CREDIT AGREEMENT Dated as of June 30, 2009 among HILL INTERNATIONAL, INC., as the Borrower, BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, CAPITAL ONE, N.A., as Syndication Agent, THE PRIVATEBANK AND TRUST COMPANY,...
Exhibit
No. 10.15
Published
CUSIP Number: ____
Dated as
of June 30, 2009
among
as the
Borrower,
BANK OF AMERICA,
N.A.,
as
Administrative Agent, Swing Line Lender and
L/C
Issuer,
CAPITAL ONE,
N.A.,
as
Syndication Agent,
THE PRIVATEBANK AND TRUST
COMPANY,
as
Documentation Agent,
and
The Other
Lenders Party Hereto
BANC OF AMERICA SECURITIES
LLC,
as Sole
Lead Arranger and Sole Book Manager
TABLE
OF CONTENTS
Page
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ARTICLE
I DEFINITIONS AND ACCOUNTING
TERMS
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1
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1.01
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Defined
Terms
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1
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1.02
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Other
Interpretive Provisions
|
25
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1.03
|
Accounting
Terms
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26
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1.04
|
Rounding
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26
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1.05
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Times
of Day
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26
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1.06
|
Letter
of Credit Amounts
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26
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1.07
|
Currency
Equivalents Generally
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27
|
ARTICLE
II THE COMMITMENTS AND CREDIT
EXTENSIONS
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26
|
|
2.01
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Revolving
Loans
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27
|
2.02
|
Borrowings,
Conversions and Continuations of Revolving Loans
|
27
|
2.03
|
Letters
of Credit
|
29
|
2.04
|
Swing
Line Loans
|
37
|
2.05
|
Prepayments
|
40
|
2.06
|
Termination
or Reduction of Commitments
|
41
|
2.07
|
Repayment
of Loans
|
41
|
2.08
|
Interest
|
41
|
2.09
|
Fees
|
42
|
2.10
|
Computation
of Interest and Fees; Retroactive Adjustments of Applicable
Rate
|
43
|
2.11
|
Evidence
of Debt
|
43
|
2.12
|
Payments
Generally; Administrative Agent’s Clawback
|
44
|
2.13
|
Sharing
of Payments by Lenders
|
46
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2.14
|
Increase
in Commitments
|
47
|
2.15
|
Cash
Collateral and Other Credit Support
|
48
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ARTICLE
III TAXES, YIELD PROTECTION AND
ILLEGALITY
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49
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|
3.01
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Taxes
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49
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3.02
|
Illegality
|
53
|
3.03
|
Inability
to Determine Rates
|
53
|
3.04
|
Increased
Costs; Reserves on Eurodollar Rate Loans
|
54
|
3.05
|
Compensation
for Losses
|
55
|
-i-
TABLE
OF CONTENTS
(continued)
Page
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3.06
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Mitigation
Obligations; Replacement of Lenders
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56
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3.07
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Survival
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56
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ARTICLE
IV CONDITIONS PRECEDENT TO CREDIT
EXTENSIONS
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57
|
|
4.01
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Conditions
of Initial Credit Extension
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57
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4.02
|
Conditions
to all Credit Extensions
|
59
|
ARTICLE
V REPRESENTATIONS AND
WARRANTIES
|
60
|
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5.01
|
Existence,
Qualification and Power
|
60
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5.02
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Authorization;
No Contravention
|
60
|
5.03
|
Governmental
Authorization; Other Consents
|
60
|
5.04
|
Binding
Effect
|
60
|
5.05
|
Financial
Statements; No Material Adverse Effect
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61
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5.06
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Litigation
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61
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5.07
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No
Default
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61
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5.08
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Ownership
of Property; Liens; Investments
|
61
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5.09
|
Environmental
Compliance
|
62
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5.10
|
Insurance
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62
|
5.11
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Taxes
|
62
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5.12
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ERISA
Compliance
|
62
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5.13
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Subsidiaries;
Equity Interests; Loan Parties
|
63
|
5.14
|
Margin
Regulations; Investment Company Act
|
63
|
5.15
|
Disclosure
|
64
|
5.16
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Compliance
with Laws
|
64
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5.17
|
Intellectual
Property; Licenses, Etc
|
64
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5.18
|
Solvency
|
64
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5.19
|
Casualty,
Etc
|
64
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5.20
|
Labor
Matters
|
65
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5.21
|
Collateral
Documents
|
65
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ARTICLE
VI AFFIRMATIVE
COVENANTS
|
65
|
|
6.01
|
Financial
Statements
|
65
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6.02
|
Certificates;
Other Information
|
66
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-ii-
TABLE
OF CONTENTS
(continued)
Page
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6.03
|
Notices
|
68
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6.04
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Payment
of Obligations
|
69
|
6.05
|
Preservation
of Existence, Etc
|
69
|
6.06
|
Maintenance
of Properties
|
69
|
6.07
|
Maintenance
of Insurance
|
69
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6.08
|
Compliance
with Laws
|
69
|
6.09
|
Books
and Records
|
70
|
6.10
|
Inspection
Rights
|
70
|
6.11
|
Use
of Proceeds
|
70
|
6.12
|
Covenant
to Guarantee Obligations and Give Security; Further
Assurances
|
70
|
6.13
|
Compliance
with Environmental Laws
|
74
|
6.14
|
Surety
Bonds
|
74
|
ARTICLE
VII NEGATIVE COVENANTS
|
74
|
|
7.01
|
Liens
|
74
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7.02
|
Indebtedness
|
76
|
7.03
|
Investments
|
79
|
7.04
|
Fundamental
Changes
|
81
|
7.05
|
Dispositions
|
81
|
7.06
|
Restricted
Payments
|
82
|
7.07
|
Change
in Nature of Business
|
83
|
7.08
|
Transactions
with Affiliates
|
83
|
7.09
|
Burdensome
Agreements
|
83
|
7.10
|
Use
of Proceeds
|
84
|
7.11
|
Financial
Covenants
|
84
|
7.12
|
Amendments
of Organization Documents
|
84
|
7.13
|
Accounting
Changes
|
84
|
7.14
|
Prepayments,
Etc. of Indebtedness
|
84
|
7.15
|
Amendment,
Etc. of Indebtedness
|
84
|
7.16
|
Post-Closing
Deliveries
|
84
|
ARTICLE
VIII EVENTS OF DEFAULT AND
REMEDIES
|
85
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-iii-
TABLE
OF CONTENTS
(continued)
Page
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8.01
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Events
of Default
|
85
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8.02
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Remedies
Upon Event of Default
|
87
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8.03
|
Application
of Funds
|
88
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ARTICLE
IX ADMINISTRATIVE AGENT
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89
|
|
9.01
|
Appointment
and Authority
|
89
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9.02
|
Rights
as a Lender
|
89
|
9.03
|
Exculpatory
Provisions
|
90
|
9.04
|
Reliance
by Administrative Agent
|
91
|
9.05
|
Delegation
of Duties
|
91
|
9.06
|
Resignation
of Administrative Agent
|
91
|
9.07
|
Non-Reliance
on Administrative Agent and Other Lenders
|
92
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9.08
|
No
Other Duties, Etc
|
92
|
9.09
|
Administrative
Agent May File Proofs of Claim
|
92
|
9.10
|
Collateral
and Guaranty Matters
|
93
|
9.11
|
Secured
Cash Management Agreements and Secured Hedge Agreements
|
94
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ARTICLE
X MISCELLANEOUS
|
94
|
|
10.01
|
Amendments,
Etc
|
94
|
10.02
|
Notices;
Effectiveness; Electronic Communications
|
96
|
10.03
|
No
Waiver; Cumulative Remedies
|
98
|
10.04
|
Expenses;
Indemnity; Damage Waiver
|
98
|
10.05
|
Payments
Set Aside
|
100
|
10.06
|
Successors
and Assigns
|
101
|
10.07
|
Treatment
of Certain Information; Confidentiality
|
105
|
10.08
|
Right
of Setoff
|
106
|
10.09
|
Interest
Rate Limitation
|
106
|
10.10
|
Counterparts;
Integration; Effectiveness
|
106
|
10.11
|
Survival
of Representations and Warranties
|
107
|
10.12
|
Severability
|
107
|
10.13
|
Replacement
of Lenders
|
107
|
10.14
|
Defaulting
Lenders and Impacted Lenders
|
108
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-iv-
TABLE
OF CONTENTS
(continued)
Page
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10.15
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Governing
Law; Jurisdiction; Etc
|
112
|
10.16
|
Waiver
of Jury Trial
|
113
|
10.17
|
No
Advisory or Fiduciary Responsibility
|
113
|
10.18
|
Electronic
Execution of Assignments and Certain Other Documents
|
114
|
10.19
|
USA
PATRIOT Act Notice
|
114
|
-v-
SIGNATURES
|
S-1
|
SCHEDULES
|
|
1.01A
|
Existing
Letters of Credit
|
1.01B
|
Immaterial
Subsidiaries
|
2.01
|
Commitments
and Applicable Percentages
|
5.08(b)
|
Real
Property
|
5.13
|
Subsidiaries
and Other Equity Investments; Loan Parties
|
6.12
|
Guarantors
|
7.01
|
Existing
Liens
|
7.02(c)
|
Existing
Indebtedness
|
7.02(h)
|
Existing
Indebtedness of Foreign Subsidiaries
|
7.03
|
Existing
Investments
|
7.16
|
Post-Closing
Deliveries
|
10.02
|
Administrative
Agent’s Office, Certain Addresses for Notices
|
EXHIBITS
|
|
Form
of
|
|
A
|
Revolving
Loan Notice
|
B
|
Swing
Line Loan Notice
|
C
|
Note
|
D
|
Compliance
Certificate
|
E-1
|
Assignment
and Assumption
|
E-2
|
Administrative
Questionnaire
|
F
|
Guarantee
and Collateral Agreement
|
G
|
Opinion
Matters
|
i
This
CREDIT AGREEMENT (“Agreement”) is
entered into as of June 30, 2009, among HILL INTERNATIONAL, INC., a Delaware
corporation (the “Borrower”), each
lender from time to time party hereto (collectively, the “Lenders” and
individually, a “Lender”), and BANK OF
AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.
PRELIMINARY
STATEMENTS:
The
Borrower has requested that the Lenders provide a revolving credit facility, and
the Lenders have indicated their willingness to lend and the L/C Issuer has
indicated its willingness to issue letters of credit, in each case, on the terms
and subject to the conditions set forth herein.
In
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
1.01 Defined
Terms. As used in this Agreement, the following terms shall
have the meanings set forth below:
“Account Control
Agreement” has the meaning specified in the Guarantee and Collateral
Agreement.
“Administrative Agent”
means Bank of America in its capacity as administrative agent under any of the
Loan Documents, or any successor administrative agent.
“Administrative Agent’s
Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 10.02, or
such other address or account as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.
“Administrative
Questionnaire” means an Administrative Questionnaire in substantially the
form of Exhibit
E-2 or any other form approved by the Administrative Agent.
“Affiliate” means,
with respect to any Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
“Aggregate
Commitments” means the Commitments of all the Lenders.
“Agreement” means this
Credit Agreement.
“Applicable
Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender’s Commitment at such time. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if
the 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. Notwithstanding the foregoing, during any
Impact Period applicable to any Defaulting Lender, for purposes of computing the
amount allocable to each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.03 and
2.04 as to
which the L/C Issuer or Swing Line Lender (as applicable) has not received Cash
Collateral or other credit support acceptable to it in respect of the related
participation and funding obligations of such Defaulting Lender, (x) the
Applicable Percentage of each non-Defaulting Lender shall be computed without
giving effect to the Commitment of such Defaulting Lender and (y) such amount
shall in no event for each non-Defaulting Lender exceed an amount equal to the
positive difference between (1) the Commitment of such non-Defaulting Lender and
(2) the aggregate Outstanding Amount of the Loans of such Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing
Line Loans.
“Applicable Rate”
means the applicable percentage per annum set forth below determined by
reference to the Consolidated Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to Section
6.02(a):
Applicable
Rate
|
||||||||||||||
Pricing
Level
|
Consolidated
Leverage
Ratio
|
Commitment
Fee
|
Eurodollar
Rate Loans
and Letters of Credit |
Base
Rate Loans
|
||||||||||
1
|
Less
than 1.00 to 1.00
|
0.50 | % | 2.75 | % | 1.75 | % | |||||||
2
|
Greater
than or equal to 1.00 to 1.00 but less than 1.50 to 1.00
|
0.50 | % | 3.00 | % | 2.00 | % | |||||||
3
|
Greater
than or equal to 1.50 to 1.00 but less than 2.00 to 1.00
|
0.50 | % | 3.25 | % | 2.25 | % | |||||||
4
|
Greater
than or equal to 2.00 to 1.00
|
0.50 | % | 3.50 | % | 2.50 | % |
Any
increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to
Section
6.02(a); provided, however, that if a
Compliance Certificate is not delivered when due in accordance with such
Section, then, upon the request of the Required Lenders, Pricing Level 4 shall
apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered and in each case shall remain in
effect until the date on which such Compliance Certificate is
delivered. Subject to the preceding sentence, from the Closing Date
to the date of delivery of the Compliance Certificate for the fiscal quarter
ending June 30, 2009, Pricing Level 1 shall apply.
2
Notwithstanding
anything to the contrary contained in this definition, the determination of the
Applicable Rate for any period shall be subject to the provisions of Section
2.10(b).
“Approved Fund” means
any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or manages
a Lender.
“Arranger” means Banc
of America Securities LLC, in its capacity as sole lead arranger and sole book
manager.
“Assignee Group” means
two or more Eligible Assignees that are Affiliates of one another or two or more
Approved Funds managed by the same investment advisor.
“Assignment and
Assumption” means an assignment and assumption entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is
required by Section
10.06(b), and accepted by the Administrative Agent, in substantially the
form of Exhibit
E-1 or any other form approved by the Administrative Agent.
“Assumption Agreement”
means an Assumption Agreement, substantially in the form thereof attached to the
Guarantee and Collateral Agreement.
“Attributable
Indebtedness” means, on any date, (a) in respect of any Capitalized 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, (b) in
respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease or similar payments under the relevant lease or other applicable
agreement or instrument that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP if such lease or other
agreement or instrument were accounted for as a Capitalized Lease and (c) all
Synthetic Debt of such Person.
“Audited Financial
Statements” means the audited consolidated balance sheet of the Borrower
and its Subsidiaries for the fiscal year ended December 31, 2008, and the
related consolidated statements of income or operations, shareholders’ equity
and cash flows for such fiscal year of the Borrower and its Subsidiaries,
including the notes thereto.
“Availability” means,
as of any date of determination, the aggregate amount then available to be
borrowed by the Borrower as Loans under this Agreement (after giving effect to
any Total Outstandings); provided that the
Borrower then has the present ability to satisfy all conditions precedent to its
ability to borrow such amount. Without limitation of the foregoing,
the limitations set forth in Section 7.11 shall be
applied in determining Availability.
“Availability Period”
means the period from and including the Closing Date to the earliest of (a) the
Maturity Date, (ii) the date of termination of the Aggregate Commitments
pursuant to Section
2.06, and (iii) 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.
3
“Base Rate” means for
any day a fluctuating rate per annum equal to the highest of (a) the Federal
Funds Rate plus
1/2 of 1%, (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”, and (c) the Eurodollar
Rate plus 1.00%. 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 (i) in such “prime 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, and (ii) in the Eurodollar Rate described in
clause (c)
above shall take effect on the date of such change.
“Base Rate Loan” means
a Loan that bears interest based on the Base Rate.
“Bonded Contract”
means any Contractual Obligation, or any task order issued under or in
connection with a Contractual Obligation, with respect to which the Borrower’s
payment, performance or other obligations are guaranteed by a bond issued by a
surety company.
“Borrower” has the
meaning specified in the introductory paragraph hereto.
“Borrower Materials”
has the meaning specified in Section
6.02.
“Borrowing” means a
Revolving Borrowing or a Swing Line Borrowing, as the context may
require.
“Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks are
authorized to close under the Laws of, or are in fact closed in, the state where
the Administrative Agent’s Office is located and, if such day relates to any
Eurodollar Rate Loan, means any such day that is also a London Banking
Day.
“Capital Expenditures”
means, with respect to any Person for any period, any expenditure in respect of
the purchase or other acquisition of any fixed or capital asset (excluding
normal replacements and maintenance which are properly charged to current
operations). For purposes of this definition, the purchase price of
equipment that is purchased substantially contemporaneously with the trade-in or
sale of existing equipment or with insurance proceeds shall be included in
Capital Expenditures only to the extent of the gross amount by which such
purchase price exceeds the credit granted to such Person for the equipment being
traded in by the seller of such new equipment, the proceeds of such sale or the
amount of the insurance proceeds, as the case may be.
“Capitalized Leases”
means all leases that have been or should be, in accordance with GAAP, recorded
as capitalized leases.
“Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the L/C Issuer or Swing Line Lender (as applicable) and the Lenders,
as collateral for L/C Obligations, Obligations in respect of Swing Line Loans,
or obligations of Lenders to fund participations in respect of either thereof
(as the context may require), cash or deposit account balances pursuant to
documentation in form and substance satisfactory to (a) the Administrative Agent
and (b) the L/C Issuer or the Swing Line Lender (as
applicable). “Cash Collateral”
shall have a meaning correlative to the foregoing.
4
“Cash Equivalents”
means any of the following types of Investments:
(a) readily
marketable obligations issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof having
maturities of not more than 360 days from the date of acquisition thereof; provided that the
full faith and credit of the United States of America is pledged in support
thereof;
(b) time
or demand deposits with, or insured certificates of deposit or bankers’
acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized
under the laws of the United States of America, any state thereof or the
District of Columbia or is the principal banking subsidiary of a bank holding
company organized under the laws of the United States of America, any state
thereof or the District of Columbia, and is a member of the Federal Reserve
System, (ii) issues (or the parent of which issues) commercial paper rated as
described in clause
(c) of this definition and (iii) has combined capital and surplus of at
least $500,000,000, in each case with maturities of not more than 180 days from
the date of acquisition thereof;
(c) (i)
commercial paper issued by any Person
organized under the laws of any state of the United States of America and rated
at least “Prime-1” (or the then equivalent grade) by Xxxxx’x or at least “A-1”
(or the then equivalent grade) by S&P and (ii) up to $5,000,000 in the
aggregate at any time outstanding of commercial paper issued by any Person
organized under the laws of any state of the United States of America and rated
at least “Prime-2” (or the then equivalent grade) by Xxxxx’x or at least “A-2”
(or the then equivalent grade) by S&P, in the case of each type of
commercial paper in clauses (i) and (ii) with maturities
of not more than 180 days from the date of acquisition thereof;
(d) fully
collateralized repurchase agreements with a term of not more than thirty (30)
days for securities described in clause (a) above
(without regard to the limitation on maturity contained in such clause) and
entered into with a financial institution satisfying the criteria, at the time
of acquisition thereof, described in clause (c) above or
with any primary dealer and having a market value at the time that such
repurchase agreement is entered into of not less than 100% of the repurchase
obligation of such counterparty entity with whom such repurchase agreement has
been entered into; and
(e) Investments,
classified in accordance with GAAP as current assets of the Borrower or any of
its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, the portfolios of which are limited solely to
Investments of the character, quality and maturity described in clauses (a), (b), (c) and (d) of this
definition.
5
“Cash Management
Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic
funds transfer and other cash management arrangements.
“Cash Management Bank”
means any Person that, (a) at the time it enters into a Cash Management
Agreement, is a Lender or an Affiliate of a Lender, or (b) at the time it (or
its Affiliate) becomes a Lender, is a party to a Cash Management Agreement, in
each case in its capacity as a party to such Cash Management
Agreement.
“CFC” means a Person
that is a controlled foreign corporation under Section 957 of the
Code.
“Change in Law” means
the occurrence, after the date of this Agreement, of any of the following: (a)
the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration,
interpretation or application thereof by any Governmental Authority or (c) the
making or issuance of any request, guideline or directive (whether or not having
the force of law) by any Governmental Authority.
“Change of Control”
means an event or series of events by which:
(a) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such
person or its subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan) other than
the Permitted Management Shareholders becomes the “beneficial owner” (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that
a person or group shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire, whether such
right is exercisable immediately or only after the passage of time (such right,
an “option
right”)), directly or indirectly, of 25% or more of the equity securities
of the Borrower entitled to vote for members of the board of directors or
equivalent governing body of the Borrower on a fully-diluted basis (and taking
into account all such securities that such “person” or “group” has the right to
acquire pursuant to any option right); or
(b) during
any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Borrower cease to be
composed of individuals (i) who were members of that board or equivalent
governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body or (iii) whose election or nomination to
that board or other equivalent governing body was approved by individuals
referred to in clauses
(i) and (ii) above
constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a member of
that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of
one or more directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of directors);
or
6
(c) any
Person or two or more Persons (other than the Permitted Management Shareholders)
acting in concert shall have acquired by contract or otherwise, or shall have
entered into a contract or arrangement that, upon consummation thereof, will
result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the
Borrower, or control over the equity securities of the Borrower entitled to vote
for members of the board of directors or equivalent governing body of the
Borrower on a fully-diluted basis (and taking into account all such securities
that such Person or Persons have the right to acquire pursuant to any option
right) representing 25% or more of the combined voting power of such
securities.
“Closing Date” means
the first date all the conditions precedent in Section 4.01 are
satisfied or waived in accordance with Section
10.01.
“Code” means the
Internal Revenue Code of 1986.
“Collateral” means all
of the “Collateral” referred
to in the Collateral Documents and all of the other property that is or is
intended under the terms of the Collateral Documents to be subject to Liens in
favor of the Administrative Agent for the benefit of the Secured
Parties.
“Collateral Documents”
means, collectively, the Guarantee and Collateral Agreement, the Account Control
Agreements, the Mortgages, each of the collateral assignments, security
agreements, pledge agreements or other similar agreements delivered to the
Administrative Agent pursuant to Section 6.12, and
each of the other agreements, instruments or documents that creates or purports
to create a Lien in favor of the Administrative Agent for the benefit of the
Secured Parties.
“Commitment” means, as
to each Lender, its obligation to (a) make Revolving Loans to the Borrower
pursuant to Section
2.01, (b) purchase participations in L/C Obligations, and (c) purchase
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender’s name
on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time
to time in accordance with this Agreement.
“Compliance
Certificate” means a certificate substantially in the form of Exhibit D.
“Consolidated EBITDA”
means, at any date of determination, an amount equal to Consolidated Net Income
of the Borrower and its Subsidiaries on a consolidated basis for the most
recently completed Measurement Period plus (a) the
following to the extent deducted in calculating such Consolidated Net
Income: (i) Consolidated Interest Charges, (ii) the provision for
Federal, state, local and foreign income taxes payable, (iii) depreciation and
amortization expense, (iv) other non-recurring expenses reducing such
Consolidated Net Income which do not represent a cash item in such period or any
future period, and (v) non-recurring compensation expenses which do not
represent a cash item in such period or any future period (in each case of or by
the Borrower and its Subsidiaries for such Measurement Period) and minus (b) the
following to the extent included in calculating such Consolidated Net
Income: (i) Federal, state, local and foreign income tax credits and
(ii) all non-cash items increasing Consolidated Net Income (in each case of or
by the Borrower and its Subsidiaries for such Measurement Period).
7
“Consolidated Fixed Charge
Coverage Ratio” means, at any date of determination, the ratio of (a) (i)
Consolidated EBITDA, plus (ii) rental
expense under leases of real or personal, or mixed, property, less (iii) the sum of
(A) the aggregate amount of Federal, state, local and foreign income taxes paid
in cash and (B) the aggregate amount of all dividends and distributions paid in
cash by the Borrower to its shareholders to (b) the sum of
(i) Consolidated Interest Charges, (ii) rental expense under leases of real
or personal, or mixed, property, (iii) the current portion of long-term debt
(including the principal component of any payments in respect of Capitalized
Leases) and (iv) any Earnout Payments required to be paid in cash, in each case,
of or by the Borrower and its Subsidiaries for the most recently completed
Measurement Period.
“Consolidated Funded
Indebtedness” means, as of any date of determination, for the Borrower
and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding
principal amount of all obligations, whether current or long-term, for borrowed
money (including Obligations hereunder) and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar instruments, (b) all
purchase money Indebtedness, (c) all direct obligations arising under letters of
credit (including standby and commercial), bankers’ acceptances, bank guaranties
and similar instruments (excluding surety bonds), (d) all obligations in respect
of the deferred purchase price of property or services (other than trade
accounts payable in the ordinary course of business and any Earnout Payments in
connection with acquisitions permitted hereunder), (e) all Attributable
Indebtedness, (f) without duplication, all Guarantees with respect to
outstanding Indebtedness of the types specified in clauses (a) through
(e) above of
Persons other than the Borrower or any Subsidiary, and (g) all Indebtedness of
the types referred to in clauses (a) through
(f) above of
any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the Borrower or a Subsidiary
is a general partner or joint venturer, unless such Indebtedness is expressly
made non-recourse to the Borrower or such Subsidiary.
