of its Affiliates, shall be deemed
to constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and
-66-
other condition or creditworthiness of the Borrower or any of its respective
Affiliates which may come into the possession of any Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand the Administrative Agent in its capacity as such and each
Agent-Related Person while acting for or on behalf of the Administrative Agent
in such capacity (to the extent not reimbursed by or on behalf of the Borrower
and without limiting the obligation of the Borrower to do so), pro rata, and
hold harmless the Administrative Agent in its capacity as such and each
Agent-Related Person while acting for or on behalf of the Administrative Agent
in such capacity from and against any and all Indemnified Liabilities incurred
by it; provided, however, that no Lender shall be liable for the payment to the
Administrative Agent or any Agent-Related Person of any portion of such
Indemnified Liabilities resulting from such Person's gross negligence or willful
misconduct; provided, further, however, that no action taken in accordance with
the directions of the Required Lenders or all the Lenders if applicable shall be
deemed to constitute gross negligence or willful misconduct for purposes of this
Section. Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive termination of the Commitments, the
payment of all Obligations hereunder and the resignation or replacement of the
Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. SunTrust Bank and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
the Borrower and its respective Affiliates as though SunTrust Bank were not the
Administrative Agent or the L/C Issuer hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, SunTrust Bank or its Affiliates may receive information regarding
the Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or any such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, SunTrust Bank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise such rights and powers as though it were not the Administrative Agent
or the L/C Issuer, and the terms "Lender" and "Lenders" include SunTrust Bank in
its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may, and at
the request of the Required Lenders shall, resign as Administrative Agent upon
30 days' notice to the Lenders. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, the appointment of which successor
administrative agent shall be subject to the consent of the Borrower at all
times other than during the existence of an Event of Default (which consent of
the Borrower shall not be unreasonably withheld or delayed). If no successor
administrative
-67-
agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Borrower, a successor administrative agent from among
the Lenders. Upon the acceptance of its appointment as successor administrative
agent hereunder, such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term
"Administrative Agent" shall mean such successor administrative agent and the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article IX and
Sections 10.03 and 10.13 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Required Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. Notwithstanding the foregoing, however, if, at any
time, the Administrative Agent and the L/C Issuer shall be the same Person or
Affiliates, such Administrative Agent may not be removed as Administrative Agent
at the request of the Required Lenders unless such Administrative Agent shall
also simultaneously be replaced and fully released as "L/C Issuer" hereunder
pursuant to documentation in form and substance reasonably satisfactory to such
Administrative Agent.
9.10 OTHER AGENTS; LEAD MANAGERS. None of the Lenders identified on the
facing page or signature pages of this Agreement as a "Book Manager", "Lead
Arranger", "Co-Syndication Agent" or "Co-Documentation Agent" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
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 therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower, 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, unless in
writing and signed by each of the Lenders directly affected thereby and by the
Borrower, do any of the following:
(a) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.01);
-68-
(b) postpone any date fixed by this Agreement or any other Loan Document
for any payment or mandatory prepayment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other Loan
Document;
(c) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (iii) of the proviso below) any
fees or other amounts payable hereunder or under any other Loan Document;
provided, however, that only the consent of the Required Lenders and the
Borrower shall be necessary to amend the definition of "Default Rate" or to
waive any obligation of the Borrower to pay interest at the Default Rate;
(d) change the percentage of the Aggregate Commitments or of the aggregate
unpaid principal amount of the Loans and L/C Obligations which is required for
the Lenders or any of them to take any action hereunder;
(e) change the Pro Rata Share or Voting Percentage of any Lender (except
for any such change resulting from Section 2.17, Section 3.06(b) or Section
10.15) or a Lender's right to receive its Pro Rata Share of payments or proceeds
under Sections 2.13 and 2.14; or
(f) amend this Section, or Section 2.14, or any provision herein providing
