SECOND AMENDED AND RESTATED CREDIT AGREEMENT Dated as of February 17, 2006 among INSITUFORM TECHNOLOGIES, INC., as Borrower, BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer, and The Other Lenders Party Hereto
Execution
Version
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
Dated
as of
February 17, 2006
among
INSITUFORM
TECHNOLOGIES, INC.,
as
Borrower,
BANK
OF
AMERICA, N.A.,
as
Administrative
Agent and
L/C
Issuer,
and
The
Other Lenders
Party Hereto
Table
of
Contents
Page
i
ii
| Counterparts; Integration; Effectiveness. |
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| Survival of Representations and Warranties. |
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| Severability. |
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| Governing Law; Jurisdiction; Etc. |
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| Waiver of Right to Trial by Jury. |
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| USA PATRIOT Act Notice. |
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| Time of the Essence. |
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| Oral Agreements. |
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SCHEDULES
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2.01
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Commitments and Applicable Percentages | |
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2.03
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Existing Letters of Credit | |
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5.06
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Litigation | |
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5.08
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Existing Liens | |
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5.09
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Environmental Matters | |
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5.13
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Subsidiaries and Other Equity Investments | |
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5.19
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Existing Indebtedness | |
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10.02
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Administrative Agent’s Office, Certain Addresses for Notices | |
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EXHIBITS
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|
A
|
Form of Committed Loan Notice | |
|
B
|
Form of Note | |
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C
|
Form of Compliance Certificate | |
|
D
|
Form of Assignment and Assumption | |
iii
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
(this“Agreement”)
is entered into
as of February 17, 2006, among INSITUFORM TECHNOLOGIES, INC., a Delaware
corporation (“Borrower”),
each lender from
time to time party hereto (collectively, “Lenders”
and individually,
a“Lender”),
and BANK OF
AMERICA, N.A., as Administrative Agent and L/C Issuer.
WHEREAS,
the
Borrower and Agent are parties to that certain Amended and Restated Credit
Agreement dated as of March 12, 2004, as amended by that certain First Amendment
to Credit Agreement dated as of March 16, 2005 (collectively, the “Existing
Credit Agreement”);
WHEREAS,
Borrower
has requested that Lenders provide a revolving credit and letter of credit
facility, and 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
Xxxxx.Xx
used in this
Agreement, the following terms shall have the meanings set forth
below:
“Administrative
Agent”
or “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 Agent’s
address and, as appropriate, account as set forth on Schedule
10.02,
or such other
address or account as Agent may from time to time notify Borrower and
Lenders.
“Administrative
Questionnaire”
means an
Administrative Questionnaire in a form supplied by 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.
“Agent
Fee
Letter”
has the meaning
specified in Section
2.09(b).
“Aggregate
Commitments”
means the
Commitments of all Lenders.
“Agreement”
means
this Second
Amended and Restated Credit Agreement.
“Applicable
Percentage” means
with respect
to any Lender at any time, the percentage (carried out to the ninth decimal
place) of the Aggregate Commitments represented by such Lender’s Commitment at
such time. If the commitment of each Lender to make Loans and the obligation
of
the L/C Issuer to make L/C Credit Extensions have been terminated pursuant
to
Section
8.02
or if the
Aggregate Commitments have expired, then the Applicable Percentage of each
Lender shall be determined based on the Applicable Percentage of such Lender
most recently in effect, giving effect to any subsequent assignments. The
initial Applicable Percentage of each Lender is set forth opposite the name
of
such Lender on Schedule
2.01
or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.
“Applicable
Rate”
means, from time
to time, the following percentages per annum, based upon the Consolidated
Leverage Ratio (as defined in the Note Purchase Agreements) as set forth in
the
most recent Compliance Certificate received by Agent pursuant to Section
6.02(b):
|
APPLICABLE
RATE
|
||||
|
Pricing
Level
|
Consolidated
Leverage Ratio
|
Base
Rate Loans
|
Eurodollar
Loans and
Letters
of Credit
|
Commitment
Fee
|
|
Level
V
|
>
2.5
to
1.0
|
0.00%
|
2.00%
|
0.250%
|
|
Level
IV
|
>
2.0
to
1.0 but < 2.5 to 1.0
|
0.00%
|
1.75%
|
0.225%
|
|
Level
III
|
>
1.5
to
1.0 but < 2.0 to 1.0
|
0.00%
|
1.50%
|
0.200%
|
|
Level
II
|
>
1.0
to
1.0 but < 1.5 to 1.0
|
0.00%
|
1.25%
|
0.175%
|
|
Level
I
|
<
1.0
to
1.0
|
0.00%
|
1.00%
|
0.175%
|
Any
increase or
decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective commencing on the 5th Business Day
immediately following the date a Compliance Certificate is delivered pursuant
to
Section
6.02(b);
provided,
however,
that if a
Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level V shall apply commencing on the 5th Business Day
following the date such Compliance Certificate was required to have been
delivered. The Applicable Rate in effect on the Closing Date shall be determined
based upon Pricing Level IV.
“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
Agent, in substantially the form of Exhibit
D
or any other form approved by Agent.
“Attributable
Indebtedness”
means,
on any
date, (a) in respect of any capital lease of any Person, the capitalized amount
thereof that would appear on a balance sheet of such Person prepared as of
such
date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the
relevant lease that would appear on a balance sheet of such Person prepared
as
of such date in accordance with GAAP if such lease were accounted for as a
capital lease.
“Audited
Financial Statements”
means
the audited
consolidated balance sheet of Borrower and its 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 Borrower
and its 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.
“Borrower”
has
the meaning
specified in the introductory paragraph hereto.
“Borrower
Materials”
has
the meaning
specified in Section
6.02.
“Borrowing”
means
a Committed
Borrowing.
“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
Administrative Agent’s Office is located and, if such day relates to any
Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits
are conducted by and between banks in the London interbank eurodollar market.
“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.
2
“Closing
Date”
means
the first
date all the conditions precedent in Section
4.01
are satisfied or
waived in accordance with Section
10.01.
“Code”
means
the
Internal Revenue Code of 1986.
“Commitment”
means,
as to
each Lender, its obligation to (a) make Committed Loans to Borrower pursuant
to
Section
2.01,
and (b) purchase
participations in L/C Obligations, in an aggregate principal amount at any
one
time outstanding not to exceed the amount set forth opposite such Lender’s name
on Schedule
2.01
or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.
“Committed
Borrowing”
means
a borrowing
consisting of simultaneous Committed Loans of the same Type and, in the case
of
Eurodollar Rate Loans, having the same Interest Period made by each of the
Lenders pursuant to Section
2.01.
“Committed
Loan”
has
the meaning
specified in Section
2.01.
“Committed
Loan
Notice”
means
a notice of
(a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type
to
the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to
Section
2.02(a),
which, if in
writing, shall be substantially in the form of
Exhibit
A.
“Compliance
Certificate”
means
a
certificate substantially in the form of Exhibit
C.
“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.
“Default
Rate”
means
(a) when
used with respect to Obligations other than L/C Fees an interest rate equal
to
(i) the Base Rate plus
(ii) the
Applicable Rate, if any, applicable to Base Rate Loans
plus
(iii) 2% per
annum; provided,
however,
that with respect
to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal
to
the interest rate (including any Applicable Rate) otherwise applicable to such
Loan plus 2% per annum, and (b) when used with respect to L/C 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 or participations
in L/C Obligations 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 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.
“Dollar”
and
“$”
mean
lawful money
of the United States.
“Eligible
Assignee”
means
(a) a
Lender; (b) an Affiliate of a Lender; and (c) any other Person (other than
a
natural person) approved by (i) Agent, and (ii) unless an Event of Default
has
occurred and is continuing, Borrower (each such approval not to be
3
unreasonably
withheld or delayed);
provided
that
notwithstanding the foregoing, “Eligible Assignee” shall not include Borrower or
any of Borrower’s Affiliates or Subsidiaries.
“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 Borrower,
any
other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of
any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release
or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
“Equity
Interests”
means,
with
respect to any Person, all of the shares of capital stock of (or other ownership
or profit interests in) such Person, all of the warrants, options or other
rights for the purchase or acquisition from such Person of shares of capital
stock of (or other ownership or profit interests in) such Person, all of the
securities convertible into or exchangeable for shares of capital stock of
(or
other ownership or profit interests in) such Person or warrants, rights or
options for the purchase or acquisition from such Person of such shares (or
such
other interests), and all of the other ownership or profit interests in such
Person (including partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights
or other interests are outstanding on any date of determination.
“ERISA”
means
the
Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate”
means
any trade
or business (whether or not incorporated) under common control with Borrower
within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m)
and
(o) of the Code for purposes of provisions relating to Section 412 of the
Code).
“ERISA
Event”
means
(a) a
Reportable Event with respect to a Pension Plan; (b) a withdrawal by Borrower
or
any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during
a plan year in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal
by Borrower or any ERISA Affiliate from a Multiemployer Plan or notification
that a Multiemployer Plan is in reorganization; (d) the filing of a notice
of
intent to terminate, the treatment of a Plan amendment as a termination under
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
Borrower or any ERISA Affiliate.
“Eurodollar
Base
Rate”
has
the meaning
specified in the definition of Eurodollar Rate.
“Eurodollar
Rate”
means
for any
Interest Period with respect to a Eurodollar Rate Loan, a rate per annum
determined by Agent pursuant to the following formula:
|
|
Eurodollar
Rate =
|
Eurodollar
Base Rate
|
|
|
1.00 −
Eurodollar Reserve Percentage
|
Where,
“Eurodollar
Base
Rate”
means,
for such Interest Period (rounded upwards, as necessary, to the nearest 1/100
of
1%) 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 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 Dollar deposits (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period. If such rate is not
available at such time for any reason, then the “Eurodollar
Base
Rate”
for
such Interest
Period (rounded upwards, as necessary, to the nearest 1/100 of 1%) shall be
the
rate per annum determined by Agent to be
4
the
rate at which
deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurodollar Rate Loan being
made,
continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America’s London Branch to major
banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
“Eurodollar
Reserve
Percentage” means, for any day during any Interest Period, the reserve
percentage (expressed as a decimal, carried out to five decimal places) in
effect on such day, whether or not applicable to any Lender, under regulations
issued from time to time by the Board of Governors of the Federal Reserve System
of the United States for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) with respect
to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”).
The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted
automatically as of the effective date of any change in the Eurodollar Reserve
Percentage.
“Eurodollar
Rate
Loan”
means
a Committed
Loan that bears interest at a rate based on the Eurodollar Rate.
“Event
of
Default”
has
the meaning
specified in Section
8.01.
“Excluded
Taxes”
means,
with
respect to Agent, any Lender, the L/C Issuer or any other recipient of any
payment to be made by or on account of any obligation of Borrower hereunder,
(a)
taxes imposed on or measured by its overall net income (however denominated),
and franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the laws of which
such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable Lending Office is located, and
(b)
any branch profits taxes imposed by the United States or any similar tax imposed
by any other jurisdiction in which Borrower is located.
“Existing
Letters
of Credit”
means
those
letters of credit issued on behalf of the Borrower in existence as of the
Closing Date and as set forth on Schedule
2.03
hereto.
“Federal
Funds
Rate”
means,
for any
day, the rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day; provided
that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so published
on
the next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day shall
be
the average rate (rounded upward, if necessary, to a whole multiple of 1/100
of
1%) charged to Bank of America on such day on such transactions as determined
by
Agent.
“FRB”
means
the Board
of Governors of the Federal Reserve System of the United States.
“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).
“Guarantee”
means,
as to any
Person, any (a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness
or
other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services
for
the purpose of assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or other
obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow
of
the primary obligor so as to enable
5
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.
“Guarantors”
means,
except for
Insituform (Netherlands) B.V., Inc., all domestic Subsidiaries of Borrower,
whether in existence at the Closing Date or as may become a Subsidiary at any
time during the period of this Agreement, and each of them shall be referred
to
herein as a “Guarantor”.
“Guaranty”
means
that
certain Master Guaranty of even date herewith made by the Guarantors, including
any Guarantor which shall join such Guaranty after the Closing Date and any
separate Guaranty which may be made by a Guarantor, in each case, in favor
of
Agent for the benefit of the Lenders, in form and substance satisfactory to
Agent.
“Hazardous
Materials”
means
all
explosive or radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances
or
wastes of any nature regulated pursuant to any Environmental Law.
“Indebtedness”
means,
as to any
Person at a particular time, without duplication, all of the following, whether
or not included as indebtedness or liabilities in accordance with
GAAP:
(a) all
obligations of
such Person for borrowed money and all obligations of such Person evidenced
by
bonds, debentures, notes, loan agreements or other similar
instruments;
(b) all
direct or
contingent obligations of such Person arising under letters of credit (including
standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;
(c) net
obligations of
such Person under any Swap Contract;
(d) all
obligations of
such Person to pay the deferred purchase price of property or services (other
than trade accounts payable in the ordinary course of business and, in each
case, not past due for more than 60 days after the date on which such trade
account payable was created);
(e) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;
(f) capital
leases and
Synthetic Lease Obligations;
(g) all
obligations of
such Person to purchase, redeem, retire, defease or otherwise make any payment
in respect of any Equity Interest in such Person or any other Person, valued,
in
the case of a redeemable preferred interest, at the greater of its voluntary
or
involuntary liquidation preference plus
accrued and 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.
6
“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.
“Intercreditor
Agreement”
means
that
certain Amended and Restated Intercreditor Agreement dated April 24, 2003
herewith by and among Bank of America and the Noteholders party thereto (as
each
such term is defined therein), as the same may be further amended, restated,
supplemented or otherwise modified form time to time.
“Interest
Payment
Date”
means,
(a) as to
any Loan other than a Base Rate Loan, the last day of each Interest Period
applicable to such Loan and the Maturity Date; provided,
however,
that if any
Interest Period for a Eurodollar Rate Loan exceeds three months, the respective
dates that fall every three months after the beginning of such Interest Period
shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the
last
Business Day of each March, June, September and December and the Maturity
Date.
