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Published CUSIP Number: ____________
CREDIT AGREEMENT
Dated as of June 30, 2005
among
STERICYCLE, INC.,
and
CERTAIN SUBSIDIARIES
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender, a Lender
and L/C Issuer,
The Other Lenders Party Hereto
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent
and
FORTIS CAPITAL CORP. AND CALYON-NEW YORK BRANCH,
as Co-Documentation Agents
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I.................................................................................................. 1
1.01 Defined Terms................................................................................. 1
1.02 Other Interpretive Provisions................................................................. 25
1.03 Accounting Terms.............................................................................. 26
1.04 Exchange Rates; Currency Equivalents.......................................................... 26
1.05 Additional Alternative Currencies............................................................. 27
1.06 Change of Currency............................................................................ 28
1.07 Times of Day.................................................................................. 28
1.08 Letter of Credit Amounts...................................................................... 28
1.09 Excluded Entities............................................................................. 28
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS......................................................... 29
2.01 Committed Loans............................................................................... 29
2.02 Borrowings, Conversions and Continuations of Committed Loans.................................. 29
2.03 Letters of Credit............................................................................. 31
2.04 Swing Line Loans.............................................................................. 40
2.05 Prepayments................................................................................... 43
2.06 Termination or Reduction of Commitments....................................................... 44
2.07 Repayment of Loans............................................................................ 45
2.08 Interest...................................................................................... 45
2.09 Fees.......................................................................................... 46
2.10 Computation of Interest and Fees.............................................................. 46
2.11 Evidence of Debt.............................................................................. 47
2.12 Payments Generally; Administrative Agent's Clawback........................................... 47
2.13 Sharing of Payments by Lenders................................................................ 49
2.14 Designated Borrowers.......................................................................... 50
2.15 Increase in Commitments....................................................................... 51
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY....................................................... 52
3.01 Taxes......................................................................................... 52
3.02 Illegality.................................................................................... 55
3.03 Inability to Determine Rates.................................................................. 56
3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.......................................... 56
3.05 Compensation for Losses....................................................................... 58
3.06 Mitigation Obligations; Replacement of Lenders................................................ 59
3.07 Survival...................................................................................... 59
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS..................................................... 59
4.01 Conditions of Initial Credit Extension........................................................ 60
4.02 Conditions to all Credit Extensions........................................................... 61
ARTICLE V. REPRESENTATIONS AND WARRANTIES................................................................. 62
5.01 Existence, Qualification and Power; Compliance with Laws...................................... 62
5.02 Authorization; No Contravention............................................................... 63
TABLE OF CONTENTS (CONTINUED)
SECTION PAGE
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5.03 Governmental Authorization; Other Consents.................................................... 63
5.04 Binding Effect................................................................................ 63
5.05 Financial Statements; No Material Adverse Effect; No Internal Control Event................... 63
5.06 Litigation.................................................................................... 64
5.07 No Default.................................................................................... 64
5.08 Ownership of Property; Liens.................................................................. 64
5.09 Environmental Compliance...................................................................... 64
5.10 Insurance..................................................................................... 64
5.11 Taxes......................................................................................... 65
5.12 ERISA Compliance.............................................................................. 65
5.13 Subsidiaries; Equity Interests................................................................ 65
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act................ 66
5.15 Disclosure.................................................................................... 66
5.16 Compliance with Laws.......................................................................... 66
5.17 Intellectual Property; Licenses, Etc.......................................................... 66
5.18 Representations as to Foreign Obligors........................................................ 67
5.19 Material Subsidiaries......................................................................... 68
ARTICLE VI. AFFIRMATIVE COVENANTS......................................................................... 68
6.01 Financial Statements.......................................................................... 68
6.02 Certificates; Other Information............................................................... 69
6.03 Notices....................................................................................... 71
6.04 Payment of Obligations........................................................................ 71
6.05 Preservation of Existence, Etc................................................................ 71
6.06 Maintenance of Properties..................................................................... 72
6.07 Maintenance of Insurance...................................................................... 72
6.08 Compliance with Laws.......................................................................... 72
6.09 Books and Records............................................................................. 72
6.10 Inspection Rights............................................................................. 73
6.11 Use of Proceeds............................................................................... 73
6.12 Approvals and Authorizations.................................................................. 73
6.13 Additional Subsidiary Guarantors.............................................................. 73
6.14 Further Assurances............................................................................ 74
ARTICLE VII. NEGATIVE COVENANTS........................................................................... 74
7.01 Liens......................................................................................... 74
7.02 Investments................................................................................... 75
7.03 Indebtedness.................................................................................. 77
7.04 Fundamental Changes........................................................................... 78
7.05 Dispositions.................................................................................. 79
7.06 Restricted Payments........................................................................... 80
7.07 Change in Nature of Business.................................................................. 81
7.08 Transactions with Affiliates.................................................................. 81
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TABLE OF CONTENTS (CONTINUED)
SECTION PAGE
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7.09 Burdensome Agreements......................................................................... 81
7.10 Use of Proceeds............................................................................... 81
7.11 Financial Covenants........................................................................... 82
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES.............................................................. 82
8.01 Events of Default............................................................................. 82
8.02 Remedies Upon Event of Default................................................................ 84
8.03 Application of Funds.......................................................................... 85
ARTICLE IX. ADMINISTRATIVE AGENT.......................................................................... 85
9.01 Appointment and Authority..................................................................... 85
9.02 Rights as a Lender............................................................................ 86
9.03 Exculpatory Provisions........................................................................ 86
9.04 Reliance by Administrative Agent.............................................................. 87
9.05 Delegation of Duties.......................................................................... 87
9.06 Resignation of Administrative Agent........................................................... 87
9.07 Non-Reliance on Administrative Agent and Other Lenders........................................ 88
9.08 No Other Duties, Etc.......................................................................... 89
9.09 Administrative Agent May File Proofs of Claim................................................. 89
9.10 Guaranty Matters.............................................................................. 89
ARTICLE X. MISCELLANEOUS.................................................................................. 90
10.01 Amendments, Etc............................................................................... 90
10.02 Notices; Effectiveness; Electronic Communication.............................................. 91
10.03 No Waiver; Cumulative Remedies................................................................ 93
10.04 Expenses; Indemnity; Damage Waiver............................................................ 93
10.05 Payments Set Aside............................................................................ 95
10.06 Successors and Assigns........................................................................ 95
10.07 Treatment of Certain Information; Confidentiality............................................. 99
10.08 Right of Setoff............................................................................... 100
10.09 Interest Rate Limitation...................................................................... 101
10.10 Counterparts; Integration; Effectiveness...................................................... 101
10.11 Survival of Representations and Warranties.................................................... 101
10.12 Severability.................................................................................. 101
10.13 Replacement of Lenders........................................................................ 102
10.14 Governing Law; Jurisdiction; Etc.............................................................. 102
10.15 Waiver of Jury Trial.......................................................................... 103
10.16 USA PATRIOT Act Notice........................................................................ 103
10.17 Judgment Currency............................................................................. 104
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SCHEDULES
1.01 Mandatory Cost Formulae
1.02 Existing Letters of Credit
2.01 Commitments and Applicable Percentages
4.01 List of Closing Documents
5.05 Supplement to Interim Financial Statements
5.09 Environmental Matters
5.13 Subsidiaries and Other Equity Investments
5.19 Material Subsidiaries
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
10.02 Administrative Agent's Office; Certain Addresses for Notices
10.06 Processing and Recordation Fees
EXHIBITS
FORM OF
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption
F Company Guaranty
G Subsidiary Guaranty
H Designated Borrower Request and Assumption Agreement
I Designated Borrower Notice
J Forms of Opinion Letters
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of June 30, 2005,
among STERICYCLE, INC., a Delaware Corporation (the "Company"), certain
Subsidiaries of the Company party hereto pursuant to Section 2.14 (each a
"Designated Borrower" and, together with the Company, the "Borrowers" and, each
a "Borrower"), each lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender"), JPMORGAN CHASE BANK, N.A., as
Syndication Agent (the "Syndication Agent"), FORTIS CAPITAL CORP. and CALYON-NEW
YORK BRANCH, as Co-Documentation Agents (collectively, the "Co-Documentation
Agents"), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender
and an L/C Issuer.
The Borrowers have requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquisition" means the acquisition, by purchase or otherwise, of all or
substantially all of the assets (or any part of the assets constituting all or
substantially all of a business or line of business) of any Person, whether such
acquisition is direct or indirect, including through the acquisition of the
business of, or more than 50% of the outstanding Voting Stock of, such Person,
and whether such acquisition is effected in a single transaction or in a series
of related transactions, and the acquisition, by purchase or otherwise, of
additional shares of the outstanding Voting Stock of any Subsidiary of the
Company which is not then a wholly-owned Subsidiary of the Company.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means, with respect to any currency, the
Administrative Agent's address and, as appropriate, account as set forth on
Schedule 10.02 with respect to such currency, or such other address or account
with respect to such currency as the Administrative Agent may from time to time
notify to the Company and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
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"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Credit Agreement.
"Alternative Currency" means each of Euro, Sterling, Yen and Canadian
Dollars and each other currency (other than Dollars) that is approved in
accordance with Section 1.05.
"Alternative Currency Equivalent" means, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by the Administrative Agent or the L/C
Issuer, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of
such Alternative Currency with Dollars.
"Alternative Currency Sublimit" means an amount equal to the lesser of the
Aggregate Commitments and $125,000,000. The Alternative Currency Sublimit is
part of, and not in addition to, the Aggregate Commitments.
"Applicable Percentage" means with respect to any Lender at any time, the
percentage (carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender's Commitment at such time. If the commitment of each
Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or if the Aggregate
Commitments have expired, then the Applicable Percentage of each Lender shall be
determined based on the Applicable Percentage of such Lender most recently in
effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.
"Applicable Rate" means the following percentages per annum, based upon
the Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(a):
EUROCURRENCY RATE+
CONSOLIDATED LEVERAGE RATIO FACILITY FEE LETTER OF CREDIT +
-------------------------------------- ------------ ------------------
Less than 0.50 to 1.00 ("LEVEL 1") 0.100% 0.400%
Greater than or equal to 0.50 to 1.00 0.125% 0.500%
but less than 1.00 to 1.00 ("LEVEL 2")
Greater than or equal to 1.00 to 1.00 0.150% 0.600%
but less than 1.50 to 1.00 ("LEVEL 3")
Greater than or equal to 1.50 to 1.00 0.200% 0.675%
but less than 2.00 to 1.00 ("LEVEL 4")
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Greater than or equal to 2.00 to 1.00 0.250% 0.750%
but less than 2.50 to 1.00 ("LEVEL 5")
Greater than or equal to 2.50 to 1.00 0.300% 0.950%
("LEVEL 6")
Any increase or decrease in the Applicable Rate resulting from a change in
the Consolidated Leverage Ratio shall become effective as of the first Business
Day immediately following the date a Compliance Certificate is delivered
pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate
is not delivered when due in accordance with such Section, then Pricing Level 6
shall apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered. Subject to the proviso in the
preceding sentence, the Applicable Rate in effect from the Closing Date until
the date the first Compliance Certificate is delivered pursuant to Section
6.02(a) shall be determined based upon Pricing Level 3.
"Applicable Time" means, with respect to any borrowings and payments in
any Alternative Currency, the local time in the place of settlement for such
Alternative Currency as may be determined by the Administrative Agent or the L/C
Issuer, as the case may be, to be necessary for timely settlement on the
relevant date in accordance with normal banking procedures in the place of
payment.
"Applicant Borrower" has the meaning specified in Section 2.14(b).
"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.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b), and accepted by the Administrative
Agent, in substantially the form of Exhibit E or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
3
"Audited Financial Statements" means the audited consolidated balance
sheet of the Company and its Consolidated Subsidiaries for the fiscal year ended
December 31, 2004, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal year of the
Company and its Consolidated Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination
of the commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
All Base Rate Loans shall be denominated in Dollars.
"Borrower" and "Borrowers" each has the meaning specified in the
introductory paragraph hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing, as the
context may require.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office with respect to
Obligations denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Dollars, any fundings,
disbursements, settlements and payments in Dollars in respect of any such
Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate Loan,
means any such day on which dealings in deposits in Dollars are conducted
by and between banks in the London interbank eurodollar market;
4
(b) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements,
settlements and payments in Euro in respect of any such Eurocurrency Rate
Loan, or any other dealings in Euro to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET
Day;
(c) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, means any such day on which dealings in deposits in the relevant
currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and
(d) if such day relates to any fundings, disbursements, settlements
and payments in a currency other than Dollars or Euro in respect of a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, or any other dealings in any currency other than Dollars or Euro to
be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan (other than any interest rate settings), means any
such day on which banks are open for foreign exchange business in the
principal financial center of the country of such currency.
"Canadian Dollars" means the lawful currency of Canada.
"Cash Equivalent Investment" means any Investment described in Section
7.02(b).
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire (such
right, an "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 the Company entitled to vote for members of
the board of directors or equivalent governing body of the Company on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right);
(b) during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
the Company cease to be
5
composed of individuals (i) who were members of that board or equivalent
governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of that board or equivalent
governing body (excluding, in the case of both clause (ii) and clause
(iii), any individual whose initial nomination for, or assumption of
office as, a member of that board or equivalent governing body occurs as a
result of an actual or threatened solicitation of proxies or consents for
the election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by or
on behalf of the board of directors); or
(c) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract
or arrangement that, upon consummation thereof, will result in its or
their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Company, or
control over the equity securities of the Company entitled to vote for
members of the board of directors or equivalent governing body of the
Company on a fully-diluted basis (and taking into account all such
securities that such Person or group has the right to acquire pursuant to
any option right) representing 25% or more of the combined voting power of
such securities.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.
"Co-Documentation Agent" is defined in the introductory paragraph hereto.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation to (a) make
Committed Loans to the Borrowers pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the Dollar amount set forth opposite such Lender's name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type, in the same currency and, in the case of
Eurocurrency Rate Loans, having the same Interest Period made by each of the
Lenders pursuant to Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a continuation
of
6
Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in writing,
shall be substantially in the form of Exhibit A.
"Company" has the meaning specified in the introductory paragraph hereto.
"Company Guaranty" means the Company Guaranty made by the Company in favor
of the Administrative Agent and the Lenders, substantially in the form of
Exhibit F.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D.
"Consolidated EBITDA" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in calculating
such Consolidated Net Income: (i) Consolidated Interest Charges for such period,
(ii) the provision for Federal, state, local and foreign income taxes payable by
the Company and its Subsidiaries for such period, (iii) depreciation and
amortization expense and (iv) other non-recurring expenses of the Company and
its Subsidiaries reducing such Consolidated Net Income which do not represent a
cash item in such period or any future period and minus (b) the following to the
extent included in calculating such Consolidated Net Income: (i) Federal, state,
local and foreign income tax credits of the Company and its Subsidiaries for
such period and (ii) all non-cash items increasing Consolidated Net Income for
such period; provided, however, that Consolidated EBITDA shall be increased by
the amount of Transaction Costs incurred during such period to the extent such
amount was deducted in determining Consolidated Net Income for such period.
"Consolidated Funded Indebtedness" means, as of any date of determination,
for the Company and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments, (b) all purchase money Indebtedness, (c) all direct obligations
arising under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments (other than
letters of credit, bankers' acceptances, bank guaranties, surety bonds and
similar instruments to the extent supporting Indebtedness of the type described
in clauses (a) and (b) of this definition), (d) all obligations in respect of
the deferred purchase price of property or services (other than trade accounts
payable in the ordinary course of business), (e) Attributable Indebtedness in
respect of capital leases and Synthetic Lease Obligations, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) through (e) above of Persons other than the
Company or any Subsidiary, and (g) all Indebtedness of the types referred to in
clauses (a) through (f) above of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability company) in
which the Company or a Subsidiary is a general partner or joint venturer, unless
such Indebtedness is expressly made non-recourse to the Company or such
Subsidiary.
"Consolidated Interest Charges" means, for any period, for the Company and
its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of the Company and
its Subsidiaries in connection with borrowed money (including capitalized
interest) or in connection with the deferred purchase
7
price of assets, in each case to the extent treated as interest in accordance
with GAAP, and (b) the portion of rent expense of the Company and its
Subsidiaries with respect to such period under capital leases and Synthetic
Lease Obligations that is treated as interest in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDA for the period of the four
prior fiscal quarters ending on such date to (b) Consolidated Interest Charges
for such period.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (a) (i) Consolidated Funded Indebtedness as of such date minus (ii)
Unrestricted Cash as of such date to (b) Consolidated EBITDA for the period of
the four fiscal quarters most recently ended.
"Consolidated Net Income" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the net income of the Company and its
Subsidiaries (including extraordinary losses, but excluding, except to the
extent of extraordinary losses during such period, extraordinary gains) for that
period.
"Consolidated Revenue" means, as of any date of determination, the total
revenue of the Company and its Subsidiaries on a consolidated basis, determined
in accordance with GAAP.
"Consolidated Subsidiaries" means the consolidated subsidiaries of the
Company as determined in accordance with GAAP.
"Consolidated Total Assets" means, as of any date of determination, the
total assets of the Company and its Subsidiaries on a consolidated basis as of
such date, determined in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
8
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) 2%
per annum; provided, however, that with respect to a Eurocurrency Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan plus
2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate
equal to the Applicable Rate plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Designated Borrower" has the meaning specified in the introductory
paragraph hereto.
"Designated Borrower Notice" has the meaning specified in Section 2.14(b).
"Designated Borrower Request and Assumption Agreement" has the meaning
specified in Section 2.14(b).
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent or the L/C Issuer, as the case
may be, at such time on the basis of the Spot Rate (determined in respect of the
most recent Revaluation Date) for the purchase of Dollars with such Alternative
Currency.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"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 (i) the Administrative Agent, each L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, the
Company (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Company or any of the Company's Affiliates or Subsidiaries.
"Enhanced Performance Condition" means on any date of determination, with
respect to any proposed incurrence or assumption of any Indebtedness, any
proposed making or acquisition
9
of any Investment, or any proposed declaration, making or payment of a
Restricted Payment, the requirement that (A) the Consolidated Leverage Ratio as
of the end of the most recently ended fiscal quarter for which a Compliance
Certificate has been delivered pursuant to Section 6.02(a) (without giving pro
forma effect to such proposed Indebtedness or Investment, as applicable) did not
exceed 2.50:1.00 and (B) the Consolidated Leverage Ratio as of the end of such
fiscal quarter after giving pro forma effect (consistent with Section 1.03(c) if
applicable) to such proposed Indebtedness, Investment or Restricted Payment, as
applicable shall not exceed 2.50:1.00.
"Enhanced Performance Noncompliance Date" means the first date of
determination upon which the Enhanced Performance Condition is not satisfied
following a date of determination upon which the Enhanced Performance Condition
was satisfied.