for consent or other action by all the Lenders;
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 Required Lenders or all
the Lenders, as the case may be, affect the rights or duties of the L/C Issuer
under this Agreement or any Letter of Credit Application 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 Administrative Agent in addition to
the Required Lenders or all the Lenders, as the case may be, affect the rights
or duties of the Administrative Agent under this Agreement or any other Loan
Document; (iii) no amendment, waiver or consent shall, unless in writing and
signed by the Swingline Lender in addition to the Required Lenders or all the
Lenders, as the case may be, affect the rights or duties of the Swingline Lender
under this Agreement or any Swingline Loan made or to be made by it; and (iv)
the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the respective parties thereto. Notwithstanding
anything to the contrary herein, any Lender that has failed to fund any portion
of the Committed Loans or participations in L/C Obligations required to be
funded by it hereunder shall not have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Pro Rata Share of such
Lender may not be increased (except for any such increase resulting from Section
3.06(b)) without the consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES; GENERAL. Unless
otherwise expressly provided herein, all notices, requests, demands, consents
and other communications provided for hereunder shall be in writing (including
by facsimile transmission) and mailed, faxed or delivered, to the address,
facsimile number or (subject to subsection (c) below) electronic mail address
specified for notices on Schedule 10.02; or, in the case of the Borrower, the
Administrative Agent or the L/C Issuer, to such other address as shall be
designated by such party in a notice to the other parties, and in the case of
any other party, to such other address as shall be designated by such party in a
notice to the Borrower, the
-69-
Administrative Agent and the L/C Issuer. All such notices and other
communications shall be deemed to be given or made upon the earlier to occur of
(i) actual receipt by the intended recipient and (ii) (A) if delivered by hand
or by courier, when signed for by the intended recipient; (B) if delivered by
mail, four Business Days after deposit in the mails, postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone;
and (D) if delivered by electronic mail (which form of delivery is subject to
the provisions of subsection (c) below), when delivered; provided, however, that
notices and other communications to the Administrative Agent and the L/C Issuer
pursuant to Article II shall not be effective until actually received by such
Person. Any notice or other communication permitted to be given, made or
confirmed by telephone hereunder shall be given, made or confirmed by means of a
telephone call to the intended recipient at the number specified on Schedule
10.02, it being understood and agreed that a voicemail message shall in no event
be effective as a notice, communication or confirmation hereunder.
(a) Effectiveness of Facsimile Documents and Signatures. The Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on the
Borrower, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(b) Limited Use of Electronic Mail. Electronic mail and internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information, and to distribute Loan Documents for
execution by the parties thereto, and may not be used for any other purpose.
(c) Reliance by Administrative Agent and Lenders. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed 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 each
Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices to and
other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as 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 or therein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
-70-
10.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Borrower agrees (a) to pay
or reimburse the Administrative Agent for all reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation, negotiation
and execution of this Agreement and the other Loan Documents and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs incurred by the
Administrative Agent, and (b) to pay or reimburse the Administrative Agent and
each Lender for all out-of-pocket costs and expenses incurred in connection with
the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or the other Loan Documents (including all such
non-duplicative costs and expenses incurred during any "workout" or
restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs. The foregoing costs and expenses shall include all search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by the Administrative Agent
and the cost of independent public accountants and other outside experts
retained by the Administrative Agent or any Lender. The Borrower shall not be
required to pay the fees and expenses of more than one counsel for the
Administrative Agent or any Lender under clause (b) of this section unless the
employment of separate counsel has been authorized by the Borrower (such
authorization not to be unreasonably withheld or delayed). The agreements in
this Section 10.04 shall survive the termination of the Commitments and
repayment of all other Obligations.