“Consolidated Interest
Charges” means, for any Measurement Period, the sum of (a) all interest,
premium payments, debt discount, fees, charges and related expenses in
connection with borrowed money (including capitalized interest) or in connection
with the deferred purchase price of assets, in each case to the extent treated
as interest in accordance with GAAP, (b) all interest paid or payable with
respect to discontinued operations and (c) the portion of rent expense under
Capitalized Leases that is treated as interest in accordance with GAAP, in each
case, of or by the Borrower and its Subsidiaries on a consolidated basis for the
most recently completed Measurement Period.
“Consolidated Leverage
Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for
the most recently completed Measurement Period.
8
“Consolidated Net
Income” means, at any date of determination, the net income (or loss) of
the Borrower and its Subsidiaries on a consolidated basis for the most recently
completed Measurement Period; provided that
Consolidated Net Income shall exclude extraordinary gains and extraordinary
losses and gains or losses from discontinued operations.
“Consolidated Net
Worth” means, as of any date of determination, consolidated shareholders’
equity of the Borrower and its Subsidiaries as of that date determined in
accordance with GAAP.
“Consolidated Senior Secured
Indebtedness” means, as of any date of determination, the remainder of
(a) Consolidated Funded Indebtedness as of such date, minus, (b) the sum
(without duplication) of (i) any Consolidated Funded Indebtedness that is not
secured by any Lien on any asset of the Borrower or any Subsidiary, and (ii) any
Permitted Subordinated Indebtedness outstanding on such date.
“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 Excess” has
the meaning specified in Section
10.14.
“Default Rate” means
(a) when used with respect to Obligations other than Letter of Credit Fees, an
interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate applicable to Base Rate Loans plus (iii) 2% per
annum; provided, however, that with
respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate
equal to the interest rate (including any Applicable Rate) otherwise applicable
to such Loan plus 2% per annum and (b) when used with respect to Letter of
Credit Fees, a rate equal to the Applicable Rate plus 2% per
annum.
“Defaulted Loan” has
the meaning specified in Section
10.14.
“Defaulted Payment”
has the meaning specified in Section
10.14.
9
“Defaulting Lender”
has the meaning specified in Section
10.14.
“Disposition” or
“Dispose” means
the sale, transfer, license, lease or other disposition (including any sale and
leaseback transaction) of any property by any Person (or the granting of any
option or other right to do any of the foregoing), including any sale,
assignment, transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated
therewith.
“Distress Event” has
the meaning specified in Section
10.14.
“Distressed Person”
has the meaning specified in Section
10.14.
“Dollar” and “$” mean lawful money
of the United States.
“Domestic Subsidiary”
means any Subsidiary that is organized under the laws of any political
subdivision of the United States.
“Earnout Payment”
means, in connection with any acquisition permitted hereunder, the obligation to
pay a portion of the purchase price after the closing date thereof to the extent
such obligation is structured as an earnout or similar contingent payment,
whether such payment is based on changes in earnings, specified revenue targets
or otherwise.
“Eligible Assignee”
means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii)
and (v)
(subject to such consents, if any, as may be required under Section
10.06(b)(iii)).
“Engagement Letter”
means the letter agreement, dated March 26, 2009, among the Borrower, the
Administrative Agent and the Arranger.
“Environmental Laws”
means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the 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.
“Environmental Permit”
means any permit, approval, identification number, license or other
authorization required under any Environmental Law.
10
“Equity Interests”
means, with respect to any Person, all of the shares of capital stock of (or
other ownership or profit interests in) such Person, all of the warrants,
options or other rights for the purchase or acquisition from such Person of
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of
determination.
“ERISA” means the
Employee Retirement Income Security Act of 1974.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control
with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).
“ERISA Event” means
(a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the
Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a
notice of intent to terminate, the treatment of a Plan amendment as a
termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Borrower or any ERISA Affiliate.
“Eurodollar Rate”
means
(a) for
any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum
equal to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11:00 a.m., London time, two London Banking 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, or (ii) if such rate is not available at such time for any reason, the
rate per annum determined by the Administrative Agent to be the rate at which
deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurodollar Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America’s London Branch to major
banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two London Banking Days prior to the
commencement of such Interest Period; and
11
(b) for
any day with respect to an interest calculation with respect to a Base Rate
Loan, the rate per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m.,
London time, two London Banking Days prior to such day for Dollar deposits being
delivered in the London interbank market for a term of one month commencing that
day or (ii) if such published rate is not available at such time for any reason,
the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on such day in same day funds in the
approximate amount of the Base Rate Loan being made or maintained by Bank of
America and with a term equal to one month 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 London Banking Days prior
to such day.
“Eurodollar Rate Loan”
means a Revolving Loan that bears interest at a rate based on clause (a) of the
definition of “Eurodollar Rate.”
“Event of Default” has
the meaning specified in Section
8.01.
“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, the L/C Issuer or
any other recipient of any payment to be made by or on account of any obligation
of the Borrower hereunder, (a) taxes imposed on or measured by its overall net
income (however denominated), and franchise taxes imposed on it (in lieu of net
income taxes), by the jurisdiction (or any political subdivision thereof) under
the Laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable Lending Office
is located, (b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which the Borrower is located,
(c) any backup withholding tax that is required by the Code to be withheld from
amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii),
and (d) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 10.13), any
United States withholding tax that (i) is required to be imposed on amounts
payable to such Foreign Lender pursuant to the Laws in force at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office) or
(ii) is attributable to such Foreign Lender’s failure or inability (other than
as a result of a Change in Law) to comply with Section 3.01(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 3.01(a)(ii) or
(iii).
“Existing Credit
Agreement” means that certain Amended and Restated Loan and Security
Agreement dated as of October 31, 2008 among the Borrower, PCI Group LLC, a
Nevada limited liability company, and Bank of America.
“Existing Letters of
Credit” means each letter of credit set forth on Schedule
1.01A.
12
“Federal Funds Rate”
means, for any day, the rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate (rounded upward, if necessary, to a whole multiple
of 1/100 of 1%) charged to Bank of America on such day on such transactions as
determined by the Administrative Agent.
“Fee Letter” means the
letter agreement, dated June 17, 2009, among the Borrower, the Administrative
Agent and the Arranger.
“Foreign Government Scheme or
Arrangement” has the meaning specified in Section
5.12(d).
“Foreign Lender” means
any Lender that is organized under the Laws of a jurisdiction other than that in
which the Borrower is resident for tax purposes (including such a Lender when
acting in the capacity of the L/C Issuer). For purposes of this
definition, the United States, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.
“Foreign Plan” has the
meaning specified in Section
5.12(d).
“FRB” means the Board
of Governors of the Federal Reserve System of the United States.
“Fronting Exposure”
means (i) with respect to the L/C Issuer, the Applicable Percentage (determined
without giving effect to the last sentence of the definition thereof) of L/C
Obligations of the applicable Defaulting Lender(s) other than such of those L/C
Obligations as to which Cash Collateral or other credit support acceptable to
the L/C Issuer shall have been provided in accordance with Sections 2.03 and
2.15, and (ii)
with respect to the Swing Line Lender, the Applicable Percentage (determined
without giving effect to the last sentence of the definition thereof) of Swing
Line Loans of the applicable Defaulting Lender(s) other than such of those Swing
Line Loans as to which Cash Collateral or other credit support acceptable to the
Swing Line Lender shall have been provided in accordance with Sections 2.04 and
2.15.
“Fund” means any
Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its activities.
“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.
13
“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, (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
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.
“Guarantee and Collateral
Agreement” means the Guarantee and Collateral Agreement made by the
Guarantors in favor of the Secured Parties, substantially in the form of Exhibit F, together
with each Assumption Agreement executed and delivered by the Borrower and each
of its Subsidiaries, as applicable, the Administrative Agent pursuant to Section 6.12 or
otherwise.
“Guarantors” means,
collectively, the Subsidiaries of the Borrower listed on Schedule 6.12 and
each other Subsidiary of the Borrower (other than an Immaterial Subsidiary or a
CFC) that shall be required to execute and deliver a guaranty or guaranty
supplement pursuant to Section
6.12.
“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.
14
“Hedge Bank” means any
Person that, (a) at the time it enters into a Swap Contract permitted under
Article VI or
VII, is a
Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate)
becomes a Lender, is a party to a Swap Contract, in each case in its capacity as
a party to such Swap Contract.
“Immaterial
Subsidiary” means each Subsidiary specified on Schedule 1.01B hereto
and each other Subsidiary of the Borrower designated by the Borrower in writing
to the Administrative Agent as an “Immaterial Subsidiary” for purposes of this
Agreement and the other Loan Documents, provided that for
purposes of this Agreement, at no time shall (i) the total assets of all
Immaterial Subsidiaries, as of the end of the most recent fiscal quarter for
which financial statements have been delivered pursuant to Section 6.01(a) or
6.01(b), equal
or exceed five percent (5%) of the consolidated total assets of the Borrower and
its Subsidiaries, or (ii) the gross revenues of all Immaterial Subsidiaries
for any Measurement Period equal or exceed five percent (5%) of the consolidated
gross revenues of the Borrower and its Subsidiaries for such Measurement Period,
in each case as determined in accordance with GAAP. In the event that
the total assets or the gross revenues of all Immaterial Subsidiaries as tested
at the end of any fiscal quarter exceed five percent (5%) of the consolidated
total assets or consolidated gross revenues, as applicable, of the Borrower and
its Subsidiaries, the Borrower shall identify Subsidiaries previously designated
as Immaterial Subsidiaries to become Loan Parties pursuant Section 6.12(a) so
that Loan Parties represent no less than ninety-five percent (95%) of
consolidated total assets and ninety-five percent (95%) of consolidated gross
revenues at all times. Once a Subsidiary becomes a Guarantor, it
shall cease to be an Immaterial Subsidiary and may not again be designated as an
Immaterial Subsidiary throughout the term of this Agreement. For
clarity, no Person that is a Loan Party may be designated as an Immaterial
Subsidiary.
“Impact Period” has
the meaning specified in Section
10.14.
“Impacted Lender” has
the meaning specified in Section
10.14.
“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) the
maximum amount of 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 not past due for more than 60 days after the date on which such trade
account was created);
15
(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) all
Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease
Obligations of such Person and all Synthetic Debt of such Person;
(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 or any warrant, right or option to acquire such Equity Interest, 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 (but only to the extent of the Indebtedness of such
partnership or joint venture for which such Person is liable), 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.
“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.
“Interest Payment
Date” means, (a) as to any Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Loan and the Maturity Date of the Facility
under which such Loan was made; 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 or Swing
Line 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 thereafter, as
selected by the Borrower in its Revolving Loan Notice; provided
that:
(a) 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;
16
(b) 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
(c) no
Interest Period shall extend beyond the Maturity Date of the Facility under
which such Loan was made.
“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 Equity Interests 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
interest in, another 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 or all or a substantial part of the business of, such
Person. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
“IP Rights” has the
meaning specified in Section
5.17.
“IRS” means the United
States Internal Revenue Service.
“ISP” means, with
respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice, Inc. (or
such later version thereof as may be in effect at the time of
issuance).
“Issuer Documents”
means with respect to any Letter of Credit, the Letter of Credit Application,
and any other document, agreement and instrument entered into by the L/C Issuer
and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating
to such Letter of Credit.
“Laws” means,
collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
“L/C Advance” means,
with respect to each Lender, such Lender’s funding of its participation in any
L/C Borrowing in accordance with its Applicable Percentage.
“L/C Borrowing” means
an extension of credit resulting from a drawing under any Letter of Credit which
has not been reimbursed on the date when made or refinanced as a Revolving
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.
17
“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 and, as the context
requires, includes the Swing Line Lender.
“Lending Office”
means, as to any Lender, the office or offices of such Lender described as such
in such Lender’s Administrative Questionnaire, or such other office or offices
as a Lender may from time to time notify the Borrower and the Administrative
Agent.
“Letter of Credit”
means any standby letter of credit issued hereunder and shall include the
Existing Letters of Credit.
“Letter of Credit
Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C
Issuer.
“Letter of Credit Expiration
Date” means the day that is seven days prior to the Maturity Date then in
effect (or, if such day is not a Business Day, the next preceding Business
Day).
“Letter of Credit Fee”
has the meaning specified in Section 2.03(h).
“Letter of Credit
Sublimit” means an amount equal to $30,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
“Lien” means any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge, or preference, priority or other security
interest or preferential arrangement in the nature of a security interest of any
kind or nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other encumbrance on title to
real property, and any financing lease having substantially the same economic
effect as any of the foregoing).
“Loan” means an
extension of credit by a Lender to the Borrower under Article II in the
form of a Revolving Loan or a Swing Line Loan.
“Loan Documents”
means, collectively, (a) this Agreement, (b) the Notes, (c) the Collateral
Documents, (d) the Engagement Letter, (e) the Fee Letter and (f) each Issuer
Document.
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“Loan Parties” means,
collectively, the Borrower and each Guarantor.
“London Banking Day”
means any day on which dealings in Dollar deposits are conducted by and between
banks in the London interbank Eurodollar market.
“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 the Borrower or
the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of
the rights and remedies of the Administrative Agent or any Lender under any Loan
Document, or of the ability of any Loan Party to perform its obligations under
any Loan Document to which it is a party; or (c) a material adverse effect upon
the legality, validity, binding effect or enforceability against any Loan Party
of any Loan Document to which it is a party.
“Material Bond Indemnity
Agreement” means any indemnity agreement between the Borrower and the
surety company, which has issued a payment, performance, bid or similar bond
with respect to a Bonded Contract, to the extent that the bond or bonds issued
thereunder or the aggregate bonding capacity is in excess of
$2,500,000.
“Material Real Property
Interest” means any parcel or series of related parcels of real property
owned in fee or subject to a ground lease by a Loan Party having a fair market
value in excess $2,500,000.
“Maturity Date” means
June 30, 2012; provided, however, that if such
date is not a Business Day, the Maturity Date shall be the next preceding
Business Day.
“Measurement Period”
means, at any date of determination, the most recently completed four fiscal
quarters of the Borrower.
“Moody’s” means
Xxxxx’x Investors Service, Inc. and any successor thereto.
“Mortgage” means a
mortgage, deed of trust, assignment of leases and rents, leasehold mortgage or
other security document granting a Lien on any real property to secure the
Obligations. Each Mortgage shall be satisfactory in form and
substance to the Administrative Agent.
“Multiemployer Plan”
means any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been
obligated to make contributions.
“Note” means a
promissory note made by the Borrower in favor of a Lender evidencing Revolving
Loans or Swing Line Loans, as the case may be, made by such Lender,
substantially in the form of Exhibit
C.
19
“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, Letter of Credit, Secured Cash Management Agreement or Secured Hedge
Agreement, in each case whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the
commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.
“Organization
Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
“Other Taxes” means
all present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of,
or otherwise with respect to, this Agreement or any other Loan Document other
than any of the foregoing imposed on a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 10.13) as a
result of an assignment of its Loans or Commitment pursuant to the Laws of the
jurisdiction in which such Lender is organized or its Lending Office is located
if such Law is in force at the time such Lender becomes a party hereto (or
designates a new Lending Office).
“Outstanding Amount”
means (a) with respect to Revolving Loans and Swing Line Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Revolving Loans and Swing Line
Loans, as the case may be, occurring on such date; and (b) 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 the Borrower of Unreimbursed
Amounts.
“Participant” has the
meaning specified in Section
10.06(d).
“PBGC” means the
Pension Benefit Guaranty Corporation.
“Pension Plan” means
any “employee pension benefit plan” (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA
and is sponsored or maintained by the Borrower or any ERISA Affiliate or to
which the Borrower or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.
20
“Permitted Liens”
means any Lien permitted by Section
7.01.
“Permitted Management
Shareholder” means each of Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxx and Xxxxxx
X. Xxxxxxx.
“Permitted Subordinated
Indebtedness” means any unsecured Indebtedness of the Borrower or any of
its Subsidiaries permitted under Section 7.02 incurred
from time to time which has been subordinated to the Obligations in a manner
acceptable to the Administrative Agent.
“Person” means any
natural person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other
entity.
“Plan” means any
“employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by the Borrower or, with respect to any such plan that is subject to
Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
“Platform” has the
meaning specified in Section
6.02.
“Pledged Equity” has
the definition set forth in the Guarantee and Collateral Agreement.
“Public Lender” has
the meaning specified in Section
6.02.
“Register” has the
meaning specified in Section
10.06(c).
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents, trustees 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 Revolving Loans, a Revolving Loan Notice, (b) with respect to an
L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a
Swing Line Loan, a Swing Line Loan Notice.
“Required Lenders”
means, as of any date of determination, two or more Lenders having more than
66-2/3% 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, two or
more Lenders holding in the aggregate more than 66-2/3% of the Total
Outstandings (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held”
by such Lender for purposes of this definition); provided that, (i) as
set forth in Section
10.14, 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 and (ii) in the event there is only
one Lender or only one Lender that is not a Defaulting Lender, the term
“Required Lenders” shall mean such Lender.
21
“Responsible Officer”
means the chief executive officer, president, chief financial officer,
treasurer, assistant treasurer or controller of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any capital stock or other Equity Interest of any
Person or any of its Subsidiaries, or any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, defeasance, acquisition, cancellation or
termination of any such capital stock or other Equity Interest, or on account of
any return of capital to any Person’s stockholders, partners or members (or the
equivalent of any thereof), or any option, warrant or other right to acquire any
such dividend or other distribution or payment.
“Revolving Borrowing”
means a borrowing consisting of simultaneous Revolving 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.
“Revolving Loan” has
the meaning specified in Section
2.01.
“Revolving Loan
Notice” means a notice of (a) a Revolving Borrowing, (b) a conversion of
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.
“S&P” means
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., and any successor thereto.
“SEC” means the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any of its principal functions.
“Secured Cash Management
Agreement” means any Cash Management Agreement that is entered into by
and between any Loan Party and any Cash Management Bank.
“Secured Hedge
Agreement” means any Swap Contract permitted under Article VII that is
entered into by and between any Loan Party and any Hedge Bank.
“Secured Parties”
means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the
Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by
the Administrative Agent from time to time pursuant to Section 9.05, and the
other Persons the Obligations owing to which are or are purported to be secured
by the Collateral under the terms of the Collateral Documents.
22
“Solvent” and “Solvency” mean, with
respect to any Person on any date of determination, that on such date (a) the
fair value of the property of such Person is greater than the total amount of
liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay such debts and liabilities as they mature, (d) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person’s property would constitute an unreasonably
small capital, and (e) such Person is able to pay its debts and liabilities,
contingent obligations and other commitments as they mature in the ordinary
course of business. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
“Subsidiary” of a
Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of securities
or other interests having ordinary voting power for the election of directors or
other governing body (other than securities or interests having such power only
by reason of the happening of a contingency) are at the time beneficially owned,
or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person. Unless
otherwise specified, all references herein to a “Subsidiary” or to
“Subsidiaries”
shall refer to a Subsidiary or Subsidiaries of the Borrower.
“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).
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“Swing Line Borrowing”
means a borrowing of a Swing Line Loan pursuant to Section
2.04.
“Swing Line Lender”
means Bank of America in its capacity as provider of Swing Line Loans, or any
successor swing line lender hereunder.
“Swing Line Loan” has
the meaning specified in Section
2.04(a).
“Swing Line Loan
Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b),
which, if in writing, shall be substantially in the form of Exhibit
B.
“Swing Line Sublimit”
means an amount equal to the lesser of (a) $10,000,000 and (b) the Aggregate
Commitments. The Swing Line Sublimit is part of, and not in addition
to, the Aggregate Commitments.
“Synthetic Debt”
means, with respect to any Person as of any date of determination thereof, all
obligations of such Person in respect of transactions entered into by such
Person that are intended to function primarily as a borrowing of funds but are
not otherwise included in the definition of “Indebtedness” or as a
liability on the consolidated balance sheet of such Person and its Subsidiaries
in accordance with GAAP.
“Synthetic Lease
Obligation” means the monetary obligation of a Person under a so-called
synthetic, off-balance sheet, tax retention or other lease or similar
arrangement, which, upon the application of any Debtor Relief Laws to 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
(including backup withholding), assessments, fees or other charges imposed by
any Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
“Threshold Amount”
means $500,000.
“Total Outstandings”
means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.
“Type” means, with
respect to a Revolving Loan, its character as a Base Rate Loan or a Eurodollar
Rate Loan.
“UCC” means the
Uniform Commercial Code as in effect in the State of New York; provided that, if
perfection or the effect of perfection or non-perfection or the priority of any
security interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, “UCC” means the
Uniform Commercial Code as in effect from time to time in such other
jurisdiction for purposes of the provisions hereof relating to such perfection,
effect of perfection or non-perfection or priority.
“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.
24
“United States” and
“U.S.” mean the
United States of America.
“Unreimbursed Amount”
has the meaning specified in Section 2.03(c)(i).
“U.S. Loan Party”
means any Loan Party that is organized under the laws of one of the states of
the United States of America and that is not a CFC.
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,
Preliminary Statements, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to,
the Loan Document in which such references appear, (v) any reference to any law
shall include all statutory and regulatory provisions consolidating, amending,
replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
(b) In
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;”
the words “to”
and “until”
each mean “to but
excluding;” and the word “through” means “to and
including.”
(c) Section
headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.
25
1.03 Accounting
Terms. i) 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.
(a) Changes in
GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in
GAAP.
(b) Consolidation of Variable
Interest Entities. All references herein to consolidated
financial statements of the Borrower and its Subsidiaries or to the
determination of any amount for the 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 the Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by
which such ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number).
1.05 Times of
Day. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.06 Letter of Credit
Amounts. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the amount available to be
drawn under such Letter of Credit 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 amount available to be drawn under such Letter of Credit after giving effect
to all such increases, whether or not any such increases are in effect at such
time.
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1.07 Currency Equivalents
Generally. Any amount specified in this Agreement (other than
in Articles II,
IX and X) or any of the
other Loan Documents to be in Dollars shall also include the equivalent of such
amount in any currency other than Dollars, such equivalent amount thereof in the
applicable currency to be determined by the Administrative Agent at such time on
the basis of the Spot Rate (as defined below) for the purchase of such currency
with Dollars. For purposes of this Section 1.07, the
“Spot Rate” for
a currency means the rate determined by the Administrative Agent to be the rate
quoted by the Person acting in such capacity as the spot rate for the purchase
by such Person of such currency with another currency through its principal
foreign exchange trading office at approximately 11:00 a.m. on the date two
Business Days prior to the date of such determination; provided that the
Administrative Agent may obtain such spot rate from another financial
institution designated by the Administrative Agent if the Person acting in such
capacity does not have as of the date of determination a spot buying rate for
any such currency.
ARTICLE
II
THE
COMMITMENTS AND CREDIT EXTENSIONS
2.01 Revolving
Loans. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to
the Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at any time outstanding the amount
of such Lender’s Commitment; provided, however, that after
giving effect to any Revolving Borrowing, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of
the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of
the Outstanding Amount of all L/C Obligations (giving effect to any adjustments
therein effected under the last sentence of the definition of “Applicable
Percentage”), plus such Lender’s Applicable Percentage of the Outstanding Amount
of all Swing Line Loans (giving effect to any adjustments therein effected under
the last sentence of the definition of “Applicable Percentage”) shall not exceed
such Lender’s Commitment. Within the limits of each Lender’s
Commitment, and subject to the other terms and conditions hereof, the Borrower
may borrow under this Section 2.01, prepay
under Section
2.05, and reborrow under this Section
2.01. Revolving Loans may be Base Rate Loans or Eurodollar
Rate Loans, as further provided herein.