"Enhanced Performance Restoration Date" means the first date of
determination following an Enhanced Performance Noncompliance Date upon which of
a Responsible Officer of the Company delivers a certificate to the
Administrative Agent, prepared on a pro forma basis (consistent with Section
1.03(c) if applicable), demonstrating compliance with the Enhanced Performance
Condition after giving effect to any proposed Investment or Indebtedness.
"EMU" means the economic and monetary union in accordance with the Treaty
of Rome 1957, as amended by the Single Xxxxxxxx Xxx 0000, the Maastricht Treaty
of 1992 and the Amsterdam Treaty of 1998.
"EMU Legislation" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests),
10
and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting,
and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Company or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Company or
any ERISA Affiliate.
"Euro" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"Eurocurrency Rate" means, for any Interest Period with respect to a
Eurocurrency Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
deposits in the relevant currency (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period. If such rate is
not available at such time for any reason, then the "Eurocurrency Rate" for such
Interest Period shall be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in the relevant currency for delivery on
the first day of such Interest Period in Same Day Funds in the approximate
amount of the Eurocurrency Rate Loan being made, continued or converted by Bank
of America and with a term equivalent to such Interest Period would be offered
by Bank of America's London Branch (or other Bank of America branch or
Affiliate) to major banks in the London or other offshore interbank market for
such currency at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the commencement of such Interest Period.
"Eurocurrency Rate Loan" means a Committed Loan that bears interest at a
rate based on the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated
in Dollars or in an
11
Alternative Currency. All Committed Loans denominated in an Alternative Currency
must be Eurocurrency Rate Loans.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Entity" means, each of (a) 3CI Complete Compliance Corporation,
a Delaware corporation, so long as it is not directly or indirectly wholly-owned
by the Company, (ii) Argentina Medam, B.A. Srl, an Argentina company, so long as
it is not directly or indirectly wholly-owned by the Company and (iii) Medam
S.A. de C.V., a Mexican company, so long as it is not directly or indirectly
wholly-owned by the Company.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, any L/C Issuer or any other recipient (each, a "Recipient") of any
payment to be made by or on account of any obligation of any Borrower hereunder,
(a) taxes imposed on or measured by such Recipient's overall net income (however
denominated), and franchise taxes imposed on such Recipient (in lieu of net
income taxes), by the jurisdiction (or any political subdivision thereof) under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable Lending Office
is located, (b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which such Borrower is located
and (c) except as provided in the following sentence, in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Company under
Section 10.13), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the applicable Borrower with
respect to such withholding tax pursuant to Section 3.01(a). Notwithstanding
anything to the contrary contained in this definition, "Excluded Taxes" shall
not include any withholding tax imposed at any time on payments made by or on
behalf of a Foreign Obligor to any Lender hereunder or under any other Loan
Document, provided that such Lender shall have complied with the last paragraph
of Section 3.01(e).
"Existing Credit Agreement" means that certain Amended and Restated Credit
Agreement dated as of October 5, 2001 among the Company, Bank of America, N.A.,
as administrative agent, and a syndicate of lenders, as amended, supplemented or
otherwise modified prior to the date hereof.
"Existing Letters of Credit" means each standby letter of credit described
in Schedule 1.02.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
12
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the letter agreement, dated May 9, 2005, among the
Company, the Administrative Agent and the Arranger.
"Foreign Lender" means, with respect to any Borrower, any Lender that is
organized under the laws of a jurisdiction other than that in which such
Borrower is resident for tax purposes. For purposes of this definition, the
United States, each State thereof and the District of Columbia shall be deemed
to constitute a single jurisdiction.
"Foreign Obligor" means a Loan Party that is a Foreign Subsidiary.
"Foreign Subsidiary" means any Subsidiary that is organized under the laws
of a jurisdiction other than the United States, a State thereof or the District
of Columbia.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"Granting Lender" has the meaning specified in Section 10.06(h).
"Guarantee" means, as to any Person, any (a) obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the
13
payment or performance of such Indebtedness or other obligation, (iii) to
maintain working capital, equity capital or any other financial statement
condition or liquidity or level of income or cash flow of the primary obligor so
as to enable the primary obligor to pay such Indebtedness or other obligation,
or (iv) entered into for the purpose of assuring in any other manner the obligee
in respect of such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in respect thereof
(in whole or in part), or (b) any Lien on any assets of such Person securing any
Indebtedness or other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed by such Person (or any right,
contingent or otherwise, of any holder of such Indebtedness to obtain any such
Lien). The amount of any Guarantee shall be deemed to be an amount equal to the
stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term "Guarantee" as a
verb has a corresponding meaning.
"Guaranteed Swap Contract" means any Swap Contract to which the Company or
any other Loan Party and any Lender (or any Affiliate of any Lender) is a party.
"Guaranties" means the Company Guaranty, the Subsidiary Guaranty and any
other guaranty executed by any Designated Borrower or any Subsidiary Guarantor
in favor of the Administrative Agent, on behalf of the Lenders, in respect of
the Obligations.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations
of such Person evidenced by bonds, debentures, notes, loan agreements or other
similar instruments;
(b) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers' acceptances, bank
guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course
of business and, in each case, not past due for a period of more than 120 days
or, if overdue for more than 120 days, as to which a dispute exists and adequate
reserves in accordance with GAAP have been established on the books of such
Person);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness arising
under conditional
14
sales or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Equity Interest in such Person or
any other Person, valued, in the case of a redeemable preferred interest, at the
greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Information" has the meaning specified in Section 10.07.
"Initial Designated Borrower" means Stericycle International, Ltd., a
company formed under the laws of England.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurocurrency
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the last Business Day of each March, June, September and December and the
Maturity Date.
"Interest Period" means, as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or converted to
or continued as a Eurocurrency Rate Loan and ending on the date one, two, three
or six months thereafter or, with the consent of the Administrative Agent (such
consent not to be unreasonably withheld) such shorter periods requested by the
Company from time to time but in any event not more than six times during any
calendar year, as selected by the Company in its Committed Loan Notice;
provided, further, 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 such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
15
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Internal Control Event" means a material weakness in, or fraud that
involves management or other employees who have a significant role in, the
Company's internal controls over financial reporting, in each case as described
in the Securities Laws.
"Investment" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) an Acquisition. For
purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"IP Rights" has the meaning specified in Section 5.17.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application, and any other document, agreement and instrument entered
into by any L/C Issuer and the Company (or any Subsidiary) or in favor such L/C
Issuer and relating to any such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Applicable
Percentage. All L/C Advances shall be denominated in Dollars.
16
"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. All L/C Borrowings shall be denominated
in Dollars.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means each of Bank of America and Comerica Bank in its
respective capacity as issuer of Letters of Credit hereunder, or any successor
issuer of Letters of Credit hereunder and, at the request of either the Company
or Bank of America and with the consent of Bank of America or the Company, as
applicable (in either case, not to be unreasonably withheld), another Lender
(subject to such Lender's consent) or an Affiliate of Bank of America as issuer
of one or more Letters of Credit hereunder; provided, however, that no more than
four Persons shall at any time be, or be deemed to be, an "L/C Issuer" under the
terms of this Agreement.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.08. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Company and
the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder and
shall include the Existing Letters of Credit. Letters of Credit may be issued in
Dollars or in an Alternative Currency.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the any L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.03(i).
"Letter of Credit Sublimit" means an amount equal to the lesser of (a)
$125,000,000 and (b) the Aggregate Commitments. The Letter of Credit Sublimit is
part of, and not in addition to, the Aggregate Commitments.
17
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to a Borrower under
Article II in the form of a Committed Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Designated Borrower Request
and Assumption Agreement, each Note, each Issuer Document, the Fee Letter and
the Guaranties.
"Loan Parties" means, collectively, the Company, each Subsidiary Guarantor
and each Designated Borrower.
"Mandatory Cost" means, with respect to any period, the percentage rate
per annum determined in accordance with Schedule 1.01.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) of the Company or the
Company and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of any Loan Party to perform its obligations under any Loan Document to
which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.
"Material Subsidiary" means, as of any date of determination, any
Subsidiary (i) which, as of the end of the then most recently ended fiscal
quarter of the Company for the period of four consecutive fiscal quarters then
ended, contributes greater than five percent (5.0%) of Consolidated EBITDA
(adjusted to eliminate the effect of intercompany transactions) for such period,
(ii) the consolidated total assets of which as of the end of such fiscal quarter
were greater than five percent (5.0%) of the Company's Consolidated Total Assets
(adjusted to eliminate intercompany transactions) as of such date or the IP
Rights of which are material to the operation of the business of the Company and
its Subsidiaries taken as a whole or (iii) which, as of the end of such fiscal
quarter for the period of four consecutive fiscal quarters then ended,
contributes greater than five percent (5.0%) of Consolidated Revenue (adjusted
to eliminate the effect of intercompany transactions) for such period.
"Maturity Date" means June 30, 2010.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Note" means a promissory note made by a Borrower in favor of a Lender
evidencing Loans made by such Lender to such Borrower, substantially in the form
of Exhibit C.
18
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or any
Guaranteed Swap Contract or otherwise with respect to any Loan or Letter of
Credit, 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 and fees that accrue after the commencement by or against
any Loan Party or any Affiliate thereof of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to Committed Loans on any
date, the Dollar Equivalent amount of the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of
such Committed Loans occurring on such date; (ii) with respect to Swing Line
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of such Swing Line
Loans occurring on such date; and (iii) with respect to any L/C Obligations on
any date, the Dollar Equivalent amount of the aggregate outstanding amount of
such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount
of the L/C Obligations as of such date, including as a result of any
reimbursements by the Company of Unreimbursed Amounts.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent, any L/C Issuer, or the
Swing Line Lender, as the case may be, in accordance with banking industry rules
on interbank compensation, and (b) with respect to any amount denominated in an
Alternative Currency, the rate of interest per annum at which overnight deposits
in the applicable Alternative Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for
such day by a branch or Affiliate of Bank of America in the applicable offshore
interbank market for such currency to major banks in such interbank market.
"Participant" has the meaning specified in Section 10.06(d).
19
"Participating Member State" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"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 Company or
any ERISA Affiliate or to which the Company or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Acquisition" means any Acquisition permitted under the terms of
Section 7.02.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Company or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Platform" has the meaning specified in Section 6.02.
"PTR Scheme" means the Provisional Treaty Relief scheme as described in
Guidelines dated January 2003 and administered by H.M. Revenue & Customs's
Centre for Non-Residents.
"Purchase Price" means, with respect to any Acquisition, (a) the aggregate
amount of consideration for such Acquisition consisting of cash, Indebtedness
directly or indirectly incurred or assumed in connection therewith (including,
without limitation, Indebtedness of the Person subject to such Acquisition if
effected as an acquisition of such Person's Equity Interests or merger of such
Person with and into the Company or any existing Subsidiary) and contingent
obligations to repurchase Equity Interests issued as part of the consideration
for such Acquisition minus (b) the aggregate amount of any cash and cash
equivalents acquired pursuant to such Acquisition or held by the Person subject
to such Acquisition.
"Register" has the meaning specified in Section 10.06(c).
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of the Company as prescribed by the
Securities Laws.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
20
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders having
more than 50% of the Aggregate Commitments or, if the commitment of each Lender
to make Loans and the obligation of the L/C Issuers to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, Lenders holding in the
aggregate more than 50% of the Total Outstandings (with the aggregate amount of
each Lender's risk participation and funded participation in L/C Obligations and
Swing Line Loans being deemed "held" by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president or
chief financial officer of a Loan Party. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
Equity Interest of the Company or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity Interest,
or on account of any return of capital to the Company's stockholders, partners
or members (or the equivalent Person thereof).
"Revaluation Date" means (a) with respect to any Loan, each of the
following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated
in an Alternative Currency, (ii) each date of a continuation of a Eurocurrency
Rate Loan denominated in an Alternative Currency pursuant to Section 2.02, and
(iii) such additional dates as the Administrative Agent shall determine or the
Required Lenders shall require; and (b) with respect to any Letter of Credit,
each of the following: (i) each date of issuance of a Letter of Credit
denominated in an Alternative Currency, (ii) each date of an amendment of any
such Letter of Credit having the effect of increasing the amount thereof (solely
with respect to the increased amount), (iii) each date of any payment by any L/C
Issuer under any Letter of Credit denominated in an Alternative Currency, (iv)
in the case of the Existing Letters of Credit, June 30, 2005, (v) the first
Business Day of each calendar month, and (vi) such additional dates as the
Administrative Agent or any L/C Issuer shall determine or the Required Lenders
shall require.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
determined by the Administrative Agent or the L/C Issuer, as the case may be, to
be customary in the place of disbursement or
21
payment for the settlement of international banking transactions in the relevant
Alternative Currency.
"Xxxxxxxx-Xxxxx" means the Xxxxxxxx-Xxxxx Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securities Laws" means the Securities Act of 1933, the Securities
Exchange Act of 1934, Xxxxxxxx-Xxxxx and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date hereunder.
"Shareholders' Equity" means, as of any date of determination, the
consolidated shareholders' equity of the Company and its Subsidiaries as of that
date determined in accordance with GAAP.
"SPC" has the meaning specified in Section 10.06(h).
"Special Notice Currency" means at any time an Alternative Currency, other
than the currency of a country that is a member of the Organization for Economic
Cooperation and Development at such time located in North America or Europe.
"Spot Rate" for a currency means the rate determined by the Administrative
Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person
acting in such capacity as the spot rate for the purchase by such Person of such
currency with another currency through its principal foreign exchange trading
office at approximately 10:00 a.m. on the date two Business Days prior to the
date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another
financial institution designated by the Administrative Agent or the L/C Issuer
if the Person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency; and provided further
that the L/C Issuer may use such spot rate quoted on the date as of which the
foreign exchange computation is made in the case of any Letter of Credit
denominated in an Alternative Currency.
"Sterling" and "(pound)" mean the lawful currency of the United Kingdom.
"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 Company. Notwithstanding the foregoing, no Excluded Entity shall constitute
a "Subsidiary" hereunder.
22
"Subsidiary Guarantors" means, collectively, (i) all of the Material
Subsidiaries as of the Closing Date and (ii) all new Persons which become
Subsidiary Guarantors after the Closing Date in accordance with Section 6.13.
"Subsidiary Guaranty" means the Subsidiary Guaranty made by the Subsidiary
Guarantors in favor of the Administrative Agent and the Lenders, substantially
in the form of Exhibit G.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.04(b), which, if in writing, shall be substantially in the form of
Exhibit B.
23
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$25,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Syndication Agent" is defined in the introductory paragraph hereto.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"TARGET Day" means any day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer (TARGET) payment system (or, if such payment
system ceases to be operative, such other payment system (if any) determined by
the Administrative Agent to be a suitable replacement) is open for the
settlement of payments in Euro.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Threshold Amount" means $25,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
"Transaction Costs" means extraordinary and non-recurring costs in respect
of (i) fees payable to the Administrative Agent and Arranger on or prior to the
Closing Date pursuant to the Fee Letter and the other costs and expenses
incurred by the Company or any of its Subsidiaries in connection with the
preparation, execution and delivery of the Loan Documents and (ii) all other
costs and expenses incurred by the Company or any Subsidiary (including fees of
any consultant engaged by the Company or such Subsidiary to assist with due
diligence matters) in effecting any Permitted Acquisition.
"Type" means, with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurocurrency Rate Loan.
"UK Borrower" has the meaning specified in Section 3.01(g).
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
24
"Unrestricted Cash" means, at any time, cash and Cash Equivalent
Investments of the Company and its Subsidiaries to the extent such cash and Cash
Equivalent Investments are not subject to any Lien (other than a banker's Lien
or right of setoff pursuant to customary deposit arrangements) or any
restriction as to its use and is included in "cash and cash equivalents" and not
"restricted Cash" on the consolidated balance sheet of the Company.
"Voting Stock" means, with respect to any Person, Equity Interests of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Yen" and "Y" mean the lawful currency of Japan.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." The word "will" shall be construed to have
the same meaning and effect as the word "shall." Unless the context requires
otherwise, (i) any definition of or reference to any agreement, instrument or
other document (including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as from time to time
amended, restated, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person's successors and assigns, (iii) the words
"herein," "hereof" and "hereunder," and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its entirety
and not to any particular provision thereof, (iv) all references in a Loan
Document to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending,
replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including;" the words "to" and
"until" each mean "to but excluding;" and the word "through" means "to and
including."
(c) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
25
1.03 ACCOUNTING TERMS. (a) Generally. All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed
herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Company or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Company 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
Company shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.
(c) Pro Forma Basis. For purposes of computing the Consolidated Leverage
Ratio and the Consolidated Interest Coverage Ratio, such ratios (and any
financial calculations or components required to be made or included therein)
shall be determined, with respect to the relevant period, after giving pro forma
effect to each Acquisition and Disposition of a Person, business or asset
consummated during such period, together with all transactions relating thereto
consummated during such period (including any incurrence, assumption,
refinancing or repayment of Indebtedness), as if such Acquisition, Disposition
and related transactions had been consummated on the first day of such period,
in each case (i) based on historical results accounted for in accordance with
GAAP and (ii) prepared in accordance with Regulation S-X under the Securities
Act of 1933, as in effect on the Closing Date (provided, that cost savings
expected to be realized following an Acquisition in respect of the elimination
of duplicative positions and the closing of duplicative facilities may be
reflected in such determination as if such cost savings had been effected as of
the beginning of such period, so long as (x) such elimination and/or closings
are implemented by the business that was the subject of any such Acquisition
within six months of the date of such Acquisition and are supportable and
quantifiable by the underlying accounting records of such business and (y) all
cost increases expected to be incurred following such Acquisition are also
reflected in such determination as if such cost increases had been incurred as
of the beginning of such period), and, with respect to all calculations made in
clauses (i) and (ii), to the extent applicable, based upon reasonable
assumptions that are specified in reasonable detail in the relevant Compliance
Certificate or other certificate furnished to the Administrative Agent in
connection with the terms of this Agreement.
1.04. EXCHANGE RATES; CURRENCY EQUIVALENTS. (a) The Administrative
Agent or the L/C Issuer, as applicable, shall determine the Spot Rates as of
each Revaluation Date to be used for calculating Dollar Equivalent amounts of
Credit Extensions and Outstanding Amounts denominated in Alternative Currencies.
Such Spot Rates shall become effective as of such Revaluation Date and shall be
the Spot Rates employed in converting any amounts between the applicable
currencies until the next Revaluation Date to occur. Except for purposes of
financial
26
statements delivered by Loan Parties hereunder or calculating financial
covenants hereunder or except as otherwise provided herein, the applicable
amount of any currency (other than Dollars) for purposes of the Loan Documents
shall be such Dollar Equivalent amount as so determined by the Administrative
Agent or the L/C Issuer, as applicable.
