EXHIBIT 99.2
U.S. $122,801,241
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT,
dated as of June 11, 1999,
(amending and restating the Revolving Credit Agreement,
dated as of March 16, 1998),
among
CERTAIN SUBSIDIARIES OF
SFC NEW HOLDINGS, INC.
as the Revolving Credit Borrowers,
VARIOUS FINANCIAL INSTITUTIONS,
as the Revolving Credit Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent and
Collateral Agent for the Revolving Credit Lenders,
ABN AMRO BANK N.V.,
as the Administrative Agent for the Revolving Credit Lenders,
and
BANQUE PARIBAS,
as the Documentation Agent for the Revolving Credit Lenders.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
LEAD ARRANGER AND BOOK MANAGER
|| TABLE OF CONTENTS
SECTION PAGE
ARTICLE IDEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms 3
1.2. Use of Defined Terms 18
1.3. Cross-References 18
1.4. Accounting and Financial Determinations 19
ARTICLE IICONTINUATION OF EXISTING REVOLVING CREDIT LOANSAND
REVOLVING CREDIT LETTERS OF CREDIT;REVOLVING CREDIT COMMITMENTS,
BORROWING AND ISSUANCE PROCEDURES, NOTES AND LETTERS OF CREDIT
2.1. Revolving Credit Commitments 19
2.1.1. Revolving I Credit Commitment 19
2.1.2. Revolving II Credit Commitment 20
2.1.3. Commitment to Issue Revolving Credit
Letters of Credit 20
2.1.4. Revolving Credit Lenders Not Permitted or
Required To Make Revolving Credit Loans
or Issue or Participate in Revolving
Credit Letters of Credit Under Certain
Circumstances 20
2.2. Reduction of Commitment Amounts 21
2.2.1. Optional 21
2.2.2. Mandatory 22
2.3. Borrowing Procedure 22
2.3.1. Revolving I Credit Loans and Revolving II
Credit Loans 22
2.3.2. Swing Line Loans 23
2.4. Continuation and Conversion Elections 24
2.5. Funding 25
2.6. Register; Revolving Credit 25
ARTICLE IIIREPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments 26
3.2. Interest Provisions 29
3.2.1. Rates 29
3.2.2. Post-Maturity Rates 29
3.2.3. Payment Dates 30
3.3. Fees 30
3.3.1. Commitment Fee 30
3.3.2. Other Fees 31
3.3.3. Revolving Credit Letter of Credit Fee 31
3.3.4. Revolving Credit Letter of Credit Issuing
Fee 31
3.3.5. Revolving Credit Letter of Credit
Administrative Fee 32
3.3.6. Deferred Fees 32
3.3.7. Amendment Fee 32
ARTICLE IVREVOLVING CREDIT LETTERS OF CREDIT
4.1. Issuance Requests 32
4.2. Issuances and Extensions 33
4.3. Expenses 33
4.4. Other Revolving Credit Lenders=
Participation 33
4.5. Disbursements 35
4.6. Reimbursement 35
4.7. Deemed Disbursements 36
4.8. Nature of Reimbursement Obligations 36
4.9. Increased Costs; Indemnity 37
ARTICLE VCERTAIN LIBO RATE AND OTHER PROVISIONS
5.1. LIBO Rate Lending Unlawful 39
5.2. Deposits Unavailable 39
5.3. Increased LIBO Rate Loan Costs, etc. 39
5.4. Funding Losses 40
5.5. Increased Capital Costs 41
5.6. Taxes 41
5.7. Payments, Computations, etc. 44
5.8. Sharing of Payments. 45
5.9. Setoff 46
5.10. Replacement of Revolving Credit Lenders 46
ARTICLE VICONDITIONS TO RESTATEMENT EFFECTIVENESS
6.1. Effectiveness 47
6.1.1. Execution of Counterparts. 47
6.1.2. Resolutions, etc. 47
6.1.3. Affirmation and Consent. 48
6.1.4. Restatement Effective Date Certificate 48
6.1.5. Perfection Certificate 48
6.1.6. Opinions of Counsel 48
6.1.7. Closing Fees, Expenses, etc. 49
6.2. All Revolving Credit Extensions 49
6.2.1. Compliance with Warranties, No Default,
etc. 49
6.2.2. Credit Request 50
6.2.3. Satisfactory Legal Form 50
ARTICLE VIIREPRESENTATIONS AND WARRANTIES
ARTICLE VIIICOVENANTS
8.1. Affirmative Covenants 51
8.1.1. Affirmative Covenants in Term Loan
Agreement 51
8.1.2. Use of Proceeds 51
8.1.3. Additional Collateral 51
8.2. Negative Covenants 53
8.2.1. Negative Covenants in Term Loan Agreement 53
ARTICLE IXEVENTS OF DEFAULT
9.1. Listing of Events of Default 54
9.1.1. Non-Payment of Obligations 54
9.1.2. Breach of Warranty 54
9.1.3. Non-Performance of Certain Covenants and
Obligations 54
9.1.4. Non-Performance of Other Covenants and
Obligations 54
9.1.5. Default on Other Indebtedness 54
9.1.6. Judgments 55
9.1.7. Pension Plans 55
9.1.8. Change in Control 55
9.1.9. Bankruptcy, Insolvency, etc. 55
9.1.10. Impairment of Security, etc. 56
9.1.11. Term Loan Agreement Event of Default 56
9.2. Action if Bankruptcy, etc. 56
9.3. Action if Other Event of Default 57
ARTICLE XTHE AGENTS
10.1. Actions 57
10.2. Funding Reliance, etc. 58
10.3. Exculpation 58
10.4. Successor 59
10.5. Revolving Credit Loans and Revolving
Credit Letters of Credit by each Agent
and the Collateral Agent 60
10.6. Credit Decisions 60
10.7. Copies, etc. 61
10.8. The Syndication Agent, the Documentation
Agent, the Administrative Agent and the
Collateral Agent 61
ARTICLE XIMISCELLANEOUS PROVISIONS
11.1. Waivers, Amendments, etc. 62
11.2. Notices 63
11.3. Payment of Costs and Expenses 63
11.4. Indemnification 64
11.5. Survival 66
11.6. Severability 66
11.7. Headings 66
11.8. Execution in Counterparts, Effectiveness,
etc. 66
11.9. Governing Law; Entire Agreement 66
11.10. Successors and Assigns 66
11.11. Sale and Transfer of Revolving Credit
Loans and Revolving Credit Commitments;
Participations in Revolving Credit Loans
and Revolving Credit Commitments 67
11.11.1. Assignments 67
11.11.2. Participations 69
11.12. Other Transactions 70
11.13. Forum Selection and Consent to
Jurisdiction 71
11.14. Waiver of Jury Trial 71
11.15. Confidentiality 72
11.16. Liens on Sold Assets 73
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Revolving Credit Percentages
EXHIBIT A-1 - Form of Revolving I Credit Loan Note
EXHIBIT A-2 - Form of Revolving II Credit Loan Note
EXHIBIT B - Form of Swing Line Note
EXHIBIT C - Form of Irrevocable Standby Revolving Credit
Letter of Credit
EXHIBIT D - Form of Borrowing Request
EXHIBIT E - Form of Continuation/Conversion Notice
EXHIBIT F - Form of Issuance Request
EXHIBIT G - Form of Lender Assignment Agreement
EXHIBIT H - Form of Opinion of Counsel to the Revolving
Credit Borrowers
EXHIBIT I-1 - Form of SFC New Holdings Guaranty
EXHIBIT I-2 - Form of Subsidiary Guaranty
EXHIBIT J-1 - Form of Revolving Credit Borrowers Pledge
Agreement
EXHIBIT J-2 - Form of Subsidiary Pledge Agreement
EXHIBIT K-1 - Form of Revolving Credit Borrowers Security
Agreement
EXHIBIT K-2 - Form of Subsidiary Security Agreement
EXHIBIT L - Form of Revolving Credit Mortgage
EXHIBIT M - Form of Exemption Certificate
EXHIBIT N - Form of Perfection Certificate
EXHIBIT O - Form of Affirmation and Consent
EXHIBIT P - Form of Restatement Effective Date Certificate
||
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated
as of June 11, 1999, amending and restating the Existing
Revolving Credit Agreement (as defined below), is among each of
the subsidiaries of SFC New Holdings, Inc. signatory hereto
(collectively, the Revolving Credit Borrowers), the various
financial institutions as are or may become parties hereto
(collectively, the Revolving Credit Lenders), DLJ Capital
Funding, Inc. (?DLJ?), as syndication agent (the Syndication
Agent), and as collateral agent (the Collateral Agent), for the
Revolving Credit Lenders, ABN Amro Bank N.V. (ABN), as
administrative agent (the Administrative Agent), for the
Revolving Credit Lenders and Banque Paribas, as documentation
agent (the Documentation Agent) for the Revolving Credit Lenders
(the Syndication Agent and the Administrative Agent are sometimes
referred to herein as the Agents and each as an Agent).