2.02 Borrowings, Conversions and
Continuations of Revolving Loans. (a) Each
Revolving Borrowing, each conversion of Revolving Loans from one Type to the
other, and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans
or of any conversion of Eurodollar Rate Loans to Base Rate Revolving Loans, and
(ii) on the requested date of any Borrowing of Base Rate Revolving
Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written
Revolving Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Except as provided in Sections 2.03(c) and
2.04(c), each
Borrowing of or conversion to Base Rate Revolving Loans shall be in a principal
amount of $500,000 or a whole multiple of
$100,000 in excess thereof. Each Revolving Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
Revolving Borrowing, a conversion of Revolving 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 Revolving Loans to be borrowed,
converted or continued, (iv) the Type of Revolving Loans to be borrowed or to
which existing Revolving Loans are to be converted, and (v) if applicable, the
duration of the Interest Period with respect thereto. If the Borrower
fails to specify a Type of Revolving Loan in a Revolving Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Revolving Loans shall be made as, or converted to, Base Rate
Loans. Any such automatic conversion to Base Rate Loans shall be
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurodollar Rate Loans. If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Revolving Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one
month. Notwithstanding anything to the contrary herein, a Swing Line
Loan may not be converted to a Eurodollar Rate Loan.
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(b) Following
receipt of a Revolving Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage of the applicable
Revolving Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in Section
2.02(a). In the case of a Revolving Borrowing, each Lender
shall make the amount of its Revolving Loan available to the Administrative
Agent in immediately available funds at the Administrative Agent’s Office not
later than 1:00 p.m. on the Business Day specified in the applicable Revolving
Loan Notice. Upon satisfaction of the applicable conditions set forth
in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent
by the Borrower; provided, however, that if, on
the date a Revolving Loan Notice with respect to a Revolving Borrowing is given
by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Revolving Borrowing, first, shall be
applied to the payment in full of any such L/C Borrowings, and second, shall be made
available to the Borrower as provided above.
(c) Except
as otherwise provided herein, a Eurodollar Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurodollar Rate
Loan. During the existence of a Default, no Loans may be requested
as, converted to or continued as Eurodollar Rate Loans without the consent of
the Required Lenders.
(d) The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon
determination of such interest rate. At any time that Base Rate Loans
are outstanding, the Administrative Agent shall notify the Borrower and the
Lenders of any change in Bank of America’s prime rate used in determining the
Base Rate promptly following the public announcement of such
change.
(e) After
giving effect to all Revolving Borrowings, all conversions of Revolving Loans
from one Type to the other, and all continuations of Revolving Loans as the same
Type, there shall not be more than five Interest Periods in
effect.
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2.03 Letters of
Credit. (a) The Letter of Credit
Commitment. (i) Subject to the terms and conditions
set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of
the Lenders set forth in this Section 2.03, (1)
from time to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of Credit for the
account of the Borrower or its Subsidiaries, and to amend or extend Letters of
Credit previously issued by it, in accordance with Section 2.03(b), and
(2) to honor drawings under the Letters of Credit; and (B) the Lenders severally
agree to participate in Letters of Credit issued for the account of the Borrower
or its Subsidiaries and any drawings thereunder; provided that after giving
effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the
Total Outstandings shall not exceed the Aggregate Commitments, (y) the aggregate
Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall
not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each
request by the Borrower for the issuance or amendment of a Letter of Credit
shall be deemed to be a representation by the Borrower that the L/C Credit
Extension so requested complies with the conditions set forth in the proviso to
the preceding sentence. Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed. All
Existing Letters of Credit shall be deemed to have been issued pursuant hereto,
and from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.
(ii) The
L/C Issuer shall not issue any Letter of Credit if:
(A) subject
to Section
2.03(b)(iii), the expiry date of such requested Letter of Credit would
occur more than twelve months after the date of issuance or last extension,
unless the Required Lenders have approved such expiry date; or
(B) the
expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Lenders have approved such expiry
date.
(iii) The
L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:
(A) any
order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter
of Credit, or any Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which the
L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the L/C Issuer in good
xxxxx xxxxx material to it;
29
(B) the
issuance of such Letter of Credit would violate one or more policies of the L/C
Issuer applicable to letters of credit generally;
(C) except
as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter
of Credit is in an initial stated amount less than $50,000;
(D) such
Letter of Credit is to be denominated in a currency other than Dollars;
or
(E) any
Lender is at such time a Defaulting Lender or an Impacted Lender, unless the L/C
Issuer has entered into arrangements satisfactory to the L/C Issuer (in its sole
discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s
actual or potential Fronting Exposure with respect to such Lender as to either
the Letter of Credit then proposed to be issued or such Letter of Credit and all
other L/C Obligations as to which the L/C Issuer has such actual or potential
risk, as it may elect in its sole and absolute discretion. In the
event that the L/C Issuer requires pursuant to this Section
2.03(a)(iii)(E) that, as a condition to the issuance of any Letter of
Credit, a Defaulting Lender or Impacted Lender, or the Borrower, enter into
arrangements for the provision of sufficient Cash Collateral or other credit
support acceptable to the L/C Issuer to eliminate the L/C Issuer’s actual or
potential Fronting Exposure with respect to any such Lender, then the provisions
of Section 2.15
shall apply to such Cash Collateral and other credit support.
(iv) The
L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.
(v) The
L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the
L/C Issuer would have no obligation at such time to issue such Letter of Credit
in its amended form under the terms hereof, or (B) the beneficiary of such
Letter of Credit does not accept the proposed amendment to such Letter of
Credit.
(vi) The
L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer
shall have all of the benefits and immunities (A) provided to the Administrative
Agent in Article
IX with respect to any acts taken or omissions suffered by the L/C Issuer
in connection with Letters of Credit issued by it or proposed to be issued by it
and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article IX included
the L/C Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuer.
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(b) Procedures for Issuance and
Amendment of Letters of Credit; Auto-Extension Letters of
Credit. (i) Each Letter of Credit shall be issued
or amended, as the case may be, upon the request of the Borrower delivered to
the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter
of Credit Application, appropriately completed and signed by a Responsible
Officer of the Borrower. Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later than 11:00
a.m. at least two Business Days (or such later date and time as the
Administrative Agent and the L/C Issuer may agree in a particular instance in
their sole discretion) prior to the proposed issuance date or date of amendment,
as the case may be. In the case of a request for an initial issuance
of a Letter of Credit, such Letter of Credit Application shall specify in form
and detail satisfactory to the L/C Issuer: (A) the proposed issuance
date of the requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary in
case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; (G) the purpose
and nature of the requested Letter of Credit; and (H) such other matters as
the L/C Issuer may require. In the case of a request for an amendment
of any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer (1) the Letter of
Credit to be amended; (2) the proposed date of amendment thereof (which shall be
a Business Day); (3) the nature of the proposed amendment; and (4) such other
matters as the L/C Issuer may require. Additionally, the Borrower
shall furnish to the L/C Issuer and the Administrative Agent such other
documents and information pertaining to such requested Letter of Credit issuance
or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.
(ii) Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from the Borrower and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof. Unless the L/C Issuer has received written
notice from any Lender, the Administrative Agent or any Loan Party, at least one
Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit or the L/C Issuer has actual knowledge, that one or
more applicable conditions contained in Article IV shall not
then be satisfied, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the account of
the Borrower (or the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C Issuer’s
usual and customary business practices. Immediately upon the issuance
of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the L/C 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.
31
(iii) If
the Borrower so requests in any applicable Letter of Credit Application, the L/C
Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension Letter of
Credit”); provided that any
such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving 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, the Borrower shall not be required to make a specific request to the L/C
Issuer for any such extension. Once an Auto-Extension Letter of
Credit has been issued, the Lenders shall be deemed to have authorized (but may
not require) the L/C Issuer to permit the extension of such Letter of Credit at
any time to an expiry date not later than the Letter of Credit Expiration Date;
provided, however, that the L/C
Issuer shall not permit any such extension if (A) the L/C Issuer has determined
that it would not be permitted, or would have no obligation, at such time to
issue such Letter of Credit in its revised form (as extended) under the terms
hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is seven Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the Required
Lenders have elected not to permit such extension or (2) from the Administrative
Agent, any Lender or the Borrower that one or more of the applicable conditions
specified in Section
4.02 is not then satisfied, and in each such case directing the L/C
Issuer not to permit such extension.
(iv)
Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary
thereof, the L/C Issuer will also deliver to the Borrower and the Administrative
Agent a true and complete copy of such Letter of Credit or
amendment.
(c) Drawings and Reimbursements;
Funding of Participations. (i) Upon receipt from
the beneficiary of any Letter of Credit of any notice of a drawing under such
Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date
of any payment by the L/C Issuer under a Letter of Credit (each such date, an
“Honor Date”),
the Borrower shall reimburse the L/C Issuer through the Administrative Agent in
an amount equal to the amount of such drawing. If the Borrower fails
to so reimburse the L/C Issuer by such time, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the amount of the unreimbursed
drawing (the “Unreimbursed
Amount”), and the amount of such Lender’s Applicable Percentage
thereof. In such event, the Borrower shall be deemed to have
requested a Revolving 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 Revolving Loan Notice). Any notice given by
the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i)
may be given by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
32
(ii) Each
Lender shall upon any notice pursuant to Section 2.03(c)(i)
make funds available (including for this purpose the application of available
Cash Collateral and other credit support provided for this purpose pursuant to
Section
2.03(a)(iii)(E)) to the Administrative Agent for the account of the L/C
Issuer at the Administrative Agent’s Office in an amount equal to its Applicable
Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business
Day specified in such notice by the Administrative Agent, whereupon, subject to
the provisions of Section 2.03(c)(iii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Revolving Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C
Issuer.
(iii) With
respect to any Unreimbursed Amount that is not fully refinanced by a Revolving
Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot
be satisfied or for any other reason, the Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the Default
Rate. In such event, each Lender’s payment to the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii)
shall be deemed payment in respect of its participation in such L/C Borrowing
and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section
2.03.
(iv) Until
each Lender funds its Revolving 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 Revolving Loans or L/C Advances to reimburse the L/C
Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against the L/C Issuer, the Borrower or
any other Person for any reason whatsoever; (B) the occurrence or continuance of
a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other
than delivery by the Borrower of a Revolving Loan Notice). No such
making of an L/C Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment made by the
L/C Issuer under any Letter of Credit, together with interest as provided
herein.
33
(vi) If
any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by
the time specified in Section 2.03(c)(ii),
then, without limiting the other provisions of this Agreement, the L/C Issuer
shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the
date such payment is required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the L/C Issuer in accordance with
banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the L/C Issuer in connection
with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lender’s
Revolving Loan included in the relevant Revolving Borrowing or L/C Advance in
respect of the relevant L/C Borrowing, as the case may be. A
certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi)
shall be conclusive absent manifest error.
(d) Repayment of
Participations. (i) At any time after the L/C
Issuer has made a payment under any Letter of Credit and has received from any
Lender such Lender’s L/C Advance in respect of such payment in accordance with
Section
2.03(c), if the Administrative Agent receives for the account of the L/C
Issuer any payment in respect of the related Unreimbursed Amount or interest
thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Applicable Percentage thereof
(appropriately adjusted to exclude the Commitments of Defaulting Lenders that
have not funded such L/C Advance) in the same funds as those received by the
Administrative Agent.
(ii) If
any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the account
of the L/C Issuer its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of
the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e) Obligations
Absolute. The obligation of the Borrower to reimburse the L/C
Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any
lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;
34
(ii) the
existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the L/C Issuer or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or by such Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(iii) any
draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect; or any loss
or delay in the transmission or otherwise of any document required in order to
make a drawing under such Letter of Credit;
(iv) any
payment by the L/C Issuer under such Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter
of Credit; or any payment made by the L/C Issuer under such Letter of Credit to
any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any proceeding under
any Debtor Relief Law; or
(v) any
other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or any of its
Subsidiaries.
The
Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower’s instructions or other irregularity, the
Borrower will promptly notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
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(f) Role of L/C
Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C
Issuer, the Administrative Agent, any of their respective Related Parties nor
any correspondent, participant or assignee of the L/C Issuer shall be liable to
any Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower’s pursuing
such rights and remedies as it may have against the beneficiary or transferee at
law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e);
provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have
a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer’s willful misconduct or gross negligence or
the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the
L/C Issuer may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary, and 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) Applicability of
ISP. Unless otherwise expressly agreed by the L/C Issuer and
the Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), the rules of the ISP shall apply to
each Letter of Credit.
(h) Letter of Credit
Fees. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Applicable Percentage a Letter
of Credit fee (the “Letter of Credit
Fee”) for each Letter of Credit equal to the Applicable Rate times the
daily amount available to be drawn under such Letter of Credit; provided, however, any Letter
of Credit Fees otherwise payable for the account of a Defaulting Lender or
Impacted Lender with respect to any Letter of Credit as to which such Defaulting
Lender or Impacted Lender has not provided Cash Collateral or other credit
support arrangements satisfactory to the L/C Issuer pursuant to this Section 2.03 shall be
payable during the applicable Impact Period, to the maximum extent permitted by
applicable law, (i) to the other Lenders to the extent of the upward adjustments
in their respective Applicable Percentages allocable to such Letter of Credit
and (ii) the balance of such fee, if any, to of for the account of the L/C
Issuer. For purposes of computing the daily amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section
1.06. Letter of Credit Fees shall be (i) due and payable 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 Letter of Credit Expiration Date and thereafter on
demand and (ii) computed on a quarterly basis in arrears. If there is
any change in the Applicable Rate during any quarter, the daily amount available
to be drawn under each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Required Lenders, while any
Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.
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(i) Fronting Fee and Documentary
and Processing Charges Payable to L/C Issuer. The Borrower
shall pay directly to the L/C Issuer for its own account a fronting fee with
respect to each Letter of Credit, at the rate per annum specified in the Fee
Letter, computed on the daily amount available to be drawn under such Letter of
Credit on a quarterly basis in arrears. Such fronting fee shall be
due and payable on the tenth Business Day after the end of each March, June,
September and December in respect of the most recently-ended quarterly period
(or portion thereof, in the case of the first payment), commencing with the
first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section
1.06. In addition, the Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such
customary fees and standard costs and charges are due and payable on demand and
are nonrefundable.
(j) Conflict with Issuer
Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall
control.
(k) Letters of Credit Issued for
Subsidiaries. Notwithstanding that a Letter of Credit issued
or outstanding hereunder is in support of any obligations of, or is for the
account of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C
Issuer hereunder for any and all drawings under such Letter of
Credit. The Borrower hereby acknowledges that the issuance of Letters
of Credit for the account of Subsidiaries inures to the benefit of the Borrower,
and that the Borrower’s business derives substantial benefits from the
businesses of such Subsidiaries.
2.04 Swing Line
Loans. (a) The Swing
Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender may, in reliance upon the agreements of the other Lenders
set forth in this Section 2.04, in its
sole and absolute discretion, make loans (each such loan, a “Swing Line Loan”) to
the Borrower from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount
of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans,
when aggregated with the Applicable Percentage of the Outstanding Amount of
Revolving Loans and L/C Obligations of the Lender acting as Swing Line Lender,
may exceed the amount of such Lender’s Commitment; provided, however, that after
giving effect to any Swing Line Loan, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of
the Revolving Loans of any Lender at such time, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans at such
time shall not exceed such Lender’s Commitment, and provided further that the
Borrower shall not use the proceeds of any Swing Line Loan to refinance any
outstanding Swing Line Loan. Within the foregoing limits, and subject
to the other terms and conditions hereof, the Borrower may borrow under this
Section 2.04,
prepay under Section
2.05, and reborrow under this Section
2.04. Each Swing Line Loan shall bear interest only at a rate
based on the Base Rate. Immediately upon the making of a Swing Line
Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such
Swing Line Loan in an amount equal to the product of such Lender’s Applicable
Percentage times the amount of
such Swing Line Loan.
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(b) Borrowing
Procedures. Each Swing Line Borrowing shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the
Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice
(by telephone or in writing) from the Administrative Agent (including at the
request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line
Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan
as a result of the limitations set forth in the first proviso to the first
sentence of Section
2.04(a), or (B) that one or more of the applicable conditions specified
in Article IV
is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified
in such Swing Line Loan Notice, make the amount of its Swing Line Loan available
to the Borrower at its office by crediting the account of the Borrower on the
books of the Swing Line Lender in immediately available funds.
(c) Refinancing of Swing Line
Loans. (i) The Swing Line Lender at any time in its
sole and absolute discretion may request, on behalf of the Borrower (which
hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender make a Base Rate Revolving Loan in an amount equal to
such Lender’s Applicable Percentage of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Revolving Loan Notice for purposes hereof) and
in accordance with the requirements of Section 2.02, without
regard to the minimum and multiples specified therein for the principal amount
of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section
4.02. The Swing Line Lender shall furnish the Borrower with a
copy of the applicable Revolving Loan Notice promptly after delivering such
notice to the Administrative Agent. Each Lender shall make an amount
equal to its Applicable Percentage of the amount specified in such Revolving
Loan Notice available (including for this purpose Cash Collateral and other
credit support available with respect to the applicable Swing Line Loan provided
pursuant to Section
2.04(c)(v)) to the Administrative Agent in immediately available funds
for the account of the Swing Line Lender at the Administrative Agent’s Office
not later than 1:00 p.m. on the day specified in such Revolving Loan Notice,
whereupon, subject to Section 2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Revolving Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.
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(ii) If
for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Borrowing in accordance with Section 2.04(c)(i),
the request for Base Rate Loans submitted by the Swing Line Lender as set forth
herein shall be deemed to be a request by the Swing Line Lender that each of the
Lenders fund its risk participation in the relevant Swing Line Loan and each
Lender’s payment to the Administrative Agent for the account of the Swing Line
Lender pursuant to Section 2.04(c)(i)
shall be deemed payment in respect of such participation.
(iii) If
any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant
to the foregoing provisions of this Section 2.04(c) by
the time specified in Section 2.04(c)(i),
the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum
equal to the greater of the Federal Funds Rate and a rate determined by the
Swing Line Lender in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily
charged by the Swing Line Lender in connection with the foregoing. If
such Lender pays such amount (with interest and fees as aforesaid), the amount
so paid shall constitute such Lender’s Revolving Loan included in the relevant
Revolving Borrowing or funded participation in the relevant Swing Line Loan, as
the case may be. A certificate of the Swing Line Lender submitted to
any Lender (through the Administrative Agent) with respect to any amounts owing
under this clause
(iii) shall be conclusive absent manifest error.
(iv) Each
Lender’s obligation to make Revolving Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against the Swing Line Lender, the Borrower or any other
Person for any reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section
4.02. No such funding of risk participations shall relieve or
otherwise impair the obligation of the Borrower to repay Swing Line Loans,
together with interest as provided herein.
(v) In
the event that the Swing Line Lender, in the exercise of its discretion,
requires that, as a condition to the making of any Swing Line Loan, a Defaulting
Lender or Impacted Lender, or the Borrower, enter into arrangements satisfactory
to the Swing Line Lender for the provision of sufficient Cash Collateral or
other credit support acceptable to the Swing Lien Lender, to eliminate the Swing
Lien Lender’s actual or potential Fronting Exposure with respect to any such
Lender, then the provisions of Section 2.15 shall
apply.
(d) Repayment of
Participations. (i) At any time after any Lender
has purchased and funded a risk participation in a Swing Line Loan, if the Swing
Line Lender receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Lender its Applicable Percentage thereof in
the same funds as those received by the Swing Line Lender.
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(ii) If
any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line
Lender under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the Swing Line Lender in
its discretion), each Lender shall pay to the Swing Line Lender its Applicable
Percentage thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned, at a rate per
annum equal to the Federal Funds Rate. The Administrative Agent will
make such demand upon the request of the Swing Line Lender. The
obligations of the Lenders under this clause shall survive the payment in full
of the Obligations and the termination of this Agreement.
(e) Interest for Account of
Swing Line Lender. The Swing Line Lender shall be responsible
for invoicing the Borrower for interest on the Swing Line
Loans. Until each Lender funds its Base Rate Revolving Loan or risk
participation pursuant to this Section 2.04 to
refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest
in respect of such Applicable Percentage shall be solely for the account of the
Swing Line Lender.
(f) Payments Directly to Swing
Line Lender. The Borrower shall make all payments of principal
and interest in respect of the Swing Line Loans directly to the Swing Line
Lender.
2.05 Prepayments.
(a) The
Borrower may, upon notice to the Administrative Agent, at any time or from time
to time voluntarily prepay Revolving Loans in whole or in part without premium
or penalty; provided that (i)
such notice must be received by the Administrative Agent not later than 11:00
a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (B) on the date of prepayment of Base Rate Revolving Loans; (ii) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of $5,000,000
or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of
Base Rate Revolving Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof or, in each case, if less, the entire
principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Revolving
Loans to be prepaid and, if Eurodollar Rate Loans are to be repaid, the Interest
Period(s) of such Loans. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of the amount of such
Lender’s Applicable Percentage of such prepayment. If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurodollar Rate Loan shall be
accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section
3.05. Subject to Section 10.14, each
such prepayment shall be applied to the Revolving Loans of the Lenders in
accordance with their respective Applicable Percentages.
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(b) The
Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided that (i)
such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $100,000. Each
such notice shall specify the date and amount of such prepayment. If
such notice is given by the Borrower, the Borrower shall make such prepayment
and the payment amount specified in such notice shall be due and payable on the
date specified therein.
(c) If
for any reason the Total Outstandings at any time exceed the Aggregate
Commitments then in effect, the Borrower shall immediately prepay Loans and/or
Cash Collateralize the L/C Obligations in an aggregate amount equal to such
excess; provided, however, that the
Borrower shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.05(c)
unless after the prepayment in full of the Loans the Total Outstandings exceed
the Aggregate Commitments then in effect.
(d) Prepayments
made pursuant to this Section 2.05 shall
not reduce the Aggregate Commitments hereunder.
2.06 Termination or Reduction of
Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time
permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00
a.m. five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments, and (iv) if, after giving effect to any reduction of
the Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be
automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments. Any reduction
of the Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Applicable Percentage. All fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination.
2.07 Repayment of
Loans. (a) The Borrower shall repay to the Lenders
on the Maturity Date the aggregate principal amount of all Revolving Loans
outstanding on such date.
(b) The
Borrower shall repay each Swing Line Loan on the Maturity Date.
2.08 Interest. (a) Subject
to the provisions of Section 2.08(b), (i)
each Eurodollar Rate Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus the Applicable Rate;
(ii) each Base Rate Revolving Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate.
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(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 the 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, the
Borrower shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable
Laws.
(iv) Accrued
and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified
herein. Interest hereunder shall be due and payable in accordance
with the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 Fees. In
addition to certain fees described in Sections 2.03(h) and
(i):
(a) Commitment
Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Applicable Percentage, a
commitment fee equal to the Applicable Rate times the actual
daily amount by which the Aggregate Commitments exceed the sum of (i) the
Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C
Obligations, subject to adjustment as provided in Section
10.14. 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 last day of the
Availability Period. The commitment fee shall be calculated quarterly
in arrears, and if there is any change in the Applicable Rate during any
quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) Other
Fees. (i) The Borrower shall pay to the Arranger
and the Administrative Agent for their own respective accounts fees in the
amounts and at the times specified in the Engagement Letter. Such
fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
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(ii) The
Borrower shall pay to the Lenders such fees as shall have been separately agreed
upon in writing in the amounts and at the times so specified. Such
fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
2.10 Computation of Interest and
Fees; Retroactive Adjustments of Applicable
Rate. (a) All computations of interest for Base
Rate Loans shall be made on the basis of a year of 365 or 366 days, as the case
may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year). Interest shall accrue on
each Loan for the day on which the Loan is made, and shall not accrue on a Loan,
or any portion thereof, for the day on which the Loan or such portion is paid,
provided that
any Loan that is repaid on the same day on which it is made shall, subject to
Section
2.12(a), bear interest for one day. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(b) If,
as a result of any restatement of or other adjustment to the financial
statements of the Borrower or for any other reason, the Borrower or the Lenders
determine that (i) the Consolidated Leverage Ratio as calculated by the Borrower
as of any applicable date was inaccurate and (ii) a proper calculation of the
Consolidated Leverage Ratio would have resulted in higher pricing for such
period, the Borrower shall immediately and retroactively be obligated to pay to
the Administrative Agent for the account of the applicable Lenders or the L/C
Issuer, as the case may be, promptly on demand by the Administrative Agent (or,
after the occurrence of an actual or deemed entry of an order for relief with
respect to the Borrower under the Bankruptcy Code of the United States,
automatically and without further action by the Administrative Agent, any Lender
or the L/C Issuer), an amount equal to the excess of the amount of interest and
fees that should have been paid for such period over the amount of interest and
fees actually paid for such period. This paragraph shall not limit
the rights the Administrative Agent, any Lender or the L/C Issuer, as the case
may be, under Section
2.03(c)(iii), 2.03(h) or 2.08(b) or under
Article VIII. The
Borrower’s obligations under this paragraph shall survive the termination of the
Aggregate Commitments and the repayment of all other Obligations
hereunder.