“Interest
Period”
means,
as to each
Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate
Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and
ending on the date one, two, three or six months, as applicable thereafter,
as
selected by Borrower in its Committed Loan Notice; provided that:
(i) any
Interest Period
that would otherwise end on a day that is not a Business Day shall be extended
to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day;
(ii) any
Interest Period
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of
such Interest Period) shall end on the last Business Day of the calendar month
at the end of such Interest Period; and
(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, Borrower’s internal controls over financial reporting, in
each case as described in the Securities Laws.
“Investment”
means,
as to any
Person, any direct or indirect acquisition or investment by such Person, whether
by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to,
Guarantee or assumption of debt of, or purchase or other acquisition of any
other debt or equity participation or interest in, another Person, including
any
partnership or joint venture interest in such other Person and any arrangement
pursuant to which the investor Guarantees Indebtedness of such other Person,
or
(c) the purchase or other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute a business unit.
For
purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
“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 L/C Application, and any other document,
agreement and instrument entered into by the L/C Issuer and Borrower (or any
Subsidiary) or in favor of the 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.
7
“L/C
Advance”
means,
with
respect to each Lender, such Lender’s funding of its participation in any L/C
Borrowing in accordance with its Applicable Percentage.
“L/C
Application”
means
an
application and agreement for the issuance or amendment of a Letter of Credit
in
the form from time to time in use by the L/C Issuer.
“L/C
Borrowing”
means
an
extension of credit resulting from a drawing under any Letter of Credit which
has not been reimbursed on the date when made or refinanced as a Committed
Borrowing.
“L/C
Credit
Extension”
means,
with
respect to any Letter of Credit, the issuance thereof or extension of the expiry
date thereof, or the increase of the amount thereof.
“L/C
Expiration
Date”
means
April 30,
2008.
“L/C
Fee”
has
the meaning
specified in Section
2.03(i).
“L/C
Issuer”
means
Bank of
America in its capacity as issuer of Letters of Credit hereunder, or any
successor issuer of Letters of Credit hereunder.
“L/C
Obligations”
means,
as at any
date of determination, the aggregate amount available to be drawn under all
outstanding Letters of Credit plus
the aggregate of
all Unreimbursed Amounts, including all L/C Borrowings. For purposes of
computing the amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with
Section
1.06.
For all purposes
of this Agreement, if on any date of determination a Letter of Credit has
expired by its terms but any amount may still be drawn thereunder by reason
of
the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed
to
be “outstanding” in the amount so remaining available to be drawn.
“Lender”
has
the meaning
specified in the introductory paragraph hereto.
“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 Borrower and Agent.
“Letter
of
Credit”
means
any letter
of credit issued hereunder and shall include the Existing Letters of Credit.
A
Letter of Credit may be a commercial Letter of Credit or a standby Letter of
Credit.
“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 Borrower under Article
II
in the form of a Committed Loan.
“Loan
Documents”
means
this
Agreement, each Note, each Issuer Document, the Guaranty and the Agent Fee
Letter, along with such certificates, filings and additional agreements as
may
be required to effect each of the foregoing.
“Loan
Parties”
means,
collectively, Borrower and each Person (other than Agent, the L/C Issuer, or
any
Lender) executing a Loan Document including, without limitation, each
Guarantor.
“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) or prospects of Borrower or Borrower and its Subsidiaries taken
as
a whole; (b) a material impairment of the ability of any Loan Party to perform
its obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a
party.
“Maturity
Date”
means
April 30,
2008.
8
“Multiemployer
Plan”
means
any
employee benefit plan of the type described in Section 4001(a)(3) of ERISA,
to
which Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been
obligated to make contributions.
“Note”
means
a
promissory note made by Borrower in favor of a Lender evidencing Loans made
by
such Lender, substantially in the form of Exhibit
B.
“Note
Purchase
Agreement-1997”
means
the Note
Purchase Agreement dated February 14,1997, as amended to and including the
Closing Date, among Borrower and other parties signatory thereto under which
Borrower issued certain 7.88% Senior Notes, Series A, due February 14, 2007,
of
$110,000,000 aggregate principal amount, provided,
however,
that, except with
respect to Section
8.01(e)
of this Agreement
(which is a cross default to other Indebtedness, including the Note Purchase
Agreement-1997 as in effect from time to time), after the Closing Date, no
amendments to, or waivers of, the terms, conditions and definitions of the
Note
Purchase Agreement-1997 referred to or incorporated by reference herein shall
be
deemed to amend or waive such terms, conditions or definitions for purposes
of
this Agreement unless the Required Lenders separately agree or consent thereto
hereunder. The terms, conditions definitions referred to or incorporated by
reference herein will survive termination, restatement or cancellation of the
Note Purchase Agreement-1997 for purposes of this Agreement (other than
Section
8.01(e)).
“Note
Purchase
Agreement-2003”
means
the Note
Purchase Agreement dated April 24, 2003, as amended to and including the Closing
Date, among Borrower and other parties signatory thereto under which Borrower
issued certain 5.29% Senior Notes, Series 2003-A, due April 24, 2013, of
$65,000,000 aggregate principal amount, provided,
however,
that, except with
respect to Section
8.01(e)
of this Agreement
(which is a cross default to other Indebtedness, including the Note Purchase
Agreement-2003 as in effect from time to time), after the Closing Date, no
amendments to, or waivers of, the terms, conditions and definitions of the
Note
Purchase Agreement-2003 referred to or incorporated by reference herein shall
be
deemed to amend or waive such terms, conditions or definitions for purposes
of
this Agreement unless the Required Lenders separately agree or consent thereto
hereunder. The terms, conditions definitions referred to or incorporated by
reference herein will survive termination, restatement or cancellation of the
Note Purchase Agreement-2003 for purposes of this Agreement (other than
Section
8.01(e)).
“Note
Purchase
Agreements”
means
collectively Note Purchase Agreement-1997 and Note Purchase Agreement-2003,
and
each shall be referred to herein as a “Note
Purchase
Agreement”.
“Obligations”
means
all
advances to, and debts, liabilities, obligations, covenants and duties of,
any
Loan Party arising under any Loan Document 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, intangible 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 aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or
repayments of Committed Loans, as the case may be, occurring on such date;
and
(ii) with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the
L/C
Obligations as of such date, including as a result of any reimbursements by
Borrower of Unreimbursed Amounts.
“Participant”
has
the meaning
specified in Section
10.06(d).
9
“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 Borrower or any ERISA Affiliate or to which
Borrower or any ERISA Affiliate contributes or has an obligation to contribute,
or in the case of a multiple employer or other plan described in Section 4064(a)
of ERISA, has made contributions at any time during the immediately preceding
five plan years.
“Person”
means
any natural
person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other
entity.
“Plan”
means
any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by Borrower or, with respect to any such plan that is subject to
Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
“Platform”
has
the meaning
specified in Section
6.02.
“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 Borrower 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.
“Request
for
Credit Extension”
means
(a) with
respect to a Borrowing, conversion or continuation of Committed Loans, a
Committed Loan Notice, and (b) with respect to an L/C Credit Extension, a L/C
Application.
“Required
Lenders”
means,
as of any
date of determination, Lenders having more than 75% of the Aggregate Commitments
or, if the commitment of each Lender to make Loans and the obligation of the
L/C
Issuer to make L/C Credit Extensions have been terminated pursuant to
Section
8.02,
Lenders holding
in the aggregate more than 75% of the Total Outstandings (with the aggregate
amount of each Lender’s risk participation and funded participation in L/C
Obligations 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, chief financial officer, controller, treasurer,
assistant treasurer or general counsel 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 Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any such
capital stock or other Equity Interest or on account of any return of capital
to
Borrower’s stockholders, partners or members (or the equivalent Person
thereof).
“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
10
Public
Company
Accounting Oversight Board, as each of the foregoing may be amended and in
effect on any applicable date hereunder.
“Subordinated
Liabilities”
means
liabilities
subordinated to the Obligations in a manner acceptable to Agent in its sole
discretion.
“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 Borrower.
“Swap
Contract”
means
(a) any and
all rate swap transactions, basis swaps, credit derivative transactions, forward
rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond
index swaps or options or forward bond or forward bond price or forward bond
index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions,
currency swap transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any combination
of
any of the foregoing (including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any master
agreement, and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed
by,
any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master
Agreement”),
including any
such obligations or liabilities under any Master Agreement.
“Swap
Termination
Value”
means,
in respect
of any one or more Swap Contracts, after taking into account the effect of
any
legally enforceable netting agreement relating to such Swap Contracts, (a)
for
any date on or after the date such Swap Contracts have been closed out and
termination value(s) 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).
“Synthetic
Lease
Obligation”
means
the
monetary obligation of a Person under (a) a so-called synthetic, off-balance
sheet or tax retention lease, or (b) an agreement for the use or possession
of
property creating obligations that do not appear on the balance sheet of such
Person but which, upon the insolvency or bankruptcy of such Person, would be
characterized as the indebtedness of such Person (without regard to accounting
treatment).
“Taxes”
means
all present
or future taxes, levies, imposts, duties, deductions, withholdings, assessments,
fees or other charges imposed by any Governmental Authority, including any
interest, additions to tax or penalties applicable thereto.
“Total
Outstandings”
means
the
aggregate Outstanding Amount of all Loans and all L/C Obligations.
“Type”
means,
with
respect to a Committed Loan, its character as a Base Rate Loan or a Eurodollar
Rate Loan.
“Unfunded
Pension
Liability”
means
the excess
of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over
the current value of that Pension Plan’s assets, determined in accordance with
the assumptions used for funding the Pension Plan pursuant to Section 412 of
the
Code for the applicable plan year.
“United
States”
and
“U.S.”
mean
the United
States of America.
“Unreimbursed
Amount”
has
the meaning
specified in Section
2.03(c)(i).
11
1.02 Other
Interpretive Provisions. With
reference to
this Agreement and each other Loan Document, unless otherwise specified herein
or in such other Loan Document:
(a) The
definitions of
terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes”
and
“including”
shall
be deemed
to be followed by the phrase “without limitation.” The word “will”
shall
be
construed to have the same meaning and effect as the word “shall.” Unless the
context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall
be
construed to include such Person’s successors and assigns, (iii) the words
“herein,”
“hereof”
and
“hereunder,”
and
words of
similar import when used in any Loan Document, shall be construed to refer
to
such Loan Document in its entirety and not to any particular provision thereof,
(iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, the Loan Document in which such references appear, (v) any
reference to any law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any reference
to
any law or regulation shall, unless otherwise specified, refer to such law
or
regulation as amended, modified or supplemented from time to time, and (vi)
the
words “asset”
and
“property”
shall
be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
(b) In
the computation
of periods of time from a specified date to a later specified date, the word
“from”
means
“from
and
including;”
the
words
“to”
and
“until”
each
mean
“to
but excluding;”
and
the word
“through”
means
“to
and including.”
(c) Section
headings
herein and in the other Loan Documents are included for convenience of reference
only and shall not affect the interpretation of this Agreement or any other
Loan
Document.
1.03 Accounting
Terms. (a)
Generally.
All accounting
terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis, as
in
effect from time to time, applied in a manner consistent with that used in
preparing the Audited Financial Statements, except
as otherwise
specifically prescribed herein.
(b)
Changes
in
GAAP.
If at any time
any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either Borrower or the Required
Lenders shall so request, Agent, Lenders and Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required
Lenders); provided
that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) Borrower shall
provide to Agent and 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) Consolidation
of
Variable Interest Entities.
All references
herein to consolidated financial statements of Borrower and its Subsidiaries
or
to the determination of any amount for Borrower and its Subsidiaries on a
consolidated basis or any similar reference shall, in each case, be deemed
to
include each variable interest entity that the Borrower is required to
consolidate pursuant to FASB Interpretation No. 46 - Consolidation of Variable
Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such
variable interest entity were a Subsidiary as defined herein.
1.04 Rounding.
Any
financial
ratios required to be maintained by Borrower pursuant to this Agreement shall
be
calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such
ratio is expressed herein and rounding the result up or down to the nearest
number (with a rounding-up if there is no nearest number).
1.05 Times
of Day. Unless
otherwise
specified, all references herein to times of day shall be references to Central
time (daylight or standard, as applicable).
12
1.06 Letter
of Credit Amounts. Unless
otherwise
specified herein the amount of a Letter of Credit at any time shall be deemed
to
be the stated amount of such Letter of Credit in effect at such time;
provided,
however,
that with respect
to any Letter of Credit that, by its terms or the terms of any Issuer Document
related thereto, provides for one or more automatic increases in the stated
amount thereof, the amount of such Letter of Credit shall be deemed to be the
maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such
time.
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 Borrower from
time to time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such
Lender’s Commitment; provided,
however,
that after giving
effect to any Committed Borrowing, (i) the Total Outstandings shall not exceed
the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus
such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations shall
not
exceed such Lender’s Commitment. Within the limits of each Lender’s Commitment,
and subject to the other terms and conditions hereof, Borrower may borrow under
this Section
2.01,
prepay under
Section
2.05,
and reborrow
under this Section
2.01.
Committed Loans
may be Base Rate Loans or Eurodollar Rate Loans, as further provided
herein.
2.02 Borrowings,
Conversions and Continuations of Committed
Loans. (a)
Each Committed
Borrowing, each conversion of Committed Loans from one Type to the other, and
each continuation of Eurodollar Rate Loans shall be made upon Borrower’s
irrevocable notice to Agent, which may be given by telephone. Each such notice
must be received by Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation
of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base
Rate Committed Loans, and (ii) on the requested date of any Borrowing of Base
Rate Committed Loans. Each telephonic notice by Borrower pursuant to this
Section
2.02(a)
must be confirmed
promptly by delivery to Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of Borrower. Each Borrowing of,
conversion to or continuation of Eurodollar Rate Loans shall be in a principal
amount of $250,000 or a whole multiple of $50,000 in excess thereof. Except
as
provided in Sections
2.03(c),
each Borrowing of
or conversion to Base Rate Committed Loans shall be in a principal amount of
$100,000 or a whole multiple of $50,000 in excess thereof. Each Committed Loan
Notice (whether telephonic or written) shall specify (i) whether Borrower is
requesting a Committed Borrowing, a conversion of Committed Loans from one
Type
to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested
date of the Borrowing, conversion or continuation, as the case may be (which
shall be a Business Day), (iii) the principal amount of Committed Loans to
be
borrowed, converted or continued, (iv) the Type of Committed Loans to be
borrowed or to which existing Committed Loans are to be converted, and (v)
if
applicable, the duration of the Interest Period with respect thereto. If
Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice
or
if Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall be made as, or converted
to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall
be
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurodollar Rate Loans. If Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Committed
Loan Notice, but fails to specify an Interest Period, it will be deemed to
have
specified an Interest Period of one month.