W I T N E S S E T H:
WHEREAS, the Revolving Credit Borrowers are engaged directly
and through their respective various Subsidiaries (such
capitalized term and other terms used herein, to have the
meanings provided in Section 1.1) in the business of production
and distribution of breads, buns, rolls, sweet goods, cookies and
other baked goods and operation of retail cafes;
WHEREAS, the Revolving Credit Borrowers are parties to a
Revolving Credit Agreement, dated as of March 16, 1998 (as
heretofore amended, modified and supplemented and in effect from
time to time, the Existing Revolving Credit Agreement), among the
Revolving Credit Borrowers, the various financial institutions
parties thereto on the Closing Date (the Existing Revolving
Credit Lenders), Revolving Credit Borrowers, the various
financial institutions parties thereto, DLJ, as syndication agent
and collateral agent for such financial institutions, ABN, as
administrative agent for such financial institutions, and Summit
Bank, as documentation agent for such financial institutions,
pursuant to which the Existing Revolving Credit Lenders and the
Issuer extended Revolving Credit Commitments to make Revolving
Credit Extensions to the Revolving Credit Borrowers on the terms
and conditions set forth therein;
WHEREAS, Specialty Foods Corporation, a Delaware corporation
(?SFC?), and SFC New Holdings, Inc., a Delaware corporation (New
Holdings) and the indirect owner of all of the Capital Stock of
each Revolving Credit Borrower (SFC and New Holdings are
collectively referred to as the Existing Term Loan Borrowers),
are parties to a Term Loan Agreement, dated as of March 16, 1998
(as heretofore amended, modified and supplemented and in effect
from time to time, the Existing Term Loan Agreement), among the
Existing Term Loan Borrowers, the various financial institutions
parties thereto on the Closing Date (the Existing Term Loan
Lenders) DLJ, as syndication agent and collateral agent for such
financial institutions, ABN, as administrative agent for such
financial institutions, and Summit Bank, as documentation agent
for such financial institutions, pursuant to which the Existing
Term Loan Lenders made term loans (the Existing Term Loans) to
SFC on the Closing Date on the terms and conditions set forth
therein;
WHEREAS, the Revolving Credit Borrowers have requested that
the Existing Revolving Credit Agreement be amended and restated
in its entirety to become effective and binding on the Revolving
Credit Borrowers pursuant to the terms of this Agreement, and the
Revolving Credit Lenders (including the Existing Revolving Credit
Lenders) have agreed (subject to the terms of this Agreement) to
amend and restate the Existing Revolving Credit Agreement in its
entirety to read as set forth in this Agreement, and it has been
agreed by the parties to the Existing Revolving Credit Agreement
that (a) the Revolving Credit Commitments of the Existing
Revolving Credit Lenders under Existing Revolving Credit
Agreement shall be extended or advanced upon the amended and
restated terms and conditions contained in this Agreement, and
(b) any outstanding Revolving Credit Extensions made and other
Revolving Credit Obligations outstanding under the Existing
Revolving Credit Agreement shall be governed by and deemed to be
outstanding under the amended and restated terms and conditions
contained in this Agreement, with the intent that the terms of
this Agreement shall supersede the terms of the Existing
Revolving Credit Agreement (which shall hereafter have no further
effect upon the parties thereto, other than for accrued fees and
expenses, and indemnification provisions, accrued and owing under
the terms of the Existing Revolving Credit Agreement on or prior
to the Restatement Effective Date or arising under the terms of
the Existing Revolving Credit Agreement);
WHEREAS, concurrently with the amendment and restatement of
the Existing Revolving Credit Agreement, the Term Loan Lenders
will amend and restate in its entirety the Existing Term Loan
Agreement with the Existing Term Loan Borrowers;
WHEREAS, the Revolving Credit Loans and Revolving Credit
Obligations shall continue to be and shall be fully guaranteed
pursuant to the SFC New Holdings Guaranty and the Subsidiary
Guaranty and fully secured by, among other things, each Security
Agreement and each Pledge Agreement; and
WHEREAS, the Revolving Credit Lenders are willing, on the
terms and subject to the conditions hereinafter set forth
(including Article VI), to so amended and restate the Existing
Revolving Credit Agreement and to continue to extend Revolving
Credit Commitments, make the Revolving Credit Loans to the
Revolving Credit Borrowers and issue and participate in the
Revolving Credit Letters of Credit;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto agree that
the Existing Revolving Credit Agreement, together with all
schedules and Exhibits thereto, is hereby amended and restated in
its entirety to read, effective as of the Restatement Effective
Date, in the form of this Agreement, together with all schedules
and Exhibits hereto:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.1. Defined Terms. Except where the context
otherwise requires, capitalized terms used in this Agreement
(whether or not underscored) shall have the meanings ascribed
thereto in the Term Loan Agreement as in effect on the date
hereof, and the following terms shall have the following meanings
(such meanings to be equally applicable to the singular and
plural forms thereof):
?ABN? is defined in the preamble.
Administrative Agent is defined in the preamble and includes
each other Person as shall have subsequently been appointed as
the successor Administrative Agent pursuant to Section 10.4 and
Section 9.4 of the Term Loan Agreement.
Affiliate of any Person means any other Person which,
directly or indirectly, controls, is controlled by or is under
common control with such Person (excluding any trustee under, or
any committee with responsibility for administering, any Plan).
With respect to any Revolving Credit Lender, a Person shall be
deemed to be Controlled by another Person if such other Person
possesses, directly or indirectly, power to vote 51% or more of
the securities (on a fully diluted basis) having ordinary voting
power for the election of directors or managing general partners.
With respect to all other Persons, a Person shall be deemed to be
Controlled by any other Person if such other Person possesses,
directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election
of directors or managing general partners; or
(b) to direct or cause the direction of the management
and policies of such Person whether by contract or
otherwise.
agents is defined in the preamble.
Agreement means, on any date, the Existing Revolving Credit
Agreement as amended and restated on the Restatement Effective
Date and as thereafter from time to time amended, supplemented,
amended and restated, or otherwise modified and in effect on such
date.
Alternate Base Rate means, for any day and with respect to
all Base Rate Loans, the higher of: (a) 0.50% per annum above the
latest Federal Funds Rate; and (b) the rate of interest in effect
for such day as most recently publicly announced or established
by the Administrative Agent in Chicago, Illinois, as its base
rate.(The base rate is a rate set by the Administrative Agent
based upon various factors including the Administrative Agents
costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans,
which may be priced at, above or below such announced rate.) Any
change in the reference rate established or announced by the
Administrative Agent shall take effect at the opening of business
on the day of such establishment or announcement.
Amendment No. 2" means Consent and Amendment No. 2 to Term
Loan Agreement and Revolving Credit Agreement, dated as of June
11, 1999, among SFC, New Holdings, the Existing Revolving Credit
Borrowers, the other Obligors (as defined in the Existing Term
Loan Agreement) party thereto, the lenders under the Existing
Term Loan Agreement and the Existing Revolving Credit Agreement,
DLJ, as syndication agent and collateral agent for such lenders,
ABN, as administrative agent for such lenders, and Summit Bank,
as documentation agent for such lenders.
Applicable Revolving Loan Margin means (a) in the case of
Base Rate Loans, 2.25% per annum and (b) in the case of LIBO Rate
Loans, 3.25% per annum.
Assignee Revolving Credit Lender is defined in Section
11.11.1.
Authorized Officer means, relative to any Revolving Credit
Borrower or any other Revolving Credit Obligor, those of its
officers whose signatures and incumbency shall have been
certified to the Administrative Agent, the Collateral Agent and
the Revolving Credit Lenders pursuant to Section 6.1.1; provided,
that no officer shall qualify as an Authorized Officer unless
such officer has the title of vice president or above.
Base Rate Loan means a Revolving Credit Loan bearing
interest at a fluctuating rate determined by reference to the
Alternate Base Rate.
Borrowing means the Revolving Credit Loans of the same type
and, in the case of LIBO Rate Loans, having the same Interest
Period made by the relevant Revolving Credit Lenders or the Swing
Line Lender on the same Business Day and pursuant to the same
Borrowing Request in accordance with Section 2.1.
Borrowing Request means a Revolving Credit Loan request and
certificate duly executed by an Authorized Officer of any
Revolving Credit Borrower, substantially in the form of Exhibit D
hereto.
Business Day means (a) any day which is neither a Saturday
or Sunday nor a legal holiday on which banks are authorized or
required to be closed in Houston, Texas, Chicago, Illinois or New
York City, and (b) with respect to Borrowings of Interest Periods
with respect to, payments of principal and interest in respect
of, and conversions of Base Rate Loans into, LIBO Rate Loans, any
day on which dealings in Dollars are carried on in the London
interbank market.
?CERCLA? means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
?CERCLIS? means the Comprehensive Environmental Response
Compensation Liability Information System List.
Change in Control shall have the meaning set forth in the
Term Loan Agreement, as in effect on the date hereof.
Closing Date means the date on which the initial Revolving
Credit Extensions were made, which occurred on March 16, 1998.
Code means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
Collateral Agent is defined in the preamble and includes
each other Person as shall have subsequently been appointed as
the successor Collateral Agent pursuant to Section 10.4 and
Section 9.4 of the Term Loan Agreement.