2.11 Evidence of
Debt. (a) The Credit Extensions made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount of
the Credit Extensions made by the Lenders to the Borrower and the interest and
payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made
through the Administrative Agent, the Borrower shall execute and deliver to such
Lender (through the Administrative Agent) a Note, which shall evidence such
Lender’s Loans in addition to such accounts or records. Each Lender
may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect
thereto.
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(b) In
addition to the accounts and records referred to in Section 2.11(a), each
Lender and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such Lender
of participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.12 Payments Generally;
Administrative Agent’s Clawback. (a) General. All
payments to be made by the Borrower shall be made without condition or deduction
for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein. On the date that such payment is deemed received
(as set forth below), the Administrative Agent will promptly distribute to each
Lender its Applicable Percentage (or other applicable share as provided herein)
of such payment in like funds as received by wire transfer to such Lender’s
Lending Office. All payments received by the Administrative Agent
after 2:00 p.m. shall be deemed received on the next succeeding Business Day and
any applicable interest or fee shall continue to accrue. If any
payment to be made by the Borrower shall come due on a day other than a Business
Day, payment shall be made on the next following Business Day, and such
extension of time shall be reflected in computing interest or fees, as the case
may be.
(b) (i) Funding by Lenders;
Presumption by Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of any
Revolving Borrowing of Eurodollar Rate Loans (or, in the case of any Revolving
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Revolving
Borrowing) that such Lender will not make available to the Administrative Agent
such Lender’s share of such Revolving Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in accordance
with Section
2.02 (or, in the case of a Revolving Borrowing of Base Rate Loans, that
such Lender has made such share available in accordance with and at the time
required by Section
2.02) and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not
in fact made its share of the applicable Revolving Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case of
a payment to be made by such Lender, the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by the Borrower, the
interest rate applicable to Base Rate Loans. If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such
period. If such Lender pays its share of the applicable Revolving
Borrowing to the Administrative Agent, then the amount so paid shall constitute
such Lender’s Revolving Loan included in such Revolving
Borrowing. Any payment by the Borrower shall be without prejudice to
any claim the Borrower may have against a Lender that shall have failed to make
such payment to the Administrative Agent.
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(ii) Payments by Borrower;
Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or the L/C Issuer hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the
amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the L/C Issuer, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or the L/C Issuer, in immediately available
funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation.
A notice
of the Administrative Agent to any Lender or the Borrower with respect to any
amount owing under this subsection (b) shall
be conclusive, absent manifest error.
(c) Failure to Satisfy
Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in
the foregoing provisions of this Article II, and such
funds are not made available to the Borrower by the Administrative Agent because
the conditions to the applicable Credit Extension set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(d) Obligations of Lenders
Several. The obligations of the Lenders hereunder to make
Revolving Loans, to fund participations in Letters of Credit and Swing Line
Loans and to make payments pursuant to Section 10.04(c) are
several and not joint. The failure of any Lender to make any
Revolving 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
Revolving Loan, to purchase its participation or to make its payment under Section
10.04(c).
(e) Funding
Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
45
(f) Insufficient
Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, L/C
Borrowings, interest and fees then due hereunder, such funds shall be applied
(i) first,
toward payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, toward
payment of principal and L/C Borrowings then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal and L/C
Borrowings then due to such parties.
2.13 Sharing of Payments by
Lenders. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of the Revolving Loans made by it, or the participations
in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Revolving
Loans or participations and accrued interest thereon greater than its pro rata share thereof as
provided herein, then the Lender receiving such greater proportion shall (a)
notify the Administrative Agent of such fact, and (b) purchase (for cash at face
value) participations in the Revolving Loans and subparticipations in L/C
Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving 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 (A) any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or (B) any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or
subparticipations in L/C Obligations or Swing Line Loans to any assignee or
participant, other than to the Borrower or any Subsidiary thereof (as to which
the provisions of this Section shall apply).
the
provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of the Borrower pursuant to and in accordance with the
express terms of this Agreement (including the application of funds arising from
the existence of a Defaulting Lender or an Impacted Lender), (y) the application
of collateral or other credit support (and proceeds thereof) in respect of
obligations relating to Letters of Credit and Swing Line Loans (including
related Lender participation obligations) provided for in Sections 2.03, 2.04, 2.05, 2.15 and 8.02(c), or (z) any
payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Committed Loans or subparticipations in L/C
Obligations or Swing Line Loans to any assignee or participant, other than to
the Borrower or any Subsidiary thereof (as to which the provisions of this
Section shall apply).
46
The
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against the Borrower rights of
setoff and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such
participation.
2.14 Increase in
Commitments. (a) Request for
Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower may
from time to time, request an increase in the Aggregate Commitments by an
amount (for all such requests) not exceeding $50,000,000; provided
that (i) any such request for an increase shall be in a minimum amount
of $10,000,000, and (ii) the Borrower may make a maximum of five such
requests. At the time of sending such notice, the Borrower (in
consultation with the Administrative Agent) shall specify the time period within
which each Lender is requested to respond (which shall in no event be less than
ten Business Days from the date of delivery of such notice to the
Lenders).
(b) Lender Elections to
Increase. Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to increase its Commitment and,
if so, whether by an amount equal to, greater than, or less than its Applicable
Percentage of such requested increase. Any Lender not responding
within such time period shall be deemed to have declined to increase its
Commitment.
(c) Notification by
Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Borrower and each Lender of the Lenders’ responses to
each request made hereunder. To achieve the full amount of a
requested increase, and subject to the approval of the Administrative Agent, the
L/C Issuer and the Swing Line Lender (which approvals shall not be unreasonably
withheld), the Borrower may also invite additional Eligible Assignees to become
Lenders pursuant to a joinder agreement in form and substance satisfactory to
the Administrative Agent and its counsel.
(d) Effective Date and
Allocations. If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrower shall
determine the effective date (the “Increase Effective
Date”) and the final allocation of such increase. The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
final allocation of such increase and the Increase Effective Date.
(e) Conditions to Effectiveness
of Increase. As a condition precedent to such increase, the
Borrower shall deliver to the Administrative Agent a certificate of each Loan
Party dated as of the Increase Effective Date (in sufficient copies for each
Lender) signed by a Responsible Officer of such Loan Party (i) certifying and
attaching the resolutions adopted by such Loan Party approving or consenting to
such increase, and (ii) in the case of the Borrower, certifying that, before and
after giving effect to such increase, (A) the representations and warranties
contained in Article
V and the other Loan Documents are true and correct on and as of the
Increase Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this Section 2.14, the
representations and warranties contained in Sections 5.05(a) and
(b) shall be
deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and
(b),
respectively, and (B) no Default exists. The Borrower shall prepay any
Revolving Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the
extent necessary to keep the outstanding Revolving Loans ratable with any
revised Applicable Percentages arising from any nonratable increase in the
Revolving Commitments under this Section.
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(f) Conflicting
Provisions. This Section shall supersede any provisions in
Section 2.13 or
10.01 to the
contrary.
2.15 Cash Collateral and Other
Credit Support.
(a) Certain Credit Support
Events; Grant of Security Interest. Upon the request of the
Administrative Agent, (i) if the L/C Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an
L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations. In addition, (i) Sections 2.05(d) and
8.02(c) set
forth certain additional requirements to deliver Cash Collateral hereunder, (ii)
Section
2.03(a)(iii)(E) contemplates the delivery of Cash Collateral or other
credit support in certain circumstances to support the issuance of Letters of
Credit, and (iii) pursuant to Section 2.04, the
Swing Lender may in its discretion request Cash Collateral or other credit
support in connection with the issuance of Swing Line Loans. The
Borrower, and to the extent provided by any Lender, such Lender, hereby grants
to the Administrative Agent, for the benefit of the Administrative Agent, the
L/C Issuer and the Lenders (including the Swing Line Lender), a security
interest in all such cash, deposit accounts and all balances therein, and all
other property provided as collateral pursuant to Section 2.03, Section 2.04, Section 2.05(d) and
Section
8.02(c), and all proceeds of the foregoing. Cash Collateral
shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America. For the avoidance of doubt, to the extent that any other Person may
have a claim, by virtue of an intercreditor arrangement, tag-along right or any
other term in any other document or instrument, to share in any Cash Collateral
or other credit support provided pursuant to any of the aforementioned sections
of this Agreement, the L/C Issuer, Swing Line Lender or Administrative Agent, as
applicable, may take such provisions into account in determining whether Cash
Collateral or other credit support is satisfactory.
(b) Application. Notwithstanding
anything to the contrary contained in this Agreement, (i) Cash Collateral or
other credit support (and proceeds thereof) provided by any Defaulting Lender or
Impacted Lender pursuant to Sections 2.03 or
2.04 to support
the obligations of such Lender in respect of Letters of Credit or Swing Line
Loans shall be held and applied, first, to fund the L/C Advances of such Lender,
such Lender’s funding of participations in Swing Line Loans, or such Lender’s
Applicable Percentage of Base Rate Committed Loans used to repay L/C Borrowings,
L/C Advances or Swing Line Loans with respect to which such collateral or other
credit support was provided, as applicable, and, second, to fund (x) the L/C
Advances of such Lender, such Lender’s funding of participations in Swing Line
Loans, or such Lender’s Applicable Percentage of Base Rate Committed Loans used
to repay L/C Borrowings, L/C Advances or Swing Line Loans, as applicable, and
(y) any interest accrued for the benefit of the L/C Issuer or Swing Line Lender
pursuant to Sections
2.03(c)(vi) and 2.04(c)(iii)
allocable to such Lender, and (ii) Cash Collateral and other credit support (and
proceeds thereof) otherwise provided by or on behalf of any Loan Party under
Sections 2.03,
2.04, 2.05(d) or 8.02(c) to support
L/C Obligations shall be held and applied, first, to the satisfaction of the
specific L/C Obligations, Swing Line Loans or obligations to fund participations
therein of the applicable Defaulting Lender or Impacted Lender for which the
Cash Collateral or other credit support was so provided and, second, if remedies
under Section
8.02 shall have been exercised, to the application of such collateral or
other credit support (or proceeds thereof) to any other Obligations in
accordance with Section
8.03.
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(c) Release. Cash
Collateral and other credit support provided under Sections 2.03 or
2.04 in
connection with any Lender’s status as a Defaulting Lender or an Impacted Lender
shall be released (except as the L/C Issuer, Swing Line Lender and the Person
providing such collateral or other credit support may agree otherwise (as
applicable)) promptly following the earlier to occur of (A) the termination of
such Lender’s status as a Defaulting Lender or Impacted Lender or (B) following
the L/C Issuer’s or Swing Line Lender’s (as applicable) good faith determination
that there remain outstanding no L/C Obligations or Swing Line Loans, as
applicable, as to which it has actual or potential Fronting Exposure in relation
to such Lender as to which it desires to maintain Cash Collateral or other
credit support; subject, however, to the additional condition that, as to any
such collateral or other credit support provided by or on behalf of a Loan
Party, no Default or Event of Default shall then have occurred and be
continuing.
ARTICLE
III
TAXES,
YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. (a) Payments Free of Taxes;
Obligation to Withhold; Payments on Account of
Taxes. (i) Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Loan Document shall
to the extent permitted by applicable Laws be made free and clear of and without
reduction or withholding for any Taxes. If, however, applicable Laws
require the Borrower or the Administrative Agent to withhold or deduct any Tax,
such Tax shall be withheld or deducted in accordance with such Laws as
determined by the Borrower or the Administrative Agent, as the case may be, upon
the basis of the information and documentation to be delivered pursuant to subsection (e)
below.
(ii) If
the Borrower or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes including both United States Federal backup
withholding and withholding taxes, from any payment, then (A) the Administrative
Agent shall withhold or make such deductions as are determined by the
Administrative Agent to be required based upon the information and documentation
it has received pursuant to subsection (e) below,
(B) the Administrative Agent shall timely pay the full amount withheld or
deducted to the relevant Governmental Authority in accordance with the Code, and
(C) to the extent that the withholding or deduction is made on account of
Indemnified Taxes or Other Taxes, the sum payable by the Borrower shall be
increased as necessary so that after any required withholding or the making of
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, Lender or L/C Issuer, as
the case may be, receives an amount equal to the sum it would have received had
no such withholding or deduction been made.
49
(b) Payment of Other Taxes by
the Borrower. Without limiting the provisions of subsection (a) above,
the Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) Tax
Indemnifications. (i) Without limiting the
provisions of subsection (a) or
(b) above, the
Borrower shall, and does hereby, indemnify the Administrative Agent, each Lender
and the L/C Issuer, and shall make payment in respect thereof 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) withheld or deducted by the
Borrower or the Administrative Agent or paid by the Administrative Agent, such
Lender or the L/C Issuer, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. The Borrower shall
also, and does hereby, indemnify the Administrative Agent, and shall make
payment in respect thereof within 10 days after demand therefor, for any amount
which a Lender or the L/C Issuer for any reason fails to pay indefeasibly to the
Administrative Agent as required by clause (ii) of this
subsection. A certificate as to the amount of any such payment or
liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy
to the Administrative Agent), or by the Administrative Agent on its own behalf
or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest
error.
(ii) Without
limiting the provisions of subsection (a) or
(b) above, each
Lender and the L/C Issuer shall, and does hereby, indemnify the Borrower and the
Administrative Agent, and shall make payment in respect thereof within 10 days
after demand therefor, against any and all Taxes and any and all related losses,
claims, liabilities, penalties, interest and expenses (including the fees,
charges and disbursements of any counsel for the Borrower or the Administrative
Agent) incurred by or asserted against the Borrower or the Administrative Agent
by any Governmental Authority as a result of the failure by such Lender or the
L/C Issuer, as the case may be, to deliver, or as a result of the inaccuracy,
inadequacy or deficiency of, any documentation required to be delivered by such
Lender or the L/C Issuer, as the case may be, to the Borrower or the
Administrative Agent pursuant to subsection
(e). Each Lender and the L/C Issuer hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time owing
to such Lender or the L/C Issuer, as the case may be, under this Agreement or
any other Loan Document against any amount due to the Administrative Agent under
this clause
(ii). The agreements in the foregoing clause (ii) shall
survive the resignation and/or replacement of the Administrative Agent, any
assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all other Obligations.
50
(d) Evidence of
Payments. Upon request of the Borrower or the
Administrative Agent, as the case may be, after any payment of Taxes by the
Borrower or the Administrative Agent to a Governmental Authority as provided in
this Section
3.01, the Borrower shall deliver to the Administrative Agent or the
Administrative Agent shall deliver to the Borrower, as the case may be, the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of any return required by Laws to report such
payment or other evidence of such payment reasonably satisfactory to the
Borrower or the Administrative Agent, as the case may be.
(e) Status of Lenders; Tax
Documentation. (i) Each Lender shall deliver to the
Borrower and to the Administrative Agent, at the time or times prescribed by
applicable Laws or when reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation
prescribed by applicable Laws or by the taxing authorities of any jurisdiction
and such other reasonably requested information as will permit the Borrower or
the Administrative Agent, as the case may be, to determine (A) whether or not
payments made hereunder or under any other Loan Document are subject to Taxes,
(B) if applicable, the required rate of withholding or deduction, and (C) such
Lender’s entitlement to any available exemption from, or reduction of,
applicable Taxes in respect of all payments to be made to such Lender by the
Borrower pursuant to this Agreement or otherwise to establish such Lender’s
status for withholding tax purposes in the applicable jurisdiction.
(ii) Without
limiting the generality of the foregoing, if the Borrower is resident for tax
purposes in the United States,
(A) any
Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to the Borrower and the Administrative
Agent executed originals of Internal Revenue Service Form W-9 or such other
documentation or information prescribed by applicable Laws or reasonably
requested by the Borrower or the Administrative Agent as will enable the
Borrower or the Administrative Agent, as the case may be, to determine whether
or not such Lender is subject to backup withholding or information reporting
requirements; and
(B) each
Foreign Lender that is entitled under the Code or any applicable treaty to an
exemption from or reduction of withholding tax with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of the
Borrower or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:
51
(I) executed
originals of Internal Revenue Service Form W-8BEN claiming eligibility for
benefits of an income tax treaty to which the United States is a
party;
(II) executed
originals of Internal Revenue Service Form W-8ECI;
(III) executed
originals of Internal Revenue Service Form W-8IMY and all required supporting
documentation;
(IV) in
the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of
section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower
within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Code and (y)
executed originals of Internal Revenue Service Form W-8BEN;
or
(V) executed
originals of any other form prescribed by applicable Laws as a basis for
claiming exemption from or a reduction in United States Federal withholding tax
together with such supplementary documentation as may be prescribed by
applicable Laws to permit the Borrower or the Administrative Agent to determine
the withholding or deduction required to be made.
(iii) Each
Lender shall promptly (A) notify the Borrower and the Administrative Agent of
any change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (B) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws of any jurisdiction that the
Borrower or the
Administrative Agent make any withholding or deduction for taxes from amounts
payable to such Lender.
52
(f) Treatment of Certain
Refunds. Unless required by applicable Laws, at no time shall
the Administrative Agent have any obligation to file for or otherwise pursue on
behalf of a Lender or the L/C Issuer, or have any obligation to pay to any
Lender or the L/C Issuer, any refund of Taxes withheld or deducted from funds
paid for the account of such Lender or the L/C Issuer, as the case may
be. If the Administrative Agent, any Lender or the L/C Issuer
determines, in its sole discretion, that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Section, it shall pay to the Borrower an amount equal to such refund (but only
to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes or Other Taxes giving rise
to such refund), net of all out-of-pocket expenses incurred by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the
Borrower, upon the request of the Administrative Agent, such Lender or the L/C
Issuer, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund to such Governmental Authority. This subsection
shall not be construed to require the Administrative Agent, any Lender or the
L/C Issuer to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to the Borrower or any other
Person.
3.02 Illegality. If
any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Loans whose interest is
determined by reference to the Eurodollar Rate, or to determine or charge
interest rates based upon the Eurodollar Rate, or any Governmental Authority has
imposed material restrictions on the authority of such Lender to purchase or
sell, or to take deposits of, Dollars in the London interbank market, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligation of such Lender (x) to make or continue Eurodollar Rate Loans or
to convert Base Rate Revolving Loans to Eurodollar Rate Revolving Loans, and (y)
if such notice asserts the illegality of such Lender determining or charging
interest rates based upon the Eurodollar Rate, to make or maintain Base Rate
Loans the interest rate on which is determined by reference to the Eurodollar
Rate component of the Base Rate, shall be suspended until such Lender notifies
the Administrative Agent and the Borrower that the circumstances giving rise to
such determination no longer exist. Upon receipt of such notice, (x)
the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate
Loans of such Lender shall, if necessary to avoid such illegality, be determined
by the Administrative Agent without reference to the Eurodollar Rate component
of the Base Rate), 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 and (y) if such notice asserts the illegality of such
Lender determining or charging interest rates based upon the Eurodollar Rate,
the Administrative Agent, upon receipt of the copy of the demand made by the
Borrower to such Lender, shall during the period of such suspension compute the
Base Rate applicable to such Lender without reference to the Eurodollar Rate
component thereof. Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or
converted.
3.03 Inability to Determine
Rates. If the Required Lenders determine that for any reason
in connection with any request for a Eurodollar Rate Loan, a Base Rate Loan that
bears interest at the Eurodollar Rate or a conversion to or continuation thereof
that (a) Dollar deposits are not being offered to banks in the London interbank
eurodollar market for the applicable amount and Interest Period of such
Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Loan or in connection with an existing or proposed
Base Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, the Administrative Agent
will promptly so notify the Borrower and each Lender. Thereafter, (x)
the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be
suspended, and (y) in the event of a determination described in the preceding
sentence with respect to the Eurodollar Rate component of the Base Rate, the
utilization of the Eurodollar Rate component in determining the Base Rate shall
be suspended, in each case until the Administrative Agent (upon the instruction
of the Required Lenders) revokes such notice. Upon receipt of such
notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that, will be
deemed to have converted such request into a request for a Revolving Borrowing
of Base Rate Loans in the amount specified therein.
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3.04 Increased Costs; Reserves on
Eurodollar Rate Loans. (a) Increased Costs
Generally. If any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except any
reserve requirement contemplated by Section 3.04(e)) or
the L/C Issuer;
(ii) subject
any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan made by it, or change the basis of taxation of payments
to such Lender or the L/C Issuer in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 3.01 and the
imposition of, or any change in the rate of, any Excluded Tax payable by such
Lender or the L/C Issuer); or
(iii) impose
on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans
made by such Lender or any Letter of Credit or participation
therein;
and the
result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any Loan the interest on which is determined by reference
to the Eurodollar Rate Loan (or of maintaining its obligation to make any such
Loan), or to increase the cost to such Lender or the L/C Issuer of participating
in, issuing or maintaining any Letter of Credit (or of maintaining its
obligation to participate in or to issue any Letter of Credit), or to reduce the
amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender or the L/C Issuer, the Borrower will pay to such Lender
or the L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.
54
(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 Commitment of such Lender or the Loans made by, or participations
in Letters of Credit held by, such Lender, or the Letters of Credit issued by
the L/C Issuer, to a level below that which such Lender or the L/C Issuer or
such Lender’s or the L/C Issuer’s holding company could have achieved but for
such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s
policies and the policies of such Lender’s or the L/C Issuer’s holding company
with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender or the L/C Issuer, as the case may be, such additional amount or
amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the
L/C Issuer’s holding company for any such reduction suffered.
(c) Certificates for
Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the
L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or
(b) of this
Section and delivered to the Borrower shall be conclusive absent manifest
error. The Borrower shall pay such Lender or the L/C Issuer, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Delay in
Requests. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right
to demand such compensation, provided that the
Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant
to the foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than nine months prior to the date that such Lender or
the L/C Issuer, as the case may be, notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender’s or the
L/C Issuer’s intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the nine-month period referred to above shall be extended to include the
period of retroactive effect thereof).
(e) Reserves on Eurodollar Rate
Loans. The Borrower shall pay to each Lender, as long as such
Lender shall be required to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits (currently
known as “Eurocurrency liabilities”), additional interest on the unpaid
principal amount of each Eurodollar Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in
good faith, which determination shall be conclusive), which shall be due and
payable on each date on which interest is payable on such Loan, provided the Borrower
shall have received at least 10 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest from such
Lender. If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and
payable 10 days from receipt of such notice.
3.05 Compensation for
Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
55
(a) any
continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);
(b) any
failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base
Rate Loan on the date or in the amount notified by the Borrower; or
(c) any
assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to
Section
10.13;
including
any loss of anticipated profits and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were
obtained. The Borrower shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing.
For
purposes of calculating amounts payable by the Borrower to the Lenders under
this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Rate
Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or
other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
3.06 Mitigation Obligations;
Replacement of Lenders. (a) Designation of a Different
Lending Office. If any Lender requests compensation under
Section 3.04,
or the Borrower is required to pay any additional amount to any Lender, the L/C
Issuer, or any Governmental Authority for the account of any Lender or the L/C
Issuer pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then
such Lender or the L/C Issuer shall, as applicable, 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 or the L/C Issuer,
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 or the L/C
Issuer, as the case may be, to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may
be. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender or the L/C Issuer in connection with any such
designation or assignment.
(b) Replacement of
Lenders. If any Lender requests compensation under Section 3.04, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the
Borrower may replace such Lender in accordance with Section
10.13.
3.07 Survival. All
of the Borrower’s obligations under this Article III shall
survive termination of the Aggregate Commitments, repayment of all other
Obligations hereunder, and resignation of the Administrative Agent.