10.05 INDEMNIFICATION BY THE BORROWER.
(a) Whether or not the transactions contemplated hereby are consummated,
the Borrower agrees to indemnify, save and hold harmless each Agent-Related
Person, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against: (a) any and all claims, demands, actions or
causes of action that are asserted against any Indemnitee by any Person (other
than the Administrative Agent or any Lender) relating directly or indirectly to
a claim, demand, action or cause of action that such Person asserts or may
assert against the Borrower, any of its Affiliates or any of their respective
officers or directors; (b) any and all claims, demands, actions or causes of
action that may at any time (including at any time following repayment of the
Obligations and the resignation or removal of the Administrative Agent or the
replacement of any Lender) be asserted or imposed by the Borrower, any of its
Affiliates or any other Person against any Indemnitee, arising out of or
relating to, the Loan Documents, the Commitments or the use or contemplated use
of the proceeds of any Credit Extension; (c) any administrative or investigative
proceeding by any Governmental Authority arising out of or related to a claim,
demand, action or cause of action described in subsection (a) or (b) above; (d)
any and all liabilities (including liabilities under indemnities), losses, costs
or expenses (including Attorney Costs) that any Indemnitee suffers or incurs as
a result of the assertion of any foregoing claim, demand, action, cause of
action or proceeding, or as a result of the preparation of any defense in
connection with any foregoing claim, demand, action, cause of action or
proceeding, in all cases, whether or not arising out of the negligence of an
Indemnitee, and whether or not an Indemnitee is a party to such claim, demand,
action, cause of action or proceeding; and (e) any civil penalty or fine
assessed by OFAC against, and all reasonable costs and expenses (including
counsel fees and disbursements) incurred in connection with defense thereof, by
the Administrative Agent or any
-71-
Lender as a result of conduct of the Borrower that violates a sanction enforced
by OFAC (all the foregoing, collectively, the "Indemnified Liabilities");
provided that no Indemnitee shall be entitled to indemnification from the
Borrower (i) for any claim caused by its own gross negligence, bad faith or
willful misconduct, or that of any of its Affiliates, officers, employees,
advisors, or agents, as determined by a court of competent jurisdiction by final
nonappealable judgment, (ii) for any loss or Indemnified Liabilities asserted
against it by another Indemnitee, or (iii) for any claim brought by the Borrower
or any of its Subsidiaries against any Indemnitee for breach in bad faith of
such Indemnitee's obligations hereunder or under any other Loan Document, as
determined by a court of competent jurisdiction by final nonappealable judgment.
The agreements in this Section 10.05 shall survive the termination of the
Commitments and repayment of all other Obligations. In no case shall the
Borrower be required to indemnify an Indemnitee in respect of any indirect or
special or consequential damages, except to the extent any such damages are paid
or payable by an Indemnitee.
(b) The Administrative Agent and each Lender agree that if any
investigation, litigation, suit, action, or proceeding is asserted or threatened
in writing or instituted against it or any other Indemnitee, or any remedial,
removal or response action is requested of it or any other Indemnitee for which
the Administrative Agent or any Lender may desire indemnity or defense
hereunder, the Administrative Agent or such Lender shall, to the extent
permitted or practicable, promptly notify the Borrower thereof in writing;
provided that any failure on the part of the Administrative Agent or any Lender
to provide such notice shall not be deemed a waiver of the rights of the
Administrative Agent or any such Lender to seek indemnity from the Borrower in
respect of any such investigation, litigation, suit, proceeding or action. The
Borrower shall not be required to pay the fees and expenses of more than one
counsel for the Indemnitees in respect of any single action, suit or proceeding
unless the employment of separate counsel has been authorized by the Borrower
(such authorization not to be unreasonably withheld or delayed, provided that
such authorization shall be deemed to have been given during the existence of a
Default or Event of Default), or unless any Indemnitee is advised by its counsel
that there may be defenses available to it which are not available to the other
Indemnitees or that there is a reasonable likelihood of a conflict between its
interests and those of the other Indemnitees.
10.06 PAYMENTS SET ASIDE. To the extent that the Borrower makes a payment
to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off 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 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 set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share 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.