(b) Following
receipt
of a Committed Loan Notice, Agent shall promptly notify each Lender of the
amount of its Applicable Percentage of the applicable Committed Loans, and
if no
timely notice of a conversion or continuation is provided by Borrower, Agent
shall notify each Lender of the details of any automatic conversion to Base
Rate
Loans described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available
to
Agent in immediately available funds at Administrative Agent’s Office not later
than 1:00 p.m. on the Business Day specified in the applicable Committed Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section
4.02
(and, if such
Borrowing is the initial Credit Extension, Section
4.01),
Agent shall make
all funds so received available to Borrower in like funds as received by Agent
either by (i) crediting the account of 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)
Agent
by Borrower; provided,
however,
that if, on the
date the Committed Loan Notice with respect to such Borrowing is given by
Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Borrowing first,
shall be applied,
to the payment in full of any such L/C Borrowings, and second,
shall be made
available to Borrower as provided above.
(c) Except
as otherwise
provided herein, a Eurodollar Rate Loan may be continued or converted only
on
the last day of an Interest Period for such Eurodollar Rate Loan. During the
existence of a Default, no Loans may be requested as, converted to
or
13
continued
as
Eurodollar Rate Loans without the consent of the Required Lenders, and the
Required Lenders may demand that any or all of the then outstanding Eurodollar
Rate Loans be converted immediately to Base Rate Committed Loans and Borrower
agrees to pay all amounts due under Section
3.05
in accordance with
the terms thereof due to any such conversion.
(d) Agent
shall
promptly notify Borrower and Lenders of the interest rate applicable to any
Interest Period for Eurodollar Rate Loans upon determination of such interest
rate.
(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 five Interest Periods in effect with respect to Committed
Loans.
2.03 Letters
of Credit. (a)
The
Letter of
Credit Commitment.
(i)
Subject
to the
terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance
upon the agreements of the other 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
L/C
Expiration Date, to issue Letters of Credit for the account of Borrower, 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 Borrower and any drawings thereunder;
provided
that after giving
effect to any L/C Credit Extension with respect to any Letter of Credit, (x)
the
Total Outstandings shall not exceed the Aggregate Commitments, or (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 shall
not
exceed such Lender’s Commitment. Each request by Borrower for the issuance or
amendment of a Letter of Credit shall be deemed to be a representation by
Borrower that the L/C Credit Extension so requested complies with the conditions
set forth in the proviso to the preceding sentence. Within the foregoing limits,
and subject to the terms and conditions hereof, Borrower’s ability to obtain
Letters of Credit shall be fully revolving, and accordingly Borrower may, during
the foregoing period, obtain Letters of Credit to replace Letters of Credit
that
have expired or that have been drawn upon and reimbursed. Except as set forth
on
Schedule
2.03
hereto, there are
no Existing Letters of Credit outstanding as of the Closing Date. All Existing
Letters of Credit shall be deemed to have been issued pursuant hereto, and
from
and after the Closing Date shall be subject to and governed by the terms and
conditions hereof.
(ii)
The
L/C Issuer
shall not issue any Letter of Credit, if:
(A)
subject to
Section
2.03(b)(iv),
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; provided, that the foregoing restriction shall not apply
to
Letter of Credit #705264 in the face amount of $25,000 in favor of City of
Chicago, Department of Transportation; or
(B) the
expiry date of
such requested Letter of Credit would occur after the L/C Expiration Date,
unless all the Lenders have approved such expiry date; provided, that the
foregoing restriction shall not apply to Letter of Credit #705264 in the face
amount of $25,000 in favor of City of Chicago, Department of
Transportation.
(iii)
The
L/C Issuer
shall be under no obligation to issue any Letter of Credit if:
(A)
any
order, judgment
or decree of any Governmental Authority or arbitrator shall by its terms purport
to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or
any
Law applicable to the L/C Issuer or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction
over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from,
the
issuance of letters of credit generally or such Letter of Credit in particular
or shall impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was
not
applicable on the Closing Date and which the L/C Issuer in good xxxxx xxxxx
material to it;
(B)
the
issuance of
such Letter of Credit would violate one or more policies of the L/C Issuer;
(C)
except as
otherwise agreed by Agent and the L/C Issuer, such Letter of Credit is in an
initial stated amount less than $25,000, in the case of a commercial Letter
of
Credit, or $25,000, in the case of a standby Letter of Credit;
14
(D)
such
Letter of
Credit is to be denominated in a currency other than Dollars;
(E)
a
default of any
Lender’s obligations to fund under Section
2.03(c)
exists or any
Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer
has
entered into satisfactory arrangements with Borrower or such Lender to eliminate
the L/C Issuer’s risk with respect to such Lender; or
(F)
unless
specifically
provided for in this Agreement, such Letter of Credit contains any provisions
for automatic reinstatement of the stated amount after any drawing thereunder.
(iv)
The
L/C Issuer
shall not amend any Letter of Credit if the L/C Issuer would not be permitted
at
such time to issue such Letter of Credit in its amended form under the terms
hereof.
(v)
The
L/C Issuer
shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer
would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter
of
Credit does not accept the proposed amendment to such Letter of
Credit.
(vi)
The
L/C Issuer
shall act on behalf of the Lenders with respect to any Letters of Credit issued
by it and the documents associated therewith, and the L/C Issuer shall have
all
of the benefits and immunities (A) provided to 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” or “Agent” as used in Article
IX
included the L/C Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to the L/C Issuer.
(b) Procedures
for
Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.
(i)
Each Letter of
Credit shall be issued or amended, as the case may be, upon the request of
Borrower delivered to the L/C Issuer (with a copy to Agent) in the form of
a L/C
Application, appropriately completed and signed by a Responsible Officer of
Borrower. Such L/C Application must be received by the L/C Issuer and Agent
not
later than 11:00 a.m. at least two Business Days (or such later date and time
as
Agent and the L/C Issuer may agree in a particular instance in their sole
discretion) prior to the proposed issuance date or date of amendment, as the
case may be. In the case of a request for an initial issuance of a Letter of
Credit, such L/C Application shall specify in form and detail satisfactory
to
the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount thereof; (C) the expiry date
thereof; (D) the name and address of the beneficiary thereof; (E) the documents
to be presented by such beneficiary in case of any drawing thereunder; (F)
the
full text of any certificate to be presented by such beneficiary in case of
any
drawing thereunder; and (G) such other matters as the L/C Issuer may require.
In
the case of a request for an amendment of any outstanding Letter of Credit,
such
L/C Application shall specify in form and detail satisfactory to the L/C Issuer
(A) the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may require.
Additionally, Borrower shall furnish to the L/C Issuer and Agent such other
documents and information pertaining to such requested Letter of Credit issuance
or amendment, including any Issuer Documents, as the L/C Issuer or Agent may
require.
(ii)
Promptly
after
receipt of any L/C Application at the address set forth in Section
10.02
for receiving L/C
Applications and related correspondence, the L/C Issuer will confirm with Agent
(by telephone or in writing) that Agent has received a copy of such L/C
Application from Borrower and, if not, the L/C Issuer will provide Agent with
a
copy thereof. Unless the L/C Issuer has received written notice from any Lender,
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 in Article
IV
shall not then be satisfied, then, subject to the terms and conditions hereof,
the L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of Borrower or enter into the applicable amendment, as the case may
be,
in each case in accordance with the L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the L/C Issuer a 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)
Promptly
after its
delivery of any Letter of Credit or any amendment to a Letter of Credit to
an
advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer
will also deliver to Borrower and Agent a true and complete copy of such Letter
of Credit or amendment.
15
(iv)
If
Borrower so
requests in any applicable L/C Application, the L/C Issuer may, in its sole
and
absolute discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an “Auto-Extension
Letter of Credit”);
provided that
any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent
any such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving 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 L/C Issuer, Borrower shall not be
required to make a specific request to the L/C Issuer for any such extension.
Once an Auto-Extension Letter of Credit has been issued, the Lenders shall
be
deemed to have authorized (but may not require) the L/C Issuer to permit the
extension of such Letter of Credit at any time to an expiry date not later
than
the L/C Expiration Date; provided, however, that the L/C Issuer shall not permit
any such extension if (A) the L/C Issuer has determined that it would not be
permitted, or would have no obligation, at such time to issue such Letter of
Credit in its revised form (as extended) under the terms hereof (by reason
of
the provisions of clause (ii) or (iii) of Section
2.03(a)
or otherwise), or
(B) it has received notice (which may be by telephone or in writing) on or
before the day that is five Business Days before the Non-Extension Notice Date
(1) from Agent that the Required Lenders have elected not to permit such
extension or (2) from Agent, any Lender or Borrower that one or more of the
applicable conditions specified in Section
4.02
is not then
satisfied, and in each such case directing the L/C Issuer not to permit such
extension.
(v)
If
Borrower so
requests in any applicable Letter of Credit Application, the L/C Issuer may,
in
its sole and absolute discretion, agree to issue a Letter of Credit that permits
the automatic reinstatement of all or a portion of the stated amount thereof
after any drawing thereunder (each, an “Auto-Reinstatement
Letter of Credit”).
Unless
otherwise directed by the L/C Issuer, Borrower shall not be required to make
a
specific request to the L/C Issuer to permit such reinstatement. Once an
Auto-Reinstatement Letter of Credit has been issued, except as provided in
the
following sentence, the Lenders shall be deemed to have authorized (but may
not
require) the L/C Issuer to reinstate all or a portion of the stated amount
thereof in accordance with the provisions of such Letter of Credit.
Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit
permits the L/C Issuer to decline to reinstate all or any portion of the stated
amount thereof after a drawing thereunder by giving notice of such
non-reinstatement within a specified number of days after such drawing (the
“Non-Reinstatement
Deadline”),
the L/C Issuer
shall not permit such reinstatement if it has received a notice (which may
be by
telephone or in writing) on or before the day that is five Business Days before
the Non-Reinstatement Deadline (A) from Agent that the Required Lenders have
elected not to permit such reinstatement or (B) from Agent, any Lender or
Borrower that one or more of the applicable conditions specified in Section
4.02
is not then
satisfied (treating such reinstatement as an L/C Credit Extension for purposes
of this clause) and, in each case, directing the L/C Issuer not to permit such
reinstatement.
(c) Drawings
and
Reimbursements; Funding of Participations.
(i)
Upon
receipt from
the beneficiary of any Letter of Credit of any notice of a drawing under such
Letter of Credit, the L/C Issuer shall notify Borrower and Agent thereof. Not
later than 11:00 a.m. on the date of any payment by the L/C Issuer under a
Letter of Credit (each such date, an “Honor
Date”),
Borrower shall
reimburse the L/C Issuer through Agent in an amount equal to the amount of
such
drawing. If Borrower fails to so reimburse the L/C Issuer by such time, Agent
shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed
Amount”),
and the amount
of such Lender’s Applicable Percentage thereof. In such event, Borrower shall be
deemed to have requested a Committed Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section
2.02
for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized portion
of the Aggregate Commitments and the conditions set forth in Section
4.02
(other than the
delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or
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 Agent for the account of the L/C Issuer at the Administrative
Agent’s Office in an amount equal to its Applicable Percentage of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified
in
such notice by 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 Borrower in such amount. Agent shall remit the funds so received to the
L/C
Issuer.
(iii)
With
respect to any
Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of
Base Rate Loans because the conditions set forth in Section
4.02
cannot be
satisfied or for any other reason, Borrower shall be deemed to have incurred
from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount
that is not so refinanced, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the Default Rate.
In
such
16
event,
each
Lender’s payment to Agent for the account of the L/C Issuer pursuant to
Section
2.03(c)(ii)
shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section
2.03.
(iv)
Until
each Lender
funds its Committed Loan or L/C Advance pursuant to this Section
2.03(c)
to reimburse the
L/C Issuer for any amount drawn under any Letter of Credit, interest in respect
of such Lender’s Applicable Percentage of such amount shall be solely for the
account of the L/C Issuer.
(v)
Each
Lender’s
obligation to make Committed Loans or L/C Advances to reimburse the L/C Issuer
for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c),
shall be absolute
and unconditional and shall not be affected by any circumstance, including
(A)
any setoff, counterclaim, recoupment, defense or other right which such Lender
may have against the L/C Issuer, Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the
foregoing;
provided,
however,
that each
Lender’s obligation to make Committed Loans pursuant to this Section
2.03(c)
is subject to the
conditions set forth in Section
4.02
(other than
delivery by Borrower of a Committed Loan Notice). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided
herein.
(vi)
If
any Lender fails
to make available to Agent for the account of the L/C Issuer any amount required
to be paid by such Lender pursuant to the foregoing provisions of this
Section
2.03(c)
by the time
specified in Section
2.03(c)(ii),
the L/C Issuer
shall be entitled to recover from such Lender (acting through Agent), on demand,
such amount with interest thereon for the period from the date such payment
is
required to the date on which such payment is immediately available to the
L/C
Issuer at a rate per annum equal to the greater of the Federal Funds Rate and
a
rate determined by the L/C issuer in accordance with banking industry rules
on
interbank compensation, plus
any
administrative, processing or similar fees customarily charged by the LC/ Issuer
in connection with the foregoing. A certificate of the L/C Issuer submitted
to
any Lender (through Agent) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.
(d) Repayment
of
Participations.
(i)
At
any time after
the L/C Issuer has made a payment under any Letter of Credit and has received
from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section
2.03(c),
if Agent receives
for the account of the L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by Agent),
Agent will 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 the same
funds as those received by Agent.