(b) Wherever in this Agreement in connection with a Committed Borrowing,
conversion, continuation or prepayment of a Eurocurrency Rate Loan or the
issuance, amendment or extension of a Letter of Credit, an amount, such as a
required minimum or multiple amount, is expressed in Dollars, but such Committed
Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an
Alternative Currency, such amount shall be the relevant Alternative Currency
Equivalent of such Dollar amount (rounded to the nearest unit of such
Alternative Currency, with 0.5 of a unit being rounded upward), as determined by
the Administrative Agent or the L/C Issuer, as the case may be.
1.05 ADDITIONAL ALTERNATIVE CURRENCIES. (a) The Company may from
time to time request that Eurocurrency Rate Loans be made and/or Letters of
Credit be issued in a currency other than those specifically listed in the
definition of "Alternative Currency;" provided that such requested currency is a
lawful currency (other than Dollars) that is readily available and freely
transferable and convertible into Dollars. In the case of any such request with
respect to the making of Eurocurrency Rate Loans, such request shall be subject
to the approval of the Administrative Agent and the Lenders; and in the case of
any such request with respect to the issuance of Letters of Credit, such request
shall be subject to the approval of the Administrative Agent and the L/C Issuer.
(b) Any such request shall be made to the Administrative Agent not later
than 10:00 a.m., 20 Business Days prior to the date of the desired Credit
Extension (or such other time or date as may be agreed by the Administrative
Agent and, in the case of any such request pertaining to Letters of Credit, the
applicable L/C Issuer, in its or their sole discretion). In the case of any such
request pertaining to Eurocurrency Rate Loans, the Administrative Agent shall
promptly notify each Lender thereof; and in the case of any such request
pertaining to Letters of Credit, the Administrative Agent shall promptly notify
the L/C Issuer thereof. Each Lender (in the case of any such request pertaining
to Eurocurrency Rate Loans) or the applicable L/C Issuer (in the case of a
request pertaining to Letters of Credit) shall notify the Administrative Agent,
not later than 10:00 a.m., ten Business Days after receipt of such request
whether it consents, in its sole discretion, to the making of Eurocurrency Rate
Loans or the issuance of Letters of Credit, as the case may be, in such
requested currency.
(c) Any failure by a Lender or an L/C Issuer, as the case may be, to
respond to such request within the time period specified in the preceding
sentence shall be deemed to be a refusal by such Lender or such L/C Issuer, as
the case may be, to permit Eurocurrency Rate Loans to be made or Letters of
Credit to be issued in such requested currency. If the Administrative Agent and
all the Lenders consent to making Eurocurrency Rate Loans in such requested
currency, the Administrative Agent shall so notify the Company and such currency
shall thereupon be deemed for all purposes to be an Alternative Currency
hereunder for purposes of any Committed Borrowings of Eurocurrency Rate Loans;
and if the Administrative Agent and the L/C Issuer consent to the issuance of
Letters of Credit in such requested currency, the Administrative Agent shall so
notify the Company and such currency shall thereupon be deemed for all purposes
to be
27
an Alternative Currency hereunder for purposes of any Letter of Credit
issuances. If the Administrative Agent shall fail to obtain consent to any
request for an additional currency under this Section 1.05, the Administrative
Agent shall promptly so notify the Company.
1.06 CHANGE OF CURRENCY. (a) Each obligation of the Borrowers to
make a payment denominated in the national currency unit of any member state of
the European Union that adopts the Euro as its lawful currency after the date
hereof shall be redenominated into Euro at the time of such adoption (in
accordance with the EMU Legislation). If, in relation to the currency of any
such member state, the basis of accrual of interest expressed in this Agreement
in respect of that currency shall be inconsistent with any convention or
practice in the London interbank market for the basis of accrual of interest in
respect of the Euro, such expressed basis shall be replaced by such convention
or practice with effect from the date on which such member state adopts the Euro
as its lawful currency; provided that if any Committed Borrowing in the currency
of such member state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Committed Borrowing, at the
end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time
specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Union and any relevant market conventions or practices
relating to the Euro.
(c) Each provision of this Agreement also shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect a change in currency of any other
country and any relevant market conventions or practices relating to the change
in currency.
1.07 TIMES OF DAY. Unless otherwise specified, all references
herein to times of day shall be references to Central time (daylight or
standard, as applicable).
1.08 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein,
the amount of a Letter of Credit at any time shall be deemed to be the Dollar
Equivalent of the stated amount of such Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit that, by its terms
or the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or
not such maximum stated amount is in effect at such time.
1.09 EXCLUDED ENTITIES. For the avoidance of doubt, the parties
hereto acknowledge and agree that (a) the Consolidated Leverage Ratio and the
Consolidated Interest Coverage Ratio and other financial accounting terms used
herein with reference to the Company's "Subsidiaries" as opposed to the
Company's "Consolidated Subsidiaries" will be calculated without giving effect
to the financial performance or condition of any Excluded Entity and (b) the
representations, warranties and covenants set forth in Article V (other than
Section 5.05 and 5.09), Article VI (other than Section 6.01 and Section 6.02)
and Article VII, each of which refers to the Company's "Subsidiaries" as opposed
to the Company's "Consolidated
28
Subsidiaries", shall not be made with respect to, require any performance by or
behalf of or restrict the operations of, any Excluded Entity.
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 Borrowers in Dollars or in one or more Alternative Currencies from
time to time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such
Lender's Commitment; provided, however, that after giving effect to any
Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, (ii) the aggregate Outstanding Amount of the Committed Loans of any
Lender, plus such Lender's Applicable Percentage of the Outstanding Amount of
all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender's Commitment and
(iii) the aggregate Outstanding Amount of all Committed Loans and Letters of
Credit denominated in Alternative Currencies shall not exceed the Alternative
Currency Sublimit. Within the limits of each Lender's Commitment, and subject to
the other terms and conditions hereof, the Borrowers may borrow under this
Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01.
Committed Loans may be Base Rate Loans or Eurocurrency 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 Eurocurrency Rate Loans shall be
made upon the Company'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 10:00 a.m. (i) three Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans denominated in Dollars or of any conversion of
Eurocurrency Rate Loans denominated in Dollars to Base Rate Committed Loans,
(ii) four Business Days (or five Business Days in the case of a Special Notice
Currency) prior to the requested date of any Borrowing or continuation of
Eurocurrency Rate Loans denominated in Alternative Currencies, and (iii) on the
requested date of any Borrowing of Base Rate Committed Loans. Each telephonic
notice by the Company pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Committed Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Company. Each Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Except as provided in Sections 2.03(c) and
2.04(c), each Committed Borrowing of or conversion to Base Rate Committed Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof. Each Committed Loan Notice (whether telephonic or written) shall
specify (i) whether the Company is requesting a Committed Borrowing, a
conversion of Committed Loans from one Type to the other, or a continuation of
Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued, (iv)
the Type of Committed Loans to be borrowed or to which existing Committed Loans
are to be converted, (v)
29
if applicable, the duration of the Interest Period with respect thereto, (vi)
the currency of the Committed Loans to be borrowed, and (vii) if applicable, the
Designated Borrower. If the Company fails to specify a currency in a Committed
Loan Notice requesting a Borrowing, then the Committed Loans so requested shall
be made in Dollars. If the Company fails to specify a Type of Committed Loan in
a Committed Loan Notice or if the Company fails to give a timely notice
requesting a conversion or continuation, then the applicable Committed Loans
shall be made as, or converted to, Base Rate Loans; provided, however, that in
the case of a failure to timely request a continuation of Committed Loans
denominated in an Alternative Currency, such Loans shall be continued as
Eurocurrency Rate Loans in their original currency with an Interest Period of
one month. Any 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 Eurocurrency Rate Loans. If the Company requests a Borrowing of,
conversion to, or continuation of Eurocurrency Rate Loans in any such Committed
Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month. No Committed Loan may be converted
into or continued as a Committed Loan denominated in a different currency, but
instead must be prepaid in the original currency of such Committed Loan and
reborrowed in the other currency.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount (and currency) of its Applicable
Percentage of the applicable Committed Loans, and if no timely notice of a
conversion or continuation is provided by the Company, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base Rate
Loans or continuation of Committed Loans denominated in a currency other than
Dollars, in each case as 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 Same Day Funds at the Administrative
Agent's Office for the applicable currency not later than 12:00 noon, in the
case of any Committed Loan denominated in Dollars, and not later than the
Applicable Time specified by the Administrative Agent in the case of any
Committed Loan in an Alternative Currency, in each case on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is the
initial Credit Extension, Section 4.01), the Administrative Agent shall make all
funds so received available to the Company or the other applicable Borrower in
like funds as received by the Administrative Agent either by (i) crediting the
account of such Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent
by the Company; provided, however, that if, on the date the Committed Loan
Notice with respect to such Borrowing denominated in Dollars is given by the
Company, there are L/C Borrowings outstanding, then the proceeds of such
Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and, second, shall be made available to the applicable Borrower as
provided above.
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurocurrency Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurocurrency Rate Loans (whether in
Dollars or any Alternative Currency) without the consent of the Required
Lenders, and the Required Lenders may demand that any or all of the then
30
outstanding Eurocurrency Rate Loans denominated in an Alternative Currency be
prepaid, or redenominated into Dollars in the amount of the Dollar Equivalent
thereof, on the last day of the then current Interest Period with respect
thereto.
(d) The Administrative Agent shall promptly notify the Company and the
Lenders of the interest rate applicable to any Interest Period for Eurocurrency
Rate Loans upon determination of such interest rate. At any time that Base Rate
Loans are outstanding, the Administrative Agent shall notify the Company and the
Lenders of any change in Bank of America's prime rate used in determining the
Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations of Committed
Loans as the same Type, there shall not be more than ten Interest Periods in
effect with respect to Committed Loans.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuers agree, in reliance upon the agreements of the Lenders set
forth in this Section 2.03, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit denominated in Dollars or in
one or more Alternative Currencies for the account of (i) in the case of
any Letter of Credit issued at the request of the Company, the Company or
its Subsidiaries or (ii) in the case of any Letter of Credit issued at the
request of a Designated Borrower, such Designated Borrower or any of its
Subsidiaries, and to amend or extend Letters of Credit previously issued
by it, in accordance with subsection (b) below, and (2) to honor drawings
under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of the Company or
its Subsidiaries and any drawings thereunder; provided that after giving
effect to any L/C Credit Extension with respect to any Letter of Credit,
(w) the Total Outstandings denominated in Alternative Currencies shall not
exceed the Alternative Currency Sublimit, (x) the Total Outstandings shall
not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount
of the Committed Loans of any Lender, plus such Lender's Applicable
Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender's Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender's Commitment, and (z) the Outstanding
Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit. Each request by the Company for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by the Company
that the L/C Credit Extension so requested complies with the conditions
set forth in the provisos to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Company's
ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Company may, during the foregoing period, obtain Letters
of Credit to replace Letters of Credit that have expired or that have been
drawn upon and reimbursed. All Existing Letters of Credit shall be deemed
to have been issued pursuant
31
hereto, and from and after the Closing Date shall be subject to and
governed by the terms and conditions hereof.
(ii) The L/C Issuers shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date; or
(B) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last extension, unless the Required Lenders
have approved such expiry date. The parties hereto acknowledge that
certain Existing Letters of Credit identified on Schedule 1.02
expire on July 30, 2007 and the Lenders hereby consent to such
expiry dates.
(iii) An L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain such L/C Issuer from issuing such Letter of Credit, or any
Law applicable to such L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over such L/C Issuer shall prohibit, or
request that such L/C Issuer refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall
impose upon such L/C Issuer with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which such L/C
Issuer is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon such L/C Issuer any unreimbursed
loss, cost or expense which was not applicable on the Closing Date
and which such L/C Issuer in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of such L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
such L/C Issuer, such Letter of Credit is to be denominated in a
currency other than Dollars or an Alternative Currency;
(D) such L/C Issuer does not as of the issuance date of such
requested Letter of Credit issue Letters of Credit in the requested
currency;
(E) such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
(F) a default of any Lender's obligations to fund under
Section 2.03(c) exists or any Lender is at such time a Defaulting
Lender hereunder, unless the L/C
32
Issuer has entered into satisfactory arrangements with the
Company or such Lender to eliminate such L/C Issuer's risk with
respect to such Lender.
(iv) No L/C Issuer shall amend any Letter of Credit if such L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) No L/C Issuer shall be under any obligation to amend any Letter
of Credit if (A) such L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The L/C Issuers shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuers shall have all of the benefits and
immunities (A) provided to the Administrative Agent in Article IX with
respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by
it and Issuer Documents pertaining to such Letters of Credit as fully as
if the term "Administrative Agent" as used in Article IX included the L/C
Issuers with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuers.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Company delivered to the applicable 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 Company. Such Letter of Credit Application must be received
by the applicable L/C Issuer and the Administrative Agent not later than
10:00 a.m. at least two Business Days (or such later date and time as the
Administrative Agent and the such L/C Issuer may agree in a particular
instance in their sole discretion) prior to the proposed issuance date or
date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the applicable L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount and currency 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 applicable 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 applicable L/C Issuer (A) the Letter of Credit to be amended; (B)
the proposed date of amendment thereof (which shall be a Business Day);
(C) the nature of the proposed amendment; and (D) such other matters as
the L/C Issuer may require. Additionally, the Company shall furnish to the
applicable L/C Issuer and the Administrative Agent such other documents
and information
33
pertaining to such requested Letter of Credit issuance or amendment,
including any Issuer Documents, as applicable L/C Issuer or the
Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
applicable 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 Company and, if not, the
applicable L/C Issuer will provide the Administrative Agent with a copy
thereof. Unless the applicable L/C Issuer has received written notice from
any Lender, the Administrative Agent or any Loan Party, at least one
Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions
contained in Article IV shall not then be satisfied, then, subject to the
terms and conditions hereof, the applicable L/C Issuer shall, on the
requested date, issue a Letter of Credit for the account of the Company
(or the applicable Subsidiary) or enter into the applicable amendment, as
the case may be, in each case in accordance with the such 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 applicable
L/C Issuer a risk participation in such Letter of Credit in an amount
equal to the product of such Lender's Applicable Percentage times the
amount of such Letter of Credit.
(iii) If the Company so requests in any applicable Letter of Credit
Application, the applicable L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic extension
provisions (each, an "Auto-Extension Letter of Credit"); provided that any
such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent
any such extension at least once in each twelve-month period (commencing
with the date of issuance of such Letter of Credit) by giving prior notice
to the beneficiary thereof not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the applicable
L/C Issuer, the Company shall not be required to make a specific request
to such L/C Issuer for any such extension. Once an Auto-Extension Letter
of Credit has been issued, the Lenders shall be deemed to have authorized
(but may not require) the applicable L/C Issuer to permit the extension of
such Letter of Credit at any time to an expiry date not later than the
Letter of Credit Expiration Date; provided, however, that the L/C Issuer
shall not permit any such extension if (A) such L/C Issuer has determined
that it would not be permitted, or would have no obligation, at such time
to issue such Letter of Credit in its revised form (as extended) under the
terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.03(a) or otherwise), or (B) it has received notice (which may be
by telephone or in writing) on or before the day that is five Business
Days before the Non-Extension Notice Date (1) from the Administrative
Agent that the Required Lenders have elected not to permit such extension
or (2) from the Administrative Agent, any Lender or the Company that one
or more of the applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing such L/C Issuer not to permit
such extension.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the
34
applicable L/C Issuer will also deliver to the Company and the
Administrative Agent a true and complete copy of such Letter of Credit or
amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the applicable L/C Issuer
shall notify the Company and the Administrative Agent thereof. In the case
of a Letter of Credit denominated in an Alternative Currency, the Company
shall reimburse the applicable L/C Issuer in such Alternative Currency,
unless (A) such L/C Issuer (at its option) shall have specified in such
notice that it will require reimbursement in Dollars, or (B) in the
absence of any such requirement for reimbursement in Dollars, the Company
shall have notified such L/C Issuer promptly following receipt of the
notice of drawing that the Company will reimburse such L/C Issuer in
Dollars. In the case of any such reimbursement in Dollars of a drawing
under a Letter of Credit denominated in an Alternative Currency, the
applicable L/C Issuer shall notify the Company of the Dollar Equivalent of
the amount of the drawing promptly following the determination thereof.
Not later than 10:00 a.m. on the date of any payment by the applicable L/C
Issuer under a Letter of Credit to be reimbursed in Dollars, or the
Applicable Time on the date of any payment by such L/C Issuer under a
Letter of Credit to be reimbursed in an Alternative Currency (each such
date, an "Honor Date"), the Company shall reimburse such L/C Issuer
through the Administrative Agent in an amount equal to the amount of such
drawing and in the applicable currency. If the Company fails to so
reimburse such L/C Issuer by such time, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (expressed in Dollars in the amount of the Dollar
Equivalent thereof in the case of a Letter of Credit denominated in an
Alternative Currency) (the "Unreimbursed Amount"), and the amount of such
Lender's Applicable Percentage thereof. In such event, the Company shall
be deemed to have requested a Committed Borrowing of Base Rate Loans to be
disbursed on the Honor Date in Dollars 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 any L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section
2.03(c)(i) make funds available to the Administrative Agent for the
account of any L/C Issuer, in Dollars, at the Administrative Agent's
Office for Dollar-denominated payments in an amount equal to its
Applicable Percentage of the Unreimbursed Amount not later than 12:00 noon
on the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender
that so makes funds available shall be deemed to have made a Base Rate
Committed Loan to the Company in such amount. The Administrative Agent
shall remit the funds so received to the L/C Issuer in Dollars.
35
(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 Company shall be deemed to have incurred from the applicable
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 applicable L/C Issuer pursuant to Section 2.03(c)(ii)
shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.03.
(iv) Until a Lender funds its Committed Loan or L/C Advance pursuant
to this Section 2.03(c) to reimburse the applicable L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such
Lender's Applicable Percentage of such amount shall be solely for the
account of such L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C Advances
to reimburse the applicable L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right which such
Lender may have against such L/C Issuer, the Company, any Subsidiary or
any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that
each Lender's obligation to make Committed Loans pursuant to this Section
2.03(c) is subject to the conditions set forth in Section 4.02 (other than
delivery by the Company of a Committed Loan Notice). No such making of an
L/C Advance shall relieve or otherwise impair the obligation of the
Company to reimburse the applicable L/C Issuer for the amount of any
payment made by such 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 applicable L/C Issuer any amount required to
be paid by such Lender pursuant to the foregoing provisions of this
Section 2.03(c) by the time specified in Section 2.03(c)(ii), such 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 such L/C Issuer at a rate per
annum equal to the applicable Overnight Rate from time to time in effect.