10.07 SUCCESSORS AND ASSIGNS.
-72-
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). 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 and, to the
extent expressly contemplated hereby, the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations or Swingline Loans at the time
owing to it); provided that (i) except in the case of an assignment of the
entire remaining amount of the assigning Lender's Commitment and the Loans at
the time owing to it or in the case of an assignment to a Lender or an Affiliate
of a Lender or an Approved Fund with respect to a Lender, the aggregate amount
of the Commitment (which for this purpose includes Loans outstanding thereunder)
of the assigning Lender subject to each such assignment, determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent, shall not be less than $5,000,000 in the case of
any assignment of a Commitment 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), (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loans or the Commitment assigned, except that
this clause (ii) shall not apply to rights in respect of outstanding Competitive
Bid Loans or Negotiated Bid Loans and (iii) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500. 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
Acceptance, the Eligible Assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, 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 Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance 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, 10.04 and 10.05). Upon request, the Borrower (at its expense) shall
execute and deliver new or replacement Notes to the assigning Lender and the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this subsection (b) of this
Section 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. Upon its receipt of a duly executed Assignment and
Acceptance, the Administrative Agent shall notify the Borrower and the Lenders
of the effective date thereof.
(c) 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
-73-
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of 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) Any Lender may, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to one or more banks or other
entities that are in the business of making and/or investing in commercial loans
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
(including such Lender's participations in L/C Obligations owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
that would (i) postpone any date upon which any payment of money is scheduled to
be paid to such Participant or (ii) reduce the principal, interest, fees or
other amounts payable to 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 10.09 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.14 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater payment
under this Agreement than the Lenders would have been entitled to receive under
similar circumstances, 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 Sections 3.01(e) and 3.09 as though it were a Lender.
(f) 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 Notes, 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 a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
-74-
(g) If the consent of the Borrower to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment threshold specified in clause (i) of the proviso
to the first sentence of Section 10.07(b)), the Borrower shall be deemed to have
given its consent ten Business Days after the date notice thereof has been
delivered by the assigning Lender to the Borrower (through the Administrative
Agent) unless such consent is expressly refused by the Borrower prior to such
tenth Business Day.
(h) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural Person) approved by the Administrative Agent, in the case of any
assignment of a Committed Loan, the L/C Issuer, and, unless (x) such
Person is taking delivery of an assignment in connection with physical
settlement of a credit derivatives transaction or (y) an Event of Default
has occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed).
"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.
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
(i) Notwithstanding anything to the contrary contained herein, if at any
time SunTrust Bank assigns all of its Commitment and Loans pursuant to
subsection (b) above, SunTrust Bank may, upon 30 days' notice to the Borrower
and the Lenders, resign as L/C Issuer and Swingline Lender. In the event of any
such resignation as L/C Issuer or Swingline Lender, the Borrower shall be
entitled to appoint from among the Lenders a successor L/C Issuer and Swingline
Lender hereunder; provided, however, that no failure by the Borrower to appoint
any such successor shall affect the resignation of SunTrust Bank as L/C Issuer
and Swingline Lender. SunTrust Bank shall retain all the rights and obligations
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 participations in Unreimbursed Amounts pursuant to
Section 2.05(c)).
10.08 CONFIDENTIALITY. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent requested
by any regulatory authority; (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process; (d) to any other party
to this Agreement; (e) as is required in the good faith view of the
-75-
Administrative Agent or the Lenders, in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder; (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty's or prospective counterparty's professional
advisor) to any credit derivative transaction relating to obligations of the
Borrower; (g) with the consent of the Borrower; (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates.
For the purposes of this Section, "Information" means all information received
from the Borrower or its representatives relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
in writing at the time of delivery as confidential. 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.
Notwithstanding anything herein to the contrary, any party to this Agreement
(and any employee, representative, or other agent of any party to this
Agreement) may disclose to any and all Persons, without limitation of any kind,
the tax treatment and tax structure of the transactions contemplated by this
Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to it relating to such tax treatment and tax
structure; provided, however, that no party hereto (nor any employee,
representative or other agent of any party) may disclose any other information
that is not relevant to understanding the tax treatment and tax structure of the
transactions contemplated by this Agreement or any other information to the
extent that such disclosure would result in a violation of any federal or state
securities laws; and provided, further, that, any such information relating to
the tax treatment or tax structure is required to be kept confidential to the
extent necessary to comply with any applicable federal or state securities laws.