(ii)
If
any payment
received by Agent for the account of the L/C Issuer pursuant to Section
2.03(c)(i)
is required to be
returned under any of the circumstances described in Section
10.05
(including
pursuant to any settlement entered into by the L/C Issuer in its discretion),
each Lender shall pay to Agent for the account of the L/C Issuer its Applicable
Percentage thereof on demand of Agent, plus interest thereon from the date
of
such demand to the date such amount is returned by such Lender, at a rate per
annum equal to the Federal Funds Rate from time to time in effect. The
obligations of 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
Borrower to reimburse the L/C Issuer for each drawing under each Letter of
Credit and to repay each L/C Borrowing shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(i)
any
lack of
validity or enforceability of such Letter of Credit, this Agreement, or any
other Loan Document;
(ii)
the
existence of
any claim, counterclaim, setoff, defense or other right that Borrower 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 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;
17
(iii)
any
draft, demand,
certificate or other document presented under such Letter of Credit proving
to
be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or delay in
the
transmission or otherwise of any document required in order to make a drawing
under such Letter of Credit;
(iv)
any
payment by the
L/C Issuer under such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to
any
Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other representative
of or
successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief
Law; or
(v)
any
other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute
a
defense available to, or a discharge of, Borrower or any
Subsidiary.
Borrower
shall
promptly examine a copy of each Letter of Credit and each amendment thereto
that
is delivered to it and, in the event of any claim of noncompliance with
Borrower’s instructions or other irregularity, Borrower will immediately notify
the L/C Issuer. Borrower shall be conclusively deemed to have waived any such
claim against the L/C Issuer and its correspondents unless such notice is given
as aforesaid.
(f) Role
of L/C
Issuer.
Each Lender and
Borrower agree that, in paying any drawing under a Letter of Credit, the L/C
Issuer shall not have any responsibility to obtain any document (other than
any
sight draft, certificates and documents expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document. None of the L/C Issuer, Agent, any of their respective Related Parties
nor any correspondent, participant or assignee of the L/C Issuer shall be liable
to any Lender for (i) any action taken or omitted in connection herewith at
the
request or with the approval of 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. Borrower hereby assumes all risks of the acts or omissions
of
any beneficiary or transferee with respect to its use of any Letter of Credit;
provided,
however,
that this
assumption is not intended to, and shall not, preclude Borrower’s pursuing such
rights and remedies as it may have against the beneficiary or transferee at
law
or under any other agreement. None of the L/C Issuer, Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of
the
L/C Issuer, shall be liable or responsible for any of the matters described
in
clauses (i) through (v) of Section
2.03(e);
provided,
however,
that anything in
such clauses to the contrary notwithstanding, Borrower may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to Borrower, to the extent,
but
only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by Borrower which Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their
face
to be in order, without responsibility for further investigation, regardless
of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring
or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may
prove
to be invalid or ineffective for any reason.
(g) Cash
Collateral.
If, as of the L/C
Expiration Date or the Maturity Date, any L/C Obligation for any reason remains
outstanding, Borrower shall immediately (i) Cash Collateralize the then
Outstanding Amount of all L/C Obligations, or (ii) provide one or more
“back-to-back” letters of credit to the L/C Issuer in a form satisfactory to the
L/C Issuer and the Agent (in their sole discretion) issued by a bank
satisfactory to the L/C Issuer and the Agent (in their sole discretion) in
an
amount equal to 105% of the then Outstanding Amount of all L/C Obligations.
Section
8.02(c)
sets forth certain
additional requirements to deliver Cash Collateral hereunder. Notwithstanding
anything to the contrary set forth herein, any requirement in a Letter of Credit
Application or in any provision of this Agreement to Cash Collateralize the
L/C
Obligations or otherwise grant a security interest shall be subject to the
requirements of Section 10.5 of the Note Purchase Agreement-1997, Section 10.4
in the Note Purchase Agreement-2003, and Section 2.2 of the Intercreditor
Agreement, as applicable. For purposes hereof, “Cash
Collateralize”
means
to pledge
and deposit with or deliver to 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 Agent and the
L/C Issuer (which documents are hereby consented to by Lenders). Derivatives
of
such term have corresponding meanings. Cash collateral shall be maintained
in
blocked, interest bearing trust accounts at Bank of America.
18
(h) Applicability
of
ISP and UCP.
Unless otherwise
expressly agreed by the L/C Issuer and Borrower when a Letter of Credit is
issued (including any such agreement applicable to an Existing Letter of
Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce (the
“ICC”)
at the time of
issuance shall apply to each commercial Letter of Credit.
(i) L/C
Fees.
Borrower shall
pay to Agent for the account of each Lender in accordance with its Applicable
Percentage a L/C fee (the "L/C
Fee")
(i) for each
commercial Letter of Credit equal to the Applicable Rate times
the daily amount
available to be drawn under such Letter of Credit , and (ii) for each standby
Letter of Credit equal to the Applicable Rate times
the daily amount
available to be drawn under such Letter of Credit. For purposes of computing
the
daily amount available to be drawn under any Letter of Credit, the amount of
such Letter of Credit shall be determined in accordance with Section
1.06.
L/C Fees shall be
(i) computed on a quarterly basis in arrears and (ii) due and payable on the
first Business Day after the end 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 L/C 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 standby Letter of Credit shall be computed and multiplied
by
the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event
of
Default exists, all L/C Fees shall accrue at the Default Rate.
(j) Fronting
Fee and
Documentary and Processing Charges Payable to L/C Issuer.
From and after
the date on which two or more Lenders become party to this Agreement, Borrower
shall pay directly to the L/C Issuer for its own account a fronting fee (i)
with
respect to each commercial Letter of Credit equal to 0.125% per annum
times
the daily amount
available to be drawn under such Letter of Credit, computed on the amount of
such Letter of Credit, and payable upon the issuance thereof, (ii) with respect
to any amendment of a commercial Letter of Credit increasing the amount of
such
Letter of Credit, at a rate separately agreed between Borrower and the L/C
Issuer, computed on the amount of such increase, and payable upon the
effectiveness of such amendment, and (iii) with respect to each standby Letter
of Credit, at the rate per annum equal to 0.125%, computed on the daily amount
available to be drawn under such Letter of Credit and 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 L/C Expiration Date and thereafter on demand.
For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section
1.06.
In addition,
Borrower shall pay directly to the L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the L/C Issuer relating to letters of credit as from
time
to time in effect. Such individual 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 Documents,
the
terms hereof shall control.
2.04 [Reserved].
2.05 Prepayments.
(a)
Borrower may,
upon notice to 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 Agent not later than 11:00 a.m. (A) three Business
Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the
date of prepayment of Base Rate Committed Loans; (ii) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $250,000 or a whole
multiple of $50,000 in excess thereof; and (iii) any prepayment of Base Rate
Committed Loans shall be in a principal amount of $100,000 or a whole multiple
of $50,000 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.
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 Borrower, Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest on the amount prepaid, together with any additional amounts
required pursuant to Section
3.05.
Each such
prepayment shall be applied to the Committed Loans of Lenders in accordance
with
their respective Applicable Percentages.
19
(b)
If
for any reason
the Total Outstandings at any time exceed the Aggregate Commitments then in
effect, Borrower shall immediately prepay Loans in an aggregate amount equal
to
such excess.
2.06 Termination
or Reduction of Commitments. Borrower
may, upon
notice to 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 Agent not later than 11:00 a.m. five Business Days
prior to the date of termination or reduction, (ii) any such partial reduction
shall be in an aggregate amount of $5,000,000 or any whole multiple of
$1,000,000 in excess thereof, and (iii) Borrower shall not terminate or reduce
the Aggregate Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Outstandings would exceed the Aggregate
Commitments. Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Applicable Percentage. All fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.
2.07 Repayment
of Loans. Borrower
shall
repay to Lenders on the Maturity Date the aggregate principal amount of
Committed Loans outstanding on such date.
2.08 Interest. (a)
Subject to the
provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear
interest on the outstanding principal amount thereof for each Interest Period
at
a rate per annum equal to the Eurodollar Rate for such Interest Period plus
the
Applicable Rate for Eurodollar Loans; and (ii) each Base Rate Committed Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate
plus
the Applicable
Rate for Base Rate Loans.
(b)
(i) 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 to the fullest extent
permitted by applicable Laws.
(ii)
If any amount
(other than principal of any Loan) payable by 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.
(iii)
Upon the
request of the Required Lenders, while any Event of Default exists, Borrower
shall pay interest on the principal amount of all outstanding Obligations
hereunder at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
(iv)
Accrued and
unpaid interest on past due amounts (including interest on past due interest)
shall be due and payable upon demand.
(c)
Interest
on each
Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before
and after judgment, and before and after the commencement of any proceeding
under any Debtor Relief Law.
2.09 Fees. In
addition to
certain fees described in subsections (i) and (j) of Section
2.03:
(a) Commitment
Fee.
Borrower shall
pay to Agent for the account of each Lender in accordance with its Applicable
Percentage, a commitment fee equal to the Applicable Rate times
the actual daily
amount by which the Aggregate Commitments exceed the sum of (i) the Outstanding
Amount of Committed Loans and (ii) the Outstanding Amount of L/C Obligations.
The commitment fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article
IV
is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the Maturity Date.
The
commitment fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.
20
(b) Agent's
Fees.
Borrower shall
pay to Agent, for Agent’s own account, fees in the amounts and at the times
specified in the letter agreement, dated February 17, 2006 (the “Agent
Fee
Letter”),
between
Borrower and Agent. Such fees shall be fully earned when paid and shall be
nonrefundable for any reason whatsoever.
2.10 Computation
of Interest and Fees. All
computations of
fees and interest shall be made on the basis of a 360-day year and actual days
elapsed. 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 Agent of an interest rate or fee hereunder shall
be conclusive and binding for all purposes, absent manifest error.
2.11 Evidence
of Debt. (a)
The Credit
Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by Agent in the ordinary course of
business. The accounts or records maintained by Agent and each Lender shall
be
conclusive absent manifest error of the amount of the Credit Extensions made
by
Lenders to Borrower and the interest and payments thereon. Any failure to so
record or any error in doing so shall not, however, limit or otherwise affect
the obligation of Borrower hereunder to pay any amount owing with respect to
the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of Agent in respect of
such matters, the accounts and records of Agent shall control in the absence
of
manifest error. Upon the request of any Lender made through Agent, Borrower
shall execute and deliver to such Lender (through Agent) a Note, which shall
evidence such Lender’s Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type
(if
applicable), amount and maturity of its Loans and payments with respect
thereto.
(b)
In
addition to the
accounts and records referred to in subsection (a), each Lender and 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.
In the event of any conflict between the accounts and records maintained by
Agent and the accounts and records of any Lender in respect of such matters,
the
accounts and records of Agent shall control in the absence of manifest
error.
2.12 Payments
Generally; Agent’s Clawback. (a)(i) General.
All payments to
be made by Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by Borrower hereunder shall be made to Agent,
for
the account of the respective Lenders to which such payment is owed, at the
Administrative Agent’s Office in Dollars and in immediately available funds not
later than 12:00 noon on the date specified herein. 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 Agent after 12:00 noon
shall be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. If any payment to be made by 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.
(ii)
On each date
when the payment of any principal, interest or fees are due hereunder or under
any Note, Borrower agrees to maintain on deposit in an ordinary checking account
maintained by Borrower with Agent (as such account shall be designated by
Borrower in a written notice to Agent from time to time, the "Borrower
Account")
an amount
sufficient to pay such principal, interest or fees in full on such date.
Borrower hereby authorizes Agent (A) to deduct automatically all principal,
interest or fees when due hereunder or under any Note from the Borrower Account,
and (B) if and to the extent any payment of principal, interest or fees under
this Agreement or any Note is not made when due to deduct any such amount from
any or all of the accounts of Borrower maintained at Agent. Agent agrees to
provide written notice to Borrower of any automatic deduction made pursuant
to
this Section
2.12(a)(ii)
showing in
reasonable detail the amounts of such deduction. Lenders agree to reimburse
Borrower based on their Applicable Percentage for any amounts deducted from
such
accounts in excess of amount due hereunder and under any other Loan
Documents.
(b) (i)
Funding
by
Lenders; Presumption by Agent.
Unless Agent
shall have received notice from a Lender prior to the proposed date of any
Committed Borrowing of Eurodollar Rate Loans (or, in the case of any Committed
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Committed
Borrowing) that such Lender will not make available to Agent such Lender’s share
of such Committed Borrowing, 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 Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Committed Borrowing available to Agent, then the applicable Lender
and Borrower severally agree to pay to Agent forthwith on
21
demand
such
corresponding amount in immediately available funds with interest thereon,
for
each day from and including the date such amount is made available to Borrower
to but excluding the date of payment to Agent, at (A) in the case of a payment
to be made by such Lender, the greater of the Federal Funds Rate and a rate
determined by Agent in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily
charged by Agent in connection with the foregoing and (B) in the case of a
payment to be made by Borrower, the interest rate applicable to Base Rate Loans.
If Borrower and such Lender shall pay such interest to Agent for the same or
an
overlapping period, Agent shall promptly remit to Borrower the amount of such
interest paid by Borrower for such period. If such Lender pays its share of
the
applicable Committed Borrowing to Agent, then the amount so paid shall
constitute such Lender’s Committed Loan included in such Committed Borrowing.
Any payment by Borrower shall be without prejudice to any claim Borrower may
have against a Lender that shall have failed to make such payment to
Agent.
(ii) Payments
by
Borrower; Presumptions by Agent.
Unless Agent
shall have received notice from Borrower prior to the date on which any payment
is due to Agent for the account of the Lenders or the L/C Issuer hereunder
that
Borrower will not make such payment, Agent may assume that Borrower has made
such payment on such date in accordance herewith and may, in reliance upon
such
assumption, distribute to Lenders or the L/C Issuer, as the case may be, the
amount due. In such event, if Borrower has not in fact made such payment, then
each of Lenders or the L/C Issuer, as the case may be, severally agrees to
repay
to Agent forthwith on demand the amount so distributed to such Lender or the
L/C
Issuer, in immediately available funds with interest thereon, for each day
from
and including the date such amount is distributed to it to but excluding the
date of payment to Agent, at the greater of the Federal Funds Rate and a rate
determined by Agent in accordance with banking industry rules on interbank
compensation. A notice of Agent to any Lender or Borrower with respect to any
amount owing under this subsection (b) shall be conclusive, absent manifest
error.