A certificate of the applicable 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 applicable L/C Issuer has made a payment
under any Letter of Credit and has received from any Lender such Lender's
L/C Advance in respect of such payment in accordance with Section 2.03(c),
if the Administrative Agent (or the
36
applicable L/C Issuer) receives for the account of such L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Company or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent (or the
applicable L/C Issuer, as the case may be)), the Administrative Agent will
(or the applicable L/C Issuer, as the case may be) distribute to such
Lender its Applicable Percentage thereof (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Lender's L/C Advance was outstanding) in Dollars and 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 applicable L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in
Section 10.05 (including pursuant to any settlement entered into by such
L/C Issuer in its discretion), each Lender shall pay to the Administrative
Agent for the account of such L/C Issuer its Applicable Percentage thereof
on demand of the Administrative Agent, plus interest thereon from the date
of such demand to the date such amount is returned by such Lender, at a
rate per annum equal to the applicable Overnight Rate from time to time in
effect. The obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Company to reimburse the
applicable L/C Issuer for each drawing under each Letter of Credit and to repay
each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Company or any Subsidiary 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 applicable L/C Issuer or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by
such Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by any 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
such 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
37
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;
(v) any adverse change in the relevant exchange rates or in the
availability of the relevant Alternative Currency to the Company or any
Subsidiary or in the relevant currency markets generally; or
(vi) 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
Company or any Subsidiary.
The Company 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 Company's instructions or other irregularity, the Company
will immediately notify applicable L/C Issuer. The Company shall be conclusively
deemed to have waived any such claim against such L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Company agree that, in paying
any drawing under a Letter of Credit, the L/C Issuers shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuers,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of any L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Company 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 Company's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuers, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of any L/C Issuer shall
be liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Company may have a claim against the L/C Issuers,
and any L/C Issuer may be liable to the Company, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Company which the Company proves were caused by such L/C
Issuer's willful misconduct or gross negligence or such 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 Issuers 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 Issuers 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.
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(g) Cash Collateral. (i) Upon the request of the Administrative Agent, (A)
if the applicable L/C Issuer has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or
(B) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any
reason remains outstanding, the Borrowers shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations.
(ii) In addition, if the Administrative Agent notifies the Company
at any time that the Outstanding Amount of all L/C Obligations at such
time exceeds 100% of the Letter of Credit Sublimit then in effect, then,
within two Business Days after receipt of such notice, the Company shall
Cash Collateralize the L/C Obligations in an amount equal to the amount by
which the Outstanding Amount of all L/C Obligations exceeds the Letter of
Credit Sublimit.
(iii) The Administrative Agent may, at any time and from time to
time after the initial deposit of Cash Collateral, request that additional
Cash Collateral be provided in order to protect against the results of
exchange rate fluctuations.
(iv) Sections 2.05 and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes of this
Section 2.03, Section 2.05 and Section 8.02(c), "Cash Collateralize" means
to pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the L/C
Issuers (which documents are hereby consented to by the Lenders).
Derivatives of such term have corresponding meanings. The Company hereby
grants to the Administrative Agent, for the benefit of the L/C Issuers and
the Lenders, a security interest in all such cash, deposit accounts and
all balances therein and all proceeds of the foregoing. Cash Collateral
shall be maintained in blocked, non-interest bearing deposit accounts at
Bank of America.
(h) Applicability of ISP. Unless otherwise expressly agreed by the
applicable L/C Issuer and the Company when a Letter of Credit is issued
(including any agreement applicable to an Existing Letter of Credit), the rules
of the ISP shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Company shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage, in Dollars, a Letter of Credit fee (the "Letter of Credit Fee") for
each Letter of Credit equal to the Applicable Rate times the Dollar Equivalent
of the daily amount available to be drawn under such Letter of Credit. For
purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.08. Letter of Credit Fees shall be (i) computed on a quarterly
basis in arrears and (ii) 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, on the Letter of Credit
Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the daily amount available to be drawn under
each Letter of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained
39
herein, upon the request of the Required Lenders, while any Event of Default
exists, all Letter of Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuers. The Company shall pay directly to each L/C Issuer for its own account,
in Dollars, a fronting fee with respect to each Letter of Credit issued by such
L/C Issuer, at the rate per annum (a) in the case of Letters of Credit issued by
any L/C Issuer other than Bank of America, as may be agreed in writing by the
Company and such L/C Issuer and (b) in the case of Letters of Credit issued by
Bank of America, specified in the Fee Letter and computed on the Dollar
Equivalent of the daily amount available to be drawn under such Letter of Credit
on a quarterly basis in arrears. Such fronting fee shall be due and payable on
the tenth Business Day after the end of each March, June, September and December
in respect of the most recently-ended quarterly period (or portion thereof, in
the case of the first payment), commencing with the first such date to occur
after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.08. In addition, the
Company shall pay directly to the L/C Issuers for their own account, in Dollars,
the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the L/C Issuers relating to letters of
credit as from time to time in effect. Such customary fees and standard costs
and charges are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Company shall be
obligated to reimburse the applicable L/C Issuer hereunder for any and all
drawings under such Letter of Credit. The Company hereby acknowledges that the
issuance of Letters of Credit for the account of Subsidiaries inures to the
benefit of the Company, and that the Company's business derives substantial
benefits from the businesses of such Subsidiaries.
2.04 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.04, to make loans in Dollars (each such
loan, a "Swing Line Loan") to the Company from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting
as Swing Line Lender, may exceed the amount of such Lender's Commitment;
provided, however, that after giving effect to any Swing Line Loan, (i) the
Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender's Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing
40
Line Loans shall not exceed such Lender's Commitment, and provided, further,
that the Company shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Company may borrow under this Section
2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Lender's Applicable Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Company's irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 12:00 noon on the
requested borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum of $100,000, and (ii) the requested borrowing date, which
shall be a Business Day. Each such telephonic notice must be confirmed promptly
by delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Company. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 1:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the proviso to the first sentence of Section
2.04(a), or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 2:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Company at its office by crediting the account of the
Company on the books of the Swing Line Lender in Same Day Funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Company (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each
Lender make a Base Rate Committed Loan in an amount equal to such Lender's
Applicable Percentage of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be
deemed to be a Committed Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.02, without regard to the
minimum and multiples specified therein for the principal amount of Base
Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing Line
Lender shall furnish the Company with a copy of the applicable Committed
Loan Notice promptly after delivering such notice to the Administrative
Agent. Each Lender shall make an amount equal to its Applicable Percentage
of the
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amount specified in such Committed Loan Notice available to the
Administrative Agent in Same Day Funds for the account of the Swing Line
Lender at the Administrative Agent's Office for Dollar-denominated
payments not later than 1:00 p.m. on the day specified in such Committed
Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that
so makes funds available shall be deemed to have made a Base Rate
Committed Loan to the Company in such amount. The Administrative Agent
shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Committed Borrowing in accordance with Section 2.04(c)(i), the
request for Base Rate Committed Loans submitted by the Swing Line Lender
as set forth herein shall be deemed to be a request by the Swing Line
Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender's payment to the Administrative
Agent for the account of the Swing Line Lender pursuant to Section
2.04(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a rate
per annum equal to the applicable Overnight Rate from time to time in
effect. A certificate of the Swing Line Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under
this clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Committed Loans or to purchase
and fund risk participations in Swing Line Loans pursuant to this Section
2.04(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Line
Lender, the Company or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided,
however, that each Lender's obligation to make Committed Loans pursuant to
this Section 2.04(c) is subject to the conditions set forth in Section
4.02. No such funding of risk participations shall relieve or otherwise
impair the obligation of the Company to repay Swing Line Loans, together
with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Applicable Percentage of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's risk participation was funded)
in the same funds as those received by the Swing Line Lender.
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(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section
10.05 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each Lender shall pay to the Swing Line Lender
its Applicable Percentage thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such amount
is returned, at a rate per annum equal to the applicable Overnight Rate.
The Administrative Agent will make such demand upon the request of the
Swing Line Lender. The obligations of the Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this
Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Company for interest on the Swing Line Loans.
Until each Lender funds its Base Rate Committed Loan or risk participation
pursuant to this Section 2.04 to refinance such Lender's Applicable Percentage
of any Swing Line Loan, interest in respect of such Applicable Percentage shall
be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Company shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05 PREPAYMENTS. (a) Each Borrower may, upon notice from the
Company to the Administrative Agent, at any time or from time to time
voluntarily prepay Committed Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Administrative
Agent not later than 10:00 a.m. (A) three Business Days prior to any date of
prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business
Days (or five, in the case of prepayment of Loans denominated in Special Notice
Currencies) prior to any date of prepayment of Eurocurrency Rate Loans
denominated in Alternative Currencies, and (C) on the date of prepayment of Base
Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated
in Dollars shall be in a principal amount of $1,000,000 or a whole multiple of
$1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Loans
denominated in Alternative Currencies shall be in a minimum principal amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iv) any
prepayment of Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid and, if Eurocurrency Loans are to be prepaid, the
Interest Period(s) of such Loans. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of the amount of such
Lender's Applicable Percentage of such prepayment. If such notice is given by
the Company, the applicable 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 Eurocurrency Rate Loan shall be accompanied by all
accrued interest on the amount prepaid, together with any additional amounts
required pursuant to Section 3.05. Each such prepayment shall be applied to the
Committed Loans of the Lenders in accordance with their respective Applicable
Percentages.
(b) The Company may, upon notice to the Swing Line Lender (with a copy to
the Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in
43
whole or in part without premium or penalty; provided that (i) such notice must
be received by the Swing Line Lender and the Administrative Agent not later than
12:00 noon on the date of the prepayment, and (ii) any such prepayment shall be
in a minimum principal amount of $100,000. Each such notice shall specify the
date and amount of such prepayment. If such notice is given by the Company, the
Company shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Company at any time that the
Total Outstandings at such time exceed an amount equal to 100% of the Aggregate
Commitments then in effect, then, within two Business Days after receipt of such
notice, the Borrowers shall prepay Loans and/or the Company shall Cash
Collateralize the L/C Obligations in an aggregate amount sufficient to reduce
such Outstanding Amount as of such date of payment to an amount not to exceed
100% of the Aggregate Commitments then in effect; provided, however, that,
subject to the provisions of Section 2.03(g)(ii), the Company shall not be
required to Cash Collateralize the L/C Obligations pursuant to this Section
2.05(c) unless after the prepayment in full of the Loans the Total Outstandings
exceed the Aggregate Commitments then in effect. The Administrative Agent may,
at any time and from time to time after the initial deposit of such Cash
Collateral, request that additional Cash Collateral be provided in order to
protect against the results of further exchange rate fluctuations.
(d) If the Administrative Agent notifies the Company at any time that the
portion of the Total Outstandings denominated in Alternative Currencies at such
time exceeds an amount equal to 100% of the Alternative Currency Sublimit then
in effect, then, within two Business Days after receipt of such notice, the
Borrowers shall prepay Loans and/or the Company shall Cash Collateralize the L/C
Obligations in an aggregate amount sufficient to reduce such portion of the
Total Outstandings as of such date of payment to an amount not to exceed 100% of
the Alternative Currency Sublimit then in effect; provided, however, that,
subject to the provisions of Section 2.03(g)(ii), the Company shall not be
required to Cash Collateralize the L/C Obligations pursuant to this Section
2.05(d) unless after the prepayment in full of the Loans denominated in
Alternative Currencies the portion of the Total Outstandings denominated in
Alternative Currencies exceeds the Alternative Currency Sublimit then in effect.
The Administrative Agent may, at any time and from time to time after the
initial deposit of such Cash Collateral, request that additional Cash Collateral
be provided in order to protect against the results of further exchange rate
fluctuations.
2.06 TERMINATION OR REDUCTION OF COMMITMENTS. The Company may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or from
time to time permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 10:00
a.m. five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments, and (iv) if, after giving effect to any reduction of
the Aggregate Commitments, the Alternative Currency Sublimit, the Letter of
Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate
Commitments, such Sublimit shall be automatically reduced by the amount of such
excess. The Administrative Agent will promptly notify the
44
Lenders of any such notice of termination or reduction of the Aggregate
Commitments. The amount of any such Aggregate Commitment reduction shall not be
applied to the Alternative Currency Sublimit or the Letter of Credit Sublimit
unless otherwise specified by the Company. Any reduction of the Aggregate
Commitments shall be applied to the Commitment of each Lender according to its
Applicable Percentage. All fees accrued until the effective date of any
termination of the Aggregate Commitments shall be paid on the effective date of
such termination.
2.07 REPAYMENT OF LOANS. (a) Each Borrower shall repay to the
Lenders on the Maturity Date the aggregate principal amount of Committed Loans
made to such Borrower outstanding on such date.
(b) The Company shall repay each Swing Line Loan on the earlier to occur
of (i) the date ten Business Days after such Loan is made and (ii) the Maturity
Date.
2.08 INTEREST. (a) Subject to the provisions of subsection (b)
below, (i) each Eurocurrency Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurocurrency Rate for such Interest Period plus the Applicable Rate plus in
the case of a Eurocurrency Rate Loan of any Lender which is lent from a Lending
Office in the United Kingdom or a Participating Member State, the Mandatory
Cost; (ii) each Base Rate Committed Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate; and (iii) each Swing Line Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate.
(b) If any amount of principal of any Loan is not paid when due (without
regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate but
in no event greater than as may be permitted by applicable Laws.
(c) If any amount (other than principal of any Loan) payable by any
Borrower under any Loan Document is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or
otherwise, then upon the request of the Required Lenders, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
(d) Upon the request of the Required Lenders, while any Event of Default
exists, the Borrowers shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(e) Accrued and unpaid interest on past due amounts (including interest on
past due interest) shall be due and payable upon demand.
(f) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after
45
judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law.
2.09 FEES. In addition to certain fees described in subsections (i)
and (j) of Section 2.03:
(a) Facility Fee. The Company shall pay to the Administrative Agent for
the account of each Lender in accordance with its Applicable Percentage, a
facility fee in Dollars equal to the Applicable Rate times the actual daily
amount of the Aggregate Commitments (or, if the Aggregate Commitments have
terminated, on the Outstanding Amount of all Committed Loans, Swing Line Loans
and L/C Obligations), regardless of usage. The facility fee shall accrue at all
times during the Availability Period (and thereafter so long as any Committed
Loans, Swing Line Loans or L/C Obligations remain outstanding), including at any
time during which one or more of the conditions in Article IV is not met, and
shall be due and payable quarterly in arrears on the 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 (and, if applicable,
thereafter on demand). 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.
(b) Other Fees.
(i) The Company shall pay to the Arranger and the Administrative
Agent for their own respective accounts, in Dollars, fees in the amounts
and at the times specified in the Fee Letter. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.
(ii) The Company shall pay to the Lenders, in Dollars, such fees as
shall have been separately agreed upon in writing in the amounts and at
the times so specified. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES. All computations of interest
for Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365 or 366 day year), or, in the case of interest in respect of Committed
Loans denominated in Alternative Currencies as to which market practice differs
from the foregoing, in accordance with such market practice. 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, subject to Section 2.12(a), bear interest for one day. Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.
46
2.11 EVIDENCE OF DEBT. (a) The Credit Extensions made by each
Lender shall be evidenced by one or more accounts or records maintained by such
Lender and by the Administrative Agent in the ordinary course of business. The
accounts or records maintained by the Administrative Agent and each Lender shall
be conclusive absent manifest error of the amount of the Credit Extensions made
by the Lenders to the Borrowers 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 Borrowers hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of
the Administrative Agent in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error. Upon
the request of any Lender to a Borrower made through the Administrative Agent,
such Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender's Loans to such
Borrower in addition to such accounts or records. Each Lender may attach
schedules to a Note and endorse thereon the date, Type (if applicable), amount,
currency and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans. In the event
of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.12 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK. (a)
General. All payments to be made by the Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein and except with respect to
principal of and interest on Loans denominated in an Alternative Currency, all
payments by the Borrowers hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the
applicable Administrative Agent's Office in Dollars and in Same Day Funds not
later than 1:00 p.m. on the date specified herein. Except as otherwise expressly
provided herein, all payments by the Borrowers hereunder with respect to
principal and interest on Loans denominated in an Alternative Currency shall be
made to the Administrative Agent, for the account of the respective Lenders to
which such payment is owed, at the applicable Administrative Agent's Office in
such Alternative Currency and in Same Day Funds not later than the Applicable
Time specified by the Administrative Agent on the dates specified herein.
Without limiting the generality of the foregoing, the Administrative Agent may
require that any payments due under this Agreement be made in the United States.
If (but without limiting the Borrowers' obligations under Section 3.05), for any
reason, any Borrower is prohibited by any Law from making any required payment
hereunder in an Alternative Currency, such Borrower shall make such payment in
Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The
Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such Lender's Lending Office. All
payments received by the Administrative Agent (i) after 1:00 p.m., in the case
of payments in Dollars, or (ii) after the Applicable Time specified by the
Administrative Agent in the case of payments in an Alternative Currency, shall
in each case be
47
deemed received on the next succeeding Business Day and any applicable interest
or fee shall continue to accrue. If any payment to be made by any 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.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Committed Borrowing of Eurocurrency Rate Loans (or, in the
case of any Committed Borrowing of Base Rate Loans, prior to 11:00 a.m. on the
date of such Committed Borrowing) that such Lender will not make available to
the Administrative Agent such Lender's share of such Committed Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with Section 2.02 (or, in the case of a Committed
Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may, in reliance
upon such assumption, make available to the applicable Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Committed Borrowing available to the Administrative Agent, then the
applicable Lender and the applicable Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in Same Day
Funds with interest thereon, for each day from and including the date such
amount is made available to such Borrower to but excluding the date of payment
to the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the Overnight Rate and (B) in the case of a payment to be made by such
Borrower, the interest rate applicable to Base Rate Loans. If such Borrower and
such Lender shall pay such interest to the Administrative Agent for the same or
an overlapping period, the Administrative Agent shall promptly remit to such
Borrower the amount of such interest paid by such Borrower for such period. If
such Lender pays its share of the applicable Committed Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender's
Committed Loan included in such Committed Borrowing. Any payment by such
Borrower shall be without prejudice to any claim such Borrower may have against
a Lender that shall have failed to make such payment to the Administrative
Agent.
(ii) Payments by Borrowers; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from a Borrower
prior to the date on which any payment is due to the Administrative Agent
for the account of the Lenders or the L/C Issuers hereunder that such
Borrower will not make such payment, the Administrative Agent may assume
that such Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the
Lenders or the L/C Issuers, as the case may be, the amount due. In such
event, if such Borrower has not in fact made such payment, then each of
the Lenders or the L/C Issuers, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or such L/C Issuer, in Same Day Funds with
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the
Administrative Agent, at the Overnight Rate.