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender and its Affiliates is authorized at any time and from time
to time, without prior notice to the Borrower, any such notice being waived by
the Borrower to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final, but
excluding payroll deposits and deposits held in a bona fide custodial or
fiduciary capacity for Persons not Affiliates of the Borrower) at any time held
by, and other indebtedness at any time owing by, such Lender to or for the
credit or the account of the Borrower against any and all Obligations owing to
such Lender, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or
unmatured. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-
-76-
off and application made by such Lender; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and application.
10.10 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.
10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery of a counterpart
signature page via facsimile or electronic transmission shall be effective as
delivery of a manually executed counterpart hereof.
10.12 INTEGRATION. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and thereof and supersedes all prior agreements, written or oral,
on such subject matter. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
10.14 SEVERABILITY. Any provision of this Agreement and the other Loan
Documents to which the Borrower is a party that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions thereof, and any such prohibition or unenforceability in
-77-
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
10.15 REMOVAL AND REPLACEMENT OF LENDERS.
(a) Under any circumstances set forth herein providing that the Borrower
shall have the right to remove or replace a Lender as a party to this Agreement,
the Borrower may, upon notice to such Lender and the Administrative Agent, (i)
remove such Lender by terminating such Lender's Commitment or (ii) replace such
Lender by causing such Lender to assign its Commitment (without payment of any
assignment fee) pursuant to Section 10.07(b) to one or more other Lenders or
Eligible Assignees procured by the Borrower; provided, however, that if the
Borrower elects to exercise such right with respect to any Lender pursuant to
Section 3.06(b), it shall be obligated to remove or replace, as the case may be,
all Lenders that have made similar requests for compensation pursuant to Section
3.01 or 3.04. The Borrower shall (x) pay in full all principal, accrued
interest, accrued fees and other amounts owing to such Lender through the date
of termination or assignment (including any amounts payable pursuant to Section
3.05), (y) provide appropriate assurances and indemnities (which may include
letters of credit) to the L/C Issuer as it may reasonably require with respect
to any continuing obligation to purchase participation interests in any L/C
Obligations then outstanding, and (z) release such Lender from its obligations
under the Loan Documents. Any Lender being replaced shall execute and deliver an
Assignment and Acceptance with respect to such Lender's Commitment and
outstanding Credit Extensions. The Administrative Agent shall distribute an
amended Schedule 2.01, which shall be deemed incorporated into this Agreement,
to reflect changes in the identities of the Lenders and adjustments of their
respective Commitments and Pro Rata Shares resulting from any such removal or
replacement.
(b) In order to make all the Lenders' interests in any outstanding Credit
Extensions ratable in accordance with any revised Pro Rata Shares after giving
effect to the removal or replacement of a Lender, the Borrower shall pay or
prepay, if necessary, on the effective date thereof, all outstanding Committed
Loans of all Lenders, together with any amounts due under Section 3.05. The
Borrower may then request Committed Loans from the Lenders in accordance with
their revised Pro Rata Shares. The Borrower may net any payments required
hereunder against any funds being provided by any Lender or Eligible Assignee
replacing a terminating Lender. The effect for purposes of this Agreement shall
be the same as if separate transfers of funds had been made with respect
thereto.
(c) This Section shall supersede any provision in Section 10.01 to the
contrary.
10.16 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
-78-
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK, OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE
(WHICH IF NOT MADE BY PERSONAL SERVICE SHALL ALSO BE COPIED TO THE BORROWER AT
ITS ADDRESS SET FORTH IN SCHEDULE 10.02.
10.17 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.18 WAIVER OF RIGHT TO CONSEQUENTIAL DAMAGES. Except as specifically
permitted pursuant to Section 10.05, to the extent permitted by applicable Law,
each party to this Agreement shall not assert, and hereby waives, any claim
against any other party hereto, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to actual or direct
damages) arising out of, in connection with or as a result of, this Agreement or
any agreement or instrument contemplated hereby, the transactions contemplated
therein, any Loan or any Letter of Credit or the use of proceeds thereof.