(c) Failure
to
Satisfy Conditions Precedent.
If any Lender
makes available to Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article
II,
and such funds
are not made available to Borrower by 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, 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 Lenders hereunder to make Committed Loans, to fund participations in Letters
of Credit and to make payments under 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, 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. 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 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 Agent of such fact, and (b) purchase (for cash at face value)
participations in the Committed Loans and subparticipations in L/C Obligations
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 Borrower
pursuant to and in accordance with the express terms of this Agreement or (y)
any payment obtained by a Lender as consideration for the assignment of or
sale
of a participation in any of its Committed Loans or subparticipations in L/C
Obligations to any assignee or participant, other than to Borrower or any
Subsidiary thereof (as to which the provisions of this Section shall
apply).
22
Each
Loan Party
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to
the
foregoing arrangements may exercise against such Loan Party rights of setoff
and
counterclaim with respect to such participation as fully as if such Lender
were
a direct creditor of such Loan Party in the amount of such
participation.
ARTICLE
III.
TAXES,
YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. (a)
Payments
Free of
Taxes.
Any and all
payments by Borrower to or on account of any obligation of Borrower hereunder
or
under any other Loan Document shall be made free and clear of and without
reduction or withholding for any Indemnified Taxes or Other Taxes, provided
that
if Borrower shall be required by any 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),
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) Borrower
shall
make such deductions, and (iii) Borrower shall timely pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b)
Payment
of Other
Taxes by Borrower.
Without limiting
the provisions of subsection (a) above, Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable
law.
(c)
Indemnification
by Borrower.
Borrower shall
indemnify Agent, each Lender and the L/C Issuer, within 10 days after demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) paid by Agent, such Lender or the L/C
Issuer, as the case may be, and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified
Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to Borrower by a Lender or the L/C Issuer (with a copy
to
Agent), or by Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d)
Evidence
of
Payments.
As soon as
practicable after any payment of Indemnified Taxes or Other Taxes by Borrower
to
a Governmental Authority, Borrower shall deliver to 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 Agent.
(e) Status
of
Lenders.
Any Lender, if
requested by Borrower or Agent, shall deliver such documentation prescribed
by
applicable law or reasonably requested by Borrower or Agent as will enable
the
Borrower or Agent to determine whether or not such Lender is subject to backup
withholding or information reporting requirements.
(f) Treatment
of
Certain Refunds.
If Agent, any
Lender or the L/C Issuer determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by Borrower or with respect to which Borrower has paid additional
amounts pursuant to this Section, it shall pay to Borrower an amount equal
to
such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by 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 Agent,
such Lender or the L/C Issuer, as the case may be, and without interest (other
than any interest paid by the relevant Governmental Authority with respect
to
such refund), provided
that Borrower,
upon the request of Agent, such Lender or the L/C Issuer, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to Agent, such Lender or the
L/C
Issuer in the event Agent, such Lender or the L/C Issuer is required to repay
such refund to such Governmental Authority. This subsection shall not be
construed to require Agent, any Lender or the L/C Issuer to make available
its
tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.
3.02 Illegality.
If
any Lender
determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or
charge interest rates based upon the Eurodollar Rate, or any Governmental
Authority has imposed material restrictions on the authority of such Lender
to
purchase or sell, or to take deposits of, Dollars in the London interbank
market, then, on notice thereof by such Lender to Borrower through Agent, any
obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Committed Loans to Eurodollar Rate Loans shall be suspended
until such Lender notifies Agent and Borrower that the circumstances giving
rise
to such determination no longer exist. Upon receipt of such notice, Borrower
shall, upon demand from such Lender (with a copy to Agent), prepay or, if
applicable, convert all Eurodollar Rate Loans
23
of
such Lender to Base Rate Loans, either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurodollar
Rate
Loans to such day, or immediately, if such Lender may not lawfully continue
to
maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion,
Borrower shall also pay accrued interest on the amount so prepaid or converted
and all amounts due under Section
3.05
in accordance with
the terms thereof due to such prepayment or conversion.
3.03 Inability
to Determine Rates. If
Agent determines
in connection with any request for a Eurodollar Rate Loan or a conversion to
or
continuation thereof that (a) Dollar deposits are not being offered to banks
in
the London interbank eurodollar market for the applicable amount and Interest
Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not
exist for determining the Eurodollar Base Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Base
Rate
for any requested Interest Period with respect to a proposed Eurodollar Rate
Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Loan, Agent will promptly so notify Borrower and each Lender. Thereafter,
the obligation of Lenders to make or maintain Eurodollar Rate Loans shall be
suspended until Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, Borrower may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurodollar Rate
Loans or, failing that, will be deemed to have converted such request into
a
request for a Committed Borrowing of Base Rate Loans in the amount specified
therein.
3.04 Increased
Costs.
(a)
Increased
Costs
Generally.
If any Change in
Law shall:
(i) impose,
modify or
deem applicable any reserve, special deposit, compulsory loan, insurance charge
or similar requirement against assets of, deposits with or for the account
of,
or credit extended or participated in by, any Lender (except any reserve
requirement reflected in the Eurodollar Rate) or the L/C Issuer;
(ii) subject
any Lender
or the L/C Issuer to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any participation in a Letter of Credit or
any
Eurodollar Rate Loan made by it, or change the basis of taxation of payments
to
such Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes
or Other Taxes covered by Section
3.01
and the imposition
of, or any change in the rate of, any Excluded Tax payable by such Lender or
the
L/C Issuer); or
(iii) impose
on any
Lender or the L/C Issuer or the London interbank market any other condition,
cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;
and
the result of
any of the foregoing shall be to increase the cost to such Lender of making
or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make
any such Loan), or to increase the cost to such Lender or the L/C Issuer of
participating in, issuing or maintaining any Letter of Credit (or of maintaining
its obligation to participate in or to issue any Letter of Credit), or to reduce
the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender or the L/C Issuer, Borrower will pay to such Lender
or
the L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital
Requirements.
If any Lender or
the L/C Issuer determines that any Change in Law affecting such Lender or the
L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C
Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the L/C
Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding
company, if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by the L/C Issuer, to a level
below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s
holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or the L/C Issuer’s policies and the policies of
such Lender’s or the L/C Issuer’s holding company with respect to capital
adequacy), then from time to time Borrower will pay to such Lender or the L/C
Issuer, as the case may be, such additional amount or amounts as will compensate
such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding
company for any such reduction suffered.
(c) Certificates
for
Reimbursement.
A certificate of
a Lender or the L/C Issuer setting forth the amount or amounts necessary to
compensate such Lender or the L/C Issuer or its holding company, as the case
may
be, as specified in subsection (a) or (b) of this Section and delivered to
Borrower shall be conclusive absent manifest error. Borrower shall pay such
Lender or the L/C Issuer, as the case may be, the amount shown as due on any
such certificate within 10 days after receipt thereof.
24
(d) Delay
in
Requests.
Failure or delay
on the part of any Lender or the L/C Issuer to demand compensation pursuant
to
the foregoing provisions of this Section shall not constitute a waiver of such
Lender’s or the L/C Issuer’s right to demand such compensation, provided that
Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant
to the foregoing provisions of this Section for any increased costs incurred
or
reductions suffered more than nine months prior to the date that such Lender
or
the L/C Issuer, as the case may be, notifies Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender’s or the
L/C Issuer’s intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the nine-month period referred to above shall be extended to include the
period of retroactive effect thereof).
3.05 Compensation
for Losses. Upon
demand of any
Lender (with a copy to Agent) from time to time, Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost
or
expense incurred by it as a result of:
(a)
`any
continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such
Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise); or
(b)
`any failure by
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 Borrower;
including
any loss
of anticipated profits and any loss or expense arising from the liquidation
or
reemployment of funds obtained by it to maintain such Loan or from fees payable
to terminate the deposits from which such funds were obtained. Borrower shall
also pay any customary administrative fees charged by such Lender in connection
with the foregoing. For purposes of calculating amounts payable by Borrower
to
Lenders under this Section
3.05,
each Lender shall
be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar
Base Rate used in determining the Eurodollar Rate for such Loan by a matching
deposit or other borrowing in the London interbank eurodollar market for a
comparable amount and for a comparable period, whether or not such Eurodollar
Rate Loan was in fact so funded.
3.06 Mitigation
Obligations. If
any Lender
requests compensation under Section
3.04,
or 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. Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender
in
connection with any such designation or assignment.
3.07 Survival.
All
of Borrower’s
obligations under this Article
III
shall survive
termination of the Aggregate Commitments and repayment of all other Obligations
hereunder.
ARTICLE
IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions
of Initial Credit Extension. The
obligation of
the L/C Issuer and each Lender to make its initial Credit Extension hereunder
is
subject to satisfaction of the following conditions precedent:
(a)
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 Agent and each
of
the Lenders:
(i)
executed
counterparts of this Agreement and the Guaranty sufficient in number for
distribution to Agent, each Lender and Borrower;
(ii)
a
Note executed by
Borrower in favor of each Lender requesting a Note;
25
(iii)
such
certificates
of resolutions or other action, incumbency certificates and/or other
certificates of Responsible Officers of each Loan Party as 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 Agent may reasonably require to evidence that each Loan Party
is duly organized or formed, and that each Loan Party is validly existing,
in
good standing and qualified to engage in business in each jurisdiction where
its
ownership, lease or operation of properties or the conduct of its business
requires such qualification, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect;
(v)
a
favorable opinion
of counsel to the Loan Parties acceptable to Agent addressed to Agent and each
Lender, as to the matters set forth concerning the Loan Parties and the Loan
Documents in form and substance satisfactory to Agent and its
counsel;
(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 Borrower 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 Statements that has had or could be reasonably expected
to have, either individually or in the aggregate, a Material Adverse Effect;
(viii)
evidence
that all insurance required to be maintained pursuant to the Loan Documents
has
been obtained and is in effect;
(ix)
[Reserved];
(x)
such
financial
information with respect to the Borrower’s fiscal year ended December 31, 2005
as may be reasonably requested by Agent and discussed with the Borrower;
provided,
that Agent shall
be satisfied with the nature and substance of such information and discussions;
(xi)
such
information
regarding litigation, tax, accounting, labor, insurance, pension liabilities
(actual or contingent), real estate leases, material contracts, debt agreements,
property ownership, environmental matters, contingent liabilities and management
of the Borrower and its subsidiaries as may be reasonably requested by Agent,
the nature and substance of such information to be satisfactory to the Agent
and
its counsel;
(xii)
such
information
regarding the Borrower’s (A) accounts receivable aging, (B) backlog information,
(C) business segment financial performance, and (D) tunneling job financial
performance, in each case as of December 31, 2005, as may be requested by the
Agent, the nature and substance of such information to be satisfactory to the
Agent;
(xiii)
Uniform Commercial
Code, tax and judgment lien searches as the Agent may reasonably requires,
results of which to be satisfactory to the Agent;
(xiv)
the
representations
and warranties of Borrower and each other Loan Party contained in Article
V
hereof or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be
true and correct on and as of the Closing Date, and
(xv)
such other
assurances, certificates, documents, consents or opinions as Agent, the L/C
Issuer or the Required Lenders reasonably may require.
(b) Any
fees required
to be paid on or before the Closing Date shall have been paid.
26
(c) Unless
waived by
Agent, Borrower shall have paid all fees, charges and disbursements of counsel
to 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 Borrower
and
Agent).
(d) The
Closing Date
shall have occurred on or before February 20, 2006.
Without
limiting
the generality of the provisions of Section
9.04,
for purposes of
determining compliance with the conditions specified in this Section
4.01,
each Lender that
has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory
to a
Lender unless 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 is subject to the
following conditions precedent:
(a)
The
representations
and warranties of Borrower and each other Loan Party contained in Article
V
hereof
or any other
Loan Document, or which are contained in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct on
and
as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date, and except that
for
purposes of this Section
4.02,
the
representations and warranties contained in subsections (a) and (b) of
Section
5.05
shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section
6.01.
(b)
No
Default shall
exist, or would result from such proposed Credit Extension or from the
application of the proceeds thereof.
(c)
Agent
and, if
applicable, the L/C Issuer shall have received a Request for Credit Extension
in
accordance with the requirements hereof.
(d)
Agent
shall have
received, in form and substance satisfactory to it, such other assurances,
certificates, documents or consents related to the foregoing as Agent or the
Required Lenders reasonably may require.
Each
Request for
Credit Extension submitted by Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections
4.02(a)
and (b)
have been
satisfied on and as of the date of the applicable Credit Extension.
ARTICLE
V.
REPRESENTATIONS AND WARRANTIES
Borrower
represents
and warrants to 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.
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.
27
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.
5.05 Financial
Statements; No Material Adverse Effect; No Internal Control
Event. (a)
The Audited
Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present the financial condition of Borrower and
its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or
contingent, of Borrower and its Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness.
(b)
The
unaudited
consolidated and consolidating balance sheets of Borrower and its Subsidiaries
dated September 30, 2005, and the related consolidated and consolidating
statements of income or operations, shareholders’ equity and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present the financial condition of
Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses
(i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments.
(c)
Except
for matters
disclosed in Borrower’s filings with the SEC and in financial information
furnished to Agent prior to the Closing Date, 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
unaudited
financial information with respect to Borrower’s fiscal year ended December 31,
2005 provided by the Borrower to the Agent fairly presents the financial
condition of Borrower and its Subsidiaries as of December 31, 2005 and their
results of operation for the period covered thereby in all material
respects.