56
ARTICLE
IV
CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit
Extension. The obligation of the L/C Issuer and each Lender to
make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent:
(a) The
Administrative Agent’s receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing Loan
Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) executed
counterparts of this Agreement and the Guarantee and Collateral Agreement,
sufficient in number for distribution to the Administrative Agent, each Lender
and the Borrower;
(ii) a
Note executed by the Borrower in favor of each Lender requesting a
Note;
(iii) such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may require evidencing the identity, authority and capacity
of each Responsible Officer thereof authorized to act as a Responsible Officer
in connection with this Agreement and the other Loan Documents to which such
Loan Party is a party or is to be a party;
(iv) such
documents and certifications as the Administrative Agent may reasonably require
to evidence that each Loan Party is duly organized or formed, and that each of
the Borrower and each Guarantor 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 Arent Fox LLP, counsel to the Loan Parties, addressed to
the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such
other matters concerning the Loan Parties and the Loan Documents as the Required
Lenders may reasonably request;
(vi) a
certificate of a Responsible Officer of each Loan Party either
(A) attaching copies of all consents, licenses and approvals required in
connection with the execution, delivery and performance by such Loan Party and
the validity against such Loan Party of the Loan Documents to which it is a
party, and such consents, licenses and approvals shall be in full force and
effect, or (B) stating that no such consents, licenses or approvals are so
required;
57
(vii) a
certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in Sections 4.02(a) and
(b) have been
satisfied 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) true,
correct and complete copies of all Material Bond Indemnity
Agreements;
(ix) evidence
that all insurance required to be maintained pursuant to the Loan Documents has
been obtained and is in effect, together with the certificates of insurance,
naming the Administrative Agent, on behalf of the Secured Parties, as an
additional insured or loss payee, as the case may be, under all insurance
policies maintained with respect to the assets and properties of the Loan
Parties that constitutes Collateral;
(x) Uniform
Commercial Code financing statements suitable in form and substance for filing
in all places required by applicable law to perfect the Liens of the
Administrative Agent under the Collateral Documents as a first priority Lien
(subject only to Permitted Liens) as to items of Collateral in which a security
interest may be perfected by the filing of financing statements, and such other
documents and/or evidence of other actions as may be reasonably necessary under
applicable law to perfect the Liens of the Administrative Agent under such
Collateral Documents as a first priority Lien (subject only to Permitted Liens)
in and to such other Collateral as the Administrative Agent may require
including without limitation the delivery by the Loan Parties of all
certificates evidencing pledged interests, accompanied in each case by duly
executed stock powers (or other appropriate transfer documents) in blank affixed
thereto;
(xi) Uniform
Commercial Code search results showing only those Liens as are acceptable to the
Administrative Agent;
(xii) evidence
that the all Indebtedness of the Borrower, any Guarantor and their Subsidiaries
existing on the Closing Date (including without limitation the Existing Credit
Agreement) has been repaid or cancelled, all documentation representing such
Indebtedness shall have been terminated and all Guarantees, Liens and security
interests associated therewith have been released, or that reasonably adequate
measures have been or concurrently with the Closing Date are being taken to
terminate such documentation and release such Guarantees, Liens and security
interests, except as otherwise agreed by Administrative Agent; and
(xiii) such
other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender
reasonably may require.
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(b) (i) All
fees required to be paid to the Administrative Agent and the Arranger on or
before the Closing Date shall have been paid and (ii) all fees required to be
paid to the Lenders on or before the Closing Date shall have been
paid.
(c) Unless
waived by the Administrative Agent, the Borrower shall have paid all fees,
charges and disbursements of counsel to the Administrative Agent (directly to
such counsel if requested by the Administrative Agent) to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of such fees,
charges and disbursements as shall constitute its reasonable estimate of such
fees, charges and disbursements incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter preclude a
final settling of accounts between the Borrower and the Administrative
Agent).
Without
limiting the generality of the provisions of the last paragraph of Section 8.03, for
purposes of determining compliance with the conditions specified in this Section 4.01, each
Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 Conditions to all Credit
Extensions. The obligation of each Lender to honor any Request
for Credit Extension (other than a Revolving Loan Notice requesting only a
conversion of Loans to the other Type, or a continuation of Eurodollar Rate
Loans) is subject to the following conditions precedent:
(a) The
representations and warranties of the Borrower and each other Loan Party
contained in Article
V or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be
true and correct in all material respects on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date, and except that for
purposes of this Section 4.02, the
representations and warranties contained in Sections 5.05(a) and
(b) shall be
deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and
(b),
respectively.
(b) No
Default shall exist, or would result from such proposed Credit Extension or from
the application of the proceeds thereof.
(c) The
Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender
shall have received a Request for Credit Extension in accordance with the
requirements hereof.
Each
Request for Credit Extension (other than a Revolving Loan Notice requesting only
a conversion of Loans to the other Type or a continuation of Eurodollar Rate
Loans) submitted by the Borrower shall be deemed to be a representation and
warranty that the conditions specified in Sections 4.02(a) and
(b) have been
satisfied on and as of the date of the applicable Credit
Extension.
59
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
The
Borrower represents and warrants to the Administrative Agent and the Lenders
that:
5.01 Existence, Qualification and
Power. The Borrower and each of its Subsidiaries (a) is duly
organized or formed, validly existing and, as applicable, in good standing under
the Laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own or lease its assets and
carry on its business and (ii) execute, deliver and perform its obligations
under the Loan Documents to which it is a party, and (c) is duly qualified and
is licensed and, as applicable, in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or
(c), to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
5.02 Authorization; No
Contravention. The execution, delivery and performance by each
Loan Party of each Loan Document to which such Person is or is to be a party
have been duly authorized by all necessary corporate or other organizational
action, and do not and will not (a) contravene the terms of any of such Person’s
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to
be made under (i) any Contractual Obligation to which such Person is a party or
affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate any Law.
5.03 Governmental Authorization;
Other Consents. Upon the filing of Uniform Commercial Code
financing statements pursuant to Section 4.01(a)(x) or
Section 6.12,
as the case may be, and the delivery of Pledged Equity pursuant to the Guarantee
and Collateral Agreement, no other 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 (a) the execution,
delivery or performance by, or enforcement against, any Loan Party of this
Agreement or any other Loan Document, (b) the grant by any Loan Party of the
Liens granted by it pursuant to the Collateral Documents, (c) the perfection or
maintenance of the Liens created under the Collateral Documents (including the
first priority nature thereof) or (d) the exercise by the Administrative Agent
or any Secured Party of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to the Collateral Documents.
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, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
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5.05 Financial Statements; No
Material Adverse Effect. (a) The Audited Financial
Statements (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein; (ii) fairly present the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or
contingent, of the Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and
Indebtedness.
(b) The
unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated
March 31, 2009, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for the fiscal quarter ended on that date
(i) were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein, and
(ii) fairly present in all material respects the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence
of footnotes and to normal year-end audit adjustments.
(c) Since
the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could
reasonably be expected to have a Material Adverse Effect.
5.06 Litigation. There
are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Borrower after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Borrower or any of its Subsidiaries or against any
of their properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document or any of the transactions contemplated
hereby or thereby, or (b) either individually or in the aggregate, if determined
adversely, could reasonably be expected to have a Material Adverse
Effect.
5.07 No
Default. Neither the 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; Investments. (a) The Borrower and each of
its Subsidiaries 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 (i) such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect and (ii) Permitted Liens.
(b) Schedule 5.08(b) sets
forth a complete and accurate list, as of the Closing Date, of (i) all Material
Real Property Interests of the Borrower and each of its Subsidiaries and
(ii) each location where tangible personal property with a fair market
value in excess of $2,500,000 or material books and records are
located.
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5.09 Environmental
Compliance. The Borrower and its Subsidiaries conduct in the
ordinary course of business a review of the effect of existing Environmental
Laws and claims alleging potential liability or responsibility for violation of
any Environmental Law on their respective businesses, operations and properties,
and as a result thereof the Borrower has reasonably concluded that such
Environmental Laws and claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.10 Insurance. The
properties of the Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts (after giving effect to any 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 the Borrower or the applicable Subsidiary
operates.
5.11 Taxes. The
Borrower and its Subsidiaries have filed all Federal, state and other material
tax returns and reports required to be filed, and have paid all Federal, state
and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment
against the Borrower or any Subsidiary that would, if made, have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is party to
any tax sharing agreement.
5.12 ERISA
Compliance. (a) Each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
Federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from
the IRS or an application for such a letter is currently being processed by the
IRS with respect thereto and, to the best knowledge of the Borrower, nothing has
occurred which would prevent, or cause the loss of, such
qualification. The Borrower and each ERISA Affiliate have made all
required contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any
Plan.
(b) There
are no pending or, to the best knowledge of the Borrower, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to
any Plan that could reasonably be expected to have a Material Adverse
Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse
Effect.
(c) (i)
No ERISA Event has occurred or is reasonably expected to occur; (ii) no
Pension Plan has any Unfunded Pension Liability; (iii) neither the Borrower nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) neither the Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the Borrower
nor any ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA.
62
(d) With
respect to each scheme or arrangement mandated by a government other than the
United States (a “Foreign Government Scheme or
Arrangement”) and with respect to each employee benefit plan maintained
or contributed to by any Loan Party or any Subsidiary of any Loan Party that is
not subject to United States law (a “Foreign
Plan”):
(i) any
employer and employee contributions required by law or by the terms of any
Foreign Government Scheme or Arrangement or any Foreign Plan have been made, or,
if applicable, accrued, in accordance with normal accounting
practices;
(ii) the
fair market value of the assets of each funded Foreign Plan, the liability of
each insurer for any Foreign Plan funded through insurance or the book reserve
established for any Foreign Plan, together with any accrued contributions, is
sufficient to procure or provide for the accrued benefit obligations, as of the
Closing Date, with respect to all current and former participants in such
Foreign Plan according to the actuarial assumptions and valuations most recently
used to account for such obligations in accordance with applicable generally
accepted accounting principles; and
(iii) each
Foreign Plan required to be registered has been registered and has been
maintained in good standing with applicable regulatory authorities.
5.13 Subsidiaries; Equity
Interests; Loan Parties. As of the Closing Date, the Borrower
has no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13, and
all of the outstanding Equity Interests in such Subsidiaries have been validly
issued, are fully paid and nonassessable and are owned by a Loan Party in the
amounts specified on Part (a) of Schedule 5.13 free
and clear of all Liens (other than Permitted Liens). As of the
Closing Date, the Borrower has no equity investments in any other corporation or
entity other than those specifically disclosed in Part (b) of Schedule
5.13. All of the outstanding Equity Interests in the Borrower
have been validly issued, are fully paid and non-assessable. Set
forth on Part
(c) of Schedule
5.13 is a complete and accurate list of all Loan Parties, showing as of
the Closing Date (as to each Loan Party) the jurisdiction of its incorporation,
the address of its principal place of business and its U.S. taxpayer
identification number or, in the case of any non-U.S. Loan Party that does not
have a U.S. taxpayer identification number, its unique identification number
issued to it by the jurisdiction of its incorporation.
5.14 Margin Regulations;
Investment Company Act. (a) The Borrower is not
engaged and will not engage, principally or as one of its important activities,
in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock.
(b) None
of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment
Company Act of 1940.
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5.15 Disclosure. The
Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf of
any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading in any material respect; provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time (it being understood that such projected financial
information is subject to significant uncertainties and contingencies, many of
which are beyond the control of the Loan Parties, that no assurance is given
that any particular projections will be realized, that actual results may differ
and that such differences may be material).
5.16 Compliance with
Laws. The Borrower and each of its Subsidiaries 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. Except, in each case, as could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect,
the Borrower and each of its Subsidiaries own, or possess the right to use, all
of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights
(collectively, “IP
Rights”) that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other
Person. To the best knowledge of the Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Borrower or any of its
Subsidiaries infringes upon any rights held by any other Person. No claim
or litigation regarding any of the foregoing is pending or, to the best
knowledge of the Borrower, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
5.18 Solvency. As
of the Closing Date and immediately after giving effect to any Credit Extension
hereunder and the use of the proceeds thereof, the Borrower, individually and
together with its Subsidiaries on a consolidated basis, is and will be
Solvent.
5.19 Casualty,
Etc. Neither the businesses nor the properties of the Borrower
or any of its Subsidiaries are affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or not
covered by insurance) that, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
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5.20 Labor
Matters. There are no collective bargaining agreements or
Multiemployer Plans covering the employees of the Borrower or any of its
Subsidiaries as of the Closing Date and neither the Borrower nor any Subsidiary
has suffered any strikes, walkouts, work stoppages or other material labor
difficulty within the last two years.
5.21 Collateral
Documents. The provisions of the Collateral Documents are
effective to create in favor of the Administrative Agent for the benefit of the
Secured Parties a legal, valid and enforceable first priority Lien (subject to
Permitted Liens) on all right, title and interest of the respective Loan Parties
in the Collateral described therein. Except for the delivery of
Pledged Equity pursuant to the Guarantee and Collateral Agreement and the
filings completed on or prior to the Closing Date (including without limitation
the filing of Uniform Commercial Code financing statements pursuant to Section 4.01(a)(x))
and as otherwise contemplated hereby and by the Collateral Documents, no filing
or other action will be necessary to perfect or protect such Liens.
ARTICLE
VI
AFFIRMATIVE
COVENANTS
So long
as any Lender shall have any Commitment hereunder, any Loan or other Obligation
(other than contingent indemnification obligations for which no claim has then
been asserted) hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11) cause each
Subsidiary to:
6.01 Financial
Statements. Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) as
soon as available, but in any event within 90 days after the end of each fiscal
year of the Borrower, a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, changes in 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, to be audited and accompanied by (i) a report and opinion
of Amper, Poliziner & Xxxxxx or another independent certified public
accountant of recognized standing reasonably acceptable to the Required Lenders,
which report and opinion shall be prepared in accordance with generally accepted
auditing standards 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;
(b) as
soon as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower (commencing with
the fiscal quarter ended June 30, 2009), a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated statements of income or operations and cash flows for such
fiscal quarter and for the portion of the Borrower’s fiscal year then ended,
setting forth in each case in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, to be certified by the chief
executive officer, chief financial officer, treasurer or controller of the
Borrower as fairly presenting the financial condition, results of operations,
shareholders’ equity and cash flows of the Borrower and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes;
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(c) as
soon as available, but in any event within 45 days after the end of each fiscal
year of the Borrower, an annual business plan and budget of the Borrower and its
Subsidiaries on a consolidated basis, including forecasts prepared by management
of the Borrower, in form satisfactory to the Administrative Agent, of
consolidated balance sheets and statements of income or operations and cash
flows of the Borrower and its Subsidiaries on a quarterly basis for the
immediately following fiscal year; and
(d) as
soon as available, but in any event within 45 days after the end of each fiscal
quarter, (i) an aged schedule of accounts receivable of the Borrower, listing
the name and amount due from each debtor on such accounts receivable and showing
the aggregate amounts due from (A) 0 to 30 days, (B) 31 to 60 days, (C) 61 to 90
days and (D) more than 90 days, and (ii) the Borrower and each of its
Subsidiaries’ work in process report, in each case, certified as accurate by a
the Borrower’s treasurer or chief financial officer and otherwise in form and
substance satisfactory to the Administrative Agent.
As to any
information contained in materials furnished pursuant to Section 6.02(c), the
Borrower shall not be separately required to furnish such information under
Section 6.01(a)
or (b) above,
but the foregoing shall not be in derogation of the obligation of the Borrower
to furnish the information and materials described in Sections 6.01(a) and
(b) above at
the times specified therein.
6.02 Certificates; Other
Information. Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and
(b) (commencing
with the delivery of the financial statements for the fiscal quarter ended June
30, 2009), a duly completed Compliance Certificate signed by the chief executive
officer, chief financial officer, treasurer or controller of the
Borrower;
(b) promptly
after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the
board of directors (or the audit committee of the board of directors) of the
Borrower by independent accountants in connection with the accounts or books of
the Borrower or any of its Subsidiaries, or any audit of any of
them;
(c) promptly
after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports and
registration statements which the Borrower may file or be required to file with
the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or
with any national securities exchange, and in any case not otherwise required to
be delivered to the Administrative Agent pursuant hereto;
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(d) promptly,
and in any event within five Business Days after receipt thereof by the Borrower
or any Subsidiary, copies of each notice or other correspondence received from
the SEC (or comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation or other inquiry by such
agency regarding financial or other operational results of the Borrower or any
Subsidiary;
(e) as
soon as available, but in any event within 30 days after the end of each fiscal
year of the Borrower, a report summarizing the insurance coverage (including
summaries of the type, amount and carrier of such coverage) and bonding coverage
(including summaries of the amount of such bonding, contracts covered thereby
and applicable surety) in effect for each Loan Party and its Subsidiaries and
containing such additional information as the Administrative Agent, or any
Lender through the Administrative Agent, may reasonably specify;
(f) promptly
after the assertion or occurrence thereof, notice of any action or proceeding
against or of any noncompliance by the Borrower or any of its Subsidiaries with
any Environmental Law or Environmental Permit that could reasonably be expected
to have a Material Adverse Effect; and
(g) promptly,
such additional information regarding the business, financial, legal or
corporate affairs of any Loan Party or any Subsidiary thereof, or compliance
with the terms of the Loan Documents, as the Administrative Agent or any Lender
may from time to time reasonably request.
Documents
required to be delivered pursuant to Section 6.01(a) or
(b) or Section 6.02(c) (to
the extent any such documents are included in materials otherwise filed with the
SEC) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the Borrower posts such documents,
or provides a link thereto on the Borrower’s website on the Internet at the
website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet
or intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents
to the Administrative Agent or any Lender that requests the Borrower to deliver
such paper copies until a written request to cease delivering paper copies is
given by the Administrative Agent or such Lender and (ii) the Borrower shall
notify the Administrative Agent and each Lender (by telecopier or electronic
mail) of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of
such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(a) to
the Administrative Agent. Except for such Compliance Certificates,
the Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
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The
Borrower hereby acknowledges that (a) the Administrative Agent and/or the
Arranger will make available to the Lenders and the L/C Issuer materials and/or
information provided by or on behalf of the Borrower hereunder (collectively,
“Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b)
certain of the Lenders (each, a “Public Lender”) may
have personnel who do not wish to receive material non-public information with
respect to the Borrower or its Affiliates, or the respective securities of any
of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities. The Borrower
hereby agrees that so long as the 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 it will use
commercially reasonable efforts to identify that portion of the Borrower
Materials that may be distributed to the Public Lenders and that (w) all such
Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at
a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower
shall be deemed to have authorized the Administrative Agent, the Arranger, the
L/C Issuer and the Lenders to treat such Borrower Materials as not containing
any material non-public information (although it may be sensitive and
proprietary) with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws (provided, however, that to the
extent such Borrower Materials constitute Information, they shall be treated as
set forth in Section
10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be
made available through a portion of the Platform designated “Public Side
Information;” and (z) the Administrative Agent and the Arranger shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Side Information.”
6.03 Notices. Promptly
notify the Administrative Agent and each Lender:
(a) of
the occurrence of any Default;
(b) of
any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or any
default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii)
any dispute, litigation, investigation, proceeding or suspension between the
Borrower or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws;
(c) of
the occurrence of any ERISA Event;
(d) of
any material change in accounting policies or financial reporting practices by
the Borrower or any Subsidiary, including any determination by the Borrower
referred to in Section
2.10(b).
Each
notice pursuant to this Section 6.03 shall be
accompanied by a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating what action the
Borrower has taken and proposes to take with respect thereto. Each
notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.
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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; (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, unless, in each such case, the same
are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained by
the Borrower or such Subsidiary.
6.05 Preservation of Existence,
Etc. (a) Preserve, renew and maintain in full force
and effect its legal existence and good standing (except, with respect to any
Subsidiary, to the extent the failure to do so could not reasonably be expected
to have a Material Adverse Effect) under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04 or 7.05; (b) take all
reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse
Effect.
6.06 Maintenance of
Properties. (a) Except to the extent that the failure to do so
could not reasonably be expected, individually or in the aggregate, to result in
a Material Adverse Effect, 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; and (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 the Borrower, insurance with respect to
its properties and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar business, of such
types and in such amounts (after giving effect to any 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 the Administrative Agent of termination, lapse or cancellation
of such insurance. The Administrative Agent and the Lenders
acknowledge that the insurance reflected on the insurance certificate furnished
pursuant to Section
4.01(a)(ix) and the insurance carriers providing such insurance reflected
on such certificate are acceptable to the Administrative Agent and such Lenders
as of the Closing Date.
6.08 Compliance with
Laws. Comply in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to
its business or property, except in such instances in which (a) such requirement
of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse
Effect.
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6.09 Books and
Records. Maintain proper books of record and account, in which
full, true and correct entries in conformity with GAAP consistently applied
shall be made of all financial transactions and matters involving the assets and
business of the Borrower or such Subsidiary, as the case may be.
6.10 Inspection
Rights. Permit representatives and independent contractors of
the Administrative Agent and each Lender to visit and inspect any of its
properties (including the inventory and such other Collateral located on any
such property), to perform appraisals of its equipment, to examine its
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, in each case, the results of which
must be satisfactory to such Lender in such Lender’s sole and absolute
discretion, all at the expense of the Borrower and at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided, however, that when an
Event of Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice.
6.11 Use of
Proceeds. Use the proceeds of the Credit Extensions for
working capital, capital expenditures and other general corporate purposes not
in contravention of any Law or of any Loan Document.
6.12 Covenant to Guarantee
Obligations and Give Security; Further Assurances.
(a) Formation or Acquisition of
New Subsidiary; Designation of Loan Parties. Upon the
formation or acquisition of any new direct or indirect Subsidiary (other than
any CFC or a Subsidiary that is held directly or indirectly by a CFC) by any
Loan Party or the designation of a Person that was an Immaterial Subsidiary as a
Person that will become a Loan Party pursuant to this Section as described in
the definition of “Immaterial Subsidiary”, then the Borrower shall, at the
Borrower’s expense:
(i) within
30 days after such formation, acquisition or designation, cause such Subsidiary,
and cause each direct and indirect parent of such Subsidiary (if it has not
already done so), to duly execute and deliver to the Administrative Agent an
Assumption Agreement, pursuant to which such Person shall guaranty the
Obligations and pledge a security interest in and to all of its assets (limited
so that in no event shall more than 65% of the total outstanding voting Equity
Interests of any CFC be pledged as Collateral) in support of such guaranty in
accordance with the terms and conditions thereof,
(ii) within
30 days after such formation, acquisition or designation, furnish to the
Administrative Agent a description of the Material Real Property Interests
personal properties of such Subsidiary, in detail satisfactory to the
Administrative Agent,
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(iii) within
30 days after such formation, acquisition or designation, cause such Subsidiary
and each direct and indirect parent of such Subsidiary (if it has not already
done so) to duly execute and deliver to the Administrative Agent deeds of trust,
trust deeds, deeds to secure debt, mortgages, leasehold mortgages, leasehold
deeds of trust, and other security and pledge agreements, as specified by and in
form and substance reasonably satisfactory to the Administrative Agent
(including delivery of all Pledged Equity in and of such Subsidiary, and other
instruments of the type specified in Section 5.6 of the
Guarantee and Collateral Agreement), securing payment of all the Obligations and
constituting Liens on all such personal properties and Material Real Property
Interests,
(iv) within
45 days after such formation, acquisition or designation, cause such Subsidiary
and each direct and indirect parent of such Subsidiary (if it has not already
done so) to take whatever action (including the recording of mortgages, the
filing of Uniform Commercial Code financing statements and the giving of
notices) may be necessary or reasonably advisable in the opinion of the
Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the Assumption
Agreement, Mortgages and other Collateral Documents delivered pursuant to this
Section 6.12,
enforceable against all third parties in accordance with their terms, or as may
be reasonably necessary to assure title therein or protect such Liens (including
entering into satisfactory landlord waivers and access letters for each location
where tangible personal property with a fair market value in excess of
$2,500,000 or material books and records are located or will be
located),
(v) within
60 days after such formation, acquisition or designation, deliver to the
Administrative Agent, upon the request of the Administrative Agent in its sole
discretion, a signed copy of a favorable opinion, addressed to the
Administrative Agent and the other Secured Parties, of counsel for the Loan
Parties acceptable to the Administrative Agent as to the matters contained in
clauses (i),
(iii) and (iv) above, and as to
such other matters as the Administrative Agent may reasonably request,
and
(vi) as
promptly as practicable after such formation, acquisition or designation,
deliver, upon the request of the Administrative Agent in its sole discretion, to
the Administrative Agent with respect to each Material Real Property Interest of
the entity that is the subject of such formation, acquisition or designation,
title reports, surveys and engineering, soils and other reports, and
environmental assessment reports, each in scope, form and substance satisfactory
to the Administrative Agent (it being understood and agreed that the
Administrative Agent will not request surveys, engineering or environmental
reports not otherwise being obtained by the Borrower or any Subsidiary in
connection with such formation, acquisition or designation if the cost of
obtaining such surveys or reports is excessive (as determined by the
Administrative Agent) in relation to the benefit to the Lenders when assessed
both individually and in light of the value of all other Collateral), provided, however, that to the
extent that any Loan Party or any of its Subsidiaries shall have otherwise
received any of the foregoing items with respect to such Material Real Property
Interest, such items shall, promptly after the receipt thereof, be delivered to
the Administrative Agent.