10.19 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
-79-
10.20 PATRIOT ACT NOTICE. The Administrative Agent and each Lender hereby
notifies the Borrower that pursuant to the requirements of the Patriot 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 the Lenders and the Agent to identify the
Borrower in accordance with the Patriot Act. The Borrower shall, and shall cause
each of its Subsidiaries to, provide to the extent commercially reasonable, such
information and take such actions as are reasonably requested by the Agent or
any Lender in order to assist the Agent and the Lenders in maintaining
compliance with the Patriot Act.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-80-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
XXXXXX CORPORATION, as Borrower*
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President, Chief Executive Officer
and Chairman of the Board
By: /s/ Xxxx X. XxXxxxxx
---------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Vice President Finance and Treasurer
* The signatures of two authorized officers are required
SUNTRUST BANK, as Administrative
Agent, L/C Issuer and a Lender
By: /s/ Xxxxxxx X. Xxxx III
----------------------------
Name: Xxxxxxx X. Xxxx III
Title: Managing Director
[SIGNATURE PAGE TO CREDIT AGREEMENT]
CITICORP USA, INC., as Co-Syndication
Agent and a Lender
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
[SIGNATURE PAGE TO CREDIT AGREEMENT]
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agent and a Lender
By: /s/ Xxxxxx X. XxXxxx, Xx.
---------------------------------
Name: Xxxxxx X. XxXxxx, Xx.
Title: Director
[SIGNATURE PAGE TO CREDIT AGREEMENT]
FLEET NATIONAL BANK, as Co-
Documentation Agent and a Lender
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Principal
[SIGNATURE PAGE TO CREDIT AGREEMENT]
HSBC BANK USA, NATIONAL ASSOCIATION
as Co-Documentation Agent and a
Lender
By: /s/ Xxx X. Xxxx
---------------------------------
Name: Xxx X. Xxxx
Title: Vice President
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
[SIGNATURE PAGE TO CREDIT AGREEMENT]
BARCLAYS BANK PLC, as a Lender
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Associate Director
[SIGNATURE PAGE TO CREDIT AGREEMENT]
BNP PARIBAS, as a Lender
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO CREDIT AGREEMENT]
LASALLE BANK NATIONAL ASSOCIATION, as
a Lender
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO CREDIT AGREEMENT]
SOCIETE GENERALE, as a Lender
By:/s/ R. D. Xxxx Xxxxxx
----------------------------------
Name: R. D. Xxxx Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO CREDIT AGREEMENT]]
BANK OF CHINA, NEW YORK BRANCH, as a
Lender
By: /s/ Xxxxxxxx Xx
---------------------------------
Name: Xxxxxxxx Xx
Title: First Deputy General Manager
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
[SIGNATURE PAGE TO CREDIT AGREEMENT]]
XXXXXX XXXXXXX BANK, as a Lender
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE NORTHERN TRUST COMPANY, as a
Lender
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO CREDIT AGREEMENT]
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
LENDER COMMITMENT PRO RATA SHARE
------------------------------------- -------------- --------------
SunTrust Bank $ 60,000,000 12%
Citicorp USA, Inc. $ 50,000,000 10%
Wachovia Bank, National Association $ 50,000,000 10%
Fleet National Bank $ 50,000,000 10%
HSBC Bank USA, National Association $ 50,000,000 10%
The Bank of Nova Scotia $26,666,666.67 5.000000000%
Barclays Bank PLC $26,666,666.67 5.333333334%
BNP Paribas $26,666,666.67 5.333333334%
LaSalle Bank National Association $26,666,666.67 5.333333334%
Societe Generale $26,666,666.67 5.333333334%
Bank of China, New York Branch $26,666,666.67 5.333333334%
The Bank of New York $26,666,666.67 5.333333334%
The Northern Trust Company $26,666,666.67 5.333333334%
Xxxxxx Xxxxxxx Bank $26,666,666.67 5.333333334%
Total $ 500,000,000 100.000000000%