(f)
The
consolidated
and consolidating forecasted balance sheet and statements of income and cash
flows of Borrower and its 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 Borrower’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
Borrower after due and diligent investigation, threatened or contemplated,
at
law, in equity, in arbitration or before any Governmental Authority, by or
against Borrower or any of its Subsidiaries or against any of their properties
or revenues that (a) purport to affect or pertain to this Agreement or any
other
Loan Document, or any of the transactions contemplated hereby, or (b) except
as
specifically disclosed in Schedule
5.06,
either
individually or in the aggregate, if determined adversely, could reasonably
be
expected to have a Material Adverse Effect, and there has been no adverse change
in the status, or financial effect on any Loan Party or any Subsidiary thereof,
of the matters described on Schedule
5.06.
5.07 No
Default. Neither
Borrower
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 Borrower
and each Subsidiary has good record and marketable title in fee simple to,
or
valid leasehold interests in, all real property necessary or used in the
ordinary conduct of its business, except for such defects in title as could
not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The
28
property
of
Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted
by the Note Purchase Agreements. All Liens on property of the Borrower or its
Subsidiaries securing Indebtedness in excess of $1,000,000 are listed on
Schedule
5.08
hereto.
5.09 Environmental
Compliance. Borrower
and its
Subsidiaries conduct in the ordinary course of business a review of the effect
of existing Environmental Laws and claims alleging potential liability or
responsibility for violation of any Environmental Law on their respective
businesses, operations and properties, and as a result thereof Borrower has
reasonably concluded that, except as specifically disclosed in Schedule
5.09,
any such claims
could not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect. Each of Borrower and each Subsidiary is in material
compliance in all material respects with the requirements of all Environmental
Laws applicable to it or its property, except in such instances in which the
failure to comply therewith, either individually or in the aggregate, could
not
reasonably be expected to have a Material Adverse Effect.
5.10 Insurance. The
properties of
Borrower and its Subsidiaries are insured with financially sound and reputable
insurance companies not Affiliates of Borrower, in such amounts (after giving
effect to any self-insurance compatible with the following standards), with
such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
Borrower or the applicable Subsidiary operates.
5.11 Taxes. Borrower
and its
Subsidiaries have filed all Federal, state and other material tax returns and
reports required to be filed, and have paid all Federal, state and other
material taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and
payable, except those which are being contested in good 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
Borrower or any Subsidiary that would, if made, have a Material Adverse
Effect.
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 Borrower, nothing
has
occurred which would prevent, or cause the loss of, such qualification. Borrower
and each ERISA Affiliate have made all required contributions to each Plan
subject to Section 412 of the Code, and no application for a funding waiver
or
an extension of any amortization period pursuant to Section 412 of the Code
has
been made with respect to any Plan.
(b)
There
are no
pending or, to the best knowledge of Borrower, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan
that
could be 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 Borrower nor any ERISA Affiliate
has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA
with respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA); (iv) neither Borrower nor any ERISA Affiliate
has
incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Sections 4201 or 4243 of ERISA with respect
to a
Multiemployer Plan; and (v) neither Borrower nor any ERISA Affiliate has engaged
in a transaction that could be subject to Sections 4069 or 4212(c) of
ERISA.
5.13 Xxxxxxxxxxxx.Xx
of the Closing
Date, Borrower has no Subsidiaries other than those specifically disclosed
in
Part (a) of Schedule
5.13,
and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued,
are
fully paid and nonassessable and are owned by a Loan Party in the amounts
specified on Part (a) of Schedule
5.13
free and clear of
all Liens. Borrower has no equity investments in any other corporation or entity
other than those specifically disclosed in Part(b) of Schedule
5.13.
5.14 Margin
Regulations; Investment Company Act; Public Utility Holding Company
Act. (a)
Borrower is not
engaged and will not 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
29
25%
of the value of
the assets (either of Borrower only or of Borrower and its Subsidiaries on
a
consolidated basis) subject to the provisions of Section
7.01
or subject to any
restriction contained in any agreement or instrument between 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 Borrower,
any Person Controlling Borrower, or any Subsidiary (i) is a “holding company,”
or a “subsidiary company” of a “holding company,” or an “affiliate” of a
“holding company” or of a “subsidiary company” of a “holding company,” within
the meaning of the Public Utility Holding Company Act of 1935, or (ii) is or
is
required to be registered as an “investment company” under the Investment
Company Act of 1940.
5.15 Disclosure. Borrower
has
disclosed to Agent and 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 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, Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
5.16 Compliance
with Laws. Each
of Borrower
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.Borrower
and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses
and
other intellectual property rights 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 Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by Borrower 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 Borrower,
threatened, which, either individually or in the aggregate, could reasonably
be
expected to have a Material Adverse Effect.
5.18 Labor
Disputes. There
is no pending
or, to Borrower’s knowledge, threatened, strike, work stoppage, material unfair
labor practice claim or other material labor dispute against or affecting any
Loan Party or its employees, which is reasonably likely to have a Material
Adverse Effect.
5.19 Existing
Indebtedness; Burdensome
Obligations. Schedule
5.19
lists, as of the
Closing Date, all outstanding Indebtedness of Borrower and its Subsidiaries
in
excess of $1,000,000 and all contractual obligations undertaken by the Borrower
and its Subsidiaries in connection with Indebtedness in excess of $1,000,000
restricting Liens on property of Borrower and its Subsidiaries.
5.20 Bonding
Capacity.Borrower
and its
Subsidiaries have in place and available to it and them surety and performance
bonds adequate in amount and credit quality to continue in the ordinary course
of their business as presently projected over the course of the next eighteen
(18) months.
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, Borrower shall, and shall (except in the case of
the
covenants set forth in Sections
6.01,
6.02,
and 6.03)
cause each
Subsidiary to:
6.01 Financial
Statements. Deliver
to Agent a
sufficient number of copies for delivery by Agent to each Lender, in form and
detail satisfactory to Agent and the Required Lenders:
30
(a) as
soon as
available, but in any event within 90 days after the end of each fiscal year
of
Borrower beginning with the fiscal year ended December 31, 2005, a consolidated
and consolidating balance sheet of Borrower and its Subsidiaries as at the
end
of such fiscal year, and the related consolidated and consolidating statements
of income or operations, shareholders’ equity and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, such consolidated statements to be audited and accompanied by (i) a report
and opinion of a Registered Public Accounting Firm of nationally recognized
standing acceptable to the Agent in its reasonable discretion, 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, (ii) an attestation report of such Registered Public
Accounting Firm as to the Borrower’s internal controls pursuant to Section 404
of Xxxxxxxx-Xxxxx expressing a conclusion to which the Required Lenders do
not
reasonably object, and (iii) such consolidating statements to be certified
by a
Responsible Officer of Borrower, other than its general counsel, to the effect
that such statements are fairly stated in all material respects when considered
in relation to the consolidated financial statements of Borrower and its
Subsidiaries;
(b)
as
soon as
available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of Borrower, a consolidated and
consolidating balance sheet of Borrower and its Subsidiaries as at the end
of
such fiscal quarter, and the related consolidated and consolidating statements
of income or operations, shareholders’ equity and cash flows for such fiscal
quarter and for the portion of Borrower’s fiscal year then ended, setting forth
in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, such consolidated and
consolidating statements to be certified by a Responsible Officer of Borrower
as
fairly presenting the financial condition, results of operations, shareholders’
equity and cash flows of Borrower and its Subsidiaries in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of footnotes
and such consolidating statements to be certified by a Responsible Officer
of
Borrower, other than its general counsel, to the effect that such statements
are
fairly stated in all material respects when considered in relation to the
consolidated financial statements of the Borrower and its Subsidiaries;
and
(c)
as
soon as
available, but in any event within 60 days of the first day of each fiscal
year
of Borrower, forecasts prepared by management of Borrower, in form satisfactory
to Agent and the Required Lenders, of consolidated and consolidating balance
sheets and statements of income or operations and cash flows of Borrower and
its
Subsidiaries on a monthly basis for the immediately following fiscal year
(including the fiscal year in which the Maturity Date occurs).
6.02 Certificates;
Other Information. Deliver
to Agent a
sufficient number of copies for delivery by Agent to each Lender, in form and
detail satisfactory to Agent and the Required Lenders:
(a)
concurrently
with
the delivery of the financial statements referred to in Section
6.01(a),
a certificate of
its independent certified public accountants certifying such financial
statements and stating that in making the examination necessary therefor no
knowledge was obtained of any Default or, if any such Default shall exist,
stating the nature and status of such event;
(b)
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 Borrower;
(c)
promptly
after any
request by 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 Borrower by independent accountants
in
connection with the accounts or books of Borrower or any Subsidiary, or any
audit of any of them;
(d)
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 Borrower, and
copies of all annual, regular, periodic and special reports and registration
statements which Borrower may file or be required to file with the Securities
and Exchange Commission under Section 13 or 15(d) of the Securities Exchange
Act
of 1934, and not otherwise required to be delivered to Agent pursuant hereto;
(e)
promptly
after the
furnishing thereof, copies of any statement or report furnished pursuant to
the
Note Purchase Agreements or furnished to any holder of debt securities of any
Loan Party or any Subsidiary thereof pursuant to the terms of any indenture,
loan or credit or similar agreement and not otherwise required to be furnished
to the Lenders pursuant to Section
6.01
or any other
clause of this Section
6.02;
31
(f)
promptly,
and in
any event within five Business Days after receipt thereof by any Loan Party
or
any Subsidiary thereof, copies of each notice or other correspondence received
from the Securities and Exchange Commission (or comparable agency in any
applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other
operational results of any Loan Party or any Subsidiary thereof;
(g)
as
soon as
available, but in any event within 45 days after the end of each fiscal quarter
of each fiscal year of Borrower, a job status report for each domestic project
of the Borrower and its Subsidiaries; and
(h)
promptly,
such
additional information regarding the business, financial or corporate affairs
of
Borrower or any Subsidiary, or compliance with the terms of the Loan Documents,
as Agent or any Lender may from time to time reasonably request.
Borrower
hereby
acknowledges that (a) Agent will make available to Lenders and the L/C Issuer
materials and/or information provided by or on behalf of Borrower hereunder
(collectively, “Borrower
Materials”)
by posting
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 Borrower or its
securities) (each, a “Public
Lender”).
Borrower hereby
agrees that (w) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” so long as 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 which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials
“PUBLIC,” Borrower shall be deemed to have authorized Agent, the L/C Issuer and
the Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to Borrower or its securities for purposes
of United States Federal and state securities laws (provided, however, that
to
the extent such Borrower Materials constitute Information, they shall be treated
as set forth in Section
10.07);
(y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Investor;” and (z) Agent shall be entitled to
treat any Borrower Materials that are not marked “PUBLIC” as being suitable only
for posting on a portion of the Platform not designated “Public
Investor”.
6.03 Notices.
Promptly
notify
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 Borrower or any Subsidiary; (ii) any dispute,
litigation, investigation, proceeding or suspension between Borrower or any
Subsidiary and any Governmental Authority; or (iii) the commencement of, or
any
material development in, any litigation or proceeding affecting Borrower 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 Borrower
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 Borrower setting forth details of the occurrence referred to therein
and stating what action Borrower has taken and proposes to take with respect
thereto. Each notice pursuant to Section
6.03(a)
shall describe
with particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.
6.04 Payment
of Obligations. Pay
and discharge
as the same shall become due and payable, all its obligations and liabilities,
including (a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested
in good faith by appropriate proceedings diligently conducted and adequate
reserves in accordance with GAAP are being maintained by Borrower or such
Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien
upon its property; and (c) all Indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
6.05 Preservation
of Existence, Etc. (a)
Preserve, renew
and maintain in full force and effect its legal existence and good standing
under the Laws of the jurisdiction of its organization except in a transaction
permitted by the Note Purchase
32
Agreements;
(b)
take all reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary or desirable in the normal conduct of its business,
except to the extent that failure to do so could not reasonably be expected
to
have a Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse
Effect.
6.06 Maintenance
of Properties. (a)
Maintain,
preserve and protect all of its material properties and equipment necessary
in
the operation of its business in good working order and condition, ordinary
wear
and tear excepted; (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably
be
expected to have a Material Adverse Effect; and (c) use the standard of care
typical in the industry in the operation and maintenance of its
facilities.
6.07 Maintenance
of Insurance. Maintain
with
financially sound and reputable insurance companies not Affiliates of Borrower,
insurance with respect to its properties and business against loss or damage
of
the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts (after giving effect to any
self-insurance compatible with the following standards) as are customarily
carried under similar circumstances by such other Persons and providing for
not
less than 30 days’ prior notice to Agent of termination, lapse or cancellation
of such insurance.
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, write,
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 Borrower or such
Subsidiary, as the case may be; and (b) maintain such books of record and
account in material conformity with all applicable requirements of any
Governmental Authority having regulatory jurisdiction over Borrower or such
Subsidiary, as the case may be.
6.10 Inspection
Rights. Permit
representatives and independent contractors of 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 Borrower and at such
reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to Borrower; provided,
however,
that when an
Event of Default exists Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at
the
expense of Borrower at any time during normal business hours and without advance
notice.
6.11 Use
of Proceeds. Use
the proceeds of
the Credit Extensions for general corporate purposes not in contravention of
any
Law or of any Loan Document.
6.12 Additional
Guarantors. Notify
Agent at the
time that any Person becomes a domestic Subsidiary, and promptly thereafter
(and
in any event within 30 days), cause such Person to (a) become a Guarantor by
executing and delivering to Agent a counterpart of the Guaranty or such other
document as Agent shall deem appropriate for such purpose, and (b) deliver
to
Agent documents of the types referred to in clauses (iii) and (iv) of
Section
4.01(a)
and favorable
opinions of counsel to such Person (which shall cover, among other things,
the
legality, validity, binding effect and enforceability of the documentation
referred to in clause (a)), all in form, content and scope reasonably
satisfactory to Agent.