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(b) Acquisition of
Property. Upon the acquisition of any property by any Loan
Party (including, without limitation, any Material Real Property Interest), if
such property, in the judgment of the Administrative Agent, shall not already be
subject to a perfected first priority security interest in favor of the
Administrative Agent for the benefit of the Secured Parties, then the Borrower
shall, at the Borrower’s expense:
(i) within
30 days after such acquisition, furnish to the Administrative Agent a
description of the property so acquired in detail reasonably satisfactory to the
Administrative Agent,
(ii) within
30 days after such acquisition, cause the applicable Subsidiary (other than any
CFC or a Subsidiary that is held directly or indirectly by a CFC) to duly
execute and deliver to the Administrative Agent deeds of trust, trust deeds,
deeds to secure debt, mortgages, leasehold mortgages, leasehold deeds of trust,
and other security and pledge agreements, as specified by and in form and
substance reasonably satisfactory to the Administrative Agent, securing payment
of all the Obligations,
(iii) within
45 days after such acquisition, cause each Subsidiary (other than any CFC or a
Subsidiary that is held directly or indirectly by a CFC) to take whatever action
(including the recording of mortgages, the filing of Uniform Commercial Code
financing statements and the giving of notices) may be necessary or advisable in
the opinion of the Administrative Agent to vest in the Administrative Agent (or
in any representative of the Administrative Agent designated by it) valid and
subsisting Liens on such property, enforceable against all third parties, or as
may be reasonably necessary to assure title therein or protect such Liens
(including entering into satisfactory landlord waivers and access letters for
each location where tangible personal property with a fair market value in
excess of $2,500,000 or material books and records are located or will be
located),
(iv) within
60 days after such acquisition, deliver to the Administrative Agent, upon the
request of the Administrative Agent in its sole discretion, a signed copy of a
favorable opinion, addressed to the Administrative Agent and the other Secured
Parties, of counsel for the Loan Parties acceptable to the Administrative Agent
as to the matters contained in clauses (ii) and
(iii) above and
as to such other matters as the Administrative Agent may reasonably request;
and
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(v) as
promptly as practicable after any acquisition of any Material Real Property
Interest, deliver, upon the request of the Administrative Agent in its sole
discretion, to the Administrative Agent with respect to such Material Real
Property Interest, surveys and engineering, soils and other reports, and
environmental assessment reports, each in scope, form and substance satisfactory
to the Administrative Agent (it being understood and agreed that the
Administrative Agent will not request surveys, engineering or environmental
reports not otherwise being obtained by the Borrower or any Subsidiary in
connection with such formation or acquisition if the cost of obtaining such
surveys or reports is excessive (as determined by the Administrative Agent) in
relation to the benefit to the Lenders when assessed both individually and in
light of the value of all other Collateral), provided, however, that to the
extent that any Loan Party or any of its Subsidiaries shall have otherwise
received any of the foregoing items with respect to such Material Real Property
Interest, such items shall, promptly after the receipt thereof, be delivered to
the Administrative Agent.
(c) Deposit Accounts and
Collections. The Borrower shall, and shall cause each Loan
Party to ensure that all collections and/or payments in respect of accounts or
other Collateral and all other proceeds whatsoever of or from any Collateral are
promptly paid into one or more deposit accounts maintained with the
Administrative Agent or subject to an Account Control Agreement in accordance
with procedures and arrangements reasonably acceptable to the Administrative
Agent and subject only to such changes as may be approved in advance by the
Administrative Agent. To the extent that any collections and/or
payments with respect to accounts or other Collateral or any other proceeds
whatsoever of or from any Collateral are not sent directly to such accounts in
accordance with procedures and arrangements reasonably acceptable to the
Administrative Agent, such collections, payments and/or proceeds shall be held
in trust for the benefit of the Administrative Agent and immediately remitted
for transfer to such accounts. So long as no Event of Default has
occurred and is continuing, the Loan Parties shall be permitted to withdraw
funds from such accounts without any restriction and without the consent of the
Administrative Agent.
(d) Further Assurances
Generally. At any time upon the reasonable request of the
Administrative Agent, the Borrower shall, at the Borrower’s expense, or cause
any applicable Subsidiary to, (i) correct any material defect or error that may
be discovered in any Loan Document or in the execution, acknowledgment, filing
or recordation thereof, (ii) promptly execute and deliver Notices of Assignment
under the Assignment of Claims Act of 1940 or similar applicable state Laws, and
otherwise do all acts and things and execute all documents necessary or
advisable, in Administrative Agent’s sole discretion, with respect to any
contract with a Governmental Authority, and (iii) execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register any and all such
further acts, deeds, certificates, assurances and other instruments (including,
without limitation, landlord waivers and access letters with respect to
locations where tangible personal property with a fair market value in excess of
$2,500,000 or material books and records are located) as the Administrative
Agent, or any Lender through the Administrative Agent, may reasonably require
from time to time in order to (A) carry out more effectively the purposes
of the Loan Documents, (B) to the fullest extent permitted by applicable law,
subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights
or interests to the Liens now or hereafter intended to be covered by any of the
Collateral Documents, (C) perfect and maintain the validity, effectiveness
and priority of any of the Collateral Documents and any of the Liens intended to
be created thereunder and (D) assure, convey, grant, assign, transfer, preserve,
protect and confirm more effectively unto the Secured Parties the rights granted
or now or hereafter intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection with any Loan
Document to which any Loan Party or any of its Subsidiaries is or is to be a
party.
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6.13 Compliance with
Environmental Laws. Comply, and cause all lessees and other
Persons operating or occupying its properties to comply, in all material
respects, with all applicable Environmental Laws and Environmental Permits;
obtain and renew all Environmental Permits necessary for its operations and
properties; and conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove and
clean up all Hazardous Materials from any of its properties, in accordance with
the requirements of all Environmental Laws; provided, however, that neither
the Borrower nor any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its obligation to
do so is being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances in accordance
with GAAP.
6.14 Surety
Bonds. Maintain bonding coverage, if required pursuant to the
agreements for the provision of services to which the Borrower or any such
Subsidiary is a party, in terms and amounts satisfactory to the Administrative
Agent for existing and projected work provided by a surety listed on the U.S.
Treasury Department’s Treasury’s List of Approved Sureties and, at the time the
bonding relationship is entered into, having a “Secure” A.M. Best Rating (B+ or
better).
ARTICLE
VII
NEGATIVE
COVENANTS
So long
as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, the Borrower shall not, nor shall it permit any Subsidiary
to, directly or indirectly:
7.01 Liens. Create,
incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, or sign or file or suffer to
exist under the Uniform Commercial Code of any jurisdiction a financing
statement that names the Borrower or any of its Subsidiaries as debtor (provided that if any
such financing statement is filed without the knowledge or consent of the
Borrower or the applicable Subsidiary, the Borrower or such Subsidiary shall
terminate such financing statement within forty-five (45) days after obtaining
knowledge thereof), or assign any accounts or other right to receive income,
other than the following:
(a) Liens
pursuant to any Loan Document;
(b) Liens
existing on the Closing Date and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that (i) the
property covered thereby is not changed, (ii) the amount secured or
benefited thereby is not increased except as contemplated by Section 7.02(c),
(iii) the direct or any contingent obligor with respect thereto is not changed,
and (iv) any renewal or extension of the obligations secured or benefited
thereby is permitted by Section
7.02(c);
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(c) Liens
for taxes not yet due or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance with
GAAP;
(d) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of
more than 30 days or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person;
(e) pledges
or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation,
other than any Lien imposed by ERISA;
(f) deposits
to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of
business;
(g) easements,
covenants, conditions, restrictions, building code laws, zoning restrictions,
encroachments, rights-of-way and similar encumbrances on real property imposed
by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially interfere with the ordinary conduct
of business of the applicable Person and such other minor title defects or
survey matters that are disclosed by current surveys that, in each case, do not
materially interfere with the ordinary conduct of business of the applicable
Person; and
(h) Liens
securing judgments, decrees, attachments and awards for the payment of money not
constituting an Event of Default under Section
8.01(h);
(i) Liens
securing Indebtedness permitted under Section 7.02(g);
provided that (i) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness and (ii) the Indebtedness secured
thereby does not exceed the cost or fair market value, whichever is lower, of
the property being acquired on the date of acquisition;
(j) landlords’
and lessors’ Liens in respect of rent not in default, in each case other than
Liens of any such landlord or lessor that have been waived in a landlord
agreement or access letter delivered pursuant to Section 4.01 or 6.12 of this
Agreement or as required pursuant to any Collateral Document;
(k) possessory
Liens in favor of brokers and dealers arising in connection with the acquisition
or disposition of Investments permitted under Section 7.03, provided that such
Liens (i) attach only to such Investments and (ii) secure only obligations
incurred in the ordinary course and arising in connection with the acquisition
or disposition of such Investments and not any obligation in connection with
margin financing;
(l) Liens
arising solely by virtue of any statutory or common law provisions relating to
banker’s liens, liens in favor of securities intermediaries, rights of setoff or
similar rights and remedies as to deposit accounts or securities accounts or
other funds maintained with depository institutions or securities
intermediaries, except to the extent required to be waived pursuant to any
agreement delivered pursuant to Section 4.01 or 6.12 of this
Agreement or any Account Control Agreement or other Collateral Document
delivered in connection herewith;
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(m) Uniform
Commercial Code financing statements filed for precautionary purposes in
connection with “true” operating leases;
(n) any
interest or title (i) of a lessor or sublessor under leases or subleases; or
(ii) secured by a lessor’s or sublessor’s interests under leases, entered into
by the Borrower or any of its Subsidiaries in the ordinary course of business,
but only to the extent such interest or title extends only to the applicable
leased property;
(o) Liens
solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its
Subsidiaries in connection with any letter of intent or purchase agreement
permitted hereunder;
(p) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods (including under Article 2 of the UCC) and Liens
that are contractual rights of set-off relating to purchase orders and other
similar agreements entered into by the Borrower or any of its Subsidiaries in
the ordinary course of business;
(q) Liens
on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto incurred in the ordinary course of
business;
(r) licenses
or sublicenses granted to third Persons, in each case in the ordinary course of
business and which do not materially interfere with the business of the Borrower
and its Subsidiaries; and
(s) Liens
securing Indebtedness permitted under Section 7.02(i);
provided that
(i) such Liens do not at any time encumber any property other than the
property (and proceeds thereof) financed by such Indebtedness and (ii) the
Indebtedness secured thereby does not exceed the cost or fair market value,
whichever is lower, of the property being acquired on the date of such
acquisition;
(t) Liens
not otherwise permitted by this Section to the extent that the aggregate
outstanding amount principal amount of the obligations secured thereby does not
at any time exceed $2,000,000.
7.02 Indebtedness. Create,
incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness
under this Agreement or any other Loan Document;
(b) obligations
(contingent or otherwise) existing or arising under any Swap Contract, provided that (i)
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated with
fluctuations in interest rates or foreign exchange rates and (ii) such Swap
Contract does not contain any provision exonerating the non-defaulting party
from its obligation to make payments on outstanding transactions to the
defaulting party;
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(c) Indebtedness
outstanding on the Closing Date and listed on Schedule 7.02(c) and
any refinancings, refundings, renewals or extensions thereof; provided that the
amount of such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension except by an amount equal to a reasonable
premium or other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder and the direct or any contingent
obligor with respect thereto is not changed, as a result of or in connection
with such refinancing, refunding, renewal or extension; and provided, still
further, that the terms relating to principal amount, amortization, maturity,
collateral (if any) and subordination (if any), and other material terms taken
as a whole, of any such refinancing, refunding, renewing or extending
Indebtedness, and of any agreement entered into and of any instrument issued in
connection therewith, are no less favorable in any material respect to the Loan
Parties or the Lenders than the terms of any agreement or instrument governing
the Indebtedness being refinanced, refunded, renewed or extended and the
interest rate applicable to any such refinancing, refunding, renewing or
extending Indebtedness does not exceed the then applicable market interest
rate;
(d) Indebtedness
of a Subsidiary of the Borrower owed to the Borrower or a wholly-owned
Subsidiary of the Borrower, which Indebtedness shall (i) in the case of
Indebtedness owed to a Loan Party, constitute “Pledged Notes” under the
Guarantee and Collateral Agreement, (ii) be on terms acceptable to the
Administrative Agent and (iii) be otherwise permitted under the provisions of
Section
7.03;
(e) Guarantees
of the Borrower or any Subsidiary in respect of Indebtedness otherwise permitted
hereunder of the Borrower or any wholly-owned Subsidiary; provided, in the case
of any Guarantee by any Loan Party of any Indebtedness of any Person that is not
a Loan Party, that such Investment is permitted by Section
7.03(b);
(f) performance
guaranties issued by the Borrower or any Subsidiary of the operating obligations
of any of its Subsidiaries made in the ordinary course of business; provided,
that any such guaranty shall exclude any guaranty of the payment of such
Subsidiary’s monetary obligations;
(g) Indebtedness
in respect of Capitalized Leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets within the limitations set forth in
Section
7.01(i); provided, however, that the
aggregate amount of all such Indebtedness at any one time outstanding shall not
exceed $2,500,000;
(h) Indebtedness
of the Borrowers’ foreign Subsidiaries incurred in connection with advance
payment or performance guaranties outstanding on the Closing Date and listed on
Schedule
7.02(h) and any refinancings, refundings, renewals or extensions thereof,
provided, that
(i) the amount of such Indebtedness (as measured in and by the applicable
currency set forth on Schedule 7.02(h)) is
not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount
paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized
thereunder and the direct or any contingent obligor with respect thereto is not
changed, as a result of or in connection with such refinancing, refunding,
renewal or extension; (ii) the terms relating to principal amount, amortization,
maturity, collateral (if any) and subordination (if any), and other material
terms taken as a whole, of any such refinancing, refunding, renewing or
extending Indebtedness, and of any agreement entered into and of any instrument
issued in connection therewith, are no less favorable in any material respect to
such foreign Subsidiary or the Lenders than the terms of any agreement or
instrument governing the Indebtedness being refinanced, refunded, renewed or
extended and the interest rate applicable to any such refinancing, refunding,
renewing or extending Indebtedness does not exceed the then applicable market
interest rate; and (iii) in the case of any such refinancing, refunding, renewal
or extension, the applicable foreign Subsidiary uses good faith efforts to
utilize a Lender or an Affiliate of a Lender to obtain such financing
(considering all of the business circumstances involved) and it is determined to
be impractical for the applicable foreign Subsidiary to obtain such financing
from a Lender or any Lender’s Affiliates, whether by utilizing Letters of Credit
issued under this Agreement or otherwise;
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(i) Indebtedness
incurred in connection with an Investment permitted under Section 7.03(f)
(including existing Indebtedness of a Person acquired in connection with such
Investment provided such Indebtedness was not incurred solely in contemplation
of such Investment) in an aggregate amount at any one time outstanding of no
more than $2,000,000 (the “Permitted Acquisition
Indebtedness”); provided that the
Borrower and its Subsidiaries may incur Indebtedness in connection with any such
Investment from time to time in addition to the Permitted Acquisition
Indebtedness (the “Excess Acquisition
Indebtedness”) (i) so long as such Excess Acquisition Indebtedness is
repaid in full within 45 days of the incurrence thereof, and (ii) no more
than $15,000,000 in Excess Acquisition Indebtedness in the aggregate shall be
outstanding at any time;
(j) (i)
Indebtedness constituting indemnification obligations or obligations in respect
of purchase price or other similar adjustments in connection with
Investments permitted under Section 7.03 and
Dispositions permitted under Section 7.05; and
(ii) Indebtedness consisting of obligations of the Borrower or any Subsidiary
under deferred compensation or other similar arrangements incurred by such
Person in connection with any Investment permitted under Section
7.03;
(k) Indebtedness
consisting of the financing of insurance premiums in the ordinary course of
business;
(l) Indebtedness
in respect of netting services, overdraft protections and similar arrangements
and related liabilities arising from treasury, depository and cash management
services or any automated clearing house transfers of funds in the ordinary
course of business;
(m) Indebtedness
representing deferred compensation to directors, officers and employees of the
Borrower or any of its Subsidiaries incurred in the ordinary course of business
and consistent with past practice;
(n) to
the extent constituting Indebtedness, judgments, decrees, attachments or awards
not constituting an Event of Default under Section 8.01(h);
and
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(o) other
Indebtedness (not described in any other clause of this Section, as to which
such clause shall govern the Indebtedness and this clause (n) shall not
be additive thereto) in an aggregate principal amount not to exceed $2,500,000
at any time outstanding.
7.03 Investments. Make
or hold any Investments, except:
(a) Investments
held by the Borrower and its Subsidiaries in the form of Cash
Equivalents;
(b) (i)
Investments by the Borrower and its Subsidiaries in their respective
Subsidiaries outstanding on the Closing Date, (ii) additional Investments by the
Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by
Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries
that are not Loan Parties and (iv) so long as no Default has occurred and is
continuing or would result from such Investment, additional Investments by the
Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an
aggregate amount invested from the Closing Date not to exceed
$2,000,000;
(c) Investments
consisting of extensions of credit in the nature of accounts receivable or notes
receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;
(d) Guarantees
permitted by Section
7.02;
(e) Investments
existing on the Closing Date (other than those referred to in Section 7.03(b)(i))
and set forth on Schedule
7.03;
(f) the
purchase or other acquisition of all of the Equity Interests in, or all or
substantially all of the property of, any Person that, upon the consummation
thereof, will be wholly-owned directly by the Borrower or one or more of its
wholly-owned Subsidiaries (including as a result of a merger or consolidation);
provided that,
with respect to each purchase or other acquisition made pursuant to this Section
7.03(f):
(i) any
such newly-created or acquired Subsidiary shall comply with the requirements of
Section
6.12;
(ii) the
lines of business of the Person to be (or the property of which is to be) so
purchased or otherwise acquired shall be substantially the same lines of
business as one or more of the principal businesses of the Borrower and its
Subsidiaries in the ordinary course;
(iii) the
total consideration paid by or on behalf of the Borrower and its Subsidiaries
for any such purchase or other acquisition shall not exceed
$15,000,000;
79
(iv) (A)
immediately before and immediately after giving pro forma effect to any such
purchase or other acquisition, no Default shall have occurred and be continuing,
(B) immediately after giving effect to such purchase or other acquisition, the
Borrower and its Subsidiaries shall be in pro forma compliance with all of the
covenants set forth in Section 7.11; provided that, in the
event Indebtedness is incurred in connection with such purchase or acquisition
the Consolidated Leverage Ratio, on a pro forma basis, shall be less than the
then-applicable ratio required by Section 7.11(b) minus 0.25 (the
“Additional Leverage
Requirement”); provided further
that, for the purpose of the calculations set forth above, Consolidated EBITDA
attributable to such purchase or acquisition shall only be permitted to be
included in the calculation of the Additional Leverage Requirement; in each
case, such compliance to be determined on the basis of the financial information
most recently delivered to the Administrative Agent and the Lenders pursuant to
Section 6.01(a)
or (b) as
though such purchase or other acquisition had been consummated as of the first
day of the fiscal period covered thereby and giving effect to any other material
purchases or acquisitions that have occurred during such fiscal period, and (C)
immediately before and immediately after giving effect to any such purchase or
other acquisition, the Borrower shall have at least $10,000,000 of Availability;
and
(v) the
Borrower shall have delivered to the Administrative Agent and each Lender, at
least five Business Days prior to the date on which any such purchase or other
acquisition is to be consummated, (A) a Compliance Certificate evidencing pro
forma compliance with the financial covenants as described in clause (iv)(B) above,
together with all relevant financial information with respect to such purchase
or acquisition (including, without limitation, historical financial information,
internally prepared projections and business plans) and such other information
as reasonably requested by the Administrative Agent; and (B) a certificate of a
Responsible Officer, in form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders, certifying that all of the
requirements set forth in this Section 7.03(f) have
been satisfied or will be satisfied on or prior to the consummation of such
purchase or other acquisition; and
(g) (i)
advances of payroll payments to employees in the ordinary course of business and
consistent with past practice and (ii) other loans and advances to officers,
directors and employees of the Loan Parties and Subsidiaries in the ordinary
course of business in an aggregate amount not to exceed $100,000 at any time
outstanding;
(h) Investments
of any Person existing at the time such Person becomes a Subsidiary of any Loan
Party or consolidates or merges with the Borrower or any of its Subsidiaries
(including in connection with an Investment permitted under Section 7.03(f)), so
long as such Investments were not made in contemplation of such Person becoming
a Subsidiary or of such consolidation or merger;
(i) promissory
notes and other non-cash consideration received in connection with Dispositions
permitted by Section
7.05;
(j) to
the extent constituting Investments, lease, utility and other similar deposits
made in the ordinary course of business consistent with past
practices;
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(k) Investments
in the ordinary course of business consisting of endorsements for collection or
deposit pursuant to Article 3 of the UCC and customary trade arrangements with
customers pursuant to Article 4 of the UCC, in each case in the ordinary course
of business consistent with past practices; and
(l) other
Investments at any time outstanding not exceeding $5,000,000 in the
aggregate;
provided, however, that
notwithstanding the foregoing, at any time when Revolving Loans are outstanding,
the Investments specified in clauses (a) or (k) shall be subject
to Account Control Agreements to the extent required by the Guarantee and
Collateral Agreement.
7.04 Fundamental
Changes. Merge, dissolve, liquidate, consolidate with or into
another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any
Subsidiary may merge with (i) the Borrower, provided that the Borrower shall be
the continuing or surviving Person, or (ii) any one or more other Subsidiaries,
provided that when any Loan Party is merging with another Subsidiary, such Loan
Party shall be the continuing or surviving Person;
(b) any
Loan Party may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or to another Loan Party;
(c) any
Subsidiary that is not a Loan Party may dispose of all or substantially all its
assets (including any Disposition that is in the nature of a liquidation) to (i)
another Subsidiary that is not a Loan Party or (ii) to a Loan
Party;
(d) in
connection with any acquisition permitted under Section 7.03, any
Subsidiary of the Borrower may merge into or consolidate with any other Person
or permit any other Person to merge into or consolidate with it; provided that (i) the
Person surviving such merger shall be a wholly-owned Subsidiary of the Borrower
and (ii) in the case of any such merger to which any Loan Party (other than the
Borrower) is a party, such Loan Party is the surviving Person; and
(e) so
long as no Default has occurred and is continuing or would result therefrom, any
Subsidiary of the Borrower may merge into or consolidate with any other Person
or permit any other Person to merge into or consolidate with it; provided, that in
each case, immediately after giving effect thereto (i) in the case of any such
merger to which the Borrower is a party, the Borrower is the surviving
corporation and (ii) in the case of any such merger to which any Loan Party
(other than the Borrower) is a party, such Loan Party is the surviving
corporation.
7.05 Dispositions. Make
any Disposition or enter into any agreement to make any Disposition,
except:
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(a) Dispositions
of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business;
(b) Dispositions
of inventory in the ordinary course of business;
(c) Dispositions
of equipment or real property to the extent that (i) such property is exchanged
for credit against the purchase price of similar replacement property or
(ii) the proceeds of such Disposition are reasonably promptly applied to
the purchase price of such replacement property;
(d) Dispositions
of property (including any Equity Interest of any Subsidiary) by any Subsidiary
to the Borrower or to a wholly-owned Subsidiary; provided that if the
transferor of such property is a Guarantor, the transferee thereof must either
be the Borrower or a Guarantor;
(e) Dispositions
permitted by Section
7.04;
(f) Dispositions
of any unsecured Indebtedness owed to a Loan Party by another Loan Party or any
other Subsidiary that is not a Loan Party to any other Subsidiary that is not a
Loan Party, provided
that after giving effect to such transfer, the Investment of such
Indebtedness in the transferee Subsidiary would otherwise be permitted under
Section
7.03(b)(iv);
(g) Dispositions
consisting of the compromise, settlement or collection of accounts receivable in
the ordinary course of business, consistent with past practices;
and
(h) Dispositions
by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at
the time of such Disposition, no Default shall exist or would result from such
Disposition, (ii) the aggregate book value of all property Disposed of in
reliance on this clause (h) in any
fiscal year shall not exceed $2,500,000;
provided, however, that any
Disposition pursuant to Section 7.05(a),
(b), (c) or (h) shall be for fair
market value.
7.06 Restricted
Payments. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
or issue or sell any Equity Interests or accept any capital contributions,
except that, so long as no Default shall have occurred and be continuing at the
time of any action described below or would result therefrom:
(a) each
Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the
Borrower that are Guarantors and any other Person that owns a direct Equity
Interest in such Subsidiary, ratably according to their respective holdings of
the type of Equity Interest in respect of which such Restricted Payment is being
made;
(b) the
Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity
Interests of such Person; and
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(c) the
Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity
Interests with the proceeds received from the substantially concurrent issue of
new common Equity Interests; and
(d) the
Borrower may (i) declare or pay cash dividends to its stockholders and (ii)
purchase, redeem or otherwise acquire for cash Equity Interests issued by it in
an aggregate amount not to exceed $20,000,000; provided that in the
event the Aggregate Commitments are increased pursuant to Section 2.14 (the
amount of any such increase, a “2.14 Increase
Amount”), the aggregate amount of Restricted Payments permitted by clause (ii) shall be
increased by an amount equal to 0.20 times the 2.14 Increase Amount (but in no
event shall such Restricted Payment amount be increased by more than
$10,000,000).