A notice of the Administrative Agent to any Lender or Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
48
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender to any
Borrower as provided in the foregoing provisions of this Article II, and such
funds are not made available to such Borrower by the Administrative Agent
because the conditions to the applicable Credit Extension set forth in Article
IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Committed Loans, to fund participations in Letters of Credit
and Swing Line Loans and to make payments pursuant to Section 10.04(c) are
several and not joint. The failure of any Lender to make any Committed Loan, to
fund any such participation or to make any payment under Section 10.04(c) on any
date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Committed Loan, to purchase its
participation or to make its payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.13 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of the Committed Loans made by
it, or the participations in L/C Obligations or in Swing Line Loans held by it
resulting in such Lender's receiving payment of a proportion of the aggregate
amount of such Committed Loans or participations and accrued interest thereon
greater than its pro rata share thereof as provided herein, then the Lender
receiving such greater proportion shall (a) notify the Administrative Agent of
such fact, and (b) purchase (for cash at face value) participations in the
Committed Loans and subparticipations in L/C Obligations and Swing Line Loans of
the other Lenders, or make such other adjustments as shall be equitable, so that
the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Committed Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and
(ii) the provisions of this Section shall not be construed to apply
to (x) any payment made by a Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation
in any of its Committed Loans or or participations or subparticipations in
L/C Obligations or Swing Line Loans to any assignee or participant, other
than to the Company or any Subsidiary thereof (as to which the provisions
of this Section shall apply).
49
Each Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of such Borrower in the amount of
such participation.
2.14 DESIGNATED BORROWERS. (a) Effective as of the date hereof, the
Initial Designated Borrower shall be a "Designated Borrower" hereunder and may
receive Loans for its account on the terms and conditions set forth in this
Agreement.
(b) The Company may at any time, upon not less than 15 Business Days'
notice from the Company to the Administrative Agent (or such shorter period as
may be agreed by the Administrative Agent in its sole discretion), seek to
designate any additional Material Subsidiary of the Company (an "Applicant
Borrower") as a Designated Borrower to receive Loans hereunder by delivering to
the Administrative Agent (which shall promptly deliver counterparts thereof to
each Lender) a duly executed notice and agreement in substantially the form of
Exhibit H (a "Designated Borrower Request and Assumption Agreement"). The
parties hereto acknowledge and agree that prior to any Applicant Borrower
becoming entitled to utilize the credit facilities provided for herein the
Administrative Agent and the Lenders shall have received such supporting
resolutions, incumbency certificates, opinions of counsel and other documents or
information, in form, content and scope satisfactory to the Administrative
Agent, as may be required by the Administrative Agent or the Required Lenders in
their sole discretion, and Notes signed by such new Borrowers to the extent any
Lenders so require. No Applicant Borrower shall become a Designated Borrower
unless such Applicant Borrower shall have been approved in writing by the
Administrative Agent and the Required Lenders in their sole discretion. If the
Administrative Agent and the Required Lenders agree that an Applicant Borrower
shall be entitled to receive Loans hereunder, then promptly following receipt of
all such requested resolutions, incumbency certificates, opinions of counsel and
other documents or information, the Administrative Agent shall send a notice in
substantially the form of Exhibit I (a "Designated Borrower Notice") to the
Company and the Lenders specifying the effective date upon which the Applicant
Borrower shall constitute a Designated Borrower for purposes hereof, whereupon
each of the Lenders agrees to permit such Designated Borrower to receive Loans
hereunder, on the terms and conditions set forth herein, and each of the parties
agrees that such Designated Borrower otherwise shall be a Borrower for all
purposes of this Agreement; provided that no Committed Loan Notice or Letter of
Credit Application may be submitted by or on behalf of such Designated Borrower
until the date five Business Days after such effective date.
(c) The Obligations of the Company and each Designated Borrower that is a
Domestic Subsidiary shall be joint and several in nature. The Obligations of all
Designated Borrowers that are Foreign Subsidiaries shall be several in nature.
(d) Each Subsidiary of the Company that is or becomes a "Designated
Borrower" pursuant to this Section 2.14 hereby irrevocably appoints the Company
as its agent for all purposes relevant to this Agreement and each of the other
Loan Documents, including (i) the giving and receipt of notices, (ii) the
execution and delivery of all documents, instruments and certificates
contemplated herein and all modifications hereto and (iii) the receipt of the
proceeds of any Loans made by the Lenders, to any such Designated Borrower
hereunder. Any
50
acknowledgment, consent, direction, certification or other action which might
otherwise be valid or effective only if given or taken by all Borrowers, or by
each Borrower acting singly, shall be valid and effective if given or taken only
by the Company, whether or not any such other Borrower joins therein. Any
notice, demand, consent, acknowledgement, direction, certification or other
communication delivered to the Company in accordance with the terms of this
Agreement shall be deemed to have been delivered to each Designated Borrower.
(e) The Company may from time to time, upon not less than 15 Business
Days' notice from the Company to the Administrative Agent (or such shorter
period as may be agreed by the Administrative Agent in its sole discretion),
terminate a Designated Borrower's status as such, provided that there are no
outstanding Loans payable by such Designated Borrower, or other amounts payable
by such Designated Borrower on account of any Loans made to it, as of the
effective date of such termination. The Administrative Agent will promptly
notify the Lenders of any such termination of a Designated Borrower's status.
2.15 INCREASE IN COMMITMENTS.
(a) Request for Increase. Provided there exists no Default, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), the Company
may from time to time, request an increase in the Aggregate Commitments by an
amount (for all such requests) not exceeding $50,000,000; provided that (i) any
such request for an increase shall be in a minimum amount of $25,000,000, and
(ii) the Company may make a maximum of two such requests. At the time of sending
such notice, the Company (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which
shall in no event be less than ten Business Days from the date of delivery of
such notice to the Lenders).
(b) Lender Elections to Increase. Each Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to, greater than,
or less than its Applicable Percentage of such requested increase. Any Lender
not responding within such time period shall be deemed to have declined to
increase its Commitment.
(c) Notification by Administrative Agent; Additional Lenders. The
Administrative Agent shall notify the Company and each Lender of the Lenders'
responses to each request made hereunder. To achieve the full amount of a
requested increase and subject to the approval of the Administrative Agent and
the L/C Issuers (which approvals shall not be unreasonably withheld), the
Company may also invite additional Eligible Assignees to become Lenders pursuant
to a joinder agreement in form and substance satisfactory to the Administrative
Agent and its counsel.
(d) Effective Date and Allocations. If the Aggregate Commitments are
increased in accordance with this Section, the Administrative Agent and the
Company shall determine the effective date (the "Increase Effective Date") and
the final allocation of such increase. The Administrative Agent shall promptly
notify the Company and the Lenders of the final allocation of such increase and
the Increase Effective Date.
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(e) Conditions to Effectiveness of Increase. As a condition precedent to
such increase, the Company shall deliver to the Administrative Agent a
certificate of each Loan Party dated as of the Increase Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of such Loan
Party (i) certifying and attaching the resolutions adopted by such Loan Party
approving or consenting to such increase, and (ii) in the case of the Company,
certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other Loan
Documents are true and correct on and as of the Increase Effective Date, except
to the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and except that for purposes of this Section 2.15, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed
to refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 6.01, and (B) no Default exists. The Borrowers
shall prepay any Committed Loans outstanding on the Increase Effective Date (and
pay any additional amounts required pursuant to Section 3.05) to the extent
necessary to keep the outstanding Committed Loans ratable with any revised
Applicable Percentages arising from any nonratable increase in the Commitments
under this Section.
(f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.13 or 10.01 to the contrary.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the respective Borrowers hereunder or under any other Loan
Document shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes or Other Taxes, provided that if the applicable
Borrower shall be required by applicable law to deduct any Indemnified Taxes
(including any Other Taxes) from such payments, then (i) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions and (iii) such Borrower shall
timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) Payment of Other Taxes by the Borrowers. Without limiting the
provisions of subsection (a) above, each Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrowers. Each Borrower shall indemnify the
Administrative Agent, each Lender and each L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or such L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or
52
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to a Borrower by a Lender or an L/C
Issuer (with a copy to the Administrative Agent), or by the Administrative Agent
on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive
absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Borrower to a Governmental Authority,
such Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
a Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Company (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Company or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Company or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Company or the Administrative Agent as will enable
the Company or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that a
Borrower is resident for tax purposes in the United States, any Foreign Lender
with respect to that Borrower shall deliver to Company and the Administrative
Agent (in such number of copies as shall be requested by the recipient) on or
prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the Company or
the Administrative Agent, but only if such Foreign Lender is legally entitled to
do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the applicable Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or
53
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the Company
to determine the withholding or deduction required to be made.
Without limiting the obligations of the Lenders set forth above regarding
delivery of certain forms and documents to establish each Lender's status for
U.S. withholding tax purposes, each Lender agrees promptly to deliver to the
Administrative Agent or the Company, as the Administrative Agent or the Company
shall reasonably request, on or prior to the Closing Date, and in a timely
fashion thereafter, such other documents and forms required by any relevant
taxing authorities under the Laws of any other jurisdiction, duly executed and
completed by such Lender, as are required under such Laws to confirm such
Lender's entitlement to any available exemption from, or reduction of,
applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by the Borrowers pursuant to this Agreement or
otherwise to establish such Lender's status for withholding tax purposes in such
other jurisdiction. Each Lender shall promptly (i) notify the Administrative
Agent of any change in circumstances which would modify or render invalid any
such claimed exemption or reduction, and (ii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws of any such jurisdiction
that any Borrower make any deduction or withholding for taxes from amounts
payable to such Lender. Additionally, each of the Borrowers shall promptly
deliver to the Administrative Agent or any Lender, as the Administrative Agent
or such Lender shall reasonably request, on or prior to the Closing Date, and in
a timely fashion thereafter, such documents and forms required by any relevant
taxing authorities under the Laws of any jurisdiction, duly executed and
completed by such Borrower, as are required to be furnished by such Lender or
the Administrative Agent under such Laws in connection with any payment by the
Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in
connection with the Loan Documents, with respect to such jurisdiction.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender
or any L/C Issuer determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by any
Borrower or with respect to which any Borrower has paid additional amounts
pursuant to this Section, it shall pay to such Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts
paid, by such Borrower under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or such L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that each Borrower, upon the
request of the Administrative Agent, such Lender or such L/C Issuer, agrees to
repay the amount paid over to such Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or such L/C Issuer in the event the
Administrative Agent, such Lender or such L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or any L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to any Borrower or any other Person.
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(g) Provisional Treaty Relief.
(i) Without limiting the generality of Section 3.01(e), in the event
that a Borrower is resident for tax purposes in the United Kingdom (a "UK
Borrower") each Foreign Lender: (a) irrevocably appoints the
Administrative Agent to act as syndicate manager under, and authorizes the
Administrative Agent to operate, and take any action necessary or
desirable under, the PTR Scheme in connection with this Agreement; (b)
shall co-operate with the Administrative Agent in completing any
procedural formalities necessary under the PTR Scheme, and shall promptly
supply to the Administrative Agent such information as the Administrative
Agent may reasonably request in connection with the operation of the PTR
Scheme; (c) without limiting the liability of any Borrower under this
Agreement, shall, within 5 Business Days of demand, indemnify the
Administrative Agent for any liability or loss incurred by the
Administrative Agent as a result of the Administrative Agent acting as
syndicate manager under the PTR Scheme in connection with the Foreign
Lender's participation in any Loan (except to the extent that the
liability or loss arises directly from the Administrative Agent's gross
negligence or willful misconduct); and (d) shall, within 5 Business Days
of demand, indemnify each Borrower for any Taxes imposed by the government
of the United Kingdom or any political subdivision thereof which such
Borrower becomes liable to pay in respect of any payments made to such
Foreign Lender arising as a result of any incorrect information supplied
by such Foreign Lender under subsection (b) above which results in a
provisional authority issued by H.M. Revenue & Customs under the PTR
Scheme being withdrawn.
(ii) Each Borrower acknowledges that it is fully aware of its
contingent obligations under the PTR Scheme and shall: (a) promptly supply
to the Administrative Agent such information as the Administrative Agent
may request in connection with the operation of the PTR Scheme; and (b)
act in accordance with any provisional notice issued by H.M. Revenue &
Customs under the PTR Scheme.
(iii) The Administrative Agent agrees to provide, as soon as
reasonably practicable, a copy of any provisional authority issued to it
under the PTR Scheme in connection with any Loan to those Borrowers
specified in such provisional authority.
(iv) All Parties acknowledge that the Administrative Agent: (a) is
entitled to rely completely upon information provided to it in connection
with Section 3.01(g)(i) or Section 3.01(g)(ii) above; (b) is not obliged
to undertake any enquiry into the accuracy of such information, nor into
the status of the Foreign Lender or, as the case may be, the Borrower
providing such information; and (c) shall have no liability to any person
for the accuracy of any information it submits in connection with Section
3.01(g)(i)(a) above.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative
Currency), or to determine or charge interest rates based upon the Eurocurrency
Rate, or any Governmental Authority has imposed material restrictions on the
authority of such Lender to purchase or sell, or to take deposits of, Dollars or
55
any Alternative Currency in the applicable interbank market, then, on notice
thereof by such Lender to the Company through the Administrative Agent, any
obligation of such Lender to make or continue Eurocurrency Rate Loans in the
affected currency or currencies or, in the case of Eurocurrency Rate Loans in
Dollars, to convert Base Rate Committed Loans to Eurocurrency Rate Loans, shall
be suspended until such Lender notifies the Administrative Agent and the Company
that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrowers shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable and such Loans are
denominated in Dollars, convert all such Eurocurrency Rate Loans of such Lender
to Base Rate Loans, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain
such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the
Borrowers shall also pay accrued interest on the amount so prepaid or converted.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders
determine that for any reason in connection with any request for a Eurocurrency
Rate Loan or a conversion to or continuation thereof that (a) deposits (whether
in Dollars or an Alternative Currency) are not being offered to banks in the
applicable offshore interbank market for such currency for the applicable amount
and Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable
means do not exist for determining the Eurocurrency Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan (whether
denominated in Dollars or an Alternative Currency), or (c) the Eurocurrency Rate
for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Eurocurrency Rate Loan, the Administrative Agent will promptly so notify
the Company and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurocurrency Rate Loans in the affected currency or currencies shall
be suspended until the Administrative Agent (upon the instruction of the
Required Lenders) revokes such notice. Upon receipt of such notice, the Company
may revoke any pending request for a Borrowing of, conversion to or continuation
of Eurocurrency Rate Loans in the affected currency or currencies or, failing
that, will be deemed to have converted such request into a request for a
Committed Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COSTS; RESERVES ON EUROCURRENCY RATE LOANS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or
participated in by, any Lender (except (A) any reserve requirement
contemplated by Section 3.04(e) and (B) the requirements of the Bank of
England and the Financial Services Authority or the European Central Bank
reflected in the Mandatory Cost, other than as set forth below) or any L/C
Issuer;
(ii) subject any Lender or any L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurocurrency Rate Loan made by
it, or change the basis of taxation of payments to such Lender or the L/C
Issuer in respect thereof (except for Indemnified
56
Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any
change in the rate of, any Excluded Tax payable by such Lender or such L/C
Issuer);
(iii) the Mandatory Cost, as calculated hereunder, does not
represent the cost to any Lender of complying with the requirements of the
Bank of England and/or the Financial Services Authority or the European
Central Bank in relation to its making, funding or maintaining
Eurocurrency Rate Loans; or
(iv) impose on any Lender or any L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurocurrency Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Rate Loan (or of maintaining
its obligation to make any such Loan), or to increase the cost to such Lender or
such L/C Issuer of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or such L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or such L/C Issuer, the Company will
pay (or cause the applicable Designated Borrower to pay) to such Lender or such
L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or such L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or any L/C Issuer determines that
any Change in Law affecting such Lender or such L/C Issuer or any Lending Office
of such Lender or such Lender's or such L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or such L/C Issuer's capital or on the capital of
such Lender's or such L/C Issuer's holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by such L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or such L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
such L/C Issuer's policies and the policies of such Lender's or such L/C
Issuer's holding company with respect to capital adequacy), then from time to
time the Company will pay (or cause the applicable Designated Borrower to pay)
to such Lender or such L/C Issuer, as the case may be, such additional amount or
amounts as will compensate such Lender or such L/C Issuer or such Lender's or
such L/C Issuer's holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or an L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the Company shall be
conclusive absent manifest error. The Company shall pay (or cause the applicable
Designated Borrower to pay) such Lender or such L/C Issuer, as the case may be,
the amount shown as due on any such certificate within 10 days after receipt
thereof.
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(d) Delay in Requests. Failure or delay on the part of any Lender or any
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or such L/C Issuer's
right to demand such compensation, provided that no Borrower shall be required
to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
nine months prior to the date that such Lender or such L/C Issuer, as the case
may be, notifies the Company of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or such L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
(e) Additional Reserve Requirements. The Company shall pay (or cause the
applicable Designated Borrower to pay) to each Lender, (i) as long as such
Lender shall be required to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits (currently
known as "Eurocurrency liabilities"), additional interest on the unpaid
principal amount of each Eurocurrency 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), and (ii) as long
as such Lender shall be required to comply with any reserve ratio requirement or
analogous requirement of any other central banking or financial regulatory
authority imposed in respect of the maintenance of the Commitments or the
funding of the Eurocurrency Rate Loans, such additional costs (expressed as a
percentage per annum and rounded upwards, if necessary, to the nearest five
decimal places) equal to the actual costs allocated to such Commitment or Loan
by such Lender (as determined by such Lender in good faith, which determination
shall be conclusive), which in each case shall be due and payable on each date
on which interest is payable on such Loan, provided the Company shall have
received at least 10 days' prior notice (with a copy to the Administrative
Agent) of such additional interest or costs from such Lender. If a Lender fails
to give notice 10 days prior to the relevant Interest Payment Date, such
additional interest or costs shall be due and payable 10 days from receipt of
such notice.
3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a
copy to the Administrative Agent) from time to time, the Company shall promptly
compensate (or cause the applicable Designated Borrower to compensate) such
Lender for and hold such Lender harmless from any loss, cost or expense incurred
by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by any 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 Company
or the applicable Designated Borrower;
(c) any failure by any Borrower to make payment of any Loan in any
currency or drawing under any Letter of Credit (or interest due thereon)
denominated in an Alternative Currency on its scheduled due date or any payment
thereof in a different currency; or
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(d) any assignment of a Eurocurrency Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the Company
pursuant to Section 10.13; or
(e) any assignment of any Eurocurrency Loans during the 180 day period
following the Closing Date in connection with the syndication of the Loans and
Commitments made pursuant to this Agreement,
including any loss of anticipated profits, any foreign exchange losses and any
loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Loan, from fees payable to terminate the deposits from
which such funds were obtained or from the performance of any foreign exchange
contract. The Company shall also pay (or cause the applicable Designated
Borrower to pay) any customary administrative fees charged by such Lender in
connection with the foregoing.
For purposes of calculating amounts payable by the Company (or the applicable
Designated Borrower) to the Lenders under this Section 3.05, each Lender shall
be deemed to have funded each Eurocurrency Rate Loan made by it at the
Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the
offshore interbank market for such currency for a comparable amount and for a
comparable period, whether or not such Eurocurrency Rate Loan was in fact so
funded.
3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or any Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Company hereby agrees to pay (or to cause
the applicable Designated Borrower to pay) all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if any Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, the Company may replace such Lender in accordance with Section
10.13.