Continuation/Conversion Notice means a notice of
continuation or conversion and certificate duly executed by an
Authorized Officer of any Revolving Credit Borrower,
substantially in the form of Exhibit E hereto.
Controlled Group means all members of a controlled group of
corporations and all members of a controlled group of trades or
businesses (whether or not incorporated) under common control
which, together with each Revolving Credit Borrower, its
Subsidiaries or the Term Loan Borrower, are treated as a single
employer under Section 414(b) or 414(c) of the Code or Section
4001 of ERISA.
Covered Taxes means any Taxes other than Taxes imposed with
respect to the Administrative Agent or any Revolving Credit
Lender by reason of a connection between the Administrative Agent
or such Revolving Credit Lender and the relevant taxing
jurisdiction, including without limitation, a connection arising
from such Person being or having been a citizen or resident of
such jurisdiction, or having or having had a permanent
establishment or fixed place of business or bing or having been
engaged in business therein, but excluding a connection arising
solely from such Person having executed, delivered, performed its
obligations or received any payment under, or enforced, this
Agreement or any Revolving Credit Note. Taxes shall be
considered Covered Taxes of such Taxes are imposed on (i) the
Administrative Agent solely by reason of a connection between a
Revolving Credit Lender (but not the Administrative Agent) and
the relevant taxing jurisdiction or (ii) a Revolving Credit
Lender solely by reason of a connection between the
Administrative Agent or any other Revolving Credit Lender (but
not such Revolving Credit Lender) and the relevant taxing
jurisdiction.
Default means any Event of Default or any condition,
occurrence or event which, after notice or lapse of time or both,
would constitute an Event of Default.
Disbursement Date is defined in Section 4.5.
Disclosure Schedule means the Disclosure Schedule attached
hereto as Schedule I, as it may be amended, supplemented or
otherwise modified from time to time by any Revolving Credit
Borrower with the written consent of the Required Revolving
Credit Lenders.
?DLJ? is defined in the preamble.
Documentation Agent is defined in the preamble.
Dollar and the sign $ mean lawful money of the United
States.
Domestic Office means, relative to any Revolving Credit
Lender, the office of such Revolving Credit Lender designated as
such below its signature hereto or in a Lender Assignment
Agreement or such other office of a Revolving Credit Lender (or
any successor or assign of such Revolving Credit Lender) within
the United States as may be designated from time to time by
notice from such Revolving Credit Lender, as the case may be, to
each other Person party hereto.
Environmental Laws means all applicable federal, state or
local statutes, laws, ordinances, codes, rules, regulations and
guidelines (including consent decrees and administrative orders)
relating to public health and safety and protection of the
environment.
ERISA means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import,
together with the regulations thereunder, in each case as in
effect from time to time. References to sections of ERISA also
refer to any successor sections.
Event of Default is defined in Section 9.1.
Existing Revolving Credit Agreement is defined in the second
recital.
Existing Revolving Credit Lenders is defined in the second
recital.
Existing Term Loan Agreement is defined in the third
recital.
Existing Term Loan Borrowers is defined in the third
recital.
Existing Term Loan Lenders is defined in the third recital.
Existing Term Loans is defied in the third recital.
Federal Funds Rate means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight
federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which
is a Business Day, the average of the quotations for such
day on such transactions received by the Administrative
Agent from three federal funds brokers of recognized
standing selected by it.
F.R.S. Board means the Board of Governors of the Federal
Reserve System or any successor thereto.
GAAP is defined in Section 1.4.
Guaranties means, collectively, the SFC New Holdings
Guaranty, the Subsidiary Guaranty and each Guaranty executed and
delivered pursuant to Section 8.1.3, in each case, as amended,
supplemented, restated or otherwise modified from time to time.
Hazardous Material means
(a) any hazardous substance, as defined by CERCLA;
(b) any hazardous waste, as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance within
the meaning of any other applicable federal, state or local
law, regulation, ordinance or requirement (including consent
decrees and administrative orders) relating to or imposing
liability or standards of conduct concerning any hazardous,
toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
herein, hereof, hereto, hereunder and similar terms
contained in this Agreement or any other Revolving Credit
Document refer to this Agreement or such other Revolving Credit
Document, as the case may be, as a whole and not to any
particular Section, paragraph or provision of this Agreement or
such other Revolving Credit Document.
including means including without limiting the generality of
any description preceding such term, and, for purposes of this
Agreement and each other Revolving Credit Document, the parties
hereto agree that the rule of ejusdem generis shall not be
applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters
similar to the matters specifically mentioned.
Indemnified Liabilities is defined in Section 11.4.
Indemnified Parties is defined in Section 11.4.
Interest Period means, relative to any LIBO Rate Loans, the
period beginning on (and including) the date on which such LIBO
Rate Loan is made or continued as, or converted into, a LIBO Rate
Loan pursuant to Section 2.3 or 2.4 and ending on (but excluding)
the day which numerically corresponds to such date one, two,
three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such
month), as any Revolving Credit Borrower may select in its
relevant notice pursuant to Section 2.3 or 2.4; provided,
however, that
(a) Interest Periods in effect at any one time shall
not have expiration dates occurring on more than five
different dates;
(b) Interest Periods commencing on the same date for
Revolving Credit Loans comprising part of the same Borrowing
shall be of the same duration;
(c) if such Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall
end on the next following Business Day (unless, if such
Interest Period applies to LIBO Rate Loans, such next
following Business Day is the first Business Day of a
calendar month, in which case such Interest Period shall end
on the Business Day next preceding such numerically
corresponding day); and
(d) no Interest Period may end later than the Stated
Maturity Date for the applicable Revolving Credit Loan.
Issuance Request means a request and certificate duly
executed by the chief executive, accounting or financial
Authorized Officer of any Revolving Credit Borrower, in
substantially the form of Exhibit F attached hereto (with such
changes thereto as may be agreed upon from time to time by the
Syndication Agent, the Issuer and the Revolving Credit Borrowers)
or a properly completed application for a Revolving Credit Letter
of Credit on the applicable Issuer's standard form, executed by
the chief executive, accounting or financial Authorized Officer
of any Revolving Credit Borrower.
Issuer means any affiliate, unit or agency of ABN in its
capacity as issuer of the Revolving Credit Letters of Credit, or
any other Revolving Credit Lender which has agreed to issue one
or more Revolving Credit Letters of Credit at the request of the
Administrative Agent (which shall, at any Revolving Credit
Borrower's request, notify the Revolving Credit Borrowers from
time to time of the identity of such other Revolving Credit
Lender).
Lender Assignment Agreement means a lender assignment
agreement substantially in the form of Exhibit G hereto.
LIBO Rate means, relative to any Interest Period for LIBO
Rate Loans, the rate of interest equal to the average (rounded
upwards, if necessary, to the nearest 1/100 of 1%) of the rates
per annum at which Dollar deposits in the approximate amount of
the Revolving Credit Loan to be made as, or converted into, a
LIBO Rate Loan by the Administrative Agent and having a maturity
comparable to such Interest Period would be offered to the
Administrative Agent in the London interbank market at its
request at approximately 11:00 a.m.(London time) two Business
Days prior to the commencement of such Interest Period.
LIBO Rate Loan means a Revolving Credit Loan bearing
interest, at all times during an Interest Period applicable to
such Loan, at a fixed rate of interest determined by reference to
the LIBO Rate (Reserve Adjusted).
LIBO Rate (Reserve Adjusted) means, relative to any Loan to
be made, continued or maintained as, or converted into, a LIBO
Rate Loan for any Interest Period, a rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined
pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO
Rate Loans will be adjusted automatically as to all LIBO Rate
Loans then outstanding as of the Closing Date of any change in
the LIBOR Reserve Percentage.
LIBOR Office means, relative to any Revolving Credit Lender,
the office of such Revolving Credit Lender designated as such on
Schedule II hereto or designated in the Lender Assignment
Agreement or such other office of a Revolving Credit Lender (or
any successor or assign of such Revolving Credit Lender) as
designated from time to time by notice from such Revolving Credit
Lender to the Revolving Credit Borrowers and the Administrative
Agent, whether or not outside the United States, which shall be
making or maintaining LIBO Rate Loans of such Revolving Credit
Lender hereunder.
LIBOR Reserve Percentage means, relative to any Interest
Period for LIBO Rate Loans, the percentage (expressed as a
decimal, rounded upward to the next 1/100 of 1%) in effect on
such day (whether or not applicable to any Lender) under
regulations issued from time to time by the F.R.S. Board for
determining the maximum reserve requirement (including any
emergency supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently defined as
Eurocurrency Liabilities in Regulation D of the F.R.S. Board).
Lien means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property,
or any filing or recording of any instrument or document in
respect to the foregoing (other than liens arising from the
filing of precautionary UCC financing statements in connection
with obligations under leases that are not Capitalized Lease
Liabilities to the extent that such financing statements relate
solely to the property subject to such lease obligations and
where the debtor named on such financing statements is not the
legal or beneficial owner of the described property), to secure
payment of a debt or performance of an obligation or other
priority or preferential arrangement of any kind or nature
whatsoever that has the practical effect of creating a security
interest in property.