6.13 Pari
Passu Ranking. Maintain
the
ranking of the Obligations hereunder as pari passu, without preference or
priority, with all Indebtedness outstanding under the Note Purchase Agreements
and all other outstanding, unsecured, unsubordinated obligations of the Borrower
and its Subsidiaries, present and future. In furtherance of the
foregoing:
(a)
if
any Subsidiary
of the Borrower, or any other Person, shall create or assume a Guaranty with
respect to the Borrower's obligations under Indebtedness of the Borrower, the
Borrower will concurrently make or cause to be made effective provision whereby
the Obligations of the Borrower hereunder will be guaranteed by a Guaranty
from
such Subsidiary or other Person equally and ratably with all other obligations
guaranteed by such first-mentioned Guaranty; and
33
(b)
except
as permitted
by the Note Purchase Agreements, if any Subsidiary of the Borrower, or any
other
Person, shall xxxxx x Xxxx with respect to any of its property or assets to
or
for the benefit of any holder of Indebtedness of the Borrower, to secure any
of
the Borrower's obligations under such Indebtedness, whether now in existence
or
hereafter arising, the Borrower will concurrently make or cause to be made
effective provision whereby the obligations of the Borrower hereunder will
be
secured by such Lien equally and ratably with all obligations under such
Indebtedness secured thereby.
6.14 Principal
Depository Bank. Maintain
Bank of
America as its principal depository bank, including for the maintenance of
business, cash management, operating and administrative deposit
accounts.
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, Borrower shall not, nor shall it permit any Subsidiary
to, directly or indirectly:
7.01 Use
of Proceeds. Use
the proceeds of
any Credit Extension, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry margin stock (within the
meaning of Regulation U of the FRB) or to extend credit to others for the
purpose of purchasing or carrying margin stock or to refund indebtedness
originally incurred for such purpose.
7.02 Note
Purchase Agreements. Fail
to observe or
perform any of the covenants on the part of a Covered Person to be observed
or
performed under Section 10 of the Note Purchase Agreement−1997 and the Note
Purchase Agreement−2003.
7.03 Amendments;
Prepayments. Amend
Section 10 or
the defined terms contained therein or Section 11 of the Note Purchase
Agreement−2003 or the Note Xxxxxxxx Xxxxxxxxx-0000, or voluntarily prepay in
whole or in part the notes issued pursuant to the Note Purchase Agreement−1997
or the Note Purchase Agreement−2003. Nothing in the preceding sentence shall
prohibit or restrict the mandatory or required prepayment of said notes in
accordance with the terms of the Note Purchase Agreement - 1997 and the Note
Purchase Agreement - 2003.
7.04 Conflicting
Agreements. Enter
into any
agreement, engage in any transaction, acquire or create any Subsidiary, or
transfer assets to any Subsidiary (whether or not it is actively engaged in
a
trade or business) that would immediately or in a reasonably foreseeable time
result in a Default or Event of Default; or enter into any agreement that would
immediately or in a reasonably foreseeable time, if fully complied with or
performed by it, result in a Default or Event of Default.
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.
Borrower or any
other Loan Party fails to pay (i) when and as required to be paid herein, any
amount of principal of any Loan or any L/C Obligation, or (ii) within three
days
after the same becomes due, any interest on any Loan or on any L/C Obligation,
or any fee due hereunder, or (iii) within five days after the same becomes
due,
any other amount payable hereunder or under any other Loan Document;
or
(b)
Specific
Covenants.
Borrower fails to
perform or observe any term, covenant or agreement contained in any of
Section
6.01,
6.02,
6.03,
6.05,
6.10,
6.11
or 6.12
or Article
VII,
or any Guarantor
fails to perform or observe any term, covenant or agreement contained in Section
16 of the Guaranty; 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 any default
or
Event of Default occurs under any other Loan Document; or
(d)
Representations
and Warranties.
Any
representation, warranty, certification or statement of fact made or deemed
made
by or on behalf of Borrower or any other Loan Party herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith
shall
be incorrect or misleading when made or deemed made; or
34
(e)
Cross-Default.
(i) An “Event of
Default” occurs as defined in the Note Purchase Agreement−2003 or the Note
Purchase Agreement−1997 (and irrespective of whether such an Event of Default is
declared or waived by the noteholders thereunder or cured by the issuer
thereunder); (ii) Borrower or any Subsidiary (A) fails to make any payment
when
due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness or Guarantee (other than
Indebtedness under the Note Purchase Agreements, this Agreement or a Swap
Contract) 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 $5,000,000, 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 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 (iii)
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 Borrower or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which Borrower or any Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed
by
Borrower or such Subsidiary as a result thereof is greater than $5,000,000;
or
(f)
Insolvency
Proceedings, Etc.
Any Loan Party or
any of its Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the benefit
of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
is
appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding
under
any Debtor Relief Law relating to any such Person or to all or any material
part
of its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g)
Inability
to Pay
Debts; Attachment.
(i) Borrower or
any Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant
of
attachment or execution or similar process is issued or levied against all
or
any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or
(h)
Invalidity
of
Loan Documents.
Any Loan Document
or any provision thereof, at any time after its execution and delivery and
for
any reason other than as expressly permitted hereunder or thereunder or
satisfaction in full of all the Obligations, ceases to be in full force and
effect; or any Loan Party or any other Person contests in any manner the
validity or enforceability of any Loan Document or any provision thereof; 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 Loan Document
or
any provision thereof.
8.02 Remedies
Upon Event of Default. If
any Event of
Default occurs and is continuing, Agent shall, at the request of, or may, with
the consent of, the Required Lenders, take any or all of the following
actions:
(a)
declare
the
commitment of each Lender to make Loans and any obligation of the L/C Issuer
to
make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;
(b)
declare
the unpaid
principal amount of all outstanding Loans, all interest accrued and unpaid
thereon, and all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived
by
Borrower;
(c)
subject
to
Section
2.03(g),
require that
Borrower 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
Borrower under the Bankruptcy Code of the United States, the obligation of
each
Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all
outstanding Loans and all interest
35
and
other amounts
as aforesaid shall automatically become due and payable, and the obligation
of
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of Agent or
any
Lender.
8.03 Application
of Funds. After
the exercise
of remedies provided for in Section
8.02
(or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section
8.02)
and subject to
the terms of the Intercreditor Agreement, any amounts received on account of
the
Obligations shall be applied by Agent in the following order:
First,
to payment of
that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (including fees, charges and disbursements of counsel to Agent
(including fees and time charges for attorneys who may be employees of Agent)
and amounts payable under Article
III)
payable to Agent
in its capacity as such;
Second,
to payment of
that portion of the Obligations constituting fees, indemnities and other amounts
(other than principal, interest and L/C Fees) payable to Lenders and the L/C
Issuer (including fees, charges and disbursements of counsel to the respective
Lenders and the L/C Issuer (including fees and time charges for attorneys who
may be employees of any Lender or the L/C Issuer) and amounts payable under
Article
III),
ratably among
them in proportion to the respective amounts described in this clause
Second
payable to
them;
Third,
to payment of
that portion of the Obligations constituting accrued and unpaid L/C Fees and
interest on the Loans, L/C Borrowings and other Obligations, ratably among
Lenders and the L/C Issuer in proportion to the respective amounts described
in
this clause Third
payable to
them;
Fourth,
to payment of
that portion of the Obligations constituting unpaid principal of the Loans
and
L/C Borrowings, ratably among Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth
held by
them;
Fifth,
to Agent for the
account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit; and
Last,
the balance, if
any, after all of the Obligations have been indefeasibly paid in full, to
Borrower or as otherwise required by Law.
Subject
to
Section
2.03(c),
amounts used to
Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant
to
clause Fifth
above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If
any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied
to
the other Obligations, if any, in the order set forth above.
ARTICLE
IX.
ADMINISTRATIVE AGENT
9.01 Appointment
and Authorization of Administrative Agent.
Each
of the Lenders
and the L/C issuer hereby irrevocably appoints Bank of America to act on its
behalf as Administrative Agent hereunder and under the other Loan Documents
and
authorizes Agent to take such actions on its behalf and to exercise such powers
as are delegated to Agent by the terms hereof and thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of
this
Article are solely for the benefit of Agent, the Lenders and the L/C Issuer,
and
neither the Borrower nor any other Loan Party shall have rights as a third
party
beneficiary of any of such provisions.
9.02 Rights
as a Lender. The
Person serving
as 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
Agent
and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the
Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not
Agent hereunder and without any duty to account therefor to
Lenders.
9.03 Exculpatory
Provisions. 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,
Agent:
36
(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 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 Agent shall not be required to take any action that, in its opinion or
the
opinion of its counsel, may expose 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 Borrower or any of its Affiliates that is communicated to or
obtained by the Person serving as Agent or any of its Affiliates in any
capacity.
(d) 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 Agent shall believe in good faith shall
be
necessary, under the circumstances as provided in Sections
8.02
and
10.01)
or (ii) in the
absence of its own gross negligence or willful misconduct. Agent shall be deemed
not to have knowledge of any Default unless and until written notice describing
such Default is given to Agent by Borrower, a Lender or the L/C Issuer. 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 Agent.
9.04 Reliance
by Administrative Agent. 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. Agent also may rely upon
any statement made to it orally or by telephone and believed by it to have
been
made by the proper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to the making
of
a Loan, or the issuance of a Letter of Credit, that by its terms must be
fulfilled to the satisfaction of a Lender or the L/C Issuer, Agent may presume
that such condition is satisfactory to such Lender or the L/C Issuer unless
Agent shall have received notice to the contrary from such Lender or the L/C
Issuer prior to the making of such Loan or the issuance of such Letter of
Credit. Agent may consult with legal counsel (who may be counsel for Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice
of
any such counsel, accountants or experts.
9.05 Delegation
of Duties. 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
Agent. 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 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 Agent.
9.06 Resignation
of Agent. Agent
may at any
time give notice of its resignation to Lenders, the L/C Issuer and Borrower.
Upon receipt of any such notice of resignation, the Required Lenders shall
have
the right, in consultation with Borrower, to appoint a successor, which shall
be
a bank with an office in the United States, or an Affiliate of any such bank
with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may on behalf of Lenders and the L/C Issuer, appoint a
successor Agent meeting the qualifications set forth above; provided that if
Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring 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 Agent
on
behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the
retiring Agent shall continue to hold such collateral security until such time
as a successor Agent is appointed) and (2) all payments, communications and
determinations provided
37
to
be made by, to or through Agent shall instead be made by or to each Lender
and
the L/C Issuer directly, until such time as the Required Lenders appoint a
successor Agent as provided for above in this Section. Upon the acceptance
of a
successor’s appointment as Agent hereunder, such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Agent, and the retiring 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 Borrower to a successor Agent shall be the same as those payable
to
its predecessor unless otherwise agreed between Borrower and such successor.
After the retiring 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 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 Agent pursuant to this Section shall also constitute its
resignation as L/C Issuer. Upon the acceptance of a successor’s appointment as
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, (b)
the
retiring L/C Issuer 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 Agent and Other Lenders. Each
Lender and the
L/C Issuer acknowledges that it has, independently and without reliance upon
Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender and the L/C
Issuer also acknowledges that it will, independently and without reliance upon
Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based
upon this Agreement, any other Loan Document or any related agreement or any
document furnished hereunder or thereunder.
9.08 No
Other Duties, Etc. Anything
herein to
the contrary notwithstanding, no Lender holding a title 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
Agent, a Lender or the L/C Issuer hereunder.
9.09 Administrative
Agent May File Proofs of Claim.
In
case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, 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 Agent
shall
have made any demand on 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 Lenders, the L/C Issuer and Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances
of
Lenders, the L/C Issuer and Agent and their respective agents and counsel and
all other amounts due Lenders, the L/C Issuer and Agent under Sections
2.03(i)
and (j),
2.09
and 10.04)
allowed in such
judicial proceeding; and
(b)
to
collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same;
and
any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the
L/C
Issuer to make such payments to Agent and, in the event that Agent shall consent
to the making of such payments directly to Lenders and the L/C Issuer, to pay
to
Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of Agent and its agents and counsel, and any other amounts due
Agent under Sections
2.09
and 10.04.
Nothing contained
herein shall be deemed to authorize Agent to authorize or consent to or accept
or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or to authorize Agent to vote in respect of the claim of any
Lender in any such proceeding.
38
9.10 Guaranty
Matters. Each
Lender and the
L/C Issuer hereby irrevocably authorizes Agent, at its option and in its
discretion, to release any Guarantor from its obligations under the Guaranty
if
such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder. Upon request by Agent at any time, each Lender and the L/C Issuer
will confirm in writing Agent's authority to release any Guarantor from its
obligations under the Guaranty pursuant to this Section
9.10.
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 Borrower or any other Loan Party therefrom, shall
be
effective unless in writing signed by the Required Lenders and Borrower or
the
applicable Loan Party, as the case may be, and acknowledged by 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; provided,
however,
in the sole
discretion of Agent, only a waiver by Agent shall be required with respect
to
immaterial matters or items specified in Section
4.01(a)
(iii)
or (iv)
with respect to
which Borrower has given assurances satisfactory to Agent that such items shall
be delivered promptly following the Closing Date;
(b)
extend
or increase
the Commitment of any Lender (or reinstate any Commitment terminated pursuant
to
Section
8.02)
without the
written consent of such Lender;
(c)
postpone
any date
fixed by this Agreement or any other Loan Document for any payment (excluding
mandatory prepayments) of principal, interest, fees or other amounts due to
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 (iv) of the second proviso to this Section
10.01)
any fees or other
amounts payable hereunder or under any other Loan Document, without the written
consent of each Lender directly affected thereby; provided,
however,
that only the
consent of the Required Lenders shall be necessary (i) to amend the definition
of “Default Rate” or to waive any obligation of Borrower to pay interest or L/C
Fees at the Default Rate or (ii) to amend any financial covenant hereunder
(or
any defined term used therein) even if the effect of such amendment would be
to
reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee
payable hereunder;
(e)
change
Section
2.13
or Section
8.03
in a manner that
would alter the pro rata sharing of payments required thereby without the
written consent of each Lender;
(f)
change
any
provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to
amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder, without the written consent of each Lender;
or
(g)
release any
Guarantor from the Guaranty except in accordance with the terms of any Loan
Document, 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
Issuer in addition to the Lenders required above, affect the rights or duties
of
the L/C Issuer under this Agreement or any Issuer Document relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or
consent shall, unless in writing and signed by Agent in addition to the Lenders
required above, affect the rights or duties of Agent under this Agreement or
any
other Loan Document; and (iii) the Agent 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
Communications. (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:
39
(i)
if
to Borrower,
Agent, of the L/C Issuer 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 Lenders and the L/C Issuer hereunder may be delivered or
furnished by electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to
Article
II
if such Lender or the L/C Issuer, as applicable has notified the Agent that
it
is incapable of receiving notices under such Article by electronic
communication. Agent or Borrower may, in its discretion, agree to accept notices
and other communications to it hereunder by electronic communications pursuant
to procedures approved by it, provided
that approval of
such procedures may be limited to particular notices or communications. Unless
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 Agent or any of its Related Parties
(collectively, the “Agent Parties”) have any liability to Borrower, any Lender,
the L/C Issuer or any other Person for losses, claims, damages, liabilities
or
expenses of any kind (whether in tort, contract or otherwise) arising out of
Borrower’s or 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 Borrower, any Lender, the L/C Issuer or any other Person for
indirect, special, incidental, consequential or punitive damages (as opposed
to
direct or actual damages).