3.07 SURVIVAL. All of the Borrowers' obligations under this Article
III shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
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4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
L/C Issuer and each Lender to make its initial Credit Extension hereunder is
subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) executed counterparts of this Agreement and the Guaranties,
sufficient in number for distribution to the Administrative Agent, each
Lender and the Company;
(ii) Notes executed by the Borrowers in favor of each Lender
requesting Notes;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as the Administrative Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party;
(iv) such documents and certifications as the Administrative Agent
may reasonably require to evidence that each Loan Party is duly organized
or formed, and that each of the Borrowers and the Subsidiary Guarantors is
validly existing, in good standing and qualified to engage in business in
each jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualifications, except to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect;
(v) favorable opinion letters of Xxxxxxx and Colmar, U.S. counsel to
the Loan Parties, and DLA Xxxxx Xxxxxxx Xxxx Xxxx UK LLP U.K. counsel to
the Initial Designated Borrower and its Subsidiaries, in each case
addressed to the Administrative Agent and each Lender, as to the matters
set forth in Exhibit J and such other matters concerning the Loan Parties
and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by
such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such consents, licenses and
approvals shall be in full force and effect, or (B) stating that no such
consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Company
certifying (A) that the conditions specified in Sections 4.02(a) and (b)
have been satisfied and (B) that there has been no event or circumstance
since the date of the Audited Financial
60
Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Compliance Certificate as of the last day of
the fiscal quarter of the Company ended on March 31, 2005, signed by a
Responsible Officer of the Company;
(ix) evidence that all insurance required to be maintained pursuant
to the Loan Documents has been obtained and is in effect;
(x) evidence that the Existing Credit Agreement has been or
concurrently with the Closing Date is being terminated, that all loans and
other outstanding obligations thereunder have been satisfied and all Liens
securing obligations under the Existing Credit Agreement have been or
concurrently with the Closing Date are being released; and
(xi) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuers, the Swing Line
Lender or the Required Lenders reasonably may require (including, without
limitation, each of the documents, instruments and agreements listed in
the List of Closing Documents attached hereto as Schedule 4.01).
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid
all fees, charges and disbursements of counsel to the Administrative Agent to
the extent invoiced prior to or on the Closing Date, plus such additional
amounts of such fees, charges and disbursements as shall constitute its
reasonable estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Company
and the Administrative Agent).
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to honor any Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurocurrency Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of (i) the Borrowers contained in
Article V and (ii) each Loan Party contained in each other Loan Document or in
any document furnished at any time under or in connection herewith or therewith,
shall be true and correct on and as of the date of such Credit 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
61
date, and except that for purposes of this Section 4.02, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed
to refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension or the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, an L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
(d) If the applicable Borrower is a Designated Borrower, then the
conditions of Section 2.14 to the designation of such Borrower as a Designated
Borrower shall have been met to the satisfaction of the Administrative Agent.
(e) In the case of a Credit Extension to be denominated in an Alternative
Currency, there shall not have occurred any change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which in the reasonable opinion of the Administrative Agent,
the Required Lenders (in the case of any Loans to be denominated in an
Alternative Currency) or the applicable L/C Issuer (in the case of any Letter of
Credit to be denominated in an Alternative Currency) would make it impracticable
for such Credit Extension to be denominated in the relevant Alternative
Currency.
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 Eurocurrency Rate Loans) submitted by the Company 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
Except as otherwise provided in Section 5.18, each Borrower represents and
warrants to the Administrative Agent and the Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each
Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own or lease its assets and carry on its business and (ii) execute, deliver and
perform its obligations under the Loan Documents to which it is a party, (c) is
duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws; except in each case referred to in clause (b)(i), (c)
or (d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
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5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any Contractual Obligation to which such Person is
a party or affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject;
or (c) violate any Law. Each Loan Party and each Subsidiary thereof is in
compliance with all Contractual Obligations referred to in clause (b)(i), except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms (except, in any case, as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and by
principles of equity).
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT; NO INTERNAL
CONTROL EVENT.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein and (ii) fairly present the financial
condition of the Company and its Consolidated Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein.
(b) The unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries dated March 31, 2005, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present the financial condition of the
Company and its Consolidated Subsidiaries as of the date thereof and their
results of operations for the period covered thereby, subject, in the case of
clauses (i) and (ii), to the absence of footnotes and to normal year-end audit
adjustments. Schedule 5.05 sets forth all material indebtedness and other
liabilities, direct or contingent, of the Company and its Consolidated
Subsidiaries as of the date of such financial statements, including liabilities
for taxes, material commitments and Indebtedness.
63
(c) Since the date of the Audited Financial Statements, there has been no
event or circumstance, either individually or in the aggregate, that has had or
could reasonably be expected to have a Material Adverse Effect.
(d) Since the date of the Audited Financial Statements, no Internal
Control Event has occurred.
(e) The consolidated forecasted balance sheet and statements of income and
cash flows of the Company and its Consolidated Subsidiaries delivered pursuant
to Section 6.01(c) were prepared in good faith on the basis of the assumptions
stated therein, which assumptions were fair in light of the conditions existing
at the time of delivery of such forecasts, and represented, at the time of
delivery, the Company's best estimate of its future financial performance.
5.06 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Company after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Company or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (b) either individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect.
5.07 NO DEFAULT. Neither the Company nor any Subsidiary is in
default under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Company and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of the Company and its Subsidiaries is subject to
no Liens, other than Liens permitted by Section 7.01.
5.09 ENVIRONMENTAL COMPLIANCE. The Company and its Consolidated
Subsidiaries conduct in the ordinary course of business a review of the effect
of existing Environmental Laws and claims alleging potential liability or
responsibility for violation of any Environmental Law on their respective
businesses, operations and properties, and as a result thereof the Company has
reasonably concluded that, except as specifically disclosed in Schedule 5.09,
such Environmental Laws and claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.10 INSURANCE. The properties of the Company and its Subsidiaries
are insured with financially sound and reputable insurance companies not
Affiliates of the Company, in such amounts, with such deductibles and covering
such risks as are customarily carried by
64
companies engaged in similar businesses and owning similar properties in
localities where the Company or the applicable Subsidiary operates.
5.11 TAXES. The Company and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Company or any Subsidiary that would, if made, have a
Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is
party to any tax sharing agreement.
5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Company, nothing has occurred which would prevent, or cause the
loss of, such qualification. The Company and each ERISA Affiliate have made all
required contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Company nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Company nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any material liability (and no event has occurred which, with the giving
of notice under Section 4219 of ERISA, would result in such material liability)
under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) neither the Company nor any ERISA Affiliate has engaged in a transaction
that could be subject to Sections 4069 or 4212(c) of ERISA.
5.13 SUBSIDIARIES; EQUITY INTERESTS. As of the Closing Date, the
Company has no Subsidiaries other than those specifically disclosed in Part (a)
of Schedule 5.13, and all of the outstanding Equity Interests in such
Subsidiaries have been validly issued, are fully paid and nonassessable and are
owned in the amounts specified on Part (a) of Schedule 5.13 free and clear of
all Liens. The Company has no equity investments in any other corporation or
entity other
65
than those specifically disclosed in Part (b) of Schedule 5.13. All of the
outstanding Equity Interests in the Company have been validly issued, and are
fully paid and nonassessable.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY
HOLDING COMPANY ACT.
(a) No Borrower is engaged or will engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock. Following the application of
the proceeds of each Borrowing or drawing under each Letter of Credit, not more
than 25% of the value of the assets (either of the applicable Borrower only or
of the Company and its Subsidiaries on a consolidated basis) subject to the
provisions of Section 7.01 or Section 7.05 or subject to any restriction
contained in any agreement or instrument between any Borrower and any Lender or
any Affiliate of any Lender relating to Indebtedness and within the scope of
Section 8.01(e) will be margin stock.
(b) None of the Company, any Person Controlling the Company, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.15 DISCLOSURE. The Company has disclosed to the Administrative
Agent and the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject and all other
matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No report, financial statement,
certificate or other information furnished (whether in writing or orally) by or
on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of this
Agreement or delivered hereunder or under any other Loan Document (in each case,
as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Company represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
5.16 COMPLIANCE WITH LAWS. Each of the Company and each Subsidiary
is in compliance in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its
properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. The Company and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, "IP
66
Rights") that are reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other Person. To the best
knowledge of the Company, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Company or any Subsidiary infringes upon any
rights held by any other Person. No claim or litigation regarding any of the
foregoing is pending or, to the best knowledge of the Company, threatened,
which, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
5.18 REPRESENTATIONS AS TO FOREIGN OBLIGORS. Each of the Company and
each Foreign Obligor represents and warrants to the Administrative Agent and the
Lenders that:
(a) Such Foreign Obligor is subject to civil and commercial Laws with
respect to its obligations under this Agreement and the other Loan Documents to
which it is a party (collectively as to such Foreign Obligor, the "Applicable
Foreign Obligor Documents"), and the execution, delivery and performance by such
Foreign Obligor of the Applicable Foreign Obligor Documents constitute and will
constitute private and commercial acts and not public or governmental acts.
Neither such Foreign Obligor nor any of its property has any immunity from
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) under the laws of the jurisdiction in which such Foreign Obligor
is organized and existing in respect of its obligations under the Applicable
Foreign Obligor Documents.
(b) The Applicable Foreign Obligor Documents are in proper legal form
under the Laws of the jurisdiction in which such Foreign Obligor is organized
and existing for the enforcement thereof against such Foreign Obligor under the
Laws of such jurisdiction, and to ensure the legality, validity, enforceability,
priority or admissibility in evidence of the Applicable Foreign Obligor
Documents. It is not necessary to ensure the legality, validity, enforceability,
priority or admissibility in evidence of the Applicable Foreign Obligor
Documents that the Applicable Foreign Obligor Documents be filed, registered or
recorded with, or executed or notarized before, any court or other authority in
the jurisdiction in which such Foreign Obligor is organized and existing or that
any registration charge or stamp or similar tax be paid on or in respect of the
Applicable Foreign Obligor Documents or any other document, except for (i) any
such filing, registration, recording, execution or notarization as has been made
or is not required to be made until the Applicable Foreign Obligor Document or
any other document is sought to be enforced and (ii) any charge or tax as has
been timely paid.
(c) There is no tax, levy, impost, duty, fee, assessment or other
governmental charge, or any deduction or withholding, imposed by any
Governmental Authority in or of the jurisdiction in which such Foreign Obligor
is organized and existing either (i) on or by virtue of the execution or
delivery of the Applicable Foreign Obligor Documents or (ii) on any payment to
be made by such Foreign Obligor pursuant to the Applicable Foreign Obligor
Documents, except as has been disclosed to the Administrative Agent.
(d) The execution, delivery and performance of the Applicable Foreign
Obligor Documents executed by such Foreign Obligor are, under applicable foreign
exchange control regulations of the jurisdiction in which such Foreign Obligor
is organized and existing, not subject to any notification or authorization
except (i) such as have been made or obtained or (ii)
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such as cannot be made or obtained until a later date (provided that any
notification or authorization described in clause (ii) shall be made or obtained
as soon as is reasonably practicable).
5.19 MATERIAL SUBSIDIARIES. As of the Closing Date Schedule 5.19, or
as of the date thereof the most recent supplement to Schedule 5.19 delivered by
the Company pursuant to Section 6.13 or Section 7.04(c)(v), sets forth the
Material Subsidiaries of the Company.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Company shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each
Subsidiary to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent and
each Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Company, a consolidated balance sheet of the Company and
its Consolidated Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by (i) a report and opinion of
Ernst & Young LLP or another Registered Public Accounting Firm of nationally
recognized standing reasonably acceptable to the Required Lenders, which report
and opinion shall be prepared in accordance with generally accepted auditing
standards and applicable Securities Laws and shall not be subject to any "going
concern" or like qualification or exception or any qualification or exception as
to the scope of such audit and (ii) an attestation report of such Registered
Public Accounting Firm as to the Company's internal controls pursuant to Section
404 of Xxxxxxxx-Xxxxx expressing a conclusion to which the Required Lenders do
not reasonably object;
(b) as soon as available, but in any event within 45 days after the end of
each of the first three fiscal quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
at the end of such fiscal quarter, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for such fiscal
quarter and for the portion of the Company's fiscal year then ended, setting
forth in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, certified by a Responsible
Officer of the Company as fairly presenting the financial condition, results of
operations, shareholders' equity and cash flows of the Company and its
Consolidated Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes; and
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(c) as soon as available, but in any event no later than 45 days after the
end of each fiscal year of the Company, forecasts prepared by management of the
Company, in form satisfactory to the Administrative Agent and the Required
Lenders, of consolidated balance sheets and statements of income or operations
and cash flows of the Company and its Consolidated Subsidiaries on a monthly
basis for the immediately following fiscal year (including the fiscal year in
which the Maturity Date occurs).
As to any information contained in materials furnished pursuant to Section 6.02,
the Company shall not be separately required to furnish such information under
clause (a) or (b) above, but the foregoing shall not be in derogation of the
obligation of the Company to furnish the information and materials described in
clauses (a) and (b) above at the times specified therein.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative
Agent and each Lender, in form and detail satisfactory to the Administrative
Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a
Responsible Officer of the Company together with a reconciliation of the
financial condition and financial results (including balance sheet and income
statement items) of the Company and its Consolidated Subsidiaries, on the one
hand, and the Company and its Subsidiaries (including balance sheet and income
statement items), on the other hand;
(b) promptly after any request by the Administrative Agent or any Lender,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of the Company by independent accountants in connection with the
accounts or books of the Company or any Consolidated Subsidiary, or any audit of
any of them;
(c) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the Company, and copies of all annual, regular, periodic and
special reports and registration statements which the Company may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any statement or
report furnished to any holder of debt securities of any Loan Party or any
Consolidated Subsidiary thereof pursuant to the terms of any indenture, loan or
credit or similar agreement and not otherwise required to be furnished to the
Lenders pursuant to Section 6.01 or any other clause of this Section 6.02; and
(e) promptly, and in any event within five Business Days after receipt
thereof by any Loan Party or any Consolidated Subsidiary thereof, copies of each
notice or other correspondence received from the SEC (or comparable agency in
any applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such
69
agency regarding financial or other operational results of any Loan Party or any
Subsidiary thereof; and
(f) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Consolidated Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative Agent or
any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Company posts such documents, or provides a link thereto on the Company's
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Company's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Company shall deliver paper copies
of such documents to the Administrative Agent or any Lender that requests the
Company to deliver such paper copies until a written request to cease delivering
paper copies is given by the Administrative Agent or such Lender and (ii) the
Company shall notify the Administrative Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Notwithstanding anything contained herein, in every instance
the Company shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(a) to the Administrative Agent. Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
the Company with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.
Each Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Arranger will make available to the Lenders and the L/C Issuers materials
and/or information provided by or on behalf of such Borrower hereunder
(collectively, "Borrower Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "Platform") and (b) certain
of the Lenders may be "public-side" Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to any Borrower or its
securities) (each, a "Public Lender"). Each Borrower hereby agrees that so long
as such Borrower is the issuer of any outstanding debt or equity securities that
are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities (w) all Borrower Materials that are to
be made available to Public Lenders shall be clearly and conspicuously marked
"PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall appear
prominently on the first page thereof; (x) by marking Borrower Materials
"PUBLIC," the Borrowers shall be deemed to have authorized the Administrative
Agent, the Arranger, the L/C Issuers and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to
the Borrowers or their respective securities for purposes of United States
Federal and state securities laws (provided, however, that to the extent such
Borrower Materials constitute Information, they shall be treated as set forth in
Section
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10.07); (y) all Borrower Materials marked "PUBLIC" are permitted to be made
available through a portion of the Platform designated "Public Investor;" and
(z) the Administrative Agent and the Arranger shall be entitled to treat any
Borrower Materials that are not marked "PUBLIC" as being suitable only for
posting on a portion of the Platform not designated "Public Investor." The
Administrative Agent and the Arranger acknowledge that material non-public
information with respect to the Company and its Consolidated Subsidiaries is
highly confidential and agree to take commercially reasonable steps to protect
such information from public disclosure. In the event of the inadvertent public
disclosure of any such information by the Administrative Agent or the Arranger,
the Administrative Agent or the Arranger, as applicable, shall promptly notify
the Company.
6.03 NOTICES. Promptly notify the Administrative Agent and each
Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) breach or non-performance of,
or any default under, a Contractual Obligation of the Company or any Subsidiary;
(ii) any dispute, litigation, investigation, proceeding or suspension between
the Company or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Company or any Subsidiary, including pursuant to any applicable
Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting
practices by the Company or any Subsidiary; and
(e) of the occurrence of any Internal Control Event.
Each notice pursuant to this Section shall be accompanied by a statement
of a Responsible Officer of the Company setting forth details of the occurrence
referred to therein and stating what action the Company has taken and proposes
to take with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall
become due and payable, all its obligations and liabilities, including (a) all
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the Company or such Subsidiary; (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property; and (c)
all Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and
maintain in full force and effect its legal existence and good standing under
the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 7.04 or 7.05; (b) take all reasonable
71
action to maintain all rights, privileges, permits, licenses and franchises
necessary or desirable in the normal conduct of its business, except to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (c) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect
all of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
(b) make all necessary repairs thereto and renewals and replacements thereof
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the
industry in the operation and maintenance of its facilities.
6.07 MAINTENANCE OF INSURANCE. (a) Maintain with financially sound
and reputable insurance companies not Affiliates of the Company, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
(b) Use its commercially reasonable efforts to ensure that (i) each Person
contracted by the Company or any of its Subsidiaries that at any time has
possession of any materials handled by the Company or its Subsidiaries maintains
insurance with financially sound and reputable insurance companies over such
materials with respect to property and risks of a character usually maintained
by Persons of comparable size engaged in the same or similar business and
similarly situated against loss, damage and liability of the kinds and in the
amounts customarily maintained by such Persons and (ii) in addition to, and not
in limitation of, clause (i) above, all third party contract haulers or other
Person contracted by the Company or its Subsidiaries to handle or transport
Hazardous Materials also maintains pollution legal liability insurance with
financially sound and reputable insurance companies with respect to the handling
or transporting of such materials of a character usually maintained by Persons
of comparable size engaged in the same or similar business and similarly
situated, and in each case the Company or its Subsidiary, as the case may be, be
named an additional insured under all such policies and obtain waivers of
subrogation from such third party contractors.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Company or such Subsidiary, as the case
may be; and (b) maintain such books of record and account in material conformity
with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Company or such Subsidiary, as the case may be.
72
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Company and at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company; provided, however, prior to the
occurrence of a Default, the Company shall not be required to pay the expenses
associated with more than one such visitation and inspection by each Lender
during any calendar year; provided, further, however, that when an Event of
Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Company at any time during normal business hours
and without advance notice.