New Holdings is defined in the third recital.
Organic Document means, relative to any Revolving Credit
Obligor, its certificate of incorporation, its by-laws and all
shareholder agreements, voting trusts and similar arrangements
applicable to any of its authorized shares of capital stock.
Participant is defined in Section 11.11.
PBGC means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
Pension Plan means a pension plan, as such term is defined
in section 3(2) of ERISA, which is subject to Title IV of ERISA
(other than a multiemployer plan as defined in section 4001(a)(3)
of ERISA), and to which any Revolving Credit Borrower or any
corporation, trade or business that is, along with any Revolving
Credit Borrower, a member of a Controlled Group, may have
liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA
at any time during the preceding five years, or by reason of
being deemed to be a contributing sponsor under section 4069 of
ERISA.
Person means any natural person, corporation, limited
liability company, partnership, joint venture, joint stock
company, firm, association, trust or unincorporated organization,
government, governmental agency, court or any other legal entity,
whether acting in an individual, fiduciary or other capacity.
Perfection Certificate means the Perfection Certificate
executed and delivered by an Authorized Officer of each Revolving
Credit Borrower pursuant to Section 6.1.5 or Section 7.1.7 of the
Term Loan Agreement, substantially in the form of Exhibit N
hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
Plan means any Pension Plan or Welfare Plan.
Pledge Agreements means, collectively, the Revolving Credit
Borrowers Pledge Agreement, the Subsidiary Pledge Agreement and
each Pledge Agreement executed and delivered pursuant to
Section 8.1.3, in each case as amended, supplemented, restated or
otherwise modified from time to time.
Quarterly Payment Date means the last day of each January,
April, July and October, or, if any such day is not a Business
Day, the next succeeding Business Day, commencing with July,
1999.
Refunded Swing Line Loans is defined in clause (b) of
Section 2.3.2.
Reimbursement Obligation is defined in Section 4.6.
Related Fund means, with respect to any Revolving Credit
Lender that is a fund that invests in loans, any other fund that
invests in loans and is managed by the same investment advisor or
investment manager as such Revolving Credit Lender.
Release means a release, as such term is defined in CERCLA.
Required Revolving Credit Lenders means, at any time,
Revolving I Credit Lenders having more than 50% of the sum of the
Revolving I Credit Commitments and Revolving II Credit Lenders
having more than 50% of the sum of the Revolving II Credit
Commitments; provided, that in the event that the Revolving I
Credit Commitment or the Revolving II Credit Commitment is
terminated (pursuant to Section 9.2 or Section 9.3 or otherwise),
until such time as all Revolving I Credit Loans and Revolving II
Credit Loans, as the case may be, are paid in full, Revolving I
Credit Lenders having more than 50% of the outstanding principal
amount of all Revolving I Credit Loans and Revolving II Credit
Lenders having more than 50% of the outstanding principal amount
of all Revolving II Credit Loans, as applicable.
Resource Conservation and Recovery Act means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.,
as in effect from time to time.
Restatement Effective Date means the date when all of the
conditions set forth in Section 6.1 shall have been satisfied.
Restatement Effective Date Certificate means the certificate
executed and delivered by the Borrowers on the Restatement
Effective Date, substantially in the form of Exhibit P hereto.
Revolving Credit Borrowers is defined in the preamble.
Revolving Credit Borrowers Pledge Agreement means the Pledge
Agreement executed and delivered by each Revolving Credit
Borrower, substantially in the form of Exhibit J-1 hereto, as
amended, supplemented, amended and restated or otherwise
modified.
Revolving Credit Borrowers Security Agreement means the
Security Agreement executed and delivered by each Revolving
Credit Borrower, substantially in the form of Exhibit K-1 hereto,
as amended, supplemented, amended and restated or otherwise
modified.
Revolving Credit Commitment means a Revolving I Credit
Commitment, a Revolving II Credit Commitment or a Swing Line Loan
Commitment.
Revolving Credit Commitment Amount means a Revolving I
Credit Commitment Amount or a Revolving II Credit Commitment
Amount or a Swing Line Loan Commitment Amount.
Revolving Credit Commitment Termination Date means the
Revolving I Credit Commitment Termination Date or the Revolving
II Credit Commitment Termination Date.
Revolving Credit Commitment Termination Event means
(a) the occurrence of any Default described in clauses
(a) through (d) of Section 9.1.9 with respect to any
Revolving Credit Borrower; or
(b) the occurrence and continuance of any other Event
of Default and either
(i) the declaration of the Revolving Credit Loans
to be due and payable pursuant to Section 9.3, or
(ii) in the absence of such declaration, the
giving of notice by the Administrative Agent, acting at
the direction of the Required Revolving Credit Lenders,
to the Revolving Credit Borrowers that the Revolving
Credit Commitments have been terminated.
Revolving Credit Documents means this Agreement, the Notes,
each Pledge Agreement, each Security Agreement, each Guaranty and
each Revolving Credit Revolving Credit Mortgage.
Revolving Credit Extension means and includes
(a) the advancing of any Revolving I Credit Loans by
the Revolving Credit Lenders in connection with a Borrowing,
(b) the advancing of any Revolving II Credit Loans by
the Revolving Credit Lenders in connection with a Borrowing,
(c) the advancing of any Swing Line Loans by the Swing
Line Lender in connection with a Borrowing, and
(d) any issuance or extension by an Issuer of a
Revolving Credit Letter of Credit.
Revolving Credit Lenders is defined in the preamble.
Revolving Credit Letter of Credit is defined in Section 4.1.
Revolving Credit Letter of Credit Commitment Amount means,
on any date, a maximum amount of $25,000,000, as such amount may
be reduced from time to time pursuant to Section 2.2.
Revolving Credit Letter of Credit Outstandings means, at any
time, an amount equal to the sum of
(a) the then aggregate amount which is undrawn and
available under all issued and outstanding Revolving Credit
Letters of Credit,
plus
(b) the then aggregate amount of all unpaid and
outstanding Reimbursement Obligations.
Revolving Credit Loan means, as the context may require, a
Revolving I Credit Loan, a Revolving II Credit Loan, or a Swing
Line Loan, of any type.
Revolving Credit Mortgages means, collectively, each
Revolving Credit Mortgage executed and delivered pursuant to the
terms of this Agreement, including Section 8.1.3, substantially
in the form of Exhibit L hereto, as amended, supplemented,
restated or otherwise modified from time to time.
Revolving Credit Note means, as the context may require, a
Revolving I Credit Note, a Revolving II Credit Note or a Swing
Line Note
Revolving Credit Obligations means all obligations (monetary
or otherwise) of the Revolving Credit Borrowers and each other
Revolving Credit Obligor arising under or in connection with this
Agreement, the Revolving Credit Notes and each other Revolving
Credit Document or any other document made, delivered or given in
connection therewith.
Revolving Credit Obligor means any Revolving Credit
Borrower, each Subsidiary of each Revolving Credit Borrower
(other than any Inactive Subsidiary), the Special Purpose
Subsidiary or any other Person (other than any Agent, the
Collateral Agent or any Revolving Credit Lender) obligated under,
or otherwise a party to, any Revolving Credit Document, and
Revolving Credit Obligors means all of such Persons,
collectively.
Revolving Credit Percentage means, relative to any Revolving
Credit Lender, the applicable percentage relating to the
Revolving I Credit Commitments or the Revolving II Credit
Commitments, as the case may be, for such Revolving Credit Lender
as set forth on Schedule II hereto or set forth in the Lender
Assignment Agreement, as such percentage may be adjusted from
time to time pursuant to Lender Assignment Agreement(s) executed
by such Revolving Credit Lender and its Assignee Revolving Credit
Lender(s) and delivered pursuant to Section 11.11. A Revolving
Credit Lender shall not have any Revolving Credit Commitment to
make Revolving I Credit Loans or Revolving II Credit Loans (as
the case may be) if its percentage under the respective column
heading is zero (0%). As used herein, Revolving Credit
Percentage as it relates to a Revolving I Credit Lender's
Percentage of Revolving Credit Letter of Credit Outstandings or
Swing Line Loans shall be equal to such Revolving I Credit
Lender's Percentage of Revolving I Credit Loans.
Revolving I Credit Commitment means, relative to any
Revolving Credit Lender, such Revolving Credit Lender's
obligation to make Revolving I Credit Loans pursuant to clause
(a) of Section 2.1.1 and to issue (in the case of an Issuer) or
participate in (in the case of all Revolving Credit Lenders)
Revolving Credit Letters of Credit pursuant to Section 2.1.3.
Revolving I Credit Commitment Amount means, on any date,
$25,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2.
Revolving I Credit Commitment Availability means, on any
date, the excess of
(a) the then Revolving I Credit Commitment Amount,
over
(b) the sum of
(i) the outstanding principal amount of all
Revolving I Credit Loans on such date,
plus
(ii) the Revolving Credit Letter of Credit
Outstandings on such date,
plus
(iii) the outstanding principal amount of all
Swing Line Loans on such date.