(d)
Change
of
Address, Etc.
Each of the
Borrower, Agent, and the L/C Issuer 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
Borrower, Agent, and the L/C Issuer. In
addition,
each Lender agrees to notify Agent from time to time to ensure that Agent has
on
record (i) an effective address, contact name, telephone number, telecopier
number and electronic mail address to which notices and other communications
may
be sent and (ii) accurate wire instructions for such Lender.
(e)
Reliance
by
Agent. L/C Issuer and Lenders.
Agent, the L/C
Issuer and Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices) purportedly given by or on behalf of 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. Borrower shall indemnify Agent, the L/C
Issuer, each Lender and the Related Parties of each of them from all losses,
costs, expenses and liabilities resulting from the reliance by such Person
on
each notice purportedly given by or on behalf of Borrower. All
telephonic
40
notices
to
and other telephonic communications with Agent may be recorded by Agent, and
each of the parties hereto hereby consents to such recording.
10.03 No
Waiver; Cumulative Remedies. No
failure by any
Lender, the L/C Issuer or 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.
Borrower shall
pay (i) all reasonable out of pocket expenses incurred by Agent and its
Affiliates (including the reasonable fees, charges and disbursements of counsel
for Agent), in connection with the syndication of the credit facilities provided
for herein, the preparation, negotiation, execution, delivery and administration
of this Agreement and the other Loan Documents or any amendments, modifications
or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out
of
pocket expenses incurred by the L/C Issuer in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all out of pocket expenses incurred by Agent,
any
Lender or the L/C Issuer (including the fees, charges and disbursements of
any
counsel for Agent, any Lender or the L/C Issuer), and shall pay all fees and
time charges for attorneys who may be employees of Agent, any Lender or the
L/C
Issuer, in connection with the enforcement or protection of its rights (A)
in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or Letters
of Credit issued hereunder, including all such out of pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans
or
Letters of Credit.
(b)
Indemnification
by the Borrower.
Borrower shall
indemnify Agent (and any sub-agent thereof), each Lender and the L/C Issuer,
and
each Related Party of any of the foregoing Persons (each such Person being
called an “Indemnitee”)
against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the fees, charges and disbursements
of any counsel for any Indemnitee), and shall indemnify and hold harmless each
Indemnitee from all fees and time charges and disbursements for attorneys who
may be employees of any Indemnitee, incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by 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, or the consummation
of
the transactions contemplated hereby or thereby, or, in the case of Agent (and
any sub-agent thereof) and its Related Parties only, the administration of
this
Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or
the
use or proposed use of the proceeds therefrom (including any refusal by the
L/C
Issuer to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release
of
Hazardous Materials on or from any property owned or operated by the Borrower
or
any of its Subsidiaries, or any Environmental Liability related in any way
to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Loan Party, and regardless of whether
any
Indemnitee is a party thereto, in all cases, whether or not caused by or
arising, in whole or in part, out of the comparative, contributory or sole
negligence of the Indemnitee; 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 Borrower or any other Loan Party against
an
Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder
or
under any other Loan Document, if Borrower or such Loan Party has obtained
a
final and nonappealable judgment in its favor on such claim as determined by
a
court of competent jurisdiction.
(c)
Reimbursement
by
Lenders.
To the extent
that Borrower for any reason fails to indefeasibly pay any amount required
under
subsection (a) or (b) of this Section to be paid by it to Agent (or any
sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing,
each Lender severally agrees to pay to Agent (or any such sub-agent), the L/C
Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount, provided
that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against Agent (or
any
such sub-agent) or the L/C Issuer in its capacity as such, or against any
Related Party of any of the foregoing acting for Agent (or any such sub-agent)
or L/C Issuer in connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of Section
2.12(d).
41
(d)
Waiver
of
Consequential Damages, Etc.
To the fullest
extent permitted by applicable law, Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct
or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter
of
Credit or the use of the proceeds thereof. No Indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed 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 Agent and the 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 Borrower is made to Agent, the L/C Issuer or
any
Lender, or Agent, the L/C Issuer or any Lender exercises its right of setoff,
and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by Agent, the
L/C
Issuer or such Lender in its discretion) to be repaid to a trustee, receiver
or
any other party, in connection with any proceeding under any Debtor Relief
Law
or otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued
in
full force and effect as if such payment had not been made or such setoff had
not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay
to
Agent upon demand its applicable share (without duplication) of any amount
so
recovered from or repaid by Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal
Funds Rate from time to time in effect. The obligations of the Lenders and
the
L/C Issuer under clause (b) of the preceding sentence shall survive the payment
in full of the Obligations and the termination of this Agreement.
10.06 Successors
and Assigns. (a)
Successors
and
Assigns Generally.
The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that
neither Borrower nor any other Loan Party may assign or otherwise transfer
any
of its rights or obligations hereunder without the prior written consent of
Agent, the L/C Issuer 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, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors
and
assigns permitted hereby, Participants to the extent provided in subsection
(d)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b)
Assignments
by
Lenders.
Any Lender may at
any time assign to one or more 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) 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, 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 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 Agent and, so long as no Event of Default has occurred and is continuing,
Borrower otherwise consents (each such consent not to be unreasonably withheld
or delayed); (ii) each partial assignment shall be made as an assignment of
a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loans or the Commitment assigned; (iii)
any
assignment of a Commitment must be approved by Agent, the L/C Issuer, and,
so
long as no Default or Event of Default has occurred, the Borrower, 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 Agent an Assignment
and
Assumption, together with a processing and recordation fee of $3,500 and the
Eligible Assignee, if it shall not be a Lender, shall deliver to Agent an
Administrative Questionnaire. Subject to acceptance and recording thereof by
Agent pursuant to subsection (c) of this Section, from and after
42
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, 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.
Agent, acting
solely for this purpose as an agent of Borrower, shall maintain at
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 Borrower, 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
Borrower and the L/C Issuer, 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 Agent a copy of the Register.
(d)
Participations.
Any Lender may at
any time, without the consent of, or notice to, Borrower or Agent, sell
participations to any Person (other than a natural person or Borrower or any
of
Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a
portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations) 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) Borrower, Agent, the L/C Issuer and
the Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement.
Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in the first proviso to
Section
10.01
that affects such
Participant. Subject to subsection (e) of this Section, Borrower agrees that
each Participant shall be entitled to the benefits of Sections
3.01,
3.04
and 3.05
to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant
to
subsection (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section
10.08
as though it were
a Lender, provided
such Participant
agrees to be subject to Section
2.13
as though it were
a Lender.
(e)
Limitations
upon
Participant Rights.
A Participant
shall not be entitled to receive any greater payment under Section
3.01
or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation
to
such Participant is made with Borrower's prior written consent.
(f)
Certain
Pledges.
Any Lender may at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement (including under its Note, if any) to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided
that no such
pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g)
Electronic
Execution of Assignments.
The words
“execution,” “signed,” “signature,” and words of like import in any Assignment
and Assumption shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.
(h)
Deemed
Consent
of Borrower.
If the consent of
Borrower to an assignment to an Eligible Assignee is required hereunder
(including a consent to an assignment which does not meet the minimum assignment
threshold specified in clause (i) of the proviso to the first sentence of
Section
10.06(b)),
Borrower shall
be deemed to have given its consent five Business Days after
43
the
date notice
thereof has been delivered to Borrower by the assigning Lender (through Agent)
unless such consent is expressly refused by Borrower prior to such fifth
Business Day.
(i)
Resignation
as
L/C Issuer.
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, upon 30 days’ notice to Borrower and the Lenders, resign as L/C
Issuer and/or. In the event of any such resignation as L/C Issuer, Borrower
shall be entitled to appoint from among Lenders a successor L/C Issuer
hereunder; provided,
however,
that no failure
by Borrower to appoint any such successor shall affect the resignation of Bank
of America as L/C Issuer. If Bank of America resigns as L/C Issuer, it shall
retain all the rights, powers, privileges and duties of the L/C Issuer hereunder
with respect to all Letters of Credit outstanding as of the effective date
of
its resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Committed Loans
or
fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)).
Upon the
appointment of a successor L/C Issuer, (a) such successor shall succeed to
and
become vested with all of the rights, powers, privileges and duties of the
retiring L/C Issuer, 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 Agent,
Lenders and the L/C Issuer agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a)
to
its Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority,
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c)
to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with
the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document
or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual
or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to Borrower and its obligations, (g) with the consent of Borrower
or
(h) to the extent such Information (x) becomes publicly available other than
as
a result of a breach of this Section or (y) becomes available to Agent, any
Lender, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than Borrower. For purposes of this
Section, “Information”
means
all
information received from Borrower or any Subsidiary relating to Borrower or
any
Subsidiary or any of their respective businesses, other than any such
information that is available to Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by Borrower or any Subsidiary,
provided that, in the case of information received from Borrower or any
Subsidiary after the date hereof, such information is clearly identified at
the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised
the
same degree of care to maintain the confidentiality of such Information as
such
Person would accord to its own confidential information. Each of Agent, the
Lenders and the L/C Issuer acknowledges that (a) the Information may include
material non-public information concerning the Borrower or a Subsidiary, as
the
case may be, (b) it has developed compliance procedures regarding the use of
material non-public information and (c) it will handle such material non-public
information in accordance with applicable Law, including Federal and state
securities Laws.
10.08 Right
of Setoff. If
an Event of
Default shall have occurred and be continuing, each Lender, the L/C Issuer
and
each of their respective Affiliates 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, the L/C Issuer or any such Affiliate
to or for the credit or the account of Borrower or any other Loan Party against
any and all of the obligations of Borrower or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or
the
L/C Issuer or any such Affiliate, irrespective of whether or not such Lender
or
the L/C Issuer shall have made any demand under this Agreement or any other
Loan
Document and although such obligations of Borrower or such Loan Party may be
contingent or unmatured or are owed to a branch or office of such Lender or
the
L/C Issuer different from the branch or office holding such deposit or obligated
on such indebtedness. The rights of each Lender, the L/C Issuer and their
respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, the L/C Issuer
or
their respective Affiliates may have. Each Lender and the L/C Issuer agrees
to
notify Borrower and 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.
44
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 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 Borrower. In determining whether the interest
contracted for, charged, or received by 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 Agent and when 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 Agent and
each Lender, regardless of any investigation made by Agent or any Lender or
on
their behalf and notwithstanding that Agent or any Lender may have had notice
or
knowledge of any Default at the time of any Credit Extension, and shall continue
in full force and effect as long as any Loan or any other Obligation hereunder
shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
10.12 Severability. If
any provision of
this Agreement or the other Loan Documents is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Agreement and the other Loan Documents shall not be affected
or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that
of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.13 Governing
Law; Jurisdiction; Etc.(a)
GOVERNING
LAW.
THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF
MISSOURI.
(b) SUBMISSION
TO
JURISDICTION.
THE BORROWER AND
EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND
ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
MISSOURI SITTING IN XX. XXXXX XXXXXX XXX XX XXX XXXXXX XXXXXX DISTRICT COURT
OF
THE EASTERN DISTRICT OF MISSOURI, AND ANY APPELLATE COURT FROM ANY THEREOF,
IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND
EACH
OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS
IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
MISSOURI 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 AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST
THE
BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(c)
WAIVER
OF
VENUE.
THE BORROWER AND
EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO
45
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.
10.14 Waiver
of Right to Trial by Jury. 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.
10.15 USA
PATRIOT Act Notice. Each
Lender that is
subject to the Act (as hereinafter defined) and Agent (for itself and not on
behalf of any Lender) hereby notifies Borrower that pursuant to the requirements
of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October
26,
2001)) (the “Act”), it is required to obtain, verify and record information that
identifies Borrower, which information includes the name and address of Borrower
and other information that will allow such Lender or Agent, as applicable,
to
identify Borrower in accordance with the Act.
10.16 Time
of the Essence. Time
is of the
essence of the Loan Documents.
10.17 Oral
Agreements. ORAL
AGREEMENTS OR
COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT
OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE,
REGARDLESS OF THE LEGAL THEORY UPON WHICH IT IS BASED THAT IS IN ANY WAY RELATED
TO THE CREDIT AGREEMENT. TO PROTECT YOU (BORROWER(S)) AND US (CREDITOR) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
[Remainder
of page intentionally left blank; signature page follows]
46
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
|
|
INSITUFORM
TECHNOLOGIES, INC.
|
|
|
By:
/s/
Xxxxx X.
Xxxxxx
|
|
|
Name:
Xxxxx
X.
Xxxxxx
|
|
|
Title:
Vice
President and Controller
|
|
|
BANK
OF AMERICA, N.A.,
as
|
|
|
Administrative
Agent
|
|
|
By:
/s/
Xxxxx
X.
Xxxxxx
|
|
|
Name:Xxxxx
X.
Xxxxxx
|
|
|
Title:
Senior
Vice President
|
|
|
BANK
OF AMERICA, N.A.,
as a
Lender and L/C Issuer
|
|
|
By:
/s/
Xxxxx
X.
Xxxxxx
|
|
|
Name:Xxxxx
X.
Xxxxxx
|
|
|
Title:
Senior
Vice President
|
47