6.11 USE OF PROCEEDS. Subject to the limitations set forth in
Section 7.10, use the proceeds of the Credit Extensions for (i) general
corporate purposes, permitted stock repurchases, Permitted Acquisitions and
other lawful corporate purposes, (ii) to refinance indebtedness of any business
acquired in a Permitted Acquisition and (iii) to refinance Indebtedness owing
under the Existing Credit Agreement, in each case, not in contravention of any
Law or of any Loan Document.
6.12 APPROVALS AND AUTHORIZATIONS. Maintain all authorizations,
consents, approvals and licenses from, exemptions of, and filings and
registrations with, each Governmental Authority of the jurisdiction in which
each Foreign Obligor is organized and existing, and all approvals and consents
of each other Person in such jurisdiction, in each case that are required in
connection with the Loan Documents.
6.13 ADDITIONAL SUBSIDIARY GUARANTORS. Notify the Administrative
Agent if any Person becomes a Material Subsidiary within 45 days of such
occurrence, and thereafter promptly (and in any event, within 30 days of such
notification) cause such Person to (a) provide an unconditional guaranty of the
Obligations of each Borrower by executing and delivering to the Administrative
Agent a counterpart of the Subsidiary Guaranty or such other document as the
Administrative Agent shall deem appropriate for such purpose, and (b) deliver to
the Administrative Agent (i) documents of the types referred to in clauses (iii)
and (iv) of Section 4.01(a), (ii) a supplement to Schedule 5.19 setting forth
the Subsidiaries of the Company necessary to make the representation and
warranty set forth in Section 5.19 true and correct and (iii) favorable opinion
letters of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation
referred to in clause (a)), all in form, content and scope reasonably
satisfactory to the Administrative Agent; provided, that, in the case of any
Material Subsidiary that is a Foreign Subsidiary, if, in the reasonable judgment
of the Company, the unconditional guaranty of the Obligations of each Borrower
by such Foreign Subsidiary would cause material adverse tax consequences to the
Company and its Subsidiaries, such Foreign Subsidiary shall provide an
unconditional guaranty only of the Obligations of such Borrowers, if any, as
will not result in material adverse tax consequences to the Company and its
Subsidiaries; provided, further, that, in the event of any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive or guideline of any Governmental
Authority that eliminates such material adverse tax consequences to the Company
and its Subsidiaries, the Administrative
73
Agent or the Required Lenders may require the execution and delivery by such
Foreign Subsidiary of the Subsidiary Guaranty required by this section. If one
or more Material Subsidiaries are created in connection with, or result from the
consummation of, an Acquisition by the Company or any of its Subsidiaries, then,
notwithstanding the notice and timing provisions set forth herein above, the
Company shall cause to be executed and delivered to the Administrative Agent,
the Subsidiary Guaranty or Subsidiary Guaranties and related documents required
by this section concurrently with the consummation of such Acquisition.
6.14 FURTHER ASSURANCES. Cooperate with the Lenders and the
Administrative Agent and execute such further instruments and documents as the
Lenders or the Administrative Agent shall reasonably request to carry out to
their satisfaction the transactions contemplated by this Agreement and the other
Loan Documents.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Company shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby
is not changed, (ii) the amount secured or benefited thereby is not increased,
(iii) the direct or any contingent obligor with respect thereto is not changed,
and (iv) any renewal or extension of the obligations secured or benefited
thereby is permitted by Section 7.03(b);
(c) Liens for taxes not yet due or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases
(other than Indebtedness), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
74
(g) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the applicable Person;
(h) leases, subleases, licenses and sublicenses granted to third Parties
in the ordinary course of business, in each case, not interfering with the
operations of business of the Company or its Subsidiaries;
(i) Liens securing judgments for the payment of money not constituting an
Event of Default under Section 8.01(h); and
(j) Liens securing Indebtedness permitted under Section 7.03(f) or (g);
provided, that the aggregate outstanding principal amount of such Indebtedness
secured by such Liens shall not exceed $50,000,000 at any time.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments reflected on the consolidated balance sheet included in
the Company's quarterly report on Form 10-Q for the quarter ended March 31, 2005
and Investments since March 31, 2005 in existence on the Closing Date and
described in Schedule 7.02, and any renewal or extension of any such Investments
that does not increase the amount of the Investment being renewed or extended as
determined as of such date of renewal or extension;
(b) Investments held by the Company or any Subsidiary in the form of cash
equivalents or short-term marketable debt securities;
(c) advances to officers, directors and employees of the Company and its
Subsidiaries in an aggregate amount not to exceed $5,000,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes;
(d) Investments of the Company in any Subsidiary Guarantor that has
provided an unconditional guaranty of the Obligations of each Borrower and
Investments of any such Subsidiary Guarantor in the Company or in another such
Subsidiary Guarantor;
(e) with respect to any Borrower, Investments of such Borrower in any
Subsidiary Guarantor that has provided an unconditional guaranty of the
Obligations of such Borrower and Investments of any such Subsidiary Guarantor in
such Borrower or in another such Subsidiary Guarantor;
(f) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(g) Guarantees permitted by Section 7.03;
75
(h) if an Enhanced Performance Noncompliance Date has occurred and an
Enhanced Performance Restoration Date has not yet occurred with respect to such
Enhanced Performance Noncompliance Date, other Investments not otherwise
permitted under this Section 7.02 in an aggregate amount not to exceed
$30,000,000 (excluding, in the case of each such Investment constituting an
Acquisition, the aggregate amount of cash and cash equivalents acquired pursuant
to such Acquisition or held by the Person subject to such Acquisition) from such
Enhanced Performance Noncompliance Date until occurrence of an Enhanced
Performance Restoration Date; provided, that, no Default or Event of Default
shall have occurred and be continuing at the date of the making or acquisition
of such Investment; and provided, further, that, if any such Investment is an
Acquisition, the following additional conditions are satisfied:
(i) the Person to be acquired is not engaged in any material line of
business substantially different from those lines of business conducted by
the Company and its Subsidiaries on the date hereof or any business
substantially related or incidental thereto;
(ii) the board of directors and (if required by applicable law) the
shareholders, or the equivalent thereof, of each of the Company or the
applicable Subsidiary and of the Person to be acquired has approved such
Acquisition; and
(iii) any Indebtedness directly or indirectly incurred or assumed in
connection with such Acquisition shall have been permitted to be incurred
or assumed pursuant to Section 7.03;
(iv) if one or more additional Material Subsidiaries are created in
connection with, or result from the consummation of, such Acquisition, the
Company shall deliver or cause to be delivered to the Administrative Agent
a supplement to Schedule 5.19 setting forth the Subsidiaries of the
Company necessary to make the representation and warranty set forth in
Section 5.19 true and correct after giving effect to such Acquisition and
each of the Subsidiary Guaranty and related documents described by Section
6.13 with respect to such additional Material Subsidiaries; and
(i) if the Enhanced Performance Condition is satisfied, other Investments
not otherwise permitted under this Section 7.02; provided, that each of the
following conditions are satisfied:
(i) no Default or Event of Default shall have occurred and be
continuing at the date of the making or acquisition of such Investment;
(ii) if, after giving effect to any such proposed Investment, the
Company and its Subsidiaries shall have made or acquired more than
$50,000,000 in the aggregate in Investments (excluding, in the case of
each such Investment constituting an Acquisition, the aggregate amount of
cash and cash equivalents acquired pursuant to such Acquisition or held by
the Person subject to such Acquisition) during the period beginning 90
calendar days before the date of such proposed Investment and ending on
the date of such proposed Investment, the Company shall have delivered to
the Administrative Agent on or prior to the date of the making or
acquisiton of the proposed Investment (A) financial statements prepared on
a pro forma basis (consistent with Section 1.03(c) if applicable)
76
giving effect to such Investment for the period of four consecutive fiscal
quarters ending with the fiscal quarter then last ended for which
financial statements have been delivered pursuant to Section 6.01 and (B)
a certificate of a Responsible Officer prepared on a pro forma basis
(consistent with Section 1.03(c) if applicable) giving effect to such
Investment and demonstrating compliance with the Enhanced Performance
Condition; and
(iii) if any such Investment is an Acquisition, the following
additional conditions must be satisfied:
(A) the Person to be acquired is not engaged in any material
line of business substantially different from those lines of
business conducted by the Company and its Subsidiaries on the date
hereof or any business substantially related or incidental thereto;
(B) the board of directors and (if required by applicable law)
the shareholders, or the equivalent thereof, of each of the Company
or the applicable Subsidiary and of the Person to be acquired has
approved such Acquisition; and
(C) any Indebtedness directly or indirectly incurred or
assumed in connection with such Acquisition shall have been
permitted to be incurred or assumed pursuant to Section 7.03; and
(D) if one or more additional Material Subsidiaries are
created in connection with, or result from the consummation of, such
Acquisition, the Company shall deliver or cause to be delivered to
the Administrative Agent a supplement to Schedule 5.19 setting forth
the Subsidiaries of the Company necessary to make the representation
and warranty set forth in Section 5.19 true and correct after giving
effect to such Acquisition and each of the Subsidiary Guaranty and
related documents described by Section 6.13 with respect to such
additional Material Subsidiaries.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness reflected on the consolidated balance sheet included in
the Company's quarterly report on Form 10-Q for the quarter ended March 31, 2005
(other than Indebtedness in respect of the Existing Credit Agreement) and
Indebtedness incurred since March 31, 2005 outstanding on the date hereof and
listed on Schedule 7.03 and any refinancings, refundings, renewals or extensions
thereof; provided that (i) the amount of such Indebtedness is not increased at
the time of such refinancing, refunding, renewal or extension except by an
amount equal to a reasonable premium or other reasonable amount paid, and fees
and expenses reasonably incurred, in connection with such refinancing and by an
amount equal to any existing commitments unutilized thereunder and (ii) the
terms relating to principal amount, amortization, maturity, collateral (if any)
and subordination (if any), and other material terms taken as a whole, of any
such refinancing, refunding, renewing or extending Indebtedness, and of any
agreement
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entered into and of any instrument issued in connection therewith, are no less
favorable in any material respect to the Company and its Subsidiaries, in the
Company's reasonable judgment, than the terms of any agreement or instrument
governing the Indebtedness being refinanced, refunded, renewed or extended and
the interest rate applicable to any such refinancing, refunding, renewing or
extending Indebtedness does not exceed the then applicable market interest rate;
(c) Guarantees of the Company or any Subsidiary Guarantor in respect of
Indebtedness otherwise permitted hereunder of the Company or any other
Subsidiary Guarantor;
(d) obligations (contingent or otherwise) of the Company or any Subsidiary
existing or arising under any Swap Contract, provided that (i) such obligations
are (or were) entered into by such Person in the ordinary course of business for
the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably anticipated by
such Person, or changes in the value of securities issued by such Person, and
not for purposes of speculation or taking a "market view;" and (ii) such Swap
Contract does not contain any provision exonerating the non-defaulting party
from its obligation to make payments on outstanding transactions to the
defaulting party;
(e) intercompany Indebtedness permitted under Section 7.02;
(f) if an Enhanced Performance Noncompliance Date has occurred and an
Enhanced Performance Restoration Date has not yet occurred with respect to such
Enhanced Performance Noncompliance Date, other Indebtedness not otherwise
permitted under this Section 7.03 in an aggregate amount not to exceed
$30,000,000 incurred from such Enhanced Performance Noncompliance Date until
occurrence of an Enhanced Performance Restoration Date, provided, that, no
Default or Event of Default shall have occurred and be continuing at the date of
the incurrence or assumption of any such Indebtedness; and
(g) if the Enhanced Performance Condition is satisfied, other Indebtedness
not otherwise permitted under this Section 7.03; provided, that each of the
following conditions are satisfied:
(i) no Default or Event of Default shall have occurred and be
continuing at the date of the incurrence or assumption of such
Indebtedness;
(ii) in the case of the incurrence or assumption of Indebtedness
having a principal amount in excess of $50,000,000, the Company shall have
delivered to the Administrative Agent on or prior to the date of such
incurrence or assumption (A) financial statements prepared on a pro forma
basis (consistent with Section 1.03(c) if applicable) giving effect to
such Indebtedness for the period of four consecutive fiscal quarters
ending with the fiscal quarter then last ended for which financial
statements have been delivered pursuant to Section 6.01 and (B) a
certificate of a Responsible Officer prepared on a pro forma basis
(consistent with Section 1.03(c) if applicable) giving effect to such
Indebtedness demonstrating compliance with Enhanced Performance Condition.
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate
with or into another Person, or Dispose of (whether in one transaction or in a
series of transactions) all or
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substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person, or agree to or effect any Acquisition, except that, so
long as no Default exists or would result therefrom:
(a) any Subsidiary may liquidate or dissolve voluntarily into, and merge
with and into (i) the Company, provided that the Company shall be the continuing
or surviving Person, or (ii) any one or more other Subsidiaries, provided that
(x) when any Designated Borrower is liquidating or dissolving into, or merging
with and into, another Subsidiary, a Designated Borrower shall be the continuing
or surviving Person and (y) when any Subsidiary Guarantor is liquidating or
dissolving into, or merging with and into, another Subsidiary, a Subsidiary
Guarantor shall be the continuing or surviving Person;
(b) any Subsidiary (other than any Designated Borrower) may Dispose of all
or substantially all of its assets (upon voluntary liquidation or otherwise) to
the Company or to another Subsidiary; provided that if the transferor in such a
transaction is a Subsidiary Guarantor, then the transferee must either be the
Company or a Subsidiary Guarantor; and
(c) the Company or any Subsidiary may consummate any Permitted
Acquisition.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement
to make any Disposition, except:
(a) Dispositions of unused, obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such
property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Company or to a
wholly-owned Subsidiary; provided that if the transferor of such property is a
Subsidiary Guarantor, the transferee thereof must be an entity in which such
Subsidiary Guarantor may make an Investment pursuant to Section 7.02(d), (e) or
(i), such Dispositions shall be treated as Investments under such section and
such Investments must be permitted thereunder;
(e) Dispositions of accounts receivable in connection with the collection
or compromise of such accounts receivable in the ordinary course of business;
(f) Dispositions permitted by Section 7.04;
(g) non-exclusive licenses of IP Rights in the ordinary course of business
and substantially consistent with past practice for terms not exceeding five
years;
(h) Dispositions constituting a swap/exchange of assets for similar assets
(although not necessarily serving the same geographical area), provided that (i)
the net book value of the
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assets so Disposed in any transaction or series of related transactions does not
exceed $50,000,000 over the term of this Agreement and (ii) any cash paid (or
Indebtedness assumed) by the Company or any of its Subsidiaries in connection
with such swap/exchange shall reduce dollar-for-dollar the amount set forth in
clause (i)(ii) below; and
(i) Dispositions by the Company and its Subsidiaries not otherwise
permitted under this Section 7.05; provided, that (i) the consideration received
by the Company or applicable Subsidiary consists of at least 75% cash and (ii)
the net book value of the assets to be Disposed, together with the net book
value of all other assets Disposed of pursuant to this clause (i), does not
exceed $50,000,000 over the term of this Agreement;
provided, however, that any Disposition pursuant to clauses (a) through (i)
shall be for fair market value.
7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so, except that, so long as no Default shall have occurred and be continuing at
the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Company, the
Subsidiary Guarantors and any other Person that owns an Equity Interest in such
Subsidiary, ratably according to their respective holdings of the type of Equity
Interest in respect of which such Restricted Payment is being made;
(b) the Company and each Subsidiary may declare and make dividend payments
or other distributions payable solely in the common stock or other common Equity
Interests of such Person;
(c) the Company and each Subsidiary may purchase, redeem or otherwise
acquire Equity Interests issued by it with the proceeds received from the
substantially concurrent issue of new shares of its common stock or other common
Equity Interests;
(d) if an Enhanced Performance Noncompliance Date has occurred and an
Enhanced Performance Restoration Date has not yet occurred with respect to such
Enhanced Performance Noncompliance Date, the Company and each Subsidiary may
declare, pay and make other Restructed Payments consisting of dividends,
repurchases or redemptions with respect to the Company's Equity Interests not
otherwise permitted under this Section 7.06 in an aggregate amount not to exceed
$30,000,000 incurred from such Enhanced Performance Noncompliance Date until
occurrence of an Enhanced Performance Restoration Date, provided, that, no
Default or Event of Default shall have occurred and be continuing at the date of
the declaration or payment thereof; and
(e) if the Enhanced Performance Condition is satisfied, the Company and
each Subsidiary may declare, pay and make Restricted Payments consisting of
dividends, repurchases or redemptions with respect to the Company's Equity
Interests not otherwise permitted by this Section 7.06; provided, that each of
the following conditions are satisfied:
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(i) no Default or Event of Default shall have occurred and be
continuing at the date of declaration or payment thereof; and
(ii) if, after giving effect to any proposed Restricted Payment, the
Company and its Subsidiaries shall have made more than $50,000,000 in the
aggregate in Restricted Payments during the period beginning 90 calendar
days before the date of such proposed Restricted Payment and ending on the
date of such proposed Restricted Payment, the Company shall have delivered
to the Administrative Agent on or prior to the date of such Restricted
Payment (A) financial statements prepared on a pro forma basis giving
effect to such Restricted Payment for the period of four consecutive
fiscal quarters ending with the fiscal quarter then last ended for which
financial statements have been delivered pursuant to Section 6.01 and (B)
a certificate of a Responsible Officer prepared on a pro forma basis
giving effect to such Restricted Payment demonstrating compliance with the
Enhanced Performance Condition.
7.07 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from those lines of business conducted by the
Company and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto.
7.08 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any
kind with any Affiliate of the Company, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the Company or such Subsidiary as would be obtainable by the Company or such
Subsidiary at the time in a comparable arm's length transaction with a Person
other than an Affiliate; provided, that the foregoing restrictions shall not
apply to transactions between or among the Company and its Subsidiaries which
are expressly permitted under the other sections of this Article VII.
7.09 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document) that (a) limits the
ability (i) of any Subsidiary to make Restricted Payments to the Company or any
Loan Party or to otherwise transfer property to the Company or any Loan Party,
(ii) of any Subsidiary to Guarantee the Indebtedness of the Company or (iii) of
the Company or any Subsidiary to create, incur, assume or suffer to exist Liens
on property of such Person; provided, however, that this clause (iii) shall not
prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness in respect of capital leases and purchase money obligations for
fixed or capital assets solely to the extent any such negative pledge relates to
the property financed by or the subject of such Indebtedness and such
transactions are otherwise permitted under Sections 7.01 and 7.03; or (b)
requires the grant of a Lien to secure an obligation of such Person if a Lien is
granted to secure another obligation of such Person.
7.10 USE OF PROCEEDS. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to (i) other than to the extent permitted under Section 7.06 with
respect to repurchases of Equity Interests of the Company, purchase or carry
margin stock (within the meaning of Regulation U of the FRB) or to extend credit
to others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose or (ii) solely with respect to
the Initial Designated Borrower, to refinance any Indebtedness incurred or
assumed by the Initial
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Designated Borrower to finance, directly or indirectly, the acquisition of
shares in the Initial Designated Borrower or any of its Subsidiaries.