Revolving I Credit Commitment Termination Date means the
earliest of
(a) January 31, 2001;
(b) the date on which the Revolving I Credit
Commitment Amount is terminated in full or reduced to zero
pursuant to Section 2.2; and
(c) the date on which any Revolving Credit Commitment
Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c),
the Revolving I Credit Commitments shall terminate automatically
and without any further action.
Revolving I Credit Lender means any Revolving Credit Lender
having a Revolving I Credit Commitment.
Revolving I Credit Loan is defined in Section 2.1.2.
Revolving I Credit Note means a joint and several promissory
note of the Revolving Credit Borrowers payable to the order of
any Revolving Credit Lender, in the form of Exhibit A-1 hereto
(as such promissory note may be amended, endorsed or otherwise
modified from time to time), evidencing the aggregate
Indebtedness of the Revolving Credit Borrower to such Revolving
Credit Lender resulting from outstanding Revolving I Credit
Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
Revolving II Credit Commitment means, relative to any
Revolving Credit Lender, such Revolving Credit Lender's
obligation to make Revolving II Credit Loans pursuant to
Section 2.1.2.
Revolving II Credit Commitment Amount means, on any date,
$97,801,241, as such amount may be reduced from time to time
pursuant to Section 2.2.
Revolving II Credit Commitment Availability means, on any
date, the excess of
(a) the then Revolving II Credit Commitment Amount,
over
(b) the outstanding principal amount of all Revolving
II Credit Loans on such date.
Revolving II Credit Commitment Termination Date means the
earliest of
(a) June 11, 1999;
(b) the date on which the Revolving II Credit
Commitment Amount is terminated in full or reduced to zero
pursuant to Section 2.2; and
(c) the date on which any Revolving Credit Commitment
Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c),
the Revolving II Credit Commitments shall terminate automatically
and without any further action.
Revolving II Credit Lender means any Revolving Credit Lender
having a Revolving II Credit Commitment.
Revolving II Credit Loan is defined in Section 2.1.2.
Revolving II Credit Note means a joint and several
promissory note of the Revolving Credit Borrowers payable to the
order of any Revolving Credit Lender, in the form of Exhibit A-2
hereto (as such promissory note may be amended, endorsed or
otherwise modified from time to time), evidencing the aggregate
Indebtedness of the Revolving Credit Borrower to such Revolving
Credit Lender resulting from outstanding Revolving II Credit
Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
Security Agreements means, collectively, the Revolving
Credit Borrowers Security Agreement, the Subsidiary Security
Agreement and each Security Agreement executed and delivered from
time to time pursuant to Section 8.1.3, in each case as amended,
supplemented, restated or otherwise modified from time to time.
SFC is defined in the third recital.
SFC New Holdings Guaranty means the Guaranty executed and
delivered by the Term Loan Borrower, substantially in the form of
Exhibit I-1 hereto, as amended, supplemented, amended and
restated or otherwise modified.
Stated Amount of each Revolving Credit Letter of Credit
means the total amount available to be drawn under such Revolving
Credit Letter of Credit upon the issuance thereof.
Stated Expiry Date is defined in Section 4.1.
Stated Maturity Date means:
(a) in the case of any Revolving I Credit Loan,
January 31, 2001; and
(b) in the case of any Revolving II Credit Loan,
January 31, 2001.
Subsidiary means, with respect to any Person, any
corporation, partnership or other business entity of which more
than 50% of the outstanding capital stock (or other ownership
interest) having ordinary voting power to elect a majority of the
board of directors, managers or other voting members of the
governing body of such entity (irrespective of whether at the
time capital stock (or other ownership interest) of any other
class or classes of such entity shall or might have voting power
upon the occurrence of any contingency) is at the time directly
or indirectly owned by such Person, by such Person and one or
more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person. Unless the context otherwise
specifically requires, the term Subsidiary shall be a reference
to a Subsidiary of any Revolving Credit Borrower.
Subsidiary Guaranty means the Guaranty executed and
delivered by each Subsidiary Guarantor, substantially in the form
of Exhibit I-2 hereto, as amended, supplemented, amended and
restated or otherwise modified.
Subsidiary Pledge Agreement means the Pledge Agreement
executed and delivered by each Subsidiary of the Term Loan
Borrower (other than any Inactive Subsidiary and the Receivables
Subsidiary), substantially in the form of Exhibit J-2 hereto, as
amended, supplemented, amended and restated or otherwise
modified.
Subsidiary Security Agreement means the Security Agreement
executed and delivered by each U.S. Subsidiary of a Revolving
Credit Borrower (other than any Inactive Subsidiary),
substantially in the form of Exhibit K-2 hereto, as amended,
supplemented, amended and restated or otherwise modified.
Swing Line Lender means, ABN, in its capacity as Swing Line
Lender hereunder.
Swing Line Loan is defined in clause (b) of Section 2.1.1.
Swing Line Loan Commitment means, with respect to the Swing
Line Lender, the Swing Line Lender's obligation pursuant to
clause (b) of Section 2.1.1 to make Swing Line Loans and, with
respect to each Revolving I Credit Lender with a Revolving I
Credit Commitment to make Revolving I Credit Loans (other than
the Swing Line Lender), such Revolving Credit Lender's obligation
to participate in Swing Line Loans pursuant to Section 2.3.2.
Swing Line Loan Commitment Amount means, on any date,
$10,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2.
Swing Line Note means a joint and several promissory note of
the Borrowers payable to the Swing Line Lender, in the form of
Exhibit B hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to the Swing Line Lender
resulting from outstanding Swing Line Loans, and also means all
other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
Syndication Agent is defined in the preamble.
Taxes means any present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by (i) the United
States or any taxing authority or political subdivision thereof
or (ii) any other jurisdiction as a result of a connection
between the Borrower and such taxing jurisdiction, and in each
case any interest, additions to tax, penalties or additional
amounts payable with respect thereto.
Term Loan is defined in the Term Loan Agreement.
Term Loan Agreement means the Amended and Restated Term Loan
Agreement, dated as of the date hereof, among the Term Loan
Borrower, the Term Loan Lenders, the Agents, the Documentation
Agent and the Collateral Agent as the same may be amended,
supplemented, amended and restated, or otherwise modified from
time to time.
Term Loan Borrower means New Holdings.
Term Loan Lenders means each of the financial institutions
from time to time party to the Term Loan Agreement.
type means, relative to any Loan, the portion thereof, if
any, being maintained as a Base Rate Loan or a LIBO Rate Loan.
United States or U.S. means the United States of America,
its fifty States and the District of Columbia.
Welfare Plan means a welfare plan, as such term is defined
in section 3(1) of ERISA.
SECTION I.2. Use of Defined Terms. Unless otherwise
defined or the context otherwise requires, terms for which
meanings are provided in this Agreement shall have such meanings
when used in the Disclosure Schedule and in each Revolving Credit
Note, Borrowing Request, Continuation/Conversion Notice,
Revolving Credit Document, notice and other communication
delivered from time to time in connection with this Agreement or
any other Revolving Credit Document.
SECTION I.3. Cross-References. Unless otherwise specified,
references in this Agreement and in each other Revolving Credit
Document to any Article or Section are references to such Article
or Section of this Agreement or such other Revolving Credit
Document, as the case may be, and, unless otherwise specified,
references in any Article, Section or definition to any clause
are references to such clause of such Article, Section or
definition.
SECTION I.4. Accounting and Financial Determinations.
Unless otherwise specified, all accounting terms used herein or
in any other Revolving Credit Document shall be interpreted, and
all accounting determinations and computations hereunder or
thereunder (including under Sections 7.1.1 and 7.2.5 of the Term
Loan Agreement) shall be made, and all financial statements
required to be delivered hereunder or thereunder shall be
prepared, in accordance with those generally accepted accounting
principles (?GAAP?) applied in the preparation of the financial
statements referred to in Section 6.5 of the Term Loan Agreement,
except as set forth in Section 1.4 of the Term Loan Agreement as
in effect on the date hereof.
ARTICLE II
CONTINUATION OF EXISTING REVOLVING CREDIT LOANS
AND REVOLVING CREDIT LETTERS OF CREDIT;
REVOLVING CREDIT COMMITMENTS, BORROWING AND
ISSUANCE PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION II.1. Revolving Credit Commitments. On the terms
and subject to the conditions of this Agreement (including
Article VI), each Revolving Credit Lender and the Swing Line
Lender severally agrees as follows:
SECTION II.1.1. Revolving I Credit Commitment. Each of the
parties hereto acknowledges and agrees that the Revolving I
Credit Loans and Swing Line Loans extended under (and as defined
in) the Existing Revolving Credit Agreement shall continue as
Revolving I Credit Loans and Swing Line Loans for all purposes
under this Agreement and the other Revolving Credit Documents.