7.07 Change in Nature of
Business. Engage in any material line of business
substantially different from those lines of business conducted by the Borrower
and its Subsidiaries on the Closing Date or any business substantially related
or incidental thereto.
7.08 Transactions with
Affiliates. Enter into, renew, extend or be a party to any
transaction of any kind with any Affiliate of the Borrower, whether or not in
the ordinary course of business, other than on fair and reasonable terms
substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate, provided that the
foregoing restriction shall not apply to (a) a transaction between or among the
Loan Parties, (b) a transaction between or among any Subsidiaries of the
Borrower that are not Loan Parties, (c) transactions, arrangements,
reimbursements and indemnities permitted between or among Loan Parties, (d) the
payment of reasonable fees and out-of-pocket costs to directors, and
compensation and employee benefit arrangements paid to, and indemnities provided
for the benefit of, directors, officers or employees of the Borrower or its
Subsidiaries, (e) any issuances of securities or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment agreements, stock options and stock ownership plans approved by the
Borrower’s board of directors, or (f) non-exclusive, royalty-free licenses of
any of the Borrower’s or Subsidiaries’ trademarks, trade names and business
systems by Loan Parties to Subsidiaries which are not Loan Parties
7.09 Burdensome
Agreements. Enter into or permit to exist any Contractual
Obligation (other than this Agreement or any other Loan Document) that (a)
limits the ability (i) of any Subsidiary to make Restricted Payments to the
Borrower or any Guarantor or to otherwise transfer property to or invest in the
Borrower or any Guarantor, except for any agreement in effect (A) on the Closing
Date and set forth on Schedule 7.09 or (B)
at the time any Subsidiary becomes a Subsidiary of the Borrower, so long as such
agreement was not entered into solely in contemplation of such Person becoming a
Subsidiary of the Borrower, (ii) of any Subsidiary to Guarantee the Indebtedness
of the Borrower or (iii) of the Borrower or any Subsidiary to create, incur,
assume or suffer to exist Liens on property of such Person; provided, however, that this
clause (iii)
shall not prohibit any negative pledge incurred or provided in favor of any
holder of Indebtedness permitted under Section 7.02(g)
solely to the extent any such negative pledge relates to the property financed
by or the subject of such Indebtedness; or (b) requires the grant of a Lien
to secure an obligation of such Person if a Lien is granted to secure another
obligation of such Person.
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7.10 Use of
Proceeds. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such
purpose.
7.11 Financial
Covenants. (a) Consolidated Net
Worth. Permit Consolidated Net Worth at any time to be less
than the sum of (i) $100,000,000 and (ii) an amount equal to 50% of the
Consolidated Net Income earned in each full fiscal quarter ending after June 30,
2009 (with no deduction for a net loss in any such fiscal quarter).
(b) Consolidated Leverage
Ratio. Permit the Consolidated Leverage Ratio at any time to
be greater than 2.50 to 1.00.
(c) Consolidated Fixed Charge
Coverage Ratio. Permit the Consolidated Fixed Charge Coverage
Ratio as of the end of any fiscal quarter of the Borrower to be less than 2.00
to 1.00.
(d) Accounts Receivable to
Senior Secured Indebtedness. Permit the ratio of (i) consolidated
billed and unbilled accounts receivable arising in the ordinary course of
business to (ii) Consolidated Senior Secured Indebtedness to be less than 2.00
to 1.00.
7.12 Amendments of Organization
Documents. Amend, modify or waive any of a Loan Party’s rights
under its Organization Documents in a manner that could reasonably be expected
to be materially adverse to the Administrative Agent or any Lender.
7.13 Accounting
Changes. Either (a) change the Fiscal Year of any Loan Party,
or (b) change the accounting policies or reporting practices of the Loan
Parties, except as required by GAAP or except for the adoption by the Borrower
of the International Financial Reporting Standards (subject to Section 1.03 hereof)
(the foregoing not being intended to waive or modify the Loan Parties’
requirement to furnish notice to the Administrative Agent of such change in
accounting policies in accordance with the provisions of Section
6.03(d)).
7.14 Prepayments, Etc. of
Indebtedness. Prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make any
payment in violation of any subordination terms of, any Indebtedness, except (a)
the prepayment of the Credit Extensions in accordance with the terms of this
Agreement and (b) Permitted Subordinated Indebtedness.
7.15 Amendment, Etc. of
Indebtedness. Amend, modify or change in any manner any term
or condition of (a) any Indebtedness set forth in Schedule 7.02, except
for any refinancing, refunding, renewal or extension thereof permitted by Section 7.02(c) or
(b) any Permitted Subordinated Indebtedness.
7.16 Post-Closing
Deliveries. Fail to satisfy any of the requirements set forth
on Schedule
7.16 within the time period(s) specified therein.
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ARTICLE
VIII
EVENTS OF
DEFAULT AND REMEDIES
8.01 Events of
Default. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The
Borrower or any other Loan Party fails to (i) pay when and as required to be
paid herein, any amount of principal of any Loan or any L/C Obligation or
deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) pay
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) pay within five days after
the same becomes due, any other amount payable hereunder or under any other Loan
Document; or
(b) Specific
Covenants. (i) The Borrower fails to perform or observe any
term, covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.10, 6.11, 6.12, 6.14 or Article VII or
(ii) any of the Guarantors fails to perform or observe any term, covenant or
agreement contained in the Guarantee and Collateral Agreement; or
(c) Other
Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in Section 8.01(a) or
(b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days; or
(d) Representations and
Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower or any
other Loan Party herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith shall be incorrect or misleading
when made or deemed made; or
(e) Cross-Default. (i)
The Borrower or any Subsidiary (A) fails to make any payment when due (whether
by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
the Threshold Amount, or (B) fails to observe or perform any other agreement or
condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, the effect of which default or other event is to cause, or to
permit the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; (ii) there occurs under any
Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which the
Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such Swap
Contract as to which the Borrower or any Subsidiary is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by the Borrower
or such Subsidiary as a result thereof is greater than the Threshold Amount; or
(iii) any default occurs under any Material Bond Indemnity Agreement, which
default has been declared by the applicable surety to exist and has not been
cured or waived prior to the expiration of any applicable grace periods;
or
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(f) Insolvency Proceedings,
Etc. The Borrower or any Subsidiary institutes or consents to
the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any
such Person or to all or any material part of its property is instituted without
the consent of such Person and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts;
Attachment. (i) The Borrower or any Subsidiary becomes unable
or admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of
any such Person and is not released, vacated or fully bonded within 30 days
after its issue or levy; or
(h) Judgments. There
is entered against the Borrower or any Subsidiary (i) one or more final
judgments or orders for the payment of money in an aggregate amount (as to all
such judgments and orders) exceeding the Threshold Amount (to the extent not
covered by independent third-party insurance as to which the insurer is rated at
least “A” by A.M. Best Company, has been notified of the potential claim and
does not dispute coverage), or (ii) any one or more non-monetary final judgments
that have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B)
there is a period of 10 consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal or otherwise, is not in effect;
or
(i) Debarment. Any
Loan Party or any Subsidiary thereof is debarred or suspended under Section 9.4 of the
Federal Acquisition Regulations or otherwise prohibited from future contracting
with agencies of the executive branch of the United States
Government.
(j) ERISA. (i)
An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which
has resulted or could reasonably be expected to result in liability of the
Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the
Borrower or any ERISA Affiliate fails to pay when due, after the expiration of
any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in
an aggregate amount in excess of the Threshold Amount; or
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(k) Invalidity of Loan
Documents. Any provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly
permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or any
other Person contests in any manner the validity or enforceability of any
provision of any Loan Document; or any Loan Party denies that it has any or
further liability or obligation under any provision of any Loan Document, or
purports to revoke, terminate or rescind any provision of any Loan Document;
or
(l) Invalidity of Subordination
Provisions, etc. Any subordination provision in any document
or instrument governing Permitted Subordinated Indebtedness or any subordination
provision in any guaranty by any Subsidiary of any Permitted Subordinated
Indebtedness, shall cease to be in full force and effect, or any Loan Party or
any other Person (including the holder of any applicable Permitted Subordinated
Indebtedness) shall contest in any manner the validity, binding nature or
enforceability of any such provision.
(m) Change of
Control. There occurs any Change of Control; or
(n) Collateral
Documents. Any Collateral Document after delivery thereof
pursuant to Section
4.01 or 6.12 shall for any
reason (other than pursuant to the terms thereof) cease to create a valid and
perfected first priority Lien (subject to Permitted Liens) on the Collateral
purported to be covered thereby.
8.02 Remedies Upon Event of
Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:
(a) declare
the commitment of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;
(b) declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower;
(c) require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and
(d) exercise
on behalf of itself, the Lenders and the L/C Issuer all rights and remedies
available to it, the Lenders and the L/C Issuer under the Loan
Documents;
provided, however, that upon
the occurrence of an actual or deemed entry of an order for relief with respect
to the Borrower under the Bankruptcy Code of the United States, the obligation
of each Lender to make Loans and any obligation of the L/C Issuer to make L/C
Credit Extensions shall automatically terminate, the unpaid principal amount of
all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, and the obligation of the Borrower to Cash
Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any
Lender.
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8.03 Application of
Funds. After the exercise of remedies provided for in Section 8.02 (or
after the Loans have automatically become immediately due and payable and the
L/C Obligations have automatically been required to be Cash Collateralized as
set forth in the proviso to Section 8.02), any
amounts received on account of the Obligations, subject to the provisions of
Sections 2.07,
2.15 and 10.14, shall be
applied by the Administrative Agent in the following order:
First, to payment of
that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable
to the Administrative Agent in its capacity as such;
Second, to payment of
that portion of the Obligations constituting fees, indemnities and other amounts
(other than principal, interest and Letter of Credit Fees) payable to the
Lenders and the L/C Issuer (including fees, charges and disbursements of counsel
to the respective Lenders and the L/C Issuer (including fees and time charges
for attorneys who may be employees of any Lender or the L/C Issuer) arising
under the Loan Documents and amounts payable under Article III), ratably
among them in proportion to the respective amounts described in this clause
Second payable
to them;
Third, to payment of
that portion of the Obligations constituting accrued and unpaid Letter of Credit
Fees and interest on the Loans, L/C Borrowings and other Obligations arising
under the Loan Documents, ratably among the Lenders and the L/C Issuer in
proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to payment of
that portion of the Obligations constituting unpaid principal of the Loans, L/C
Borrowings and Obligations then owing under Secured Hedge Agreements and Secured
Cash Management Agreements, ratably among the Lenders, the L/C Issuer, the Hedge
Banks and the Cash Management Banks in proportion to the respective amounts
described in this clause Fourth held by
them;
Fifth, to the
Administrative Agent for the account of the L/C Issuer, to Cash Collateralize
that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit to the extent not otherwise Cash Collateralized by the
Borrower pursuant to Sections 2.03 and
2.15;
and
Last, the balance, if
any, after all of the Obligations have been indefeasibly paid in full, to the
Borrower or as otherwise required by Law.
Subject
to Sections
2.03(c) and 2.15, 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.
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Notwithstanding
the foregoing, Obligations arising under Secured Cash Management Agreements and
Secured Hedge Agreements shall be excluded from the application described above
if the Administrative Agent has not received written notice thereof, together
with such supporting documentation as the Administrative Agent may request, from
the applicable Cash Management Bank or Hedge Bank, as the case may
be. Each Cash Management Bank or Hedge Bank not a party to this
Agreement that has given the notice contemplated by the preceding sentence
shall, by such notice, be deemed to have acknowledged and accepted the
appointment of the Administrative Agent pursuant to the terms of Article IX for itself
and its Affiliates as if a “Lender” party hereto.
ARTICLE
IX
ADMINISTRATIVE
AGENT
9.01 Appointment and
Authority. (a) Each of the Lenders and the L/C
Issuer hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of
the Administrative Agent, the Lenders and the L/C Issuer, and the Borrower shall
not have rights as a third party beneficiary of any of such
provisions.
(b) The
Administrative Agent shall also act as the “collateral agent”
under the Loan Documents, and each of the Lenders (including in its capacities
as a potential Hedge Bank and a potential Cash Management Bank) and the L/C
Issuer hereby irrevocably appoints and authorizes the Administrative Agent to
act as the agent of such Lender and the L/C Issuer for purposes of acquiring,
holding and enforcing any and all Liens on Collateral granted by any of the Loan
Parties to secure any of the Obligations, together with such powers and
discretion as are reasonably incidental thereto. In this connection,
the Administrative Agent, as “collateral agent” and any co-agents, sub-agents
and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights
and remedies thereunder at the direction of the Administrative Agent), shall be
entitled to the benefits of all provisions of this Article IX and Article XI (including
Section
10.04(c), as though such co-agents, sub-agents and attorneys-in-fact were
the “collateral agent” under the Loan Documents) as if set forth in full herein
with respect thereto.
9.02 Rights as a
Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual
capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.
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9.03 Exculpatory
Provisions. The Administrative Agent shall not have any duties
or obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall
not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;
(b) shall
not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the
other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law;
and
(c) shall
not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or
any of its Affiliates in any capacity.
The
Administrative Agent shall not be liable for any action taken or not taken by it
(i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and
8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until notice describing such Default is given to the Administrative Agent by
the Borrower, a Lender or the L/C Issuer.
The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document, or the creation, perfection or priority
of any Lien purported to be created by the Collateral Documents, (v) the value
or the sufficiency of any Collateral, or (vi) the satisfaction of any condition
set forth in Article
IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
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9.04 Reliance by Administrative
Agent. The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any
condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
the L/C Issuer, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the L/C Issuer unless the Administrative Agent
shall have received notice to the contrary from such Lender or the L/C Issuer
prior to the making of such Loan or the issuance of such Letter of
Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or
experts.
9.05 Delegation of
Duties. The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions
of this Article shall apply to any such sub-agent and to the Related Parties of
the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative
Agent.
9.06 Resignation of
Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders, the L/C Issuer and the
Borrower. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which shall be a bank with an office in the United States,
or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer,
appoint a successor Administrative Agent meeting the qualifications set forth
above; provided that if the Administrative Agent shall notify the Borrower and
the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (a) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents (except that in the
case of any collateral security held by the Administrative Agent on behalf of
the Lenders or the L/C Issuer under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such
time as a successor Administrative Agent is appointed) and (b) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section). The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the retiring Administrative Agent’s
resignation hereunder and under the other Loan Documents, the provisions of this
Article and Section
10.04 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring Administrative Agent was acting as Administrative
Agent.
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Any
resignation by Bank of America as Administrative Agent pursuant to this Section
shall also constitute its resignation as L/C Issuer and Swing Line
Lender. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (i) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring L/C
Issuer and Swing Line Lender, (ii) the retiring L/C Issuer and Swing Line Lender
shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer
shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations of
the retiring L/C Issuer with respect to such Letters of Credit.
9.07 Non-Reliance on
Administrative Agent and Other Lenders. Each Lender and the
L/C Issuer acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each
Lender and the L/C Issuer also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking
or not taking action under or based upon this Agreement, any other Loan Document
or any related agreement or any document furnished hereunder or
thereunder.
9.08 No Other Duties,
Etc. Anything herein to the contrary notwithstanding, none of
the Sole Lead Arranger, Sole Book Manager, the Syndication Agent or the
Documentation Agent listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a
Lender or the L/C Issuer hereunder.
9.09 Administrative Agent May
File Proofs of Claim. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative
to any Loan Party, the Administrative Agent (irrespective of whether the
principal of any Loan or L/C Obligation shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or
otherwise.
(a) to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders, the L/C Issuer and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(h) and
(i), 2.09, 2.10(b) and 10.04) allowed in
such judicial proceeding; and
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(b) to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;
and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender and the L/C Issuer to make such payments to the Administrative Agent and,
if the Administrative Agent shall consent to the making of such payments
directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent
any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other
amounts due the Administrative Agent under Sections 2.09, 2.10(b) and 10.04.
Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or the L/C
Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or the L/C Issuer or
authorize the Administrative Agent to vote in respect of the claim of any Lender
or the L/C Issuer in any such proceeding.
9.10 Collateral and Guaranty
Matters. Each of the Lenders (including in its capacities as a
potential Hedge Bank and a potential Cash Management Bank) and the L/C Issuer
irrevocably authorize the Administrative Agent, at its option and in its
discretion,
(a) to
release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments and
payment in full of all Obligations (other than (A) contingent indemnification
obligations and (B) obligations and liabilities under Secured Cash Management
Agreements and Secured Hedge Agreements as to which arrangements satisfactory to
the applicable Cash Management Bank or Hedge Bank shall have been made) and the
expiration or termination of all Letters of Credit (other than Letters of Credit
as to which other arrangements satisfactory to the Administrative Agent and the
L/C Issuer shall have been made), (ii) that is sold or to be sold as part of or
in connection with any sale permitted hereunder or under any other Loan
Document, or (iii) if approved, authorized or ratified in writing in accordance
with Section
10.01;
(b) to
release any Guarantor from its obligations under the Guarantee and Collateral
Agreement if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder; and
(c) to
subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is
permitted by Section
7.01(i).
Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guarantee and Collateral Agreement
pursuant to this Section
9.10. In each case as specified in this Section 9.10, the
Administrative Agent will, at the Borrower’s expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably request
to evidence the release of such item of Collateral from the assignment and
security interest granted under the Collateral Documents or to subordinate its
interest in such item, or to release such Guarantor from its obligations under
the Guarantee and Collateral Agreement, in each case in accordance with the
terms of the Loan Documents and this Section
9.10.
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9.11 Secured Cash Management
Agreements and Secured Hedge Agreements. No Cash Management
Bank or Hedge Bank that obtains the benefit of the provisions of Section 8.03, the
Guarantee and Collateral Agreement or any Collateral by virtue of the provisions
hereof or of the Guarantee and Collateral Agreement or any Collateral Document
shall have any right to notice of any action or to consent to, direct or object
to any action hereunder or under any other Loan Document or otherwise in respect
of the Collateral (including the release or impairment of any Collateral) other
than in its capacity as a Lender and, in such case, only to the extent expressly
provided in the Loan Documents. Notwithstanding any other provision
of this Article
IX to the contrary, the Administrative Agent shall not be required to
verify the payment of, or that other satisfactory arrangements have been made
with respect to, Obligations arising under Secured Cash Management Agreements
and Secured Hedge Agreements unless the Administrative Agent has received
written notice of such Obligations, together with such supporting documentation
as the Administrative Agent may request, from the applicable Cash Management
Bank or Hedge Bank, as the case may be.
ARTICLE
X
MISCELLANEOUS
10.01 Amendments,
Etc. No amendment or waiver of any provision of this Agreement
or any other Loan Document, and no consent to any departure by the Borrower or
any other Loan Party therefrom, shall be effective unless in writing signed by
the Required Lenders and the Borrower or the applicable Loan Party, as the case
may be, and acknowledged by the Administrative Agent, and each such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(a) waive
any condition set forth in Section 4.01 (other
than Section
4.01(b)(i) or (c)), or, in the case
of the initial Credit Extension, Section 4.02, without
the written consent of each Lender;
(b) extend
or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section
8.02) without the written consent of such Lender;
(c) postpone
any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under such other Loan Document without the written consent of each
Lender directly affected thereby;
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(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 entitled to such amount; provided, however, that only
the consent of the Required Lenders shall be necessary (i) to amend the
definition of “Default Rate” or to waive any obligation of the Borrower to pay
interest or Letter of Credit Fees at the Default Rate or (ii) to amend any
financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or
L/C Borrowing or to reduce any fee payable hereunder;
(e) change
Section 2.13 or
Section 8.03 in
a manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;
(f) change
any provision of this Section 10.01 or the
definition of “Required Lenders” or any other provision hereof specifying the
number or percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;
(g) release
all or substantially all of the Collateral in any transaction or series of
related transactions, without the written consent of each Lender;
or
(h) release
any Guarantor from the Guarantee and Collateral Agreement, without the written
consent of each Lender, except to the extent the release of any Subsidiary from
the Guarantee and Collateral Agreement is permitted pursuant to Section 9.10 (in
which case such release may be made by the Administrative Agent acting
alone);
and provided, further, that (i) no
amendment, waiver or consent shall, unless in writing and signed by the L/C
Issuer in addition to the Lenders required above, affect the rights or duties of
the L/C Issuer under this Agreement or any Issuer Document relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Swing Line Lender in addition
to the Lenders required above, affect the rights or duties of the Swing Line
Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document; and (iv) the Engagement Letter and
the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any
amendment, waiver or consent which by its terms requires the consent of all
Lenders may be effected with the consent of all Lenders other than Defaulting
Lenders), except that (i) the Commitment of Defaulting Lender may not be
increased or extended without the consent of such Lender and (ii) any amendment,
waiver or consent requiring the consent of all Lenders or each affected Lender
that by its terms affects any Defaulting Lender more adversely than other
affected Lenders shall require the consent of such Defaulting
Lender.
If any
Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and that
has been approved by the Required Lenders, the Borrower may replace such
non-consenting Lender in accordance with Section 10.13; provided that such
amendment, waiver, consent or release can be effected as a result of the
assignment contemplated by such Section (together with all other such
assignments required by the Borrower to be made pursuant to this
paragraph).
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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:
(i) if
to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone
number specified for such Person on Schedule 10.02;
and
(ii) if
to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.
Notices
and other communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices and other communications 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 and other
communications delivered through electronic communications to the extent
provided in subsection
(b) below shall be effective as provided in such subsection
(b).
(b) Electronic
Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to
Article II if
such Lender or the L/C Issuer, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or
communications.
Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if such
notice or other communication is not sent during the normal business hours of
the recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient, and (ii)
notices or communications posted to an Internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the
website address therefor.
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(c) The
Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE
ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER
CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent
or any of its Related Parties (collectively, the “Agent Parties”) have
any liability to the Borrower, any Lender, the L/C Issuer or any other Person
for losses, claims, damages, liabilities or expenses of any kind (whether in
tort, contract or otherwise) arising out of the Borrower’s or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined
by a court of competent jurisdiction by a final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such Agent
Party; provided, however,
that in no event shall any Agent Party have any liability to the Borrower, any
Lender, the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual
damages).
(d) Change of Address,
Etc. Each of the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone
number for notices and other communications hereunder by notice to the other
parties hereto. Each other Lender may change its address, telecopier
or telephone number for notices and other communications hereunder by notice to
the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line
Lender. In addition, each Lender agrees to notify the Administrative
Agent from time to time to ensure that the Administrative Agent has on record
(i) an effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender. Furthermore,
each Public Lender agrees to cause at least one individual at or on behalf of
such Public Lender to at all times have selected the “Private Side Information”
or similar designation on the content declaration screen of the Platform in
order to enable such Public Lender or its delegate, in accordance with such
Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower
Materials that are not made available through the “Public Side Information”
portion of the Platform and that may contain material non-public information
with respect to the Borrower or its securities for purposes of United States
Federal or state securities laws.
(e) Reliance by Administrative
Agent, L/C Issuer and Lenders. The Administrative Agent, the
L/C Issuer and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Revolving Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of the Borrower even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the
L/C Issuer, each Lender and the Related Parties of each of them from all losses,
costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
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10.03 No Waiver; Cumulative
Remedies. No failure by any Lender, the L/C Issuer or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder or under any other Loan Document
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, and provided under each other Loan Document, are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by
law.
Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan
Documents against the Loan Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 8.02 for the
benefit of all the Lenders and the L/C Issuer; provided, however, that the
foregoing shall not prohibit (a) the Administrative Agent from exercising on its
own behalf the rights and remedies that inure to its benefit (solely in its
capacity as Administrative Agent) hereunder and under the other Loan Documents,
(b) the L/C Issuer or the Swing Line Lender from exercising the rights and
remedies that inure to its benefit (solely in its capacity as L/C Issuer or
Swing Line Lender, as the case may be) hereunder and under the other Loan
Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08
(subject to the terms of Section 2.13), or (d)
any Lender from filing proofs of claim or appearing and filing pleadings on its
own behalf during the pendency of a proceeding relative to any Loan Party under
any Debtor Relief Law; and provided, further, that if at
any time there is no Person acting as Administrative Agent hereunder and under
the other Loan Documents, then (i) the Required Lenders shall have the rights
otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii)
in addition to the matters set forth in clauses (b), (c) and (d) of the preceding
proviso and subject to Section 2.13, any
Lender may, with the consent of the Required Lenders, enforce any rights and
remedies available to it and as authorized by the Required Lenders.