7.11 FINANCIAL COVENANTS.
(a) CONSOLIDATED INTEREST COVERAGE RATIO. Permit the Consolidated Interest
Coverage Ratio as of the end of any fiscal quarter of the Company to be less
than 3.00 to 1.00
(b) CONSOLIDATED LEVERAGE RATIO. Permit the Consolidated Leverage Ratio at
any time to be greater than 3.00 to 1.00.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an
Event of Default:
(a) Non-Payment. Any Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, and in the currency required hereunder,
any amount of principal of any Loan or any L/C Obligation, or (ii) within three
days after the same becomes due, any interest on any Loan or on any L/C
Obligation, or any fee due hereunder, or (iii) within five days after the same
becomes due, any other amount payable hereunder or under any other Loan
Document; or
(b) Specific Covenants. The Company fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.10,
6.11, or 6.13 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Company or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading when made or deemed made; or
(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts) having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to observe
or perform any other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
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the giving of notice if required, such Indebtedness to be demanded or to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (A) any event of default under such Swap
Contract as to which the Company or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which the Company or any Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap Termination Value
owed by the Company or such Subsidiary as a result thereof is greater than the
Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any Material Subsidiary
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Company or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or execution
or similar process is issued or levied against all or any material part of the
property of any such Person and is not released, vacated or fully bonded within
30 days after its issue or levy; or
(h) Judgments. There is entered against the Company or any Subsidiary (i)
a final judgment or order for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 30 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $2,500,000,
or (ii) the Company or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any installment payment with respect
to its withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of $2,500,000; or
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(j) Invalidity of Loan Documents. Any provision of any Loan Document, at
any time after its execution and delivery and for any reason other than as
expressly permitted hereunder or satisfaction in full of all the Obligations,
ceases to be in full force and effect; or any Loan Party or any other Person
contests in any manner the validity or enforceability of any provision of any
Loan Document; or any Loan Party denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
any provision of any Loan Document;
(k) Change of Control. There occurs any Change of Control; or
(l) Regulatory Action. Any Governmental Authority shall take any action
with respect to the Company or any of its Subsidiaries (including any action
that would cause any license, permit, consent or other authorization to cease to
be in full force and effect or to be held to be illegal or invalid and including
any action (including the commencement of an action or proceeding) that results
or may result in the revocation, termination, withdrawal, suspension or
substantial and adverse modification of any such license, permit, consent or
other authorization) which would have a Material Adverse Effect, unless such
action is set aside, dismissed or withdrawn within 60 days of its institution or
such action is being contested in good faith and its effect is stayed during
such contest.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs
and is continuing, the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the following
actions:
(a) declare the Commitment of each Lender to make Loans and any obligation
of each L/C Issuer to make L/C Credit Extensions to be terminated, whereupon
such Commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrowers;
(c) require that the Company Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
each 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 Company 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.
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8.03 APPLICATION OF FUNDS. After the exercise of remedies provided
for in Section 8.02 (or after the Loans have automatically become immediately
due and payable and the L/C Obligations have automatically been required to be
Cash Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal, interest, Letter of Credit
Fees and amounts owing under Guaranteed Swap Contracts) payable to the Lenders
and the L/C Issuers (including fees, charges and disbursements of counsel to the
respective Lenders and the L/C Issuers (including fees and time charges for
attorneys who may be employees of any Lender or any L/C Issuer) and amounts
payable under Article III), ratably among them in proportion to the respective
amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and
other Obligations, ratably among the Lenders and the L/C Issuers in proportion
to the respective amounts described in this clause Third payable to them;
Fourth, to payment of (i) that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings and (ii) that portion of the
Obligations constituting amounts owing under Guaranteed Swap Contracts, ratably
among the Lenders (and Affiliates thereof) and the L/C Issuers in proportion to
the respective amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuers, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit in proportion to the respective amounts
described in this clause Fifth held by the L/C Issuers; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Company or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORITY.
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Each of the Lenders and the L/C Issuers hereby irrevocably appoints Bank
of America to act on its behalf as the Administrative Agent hereunder and under
the other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article
are solely for the benefit of the Administrative Agent, the Lenders and the L/C
Issuers, and no Borrower shall have rights as a third party beneficiary of any
of such provisions.
9.02 RIGHTS AS A LENDER. The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrowers or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have
any duties or obligations except those expressly set forth herein and in the
other Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to any of the Borrowers or
any of their respective Affiliates that is communicated to or obtained by
the Person serving as the Administrative Agent or any of its Affiliates in
any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Company, a
Lender or an L/C Issuer.
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The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or an L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or such L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such Lender
or such L/C Issuer prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Company), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. The Administrative Agent may perform any
and all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub agents appointed by the
Administrative Agent. The Administrative Agent and any such sub agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub agent and to the Related Parties of the
Administrative Agent and any such sub agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent
may at any time give notice of its resignation to the Lenders, the L/C Issuers
and the Company. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Company, to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C
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Issuers, appoint a successor Administrative Agent meeting the qualifications set
forth above; provided that if the Administrative Agent shall notify the Company
and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents (except that
in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the
retiring Administrative Agent shall continue to hold such collateral security
until such time as a successor Administrative Agent is appointed) and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
each L/C Issuer directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section). The fees payable by the
Company to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Company and such
successor. After the retiring Administrative Agent's resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as an L/C Issuer and Swing
Line Lender. Upon the acceptance of a successor's appointment as Administrative
Agent hereunder, (a) such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be
discharged from all of their respective duties and obligations hereunder or
under the other Loan Documents, and (c) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit.
9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender and each L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and each L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
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9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Sole Lead Bookrunner, the Arranger, the Syndication
Agent or any of the Co-Documentation Agents listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any of
the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or an L/C Issuer hereunder.
9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuers and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders, the L/C Issuers and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuers and the Administrative Agent under Sections 2.03(i) and
(j), 2.09 and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and each L/C Issuer to make such payments to the Administrative
Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the L/C Issuers, to pay to
the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections
2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
any L/C Issuer any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
9.10 GUARANTY MATTERS. The Lenders and the L/C Issuers irrevocably
authorize the Administrative Agent, to release any Subsidiary Guarantor from its
obligations under the Subsidiary Guaranty if such Person ceases to be a
Subsidiary as a result of a transaction permitted hereunder.
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Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release any
Subsidiary Guarantor from its obligations under a Guaranty pursuant to this
Section 9.10.
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 Company or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the Company or the applicable Loan
Party, as the case may be, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment (excluding mandatory prepayments) of principal, interest,
Unreimbursed Amount, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (v) of the second proviso to
this Section 10.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required Lenders shall
be necessary to amend the definition of "Default Rate" or to waive any
obligation of any Borrower to pay interest or Letter of Credit Fees at the
Default Rate;
(e) change Section 2.12, 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) amend Section 1.05 or Section 1.06 or the definition of "Alternative
Currency" without the written consent of each Lender;
(g) change the definition of "Applicable Percentage" or any provision
requiring the making of Loans or funding of L/C Borrowings or Swing Line
participations based on Applicable Percentages, without the consent of each
Lender;
(h) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder or any provision of this
Agreement requiring the consent or approval of a number of Lenders without the
written consent of each Lender; or
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(i) release the Company from the Company Guaranty or all or substantially
all of the value of the Subsidiary Guaranty or any other Guaranty (other than
the Company Guaranty) without the written consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuers in addition to the Lenders required above,
affect the rights or duties of the L/C Issuers under this Agreement or any
Issuer Document relating to any Letter of Credit issued or to be issued by it;
(ii) no amendment, waiver or consent shall, unless in writing and signed by the
Swing Line Lender in addition to the Lenders required above, affect the rights
or duties of the Swing Line Lender under this Agreement; (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document; (iv)
Section 10.06(h) may not be amended, waived or otherwise modified without the
consent of each Granting Lender all or any part of whose Loans are being funded
by an SPC at the time of such amendment, waiver or other modification; and (v)
the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Borrowers, the Administrative Agent, the L/C Issuers
or the Swing Line Lender, to the address, telecopier number, electronic
mail address or telephone number specified for such Person on Schedule
10.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuers hereunder may be delivered or furnished by
electronic communication (including e mail and Internet or intranet websites)
pursuant to procedures approved by the
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Administrative Agent, provided that the foregoing shall not apply to notices to
any Lender or the L/C Issuer pursuant to Article II if such Lender or such L/C
Issuer, as applicable, has notified the Administrative Agent that it is
incapable of receiving notices under such Article by electronic communication.
The Administrative Agent or the Company may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures
may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to any Borrower, any Lender, any L/C Issuer
or any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of any Borrower's or
the Administrative Agent's transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to any Borrower, any Lender, any L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrowers, the Administrative
Agent, the L/C Issuers and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the Company, the Administrative Agent, the L/C Issuers and the Swing
Line Lender. In addition, each Lender agrees to notify the Administrative Agent
from time to time to ensure that the Administrative Agent has on record (i) an
effective address,
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contact name, telephone number, telecopier number and electronic mail address to
which notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.
(e) Reliance by Administrative Agent, L/C Issuers and Lenders. The
Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Committed Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of any 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 Company shall indemnify the Administrative Agent, the L/C Issuers,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of any Borrower. All telephonic notices
to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender 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 provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Company shall pay (i) all reasonable out of
pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out of pocket expenses incurred by any L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all out of
pocket expenses incurred by the Administrative Agent, any Lender or any L/C
Issuer (including the reasonable fees, charges and disbursements of any counsel
for the Administrative Agent, any Lender or any L/C Issuer), and shall pay all
reasonable fees and time charges for attorneys who may be employees of the
Administrative Agent, any Lender or any L/C Issuer, in connection with the
enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including
all such out of pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Company. The Company shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and each L/C
Issuer, and each
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Related Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee),
and shall indemnify and hold harmless each Indemnitee from all reasonable fees
and time charges and disbursements for attorneys who may be employees of any
Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any
third party or by any Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder, the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Administrative Agent (and
any sub-agent thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the
use or proposed use of the proceeds therefrom (including any refusal by any L/C
Issuer to honor a demand for payment under a Letter of Credit issued by such L/C
Issuer if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or
operated by any Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to any Borrower or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory, whether brought by a third party or by the Company or any other Loan
Party, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Company or any other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if the Company or such
other Loan Party has obtained a final and nonappealable judgment in its favor on
such claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Company for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), any L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), such L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or any L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or such L/C Issuer
in connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, no Borrower shall assert, and hereby waives, any claim
against any Indemnitee,
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on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof. No Indemnitee referred to in subsection (b) above shall be liable for
any damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Agreement or the
other Loan Documents or the transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent and any L/C Issuer, the replacement of any Lender,
the termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of any Borrower is made to the Administrative Agent, any L/C Issuer or
any Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, such L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and each L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, in the applicable
currency of such recovery or payment. The obligations of the Lenders and the L/C
Issuers under clause (b) of the preceding sentence shall survive the payment in
full of the Obligations and the termination of this Agreement.
10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Borrower may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section, (iii) by way of pledge or
assignment of a security interest subject to the restrictions of subsection (f)
of this Section, or (iv) to an SPC in accordance with the provisions of
subsection (h) of this Section (and any other attempted assignment or transfer
by any party
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hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more 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 and in Swing Line 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) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject
to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than $5,000,000
unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Company otherwise consents
(each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single
Eligible Assignee (or to an Eligible Assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of determining
whether such minimum amount has been met;
(ii) 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 Swing
Line Loans;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent, the L/C Issuers and the Swing Line Lender (each such
approval not be be unreasonably withheld or delayed) unless the Person
that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount, if any, required as set
forth in Schedule 10.06, and the Eligible Assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
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Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, each Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrowers, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, 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 each of the Borrowers and the L/C Issuers at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or substantive change to
the Loan Documents is pending, any Lender may request and receive from the
Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, any Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Company or any of the Company's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
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 Borrowers, the
Administrative Agent, the Lenders and the L/C Issuers shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso
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to Section 10.01 that affects such Participant. Subject to subsection (e) of
this Section, each Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) Limitation upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Company'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 Company is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note(s), if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Special Purpose Funding Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Company (an "SPC")
the option to provide all or any part of any Committed Loan that such Granting
Lender would otherwise be obligated to make pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund any
Committed Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Committed Loan, the Granting
Lender shall be obligated to make such Committed Loan pursuant to the terms
hereof or, if it fails to do so, to make such payment to the Administrative
Agent as is required under Section 2.12(b)(ii). Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such option
shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrowers under this Agreement (including its obligations
under Section 3.04), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be liable, and
(iii) the Granting Lender shall for all purposes, including the approval of any
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amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Committed Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Committed Loan were made by such Granting Lender. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or join
any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof. Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the Company and the Administrative Agent and with the payment of a
processing fee in the amount of $2,500, assign all or any portion of its right
to receive payment with respect to any Committed Loan to the Granting Lender and
(ii) disclose on a confidential basis any non-public information relating to its
funding of Committed Loans to any rating agency, commercial paper dealer or
provider of any surety or Guarantee or credit or liquidity enhancement to such
SPC.
(i) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon 30 days' notice to the Company and the
Lenders, resign as an L/C Issuer and/or (ii) upon 30 days' notice to the
Company, resign as Swing Line Lender. In the event of any such resignation as an
L/C Issuer or Swing Line Lender, the Company shall be entitled to appoint from
among the Lenders (subject to such Lender's consent) a successor L/C Issuer or
Swing Line Lender hereunder; provided, however, that no failure by the Company
to appoint any such successor shall affect the resignation of Bank of America as
an L/C Issuer or Swing Line Lender, as the case may be. If Bank of America
resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and
duties of an L/C Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as an L/C Issuer and all
L/C Obligations with respect thereto (including the right to require the Lenders
to make Base Rate Committed Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Committed Loans or fund risk participations in outstanding
Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a
successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of
the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the
successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.
10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent, the Lenders and the L/C Issuers agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such
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Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to a Borrower and its obligations, (g) with the consent of the Company
or (h) to the extent such Information (x) becomes publicly available other than
as a result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender, any L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Company.
For purposes of this Section, "Information" means all information received
from the Company or any Subsidiary relating to the Company or any Subsidiary or
any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or any L/C Issuer on a
nonconfidential basis prior to disclosure by the Company or any Subsidiary,
provided that, in the case of information received from the Company or any
Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuers
acknowledges that (a) the Information may include material non-public
information concerning the Company or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
10.08 RIGHT OF SETOFF. If an Event of Default shall have occurred
and be continuing, each Lender, each L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, such L/C Issuer or any such Affiliate to or for the
credit or the account of any Borrower against any and all of the obligations of
such Borrower now or hereafter existing under this Agreement or any other Loan
Document to such Lender or such L/C Issuer, irrespective of whether or not such
Lender or such L/C Issuer shall have made any demand under this Agreement or any
other Loan Document and although such obligations of such Borrower may be
contingent or unmatured or are owed to a branch or office of such Lender or such
L/C Issuer different from the branch or office holding such deposit or obligated
on such indebtedness. The rights of each Lender, each L/C Issuer and their
respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, such L/C Issuer or
their respective Affiliates may have. Each Lender and each L/C Issuer agrees to
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notify the Company and the Administrative Agent promptly after any such setoff
and application, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the Company. In determining
whether the interest contracted for, charged, or received by the Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may
be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
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unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 REPLACEMENT OF LENDERS. If any Lender requests compensation
under Section 3.04, or if any Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.01, or if any Lender is a Defaulting Lender or if any
other circumstance exists hereunder that gives the Company the right to replace
a Lender as a party hereto, then the Company may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 10.06), all
of its interests, rights and obligations under this Agreement and the related
Loan Documents to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment), provided that:
(a) the Company shall have paid (or caused a Designated Subsidiary to pay)
to the Administrative Agent the assignment fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Company or applicable Designated Subsidiary (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Company to require such assignment and delegation
cease to apply.
10.14 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
(b) SUBMISSION TO JURISDICTION. EACH BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS SITTING IN XXXX COUNTY AND
OF THE UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF ILLINOIS, AND
ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT
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OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH ILLINOIS
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT
THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST ANY BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(c) WAIVER OF VENUE. EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act
(as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify
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and record information that identifies the Borrowers, which information includes
the name and address of each Borrower and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify such Borrower in
accordance with the Act.
10.17 JUDGMENT CURRENCY. If, for the purposes of obtaining judgment
in any court, it is necessary to convert a sum due hereunder or any other Loan
Document in one currency into another currency, the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative
Agent could purchase the first currency with such other currency on the Business
Day preceding that on which final judgment is given. The obligation of each
Borrower in respect of any such sum due from it to the Administrative Agent or
the Lenders hereunder or under the other Loan Documents shall, notwithstanding
any judgment in a currency (the "Judgment Currency") other than that in which
such sum is denominated in accordance with the applicable provisions of this
Agreement (the "Agreement Currency"), be discharged only to the extent that on
the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent may in
accordance with normal banking procedures purchase the Agreement Currency with
the Judgment Currency. If the amount of the Agreement Currency so purchased is
less than the sum originally due to the Administrative Agent from any Borrower
in the Agreement Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the
Person to whom such obligation was owing against such loss. If the amount of the
Agreement Currency so purchased is greater than the sum originally due to the
Administrative Agent in such currency, the Administrative Agent agrees to return
the amount of any excess to such Borrower (or to any other Person who may be
entitled thereto under applicable law).
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
STERICYCLE, INC., as the Company
By: /s/ Xxxxx X.X. ten Brink
-------------------------------------
Name: Xxxxx X.X. ten Xxxxx
Title: Executive Vice President and CFO
STERICYCLE INTERNATIONAL, LTD., as the
Initial Designated Borrower
By: /s/ Xxxxx X.X. ten Brink
-------------------------------------
Name: Xxxxx X.X. ten Xxxxx
Title: Director
BANK OF AMERICA, N.A., as a Lender, an
L/C Issuer and Swing Line Lender
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx, Xx.
Title: Managing Director
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
105
JPMORGAN CHASE BANK, N.A., as a Lender
and as Syndication Agent
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
FORTIS CAPITAL CORP., as a Lender and as
a Co-Documentation Agent
By: /s/ K. De Lathouwer
-------------------------------------
Name: K. De Lathouwer
Title: SVP
CALYON NEW YORK BRANCH, as a Lender and
as a Co-Documentation Agent
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
By: /s/ Xxx Xxxxx
-------------------------------------
Name: Xxx Xxxxx
Title: Director
106
UBS LOAN FINANCE LLC, as a Lender
By: /s/ Wilred V. Saint
-------------------------------------
Name: Xxxxxxx X. Saint
Title: Director
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
COMERICA BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX X.X., as a Lender
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Officer
107
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx X. Cavallari
-------------------------------------
Name: Xxxxxx X. Cavallari
Title: Vice President
FIFTH THIRD BANK (CHICAGO), as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxxx X. XxXxxxx
-------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President
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