In addition, subject to Section 2.1.4 and compliance by the
Revolving Credit Borrowers with the terms of Sections 6.1 and
6.2, Revolving I Credit Loans and Swing Line Loans will be made
as set forth below:
(a) From time to time on any Business Day occurring
prior to the Revolving I Credit Commitment Termination Date,
each Revolving Credit Lender will make Revolving Credit
Loans (relative to such Revolving Credit Lender, its
Revolving I Credit Loans) to each applicable Revolving
Credit Borrower, on a joint and several basis for all the
Revolving Credit Borrowers, equal to such Revolving Credit
Lender's Revolving Credit Percentage of the aggregate amount
of the Borrowing of Revolving I Credit Loans requested by
such Revolving Credit Borrower to be made on such day. On
the terms and subject to the conditions hereof, each
Revolving Credit Borrower may from time to time borrow,
prepay and reborrow Revolving I Credit Loans.
(b) From time to time on any Business Day occurring
prior to the Revolving I Credit Commitment Termination Date,
the Swing Line Lender will make a loan (relative to the
Swing Line Lender, its Swing Line Loans) to each applicable
Revolving Credit Borrower, on a joint and several basis for
all the Revolving Credit Borrowers, equal to the amount of
the Swing Line Loan requested by the applicable Revolving
Credit Borrower to be made on such day. On the terms and
subject to the conditions hereof, each applicable Revolving
Credit Borrower may from time to time borrow, prepay and
reborrow Swing Line Loans.
SECTION II.1.2. Revolving II Credit Commitment. Each of the
parties hereto acknowledges and agrees that the Revolving II
Credit Loans extended under (and as defined in) the Existing
Revolving Credit Agreement shall continue as Revolving II Credit
Loans for all purposes under this Agreement and the other
Revolving Credit Documents. From time to time on any Business Day
occurring prior to the Revolving II Credit Commitment Termination
Date, each Revolving Credit Lender will make Revolving Credit
Loans (relative to such Revolving Credit Lender, its Revolving II
Credit Loans) to each applicable Revolving Credit Borrower, on a
joint and several basis for all the Revolving Credit Borrowers,
equal to such Revolving Credit Lender's Revolving Credit
Percentage of the aggregate amount of the Borrowing of Revolving
II Credit Loans requested by such Revolving Credit Borrower to be
made on such day. No amounts paid or prepaid with respect to
Revolving II Credit Loans may be reborrowed.
SECTION II.1.3. Commitment to Issue Revolving Credit
Letters of Credit. Each of the parties hereto acknowledges and
agrees that all Revolving Credit Letters of Credit extended under
(and as defined in) the Existing Revolving Credit Agreement shall
continue as Revolving Credit Letters of Credit for all purposes
under this Agreement and the other Revolving Credit Documents.
In addition, subject to Section 2.1.4 and compliance by the
Revolving Credit Borrowers with the terms of Sections 6.1 and
6.2, from time to time on any Business Day occurring from and
after the Restatement Effective Date but prior to the Revolving I
Credit Commitment Termination Date, each Issuer will issue, and
each Revolving Credit Lender with a Revolving I Credit Commitment
will participate in, the Revolving Credit Letters of Credit, in
accordance with Article IV.
SECTION II.1.4. Revolving Credit Lenders Not Permitted or
Required To Make Revolving Credit Loans or Issue or Participate
in Revolving Credit Letters of Credit Under Certain
Circumstances. No Revolving Credit Lender shall be permitted or
required to
(a) make any Revolving I Credit Loan if, after giving
effect thereto, the aggregate outstanding principal amount
of all Revolving I Credit Loans
(i) of all Revolving Credit Lenders, together with
all Revolving Credit Letter of Credit Outstandings and
the outstanding principal amount of all Swing Line
Loans would exceed the Revolving I Credit Commitment
Amount, or
(ii) of such Revolving Credit Lender, together
with such Revolving Credit Lender's Revolving Credit
Percentage of all Revolving Credit Letter of Credit
Outstandings, would exceed such Revolving Credit
Lender's Revolving Credit Percentage of the Revolving I
Credit Commitment Amount; or
(b) make any Revolving II Credit Loan if, after giving
effect thereto, the aggregate outstanding principal amount
of all Revolving II Credit Loans
(i) of all Revolving Credit Lenders would exceed
the Revolving II Credit Commitment Amount, or
(ii) of such Revolving Credit Lender would exceed
such Revolving Credit Lender's Revolving Credit
Percentage of the Revolving II Credit Commitment
Amount; or
(c) issue (in the case of any Issuer) or participate in
(in the case of each Revolving Credit Lender) any Revolving
Credit Letter of Credit if, after giving effect thereto
(i) all Revolving Credit Letter of Credit
Outstandings together with the aggregate outstanding
principal amount of all Revolving I Credit Loans of all
Revolving Credit Lenders and the outstanding principal
amount of all Swing Line Loans would exceed the
Revolving I Credit Commitment Amount, or
(ii) such Revolving Credit Lender's Revolving
Credit Percentage of all Revolving Credit Letter of
Credit Outstandings together with the aggregate
outstanding principal amount of all Revolving I Credit
Loans of such Revolving Credit Lender would exceed such
Revolving Credit Lender's Revolving Credit Percentage
of the Revolving I Credit Commitment Amount.
(d) make any Swing Line Loan if, after giving effect
thereto, the aggregate outstanding principal amount of all
Swing Line Loans (i) would exceed the Swing Line Loan
Commitment Amount, or (ii) together with the aggregate
outstanding principal amount of all Revolving I Credit Loans
of all Revolving Credit Lenders and Revolving Credit Letter
of Credit Outstandings would exceed the Revolving I Credit
Commitment Amount.
SECTION II.2. Reduction of Commitment Amounts. The
Revolving Credit Commitment Amounts are subject to reduction from
time to time pursuant to this Section 2.2.
SECTION II.2.1. Optional. Any Revolving Credit Borrower
may, from time to time on any Business Day occurring after the
time of the initial Borrowing hereunder, voluntarily reduce the
amount of either Revolving Credit Commitment Amount; provided,
however, that all such reductions shall require at least three
Business Days prior notice to the Administrative Agent and be
permanent, and any partial reduction of the Revolving I Credit
Commitment Amount shall be in a minimum amount of $1,000,000 and
in an integral multiple of $500,000 and of the Revolving II
Credit Commitment Amount shall be in a minimum amount of
$5,000,000 and in an integral multiple of $1,000,000. Any such
reduction of the Revolving I Credit Commitment Amount which
reduces the Revolving I Credit Commitment Amount below the
Revolving Credit Letter of Credit Commitment Amount or the Swing
Line Loan Commitment Amount shall result in an automatic and
corresponding reduction of the Revolving Credit Letter of Credit
Commitment Amount or the Swing Line Loan Commitment Amount, as
the case may be, to an aggregate amount not in excess of the
Revolving I Credit Commitment Amount, as so reduced, without any
further action on the part of the Issuer or the Swing Line
Lender.
SECTION II.2.2. Mandatory. (a) On the Revolving I Credit
Commitment Termination Date, the Revolving I Credit Commitment
Amount shall be zero, and on the Revolving II Credit Loan
Commitment Termination Date, the Revolving II Credit Commitment
Amount shall be zero. Any amount required to be applied as a
mandatory prepayment of the Revolving I Credit Loans and a
reduction of the Revolving I Credit Commitment Amount and to cash
collateralize Reimbursement Obligations in respect of Revolving
Credit Letters of Credit pursuant to the penultimate paragraph of
Section 7.2.12 of the Term Loan Agreement as in effect on the
date hereof shall be applied first to the payment of the
aggregate unpaid principal amount of Swing Line Loans then
outstanding, second, to the payment of the aggregate unpaid
principal amount of Revolving I Credit Loans then outstanding,
and third, to the payment of the then outstanding Revolving
Credit Letter of Credit Outstandings and to cash collateralize
Reimbursement Obligations in respect of Revolving Credit Letters
of Credit, whereupon the Revolving I Credit Commitment shall
automatically terminate.
(b) The Revolving II Credit Commitment Amount shall be
reduced from time to time as required under Section 3.1.1 and the
penultimate paragraph of Section 7.2.12 of the Term Loan
Agreement as in effect on the date hereof.
SECTION II.3. Borrowing Procedure. Revolving Credit Loans
(other than Swing Line Loans) shall be made by the Revolving
Credit Lenders in accordance with Section 2.3.1, and Swing Line
Loans shall be made by the Swing Line Lender in accordance with
Section 2.3.2.
SECTION II.3.1. Revolving I Credit Loans and Revolving II
Credit Loans. By telephonic notice, promptly followed (by the
end of the Business Day on which such telephonic notice was
delivered) by the delivery of a confirming Borrowing Request to
the Administrative Agent on or before 10:00 a.m., New York City
time, on a Business Day, any Revolving Credit Borrower may from
time to time irrevocably request, on not less than one Business
Days notice (in the case of Revolving I Credit Loans maintained
as Base Rate Loans) or three Business Days notice (in the case of
Revolving I Credit Loans maintained as LIBO Rate Loans or
Revolving II Credit Loans maintained either as Base Rate Loans or
LIBO Rate Loans) nor more than five Business Days notice (in the
case of any Revolving Credit Loans), that a Borrowing be made in
a minimum amount of $1,000,000 and an integral multiple of
$500,000, in the case of Revolving I Credit Loans, or in a
minimum amount of $5,000,000 and an integral multiple of
$1,000,000, in the case of Revolving II Credit Loans, or, in
either case, in the unused amount of the applicable Revolving
Credit Commitment. On the terms and subject to the conditions of
this Agreement, each Borrowing shall be comprised of the type of
Revolving Credit Loans, and shall be made on the Business Day,
specified in such Borrowing Request. On or before 11:00 a.m.