10.04 Expenses; Indemnity; Damage
Waiver. (a) Costs and
Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees and
time charges for attorneys, including those who may be employees of the
Administrative Agent, any Lender or the L/C Issuer, in connection with the
enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in
connection with 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.
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(b) Indemnification by the
Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, 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, including those who may be employees of any Indemnitee, incurred by
any Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or thereby,
or, in the case of the Administrative Agent (and any sub-agent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan
Documents (including in respect of any matters addressed in Section 3.01), (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 or any of the Borrower’s or such Loan Party’s directors,
shareholders or creditors, and regardless of whether any Indemnitee is a party
thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
(y) result from a claim brought by the Borrower or any other Loan Party against
an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Loan Document, if the Borrower or such other Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.
(c) Reimbursement by
Lenders. To the extent that the Borrower for any reason fails
to indefeasibly pay any amount required under subsection (a) or
(b) of this
Section to be paid by it to the Administrative Agent (or any sub-agent thereof),
the L/C Issuer or any Related Party of any of the foregoing, each Lender
severally agrees to pay to the Administrative Agent (or any such sub-agent), the
L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity
as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with
such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section
2.12(d).
99
(d) Waiver of Consequential
Damages, Etc. To the fullest extent permitted by applicable
law, the Borrower shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed to such unintended recipients by
such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for
direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnitee as determined by a final and nonappealable
judgment of a court of competent jurisdiction.
(e) Payments. All
amounts due under this Section shall be payable not later than ten Business Days
after demand therefor.
(f) Survival. The
agreements in this Section shall survive the resignation of the Administrative
Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender,
the termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
10.05 Payments Set
Aside. To the extent that any payment by or on behalf of the
Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or
the Administrative Agent, the L/C Issuer or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of
the Lenders and the L/C Issuer under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.
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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 the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of Section 10.06(b),
(ii) by way of
participation in accordance with the provisions of Section 10.06(d), or
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of Section 10.06(f) (and
any other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection
(d) of this Section and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the L/C Issuer and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by
Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans (including for
purposes of this Section 10.06(b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to
it); provided
that any such assignment shall be subject to the following
conditions:
(i) Minimum
Amounts.
(A) in
the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum
amount need be assigned; and
(B) in
any case not described in subsection (b)(i)(A)
of this Section, the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the Commitment is not then in
effect, the principal outstanding balance of the Loans of the assigning Lender
subject to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of
the Trade Date, shall not be less than $5,000,000, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met.
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(ii) Proportionate
Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not
apply to the Swing Line Lender’s rights and obligations in respect of Swing Line
Loans.
(iii) Required
Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B)
of this Section and, in addition:
(A) the
consent of the Borrower (such consent not to be unreasonably withheld or
delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender,
an Affiliate of a Lender or an Approved Fund;
(B) the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required if such assignment is to a Person that is
not a Lender, an Affiliate of such Lender or an Approved Fund with respect to
such Lender;
(C) the
consent of the L/C Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding); and
(D) the
consent of the Swing Line Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment.
(iv) Assignment and
Assumption. The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee in the amount of $3,500; provided, however, that the
Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if
it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
(v) No Assignment to Certain
Persons. No such assignment shall be made to (A) the Borrower
or any of the Borrower’s Affiliates or Subsidiaries, or (B) to any Defaulting
Lender, any Impacted Lender, any of their respective Subsidiaries, or any Person
who, upon becoming a Lender hereunder, would constitute any of the foregoing
Persons described in this clause (B), or (C) to
a natural person.
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(vi) Certain Additional
Payments. In connection with any assignment of rights and obligations of
any Defaulting Lender or Impacted Lender hereunder, no such assignment shall be
effective unless and until, in addition to the other conditions thereto set
forth herein, the parties to the assignment shall make such additional payments
to the Administrative Agent in an aggregate amount sufficient, upon distribution
thereof as appropriate (which may be outright payment, purchases by the assignee
of participations or subparticipations, or other compensating actions, to each
of which the applicable assignee and assignor hereby irrevocably consent), to
pay and satisfy in full all Default Excess and interest accrued thereon
attributable to such Defaulting Lender or Impacted Lender, as the case may
be.
Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
Section
10.06(c), from and after the effective date specified in each Assignment
and Assumption, the Eligible Assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections
3.01, 3.04, 3.05 and 10.04 with respect to
facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall
execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with Section
10.06(d).
(c) Register. The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the
contrary. In addition, the Administrative Agent shall maintain on the
Register the designation, and revocation of such designation, of any Lender as a
Defaulting Lender of which the Administrative Agent has received
notice. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Participations. Any
Lender may at any time, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to any Person (other than a
natural person, a Defaulting Lender, the Borrower or any of the Borrower’s
Affiliates or Subsidiaries) (each, a “Participant”) in all
or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to
it); provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a
Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 10.01 that
affects such Participant. Subject to subsection (e) of
this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections
3.01, 3.04 and 3.05 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section
10.06(b). 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.
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(e) Limitations upon Participant
Rights. A Participant shall not be entitled to receive any
greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as
though it were a Lender.
(f) Certain
Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Resignation as L/C Issuer or
Swing Line Lender after Assignment. Notwithstanding anything
to the contrary contained herein, if at any time Bank of America assigns all of
its Commitment and Revolving Loans pursuant to Section 10.06(b),
Bank of America may, (i) upon 30 days’ notice to the Borrower and the Lenders,
resign as L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower, resign as
Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder, so long as such
Lender consents to such appointment; provided, however, that no
failure by the Borrower to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case
may be. If Bank of America resigns as L/C Issuer, it shall retain all
the rights, powers, privileges and duties of the L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Revolving Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If Bank of America resigns as Swing Line Lender, it
shall retain all the rights of the Swing Line Lender provided for hereunder with
respect to Swing Line Loans made by it and outstanding as of the effective date
of such resignation, including the right to require the Lenders to make Base
Rate Revolving Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section
2.04(c). Upon the appointment of a successor L/C Issuer and/or
Swing Line Lender, (a) such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring L/C Issuer or
Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall
issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank of
America with respect to such Letters of Credit.
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10.07 Treatment of Certain
Information; Confidentiality. Each of the Administrative
Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or any Eligible
Assignee invited to be a Lender pursuant to Section 2.14(c) or
(ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, any Lender, the L/C Issuer or any
of their respective Affiliates on a nonconfidential basis from a source other
than the Borrower.
For
purposes of this Section, “Information” means
all information received from the Borrower or any Subsidiary relating to the
Borrower or any Subsidiary or their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the L/C
Issuer on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary, provided that, in the
case of information received from the Borrower or any such Subsidiary after the
Closing Date, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
Each of
the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a)
the Information may include material non-public information concerning the
Borrower or a Subsidiary, as the case may be, (b) it has developed compliance
procedures regarding the use of material non-public information and (c) it will
handle such material non-public information in accordance with applicable Law,
including United States Federal and state securities Laws.
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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 the Borrower against any and all of the obligations of the Borrower now
or hereafter existing under this Agreement or any other Loan Document to such
Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C
Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Borrower 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; provided, that in the
event that any Defaulting Lender shall exercise any such right of setoff, (x)
all amounts so set off shall be paid over immediately to the Administrative
Agent for further application in accordance with the provisions of Section 10.14 and,
pending such payment, shall be segregated by such Defaulting Lender from its
other funds and deemed held in trust for the benefit of the Administrative Agent
and the Lenders, and (y) the Defaulting Lender shall provide promptly to
the Administrative Agent a statement describing in reasonable detail the
Obligations owing to such Defaulting Lender as to which it exercised such right
of setoff. The rights of each Lender, the L/C Issuer and their
respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, the L/C Issuer or
their respective Affiliates may have. Each Lender and the L/C Issuer
agrees to notify the Borrower and the Administrative Agent promptly after any
such setoff and application, provided that the failure to give such notice shall
not affect the validity of such setoff and application.
10.09 Interest Rate
Limitation. Notwithstanding anything to the contrary contained
in any Loan Document, the interest paid or agreed to be paid under the Loan
Documents shall not exceed the maximum rate of non-usurious interest permitted
by applicable Law (the “Maximum
Rate”). If the Administrative Agent or any Lender shall
receive interest in an amount that exceeds the Maximum Rate, the excess interest
shall be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
10.10 Counterparts; Integration;
Effectiveness. This Agreement may be executed in counterparts
(and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement and the other Loan Documents
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in
Section 4.01,
this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy or other electronic imaging means
(including .PDF) shall be effective as delivery of a manually executed
counterpart of this Agreement.
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10.11 Survival of Representations
and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive the
execution and delivery hereof and thereof. Such representations and
warranties have been or will be relied upon by the Administrative Agent and each
Lender, regardless of any investigation made by the Administrative Agent or any
Lender or on their behalf and notwithstanding that the Administrative Agent or
any Lender may have had notice or knowledge of any Default at the time of any
Credit Extension, and shall continue in full force and effect as long as any
Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any
Letter of Credit shall remain outstanding.
10.12 Severability. If
any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability
of the remaining provisions of this Agreement and the other Loan Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good
faith negotiations to replace the illegal, invalid or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to
that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other
jurisdiction. Without limiting the foregoing provisions of this Section 10.12, if and
to the extent that the enforceability of any provisions in this Agreement
relating to Defaulting Lenders or Impacted Lenders shall be limited by Debtor
Relief Laws, as determined in good faith by the Administrative Agent, the L/C
Issuer or the Swing Line Lender, as applicable, then such provisions shall be
deemed to be in effect only to the extent not so limited.
10.13 Replacement of
Lenders. If any Lender requests compensation under Section 3.04, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender is a Defaulting Lender or an Impacted Lender, then the Borrower may,
at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 10.06), all
of its interests, rights and obligations under this Agreement and the related
Loan Documents to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment), provided
that:
(a) the
Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section
10.06(b);
(b) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan Documents
(including any amounts under Section 3.05) from
the assignee (to the extent of such outstanding principal and accrued interest
and fees) or the Borrower (in the case of all other amounts);
107
(c) in
the case of any such assignment resulting from a claim for compensation under
Section 3.04 or
payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments
thereafter; and
(d) such
assignment does not conflict with applicable Laws.
A Lender
shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to
apply.
10.14 Defaulting Lenders and
Impacted Lenders. (a) Notwithstanding anything
contained in this Agreement, if any Lender becomes a Defaulting Lender (defined
below), then, to the extent permitted by applicable Law,
(i) Waivers and
Amendments. During any Impact Period with respect to such
Defaulting Lender, such Defaulting Lender’s right to approve or disapprove any
amendment, waiver or consent with respect to this Agreement shall be restricted
as set forth in Section
10.01.
(ii) Reallocation of Loan
Payments. Until such time as the Default Excess of such Defaulting Lender
shall have been reduced to zero, any payment or prepayment of the Loans of such
Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or
otherwise) shall be applied, first, to the Loans
of other Lenders as if such Defaulting Lender had no Loans outstanding, until
such time as the Outstanding Amount of Revolving Loans of each Lender shall
equal its pro rata share thereof based on its Applicable Percentage (without
giving effect to the last sentence in the definition thereof) ratably to the
Lenders in accordance with their Applicable Percentages of Loans being repaid or
prepaid; second, to the then outstanding
Defaulted Payments owed by such Defaulting Lender (and applicable interest
thereon), ratably to the Persons entitled thereto, and third, to the posting
of Cash Collateral in respect of its Applicable Percentage (without giving
effect to the last sentence in the definition thereof) of L/C Obligations and
Swing Line Loans, ratably to the L/C Issuer and Swing Line Lender in accordance
with their respective applicable Fronting Exposures. Any of the such amounts as
are reallocated pursuant to this Section 10.14(a)(ii)
that are payable or paid (including pursuant to Section 10.08) to
such Defaulting Lender shall be deemed paid to such Defaulting Lender and
applied by the Administrative Agent on behalf of such Defaulting Lender, and
each Lender hereby irrevocably consents thereto.
(iii) Other
Payments. Until such time as all Defaulted Payments (defined
below) and interest thereon with respect to such Defaulting Lender shall have
been paid, the Administrative Agent may (in its discretion and with the
irrevocable consent of each Defaulting Lender, which is hereby given) deem any
amounts (other than those described in clause (ii)
immediately above) thereafter received by the Administrative Agent for the
account of such Defaulting Lender (including amounts made available to the
Administrative Agent by such Defaulting Lender pursuant to Section 10.08) to
have been paid to such Defaulting Lender and applied on behalf of such
Defaulting Lender, first, to the then
outstanding Defaulted Payments owed by such Defaulting Lender (and applicable
interest thereon) ratably to the Persons entitled thereto, and, second, to the
posting of Cash Collateral in respect of its Applicable Percentage (without
giving effect to the last sentence in the definition thereof) of L/C Obligations
and Swing Line Loans], ratably to the L/C Issuer and Swing Line Lender in
accordance with their respective applicable Fronting Exposures.
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(iv) Certain
Fees. With respect to any Defaulting Lender with one or more
Defaulted Loans or Defaulted Payments, such Defaulting Lender (x) shall not be
entitled to receive any commitment fee pursuant to Section 2.10(a) for
any Impact Period with respect to such Defaulting Lender (and the Borrower shall
not be required to pay any such fee that otherwise would have been required to
have been paid to such Defaulting Lender) for any Impact Period with respect to
such Defaulting Lender and (y) its right to Letter of Credit Fees shall be
limited as provided in Section
2.03(h).
(v) At
the request of the Borrower, such Defaulting Lender may be replaced in
accordance with Section
10.13.
(vi) No
assignments otherwise permitted by Section 10.06 shall
be made to (A) a Defaulting Lender or Impacted Lender or (B) any of the
Subsidiaries or Affiliates of such Person that are themselves Distressed Persons
(as defined below).
(b) Notwithstanding
anything to the contrary contained in this Agreement to the contrary, if any
Lender becomes an Impacted Lender, then, to the extent permitted by applicable
Law:
(i) At
the request of the Borrower, such Impacted Lender may be replaced in accordance
with Section
10.13.
(ii) No
assignments otherwise permitted by Section 10.06 shall be made to a (A) a
Defaulting Lender or Impacted Lender or (B) any of the Subsidiaries or
Affiliates of such Person that are themselves Distressed Persons (as defined
below).
(c) As
used in this Agreement:
“Default Excess”
means, as at the date of computation thereof with respect to any Defaulting
Lender, the sum of the amounts of Defaulted Loans and Defaulted Payments of such
Lender at such date.
“Defaulted Loan” has
the meaning specified in the definition of “Defaulting Lender”.
“Defaulted Payment”
has the meaning specified in the definition of “Defaulting Lender”.
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“Defaulting Lender”
means any Lender that (i) has failed to fund any portion of the Loans required
to be funded by it hereunder (each such Loan, a “Defaulted Loan”)
within three Business Days of the date required to be funded by it hereunder,
(ii) has otherwise failed to pay over to Administrative Agent, the L/C Issuer or
any other Lender (including the Swing Line Lender) any other amount required to
be paid by it hereunder, including participations in L/C Obligations or
participations in Swing Line Loans (each such payment, a “Defaulted Payment”)
within three Business Days of the date when due, unless the subject of a good
faith dispute, or (iii) as to which a Distress Event has occurred, in each case
in clauses (i)
and (ii) above,
for so long as the applicable Impact Period is in effect.
“Distress Event”
means, with respect to any Person (each, a “Distressed Person”),
(i) the commencement of a voluntary or involuntary case (or comparable
proceeding) with respect to such Distressed Person under the Bankruptcy Code or
any comparable bankruptcy, insolvency, receivership, reorganization or other
debtor relief laws (which, as to any involuntary case or comparable proceeding,
has not been dismissed) (ii) a custodian, conservator, receiver or similar
official is appointed for such Distressed Person or for any substantial part of
such Distressed Person’s assets, (iii) such Distressed Person consummates a
forced (in the good faith judgment of the Administrative Agent) liquidation,
merger, sale of assets or other transaction resulting, in the good faith
judgment of the Administrative Agent, in a change of ownership or operating
control of such Distressed Person supported in whole or in part by guaranties,
assumption of liabilities or other comparable credit support of (including
without limitation the nationalization or assumption of ownership or operating
control by) any Governmental Authority and either the Administrative Agent or
the Required Lenders have concluded (in their respective, good faith judgment)
that any such event described in this clause (iii)
increases the risk that such Distressed Person will incur Defaulted Loans or
Defaulted Payments, or (iv)such Distressed Person makes a general assignment for
the benefit of creditors or is otherwise adjudicated as, or determined by any
Governmental Authority having regulatory authority over such Distressed Person
or its assets to be, insolvent, bankrupt, or deficient in meeting any minimum
capital adequacy or liquidity requirement of any Governmental Authority
applicable to such Distressed Person.
“Distressed Person”
has the meaning specified in the definition of “Distress Event”.
“Impact Period” means,
with respect to any Defaulting Lender or Impacted Lender,
(i) in
the case of any Defaulted Loan, the period commencing on the date the applicable
Defaulted Loan was required to be extended to the Borrower under this Agreement
and ending on the earlier of the following: (x) the date on which (A) the
related Default Excess with respect to such Defaulting Lender has been reduced
to zero (whether by the funding of any Defaulted Loan by such Defaulting Lender,
the repayment of Loans by the Borrower, the non-pro-rata application of any
prepayment pursuant to Section 10.14(a)(ii)
or otherwise) and (B) such Defaulting Lender shall have delivered to the
Borrower and the Administrative Agent a written reaffirmation of its intention
to honor its obligations hereunder with respect to its Commitment; and (y) the
date on which the Borrower, the Administrative Agent and the Required Lenders
(not including such Defaulting Lender in any such determination, in accordance
with Section
10.14(a)(i)) waive the application of this Section 10.14 with
respect to such Defaulted Loans of such Defaulting Lender in
writing;
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(ii) in
the case of any Defaulted Payment, the period commencing on the date the
applicable Defaulted Payment was required to have been paid to the
Administrative Agent or other Lender under this Agreement and ending on the
earlier of the following: (x) the date on which (A) such Defaulted Payment has
been paid to the Administrative Agent or other Lender, as applicable, together
with (to the extent that such Person has not otherwise been compensated by the
Borrower for such Defaulted Payment) interest thereon for each day from and
including the date such amount is paid but excluding the date of payment, at the
greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with its then-applicable policies regarding interbank
compensation (whether by the funding of any Defaulted Payment by such Defaulting
Lender, the application of any amount pursuant to Section 10.14(a)(iii)
or otherwise) and (B) such Defaulting Lender shall have delivered to the
Administrative Agent or other Lender, as applicable, a written reaffirmation of
its intention to honor its obligations hereunder with respect to such payments;
and (y) the date on which the Administrative Agent and any such other
Lender waive the application of this Section 10.14 with respect to such
Defaulted Payments of such Defaulting Lender in writing;
(iii) in
the case of any Distress Event determined by the Administrative Agent (in its
good faith judgment) or the Required Lenders (in their respective good faith
judgment) to exist, the period commencing on the date that the applicable
Distress Event was so determined to exist and ending on the earlier of the
following: (x) the date on which both (A) such Distress Event is determined by
the Administrative Agent (in its good faith judgment) or the Required Lenders
(in their respective good faith judgment) to no longer exist and (B) such
Defaulting Lender or Impacted Lender shall have delivered to the Borrower and
the Administrative Agent a written reaffirmation of its intention to honor its
obligations hereunder with respect to its Commitment; and (y) such date as the
Borrower and the Administrative Agent mutually agree, in their sole discretion,
to waive the application of this Section 10.14 with
respect to such Distress Event of such Defaulting Lender or Impacted Lender;
provided that
in each case all Default Excess (including any required interest thereon) and
Fronting Exposure arising as a consequence of such Distress Event shall either
(x) have been paid in full or otherwise eliminated as herein provided, or (y)
each Person entitled to payments or Cash Collateral (or other credit support) in
respect thereof shall have waived the receipt thereof; and
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(iv) in
the case of any event described in clauses (a) or (b) of the definition
of “Impacted Lender,” the period commencing on the date that the applicable
event or determination occurred and ending on the (A) such event is determined
by the Administrative Agent (in its good faith judgment) or the Required Lenders
(in their respective good faith judgment), in each case with the concurrence of
the L/C Issuer and the Swing Line Lender, to no longer exist and (B) such
Impacted Lender shall have delivered to the Borrower and the Administrative
Agent a written reaffirmation of its intention to honor its obligations
hereunder with respect to its Commitment; and (y) such date as the
Administrative Agent, the L/C Issuer and the Swing Line Lender mutually agree,
in their sole discretion, to waive the application of this Section 10.14 with
respect to.
“Impacted Lender”
means any Lender (a) that has given verbal or written notice to the Borrower,
the Administrative Agent, the L/C Issuer or the Swing Line Lender, or has
otherwise publicly announced, that such Lender is or believes it will become, or
that fails following inquiry from the Administrative Agent, the L/C Issuer or
the Swing Line Lender making such inquiry, to provide reasonably satisfactory
assurance that such Lender will not become, a Defaulting Lender or (b) with
respect to which any Distress Event has occurred with respect to any Affiliate
of such Lender of which the Lender is a direct or indirect Subsidiary, in each
case for so long as the applicable Impact Period is in effect.
10.15 Governing Law; Jurisdiction;
Etc. (a) GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO
JURISDICTION. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED
STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN
ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT,
ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
112
(c) WAIVER OF
VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED
TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF
PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION
10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY
PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW
10.16 Waiver of Jury
Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
10.17 No Advisory or Fiduciary
Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document), the
Borrower acknowledges and agrees, and acknowledges its Affiliates’
understanding, that: (i) (A) the arranging and other services regarding this
Agreement provided by the Administrative Agent and the Arranger, are
arm’s-length commercial transactions between the Borrower and its Affiliates, on
the one hand, and the Administrative Agent and the Arranger, on the other hand,
(B) the Borrower has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate, and (C) the Borrower is
capable of evaluating, understands and accepts, the terms, risks and conditions
of the transactions contemplated hereby and by the other Loan Documents; (ii)
(A) the Administrative Agent and the Arranger each is and has been acting solely
as a principal and, except as expressly agreed in writing by the relevant
parties, has not been, is not, and will not be acting as an advisor, agent or
fiduciary, for the Borrower or any of its Affiliates, or any other Person and
(B) neither the Administrative Agent nor the Arranger has any obligation to the
Borrower or any of its Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other Loan
Documents; and (iii) the Administrative Agent and the Arranger and their
respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower and its Affiliates, and
neither the Administrative Agent nor the Arranger has any obligation to disclose
any of such interests to the Borrower or its Affiliates. To the
fullest extent permitted by law, the Borrower hereby waives and releases any
claims that it may have against the Administrative Agent and the Arranger with
respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.
113
10.18 Electronic Execution of
Assignments and Certain Other Documents. The words
“execution,” “signed,” “signature,” and words of like import in any Assignment
and Assumption or in any amendment or other modification hereof (including
waivers and consents) 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.
10.19 USA PATRIOT Act
Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrower that pursuant to the requirements of the
USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Act”), it
is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act. The
Borrower shall, promptly following a request by the Administrative Agent or any
Lender, provide all documentation and other information that the Administrative
Agent or such Lender requests in order to comply with its ongoing obligations
under applicable “know your customer” and anti-money laundering rules and
regulations, including the Act.
[Signature
pages follow.]
114
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.
By:
|
/s/
Xxxxx X. Xxxxxxx
|
Name:
|
Xxxxx
X. Xxxxxxx
|
Title:
|
Chairman
and Chief Executive
Officer
|
1
BANK OF AMERICA, N.A.,
as
|
|
Administrative
Agent
|
|
By:
|
/s/
Xxxxxxx Xxxxxxx
|
Name:
|
|
Title:
|
Assistant
Vice
President
|
2
BANK OF AMERICA, N.A.,
as a Lender, L/C
Issuer
and Swing Line Lender
|
|
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
Name:
|
|
Title:
|
Senior
Vice
President
|
3
CAPITAL
ONE, N.A.,
|
|
as
Syndication Agent and as a Lender
|
|
By:
|
/s/
Xxxxxxx Xxxxx
|
Name:
|
|
Title:
|
Vice
President
|
4
THE
PRIVATEBANK AND TRUST
COMPANY, as
Documentation Agent and as a
Lender
|
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
Name:
|
|
Title:
|
Managing
Director
|
5
Lender
|
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxxx
|
Title:
|
Vice
President
|
6