(New York City time) on such Business Day each Revolving Credit
Lender shall deposit with the Administrative Agent same day funds
in an amount equal to such Revolving Credit Lender's Revolving
Credit Percentage of the requested Borrowing. Such deposit will
be made to an account which the Administrative Agent (which may
be maintained with an Affiliate of the Administrative Agent)
shall specify from time to time by notice to the Revolving Credit
Lenders. Subject to Section 10.2, the Administrative Agent shall
make such funds available to the applicable Revolving Credit
Borrower by wire transfer to the accounts such Revolving Credit
Borrower shall have specified in its Borrowing Request. No
Revolving Credit Lender's obligation to make any Revolving Credit
Loan shall be affected by any other Revolving Credit Lender's
failure to make any Revolving Credit Loan.
SECTION II.3.2. Swing Line Loans. (a) By telephonic
notice, promptly followed (by the end of the Business Day on
which such telephonic notice was delivered) by the delivery of a
confirming Borrowing Request, to the Swing Line Lender and the
Administrative Agent on or before 12:00 noon, New York City time,
on the Business Day the proposed Swing Line Loan is to be made,
any Revolving Credit Borrower may from time to time irrevocably
request that a Swing Line Loan be made by the Swing Line Lender
in a minimum principal amount of $100,000 or any larger integral
multiple of $50,000. All Swing Line Loans shall be made as Base
Rate Loans and shall not be entitled to be converted into LIBO
Rate Loans. Upon receipt of notice from the Administrative Agent
confirming the amount of the requested Borrowing, the proceeds of
each Swing Line Loan shall be made available by the Swing Line
Lender, by 2:00 p.m., New York City time, on the Business Day
telephonic notice is received by it as provided in this clause
(a), to the applicable Revolving Credit Borrower by wire transfer
to the account such Revolving Credit Borrower shall have
specified in its notice therefor.
(b) If any Default shall occur and be continuing, each
Revolving Credit Lender with a Revolving I Credit Commitment
(other than the Swing Line Lender) irrevocably agrees that it
will, at the request of the Swing Line Lender and upon notice
from the Administrative Agent, make a Revolving I Credit Loan
(which shall initially be funded as a Base Rate Loan) in an
amount equal to such Revolving Credit Lender's Revolving Credit
Percentage of the aggregate principal amount of all such Swing
Line Loans then outstanding (such outstanding Swing Line Loans
hereinafter referred to as the Refunded Swing Line Loans);
provided, that the Swing Line Lender shall not request, and no
Revolving Credit Lender shall make, any Refunded Swing Line Loan
if, after giving effect to the making of such Refunded Swing Line
Loan, the sum of all Refunded Swing Line Loans and Revolving I
Credit Loans made by such Revolving Credit Lender, plus such
Revolving Credit Lender's Revolving Credit Percentage of the
aggregate amount of all Revolving Credit Letter of Credit
Outstandings, would exceed such Revolving Credit Lender's
Revolving Credit Percentage of the then existing Revolving I Loan
Commitment Amount. On or before 11:00 a.m. (New York City time)
on the first Business Day following receipt by each Revolving
Credit Lender of a request to make Revolving I Credit Loans as
provided in the preceding sentence, each such Revolving Credit
Lender with a Revolving I Loan Commitment shall deposit in an
account specified by the Administrative Agent the amount so
requested in same day funds and such funds shall be transferred
to the Swing Line Lender by the Administrative Agent to repay the
Refunded Swing Line Loans. At the time the aforementioned
Revolving I Credit Lenders make the above referenced Revolving
Credit Loans, the Swing Line Lender shall be deemed to have made,
in consideration of the making of the Refunded Swing Line Loans,
a Revolving I Credit Loan in an amount equal to the Swing Line
Lender's Revolving Credit Percentage of the aggregate principal
amount of the Refunded Swing Line Loans. Upon the making (or
deemed making, in the case of the Swing Line Lender) of any
Revolving I Credit Loans pursuant to this clause (b), the amount
so funded shall become outstanding under such Revolving I Credit
Lender's Revolving I Credit Note and shall no longer be owed
under the Swing Line Note. All interest payable with respect to
any Revolving I Credit Loans made (or deemed made, in the case of
the Swing Line Lender) pursuant to this clause (b) shall be
appropriately adjusted to reflect the period of time during which
the Swing Line Lender had outstanding Swing Line Loans in respect
of which such Revolving I Credit Loans were made. Each Revolving
I Credit Lender's obligation to make the Revolving I Credit Loans
referred to in this clause (b) shall be absolute and
unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving I Credit
Lender may have against the Swing Line Lender, any Revolving
Credit Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of any Default; (iii) any
adverse change in the condition (financial or otherwise) of any
Revolving Credit Borrower; (iv) the acceleration or maturity of
any Revolving Credit Loans or the termination of any Revolving
Credit Commitment after the making of any Swing Line Loan;
(v) any breach of this Agreement or any other Revolving Credit
Document by any Revolving Credit Borrower or any Revolving Credit
Lender; or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
SECTION II.4. Continuation and Conversion Elections. By
telephonic notice, promptly followed (by the end of the Business
Day on which such telephonic notice was delivered) by the
delivery of a Continuation/Conversion Notice to the
Administrative Agent on or before 10:00 a.m., New York City time,
on a Business Day, any Revolving Credit Borrower may from time to
time irrevocably elect, on not less than one Business Days notice
in the case of a continuation or conversion of LIBO Rate Loans
into Base Rate Loans, or three Business Days notice in the case
of a continuation of LIBO Rate Loans or a conversion of Base Rate
Loans into LIBO Rate Loans, and in either case not more than five
Business Days notice that all, or any portion in an aggregate
minimum amount of $1,000,000 and an integral multiple of
$500,000, of any Revolving I Credit Loans, or an aggregate
minimum amount of $5,000,000 and an integral multiple of
$1,000,000, of any Revolving II Credit Loans, be, in the case of
Base Rate Loans, converted into LIBO Rate Loans of either type
or, in the case of LIBO Rate Loans of either type, be converted
into a Base Rate Loan or a LIBO Rate Loan of the other type or
continued as a LIBO Rate Loan of such type (in the absence of
delivery of a Continuation/ Conversion Notice with respect to any
LIBO Rate Loan at least three Business Days before the last day
of the then current Interest Period with respect thereto, such
LIBO Rate Loan shall, on such last day, automatically convert to
a Base Rate Loan); provided, however, that (i) each such
conversion or continuation shall be pro rated among the
applicable outstanding Revolving I Credit Loans or
Revolving II Credit Loans, as the case may be, of all Revolving
Credit Lenders, and (ii) no portion of the outstanding principal
amount of any Revolving Credit Loans may be continued as, or be
converted into, LIBO Rate Loans when any Default has occurred and
is continuing.
SECTION II.5. Funding. Each Revolving Credit Lender may,
if it so elects, fulfill its obligation to make, continue or
convert LIBO Rate Loans hereunder by causing one of its foreign
branches or Affiliates (or an international banking facility
created by such Revolving Credit Lender) to make or maintain such
LIBO Rate Loan; provided, however, that such LIBO Rate Loan shall
nonetheless be deemed to have been made and to be held by such
Revolving Credit Lender, and the obligation of each Revolving
Credit Borrower to repay such LIBO Rate Loan shall nevertheless
be to such Revolving Credit Lender for the account of such
foreign branch, Affiliate or international banking facility. In
addition, each Revolving Credit Borrower hereby consents and
agrees that, for purposes of any determination to be made for
purposes of Section 5.1, 5.2, 5.3 or 5.4, it shall be
conclusively assumed that each Revolving Credit Lender elected to
fund all LIBO Rate Loans by purchasing, as the case may be,
Dollar certificates of deposit in the U.S. or Dollar deposits in
its LIBOR Office?s interbank eurodollar market.
SECTION II.6. Register; Revolving Credit.
(a) Each Revolving Credit Lender may maintain in
accordance with its usual practice an account or accounts
evidencing the Indebtedness of the Revolving Credit Borrowers to
such Revolving Credit Lender resulting from each Revolving Credit
Loan made by such Revolving Credit Lender, including the amounts
of principal and interest payable and paid to such Revolving
Credit Lender from time to time hereunder. In the case of a
Revolving Credit Lender that does not request, pursuant to clause
(b)(ii) below, execution and delivery of a Revolving Credit Note
evidencing the Revolving Credit Loans made by such Revolving
Credit Lender to the Revolving Credit Borrowers, such account or
accounts shall, to the extent not inconsistent with the notations
made by the Administrative Agent in the Register, be conclusive
and binding on the Borrowers absent manifest error; provided,
however, that the failure of any Revolving Credit Lender to
maintain such account or accounts shall not limit or otherwise
affect any Revolving Credit Obligations of the Revolving Credit
Borrowers or any other Revolving Credit Obligor.
(b)(i) The Revolving Credit Borrowers hereby
designate the Administrative Agent to serve as the Revolving
Credit Borrowers agent, solely for the purpose of this
clause (b), to maintain a register (the Register) on which
the Administrative Agent will record each Revolving Credit
Lender's Revolving Credit Commitment, the Revolving Credit
Loans made by each Revolving Credit Lender and each
repayment in respect of the principal amount of the
Revolving Credit Loans of each Revolving Credit Lender and
annexed to which the Administrative Agent shall retain a
copy of each Lender Assignment Agreement delivered to the
Administrative Agent pursuant to Section 11.11.1. Failure
to make any recordation, or any error in such recordation,
shall not affect the Revolving Credit Borrowers obligation
in respect of such Revolving Credit Loans. The entries in
the Register shall be conclusive, in the absence of manifest
error, and the Revolving Credit Borrowers, the
Administrative Agent and the Revolving Credit Lenders shall
treat each Person in whose name a Revolving Credit Loan (and
as provided in clause (ii) the Revolving Credit Note
evidencing such Revolving Credit Loan, if any) is registered
as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the
contrary. Subject to the provisions of Section 11.11.1, a
Revolving Credit Lender's Revolving Credit Commitment and
the Revolving Credit Loans made pursuant thereto may be
assigned or otherwise transferred in whole or in part only
by registration of such assignment or transfer in the
Register. Any assignment or transfer of a Revolving Credit
Lender's Revolving Credit Loan Commitment or the Revolving
Credit Loans made pursuant thereto shall be registered in
the Register only upon delivery to the Administrative Agent
of a Lender Assignment Agreement duly executed by the
Assignor thereof. No assignment or transfer of a Revolving
Credit Lender's Revolving Credit Commitment or the Revolving
Credit Loans made pursuant thereto shall be effective unless
such assignment or transfer shall have been recorded in the
Register by the Administrative Agent as provided in this
Section.
(ii) The Revolving Credit Borrowers agree that,
upon the request to the Administrative Agent by any
Revolving Credit Lender, the Revolving Credit Borrowers will
execute and deliver to such Revolving Credit Lender, as
applicable, a Revolving Credit Note evidencing the Revolving
Credit Loans made by such Revolving Credit Lender. The
Revolving Credit Borrowers hereby irrevocably authorizes
each Revolving Credit Lender to make (or cause to be made)
appropriate notations on the grid attached to such Revolving
Credit Lender's Revolving Credit Notes (or on any
continuation of such grid), which notations, if made, shall
evidence, inter alia, the date of the outstanding principal
amount of, and the interest rate and Interest Period
applicable to the Revolving Credit Loans evidenced thereby.
Such notations shall, to the extent not inconsistent with
the notations made by the Administrative Agent in the
Register, be conclusive and binding on the Revolving Credit
Borrowers absent manifest error; provided, however, that the
failure of any Revolving Credit Lender to make any such
notations shall not limit or otherwise affect any Revolving
Credit Obligations of the Revolving Credit Borrowers or any
other Revolving Credit Obligor.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION III.1. Repayments and Prepayments. The Revolving
Credit Borrowers shall be jointly and severally obligated to
repay in full the unpaid principal amount of each Revolving
Credit Loan upon the Stated Maturity Date therefor. Prior
thereto, the Revolving Credit Borrowers jointly and severally
acknowledge, covenant and agree that any Revolving Credit
Borrower
(a may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the
outstanding principal amount of any
(i Revolving Credit Loans (other than Swing Line
Loans); provided, however, that
(A) any such prepayment shall be made pro
rata among Revolving I Credit Loans or Revolving
II Credit Loans, as the case may be, of the same
type and, if applicable, having the same Interest
Period, of all Revolving Credit Lenders;
(B) no such prepayment of any LIBO Rate Loan
may be made on any day other than the last day of
the Interest Period for such LIBO Rate Loan;
(C) all such voluntary prepayments shall
require, in the case of Revolving I Credit Loans
maintained as Base Rate Loans, at least one, and
in the case of Revolving I Credit Loans maintained
as LIBO Rate Loans and Revolving II Credit Loans
maintained either as Base Rate Loans or LIBO Rate
Loans, at least three but, in any case, no more
than five, Business Days prior written notice to
the Administrative Agent; and
(D) all such voluntary partial prepayments
shall be, in the case of Revolving I Credit Loans,
in an aggregate minimum amount of $1,000,000 and
an integral multiple of $500,000, and in the case
of Revolving II Credit Loans, in an aggregate
minimum amount of $5,000,000 and an integral
multiple of $1,000,000;
(ii Swing Line Loans, provided that
(A) all such voluntary prepayments shall
require prior telephonic notice to the Swing Line
Lender on or before 1:00 p.m., New York City time,
on the day of such prepayment (such notice to be
confirmed in writing by the applicable Revolving
Credit Borrower by the end of the Business Day on
which such telephonic notice was delivered); and
(B) all such voluntary partial prepayments
shall be in an aggregate amount of $100,000 and an
integral multiple of $50,000 or in the aggregate
principal amount of all Swing Line Loans then
outstanding;
(b shall, on each date when any reduction in any
Revolving I Credit Commitment Amount shall become effective,
including pursuant to Section 2.2, make a mandatory
prepayment (which shall be applied (or held for application,
as the case may be) by the Revolving Credit Lenders having
Revolving I Credit Commitments first, to the payment of the
aggregate unpaid principal amount of those Swing Line Loans
then outstanding, second, to the payment of the aggregate
unpaid principal amount of those Revolving I Credit Loans
then outstanding, and, third, to the payment of the then
outstanding Revolving Credit Letter of Credit Outstandings)
equal to the excess, if any, of the aggregate, outstanding
principal amount of all Revolving I Credit Loans and
Revolving Credit Letter of Credit Outstandings over the
Revolving I Credit Loan Commitment Amount as so reduced;
(c shall, on each date when any reduction in the
Revolving II Credit Commitment Amount shall become
effective, including pursuant to Section 2.2 (other than
pursuant to clause (a) of the definition of Revolving II
Credit Commitment Termination Date), make a mandatory
prepayment (which shall be applied (or held for application,
as the case may be) by the Revolving Credit Lenders having
Revolving II Credit Commitments to the payment of the
aggregate unpaid principal amount of those Revolving II
Credit Loans then outstanding) equal to the excess, if any,
of the aggregate, outstanding principal amount of all
Revolving II Credit Loans over the Revolving II Credit Loan
Commitment Amount as so reduced;
provided, that mandatory prepayments of LIBO Rate Loans made
pursuant to clauses (b) and (c) of this Section 3.1, if not
made on the last day of the Interest Period with respect
thereto, shall, at any Revolving Credit Borrower's option,
so long as no Default has occurred and is continuing, be
prepaid subject to the provisions of Section 5.4, or the
amount required to be applied to the prepayment of LIBO Rate
Loans (after application to any Base Rate Loans) shall be
deposited with the Administrative Agent or another Revolving
Credit Lender as cash collateral for such Revolving I Credit
Loans and Revolving II Credit Loans on terms reasonably
satisfactory to the Administrative Agent (or such Revolving
Credit Lender) and thereafter shall be applied in the order
of the Interest Periods next ending most closely to the date
of receipt of the proceeds in respect of which such
prepayment is required to be made and on the last day of
each such Interest Period (together with a payment of all
interest that is due on the last day of each such Interest
Period pursuant to clause (d) of Section 3.2.3). After such
application, unless an Event of Default shall have occurred
and be continuing, any remaining interest earned on such
cash collateral shall be paid to the applicable Revolving
Credit Borrower;
(d shall, on the Stated Maturity Date for the
Revolving Credit Loans, repay in full the aggregate
outstanding principal amount, if any, of all Revolving
Credit Loans;
(e shall, immediately upon any acceleration of the
Stated Maturity Date of any Revolving Credit Loans pursuant
to Section 9.2 or Section 9.3, repay all Revolving Credit
Loans, unless, pursuant to Section 9.3, only a portion of
all Revolving Credit Loans is so accelerated (in which case
such portion shall be repaid); and
(f shall repay Revolving Credit Loans from time to
time as required under Sections 3.1.1 and 3.1.2 and the
penultimate paragraph of Section 7.2.12 of the Term Loan
Agreement as in effect on the date hereof (it being
understood by the parties hereto that such provisions of the
Term Loan Agreement shall inure to the benefit of the
Revolving Credit Lenders as if the Revolving Credit Lenders
were parties to the Term Loan Agreement).
Each prepayment of any Revolving Credit Loans made pursuant to
this Section shall be without premium or penalty, except as may
be required by Section 5.4. No voluntary prepayment of principal
of any Revolving I Credit Loan or Swing Line Loan shall cause a
reduction in the Revolving I Credit Commitment Amount; any
prepayment of principal of any Revolving II Credit Loan shall, to
the extent of such prepayment, reduce the Revolving II Credit
Commitment Amount, and no mandatory reduction of the Revolving II
Credit Commitment Amount pursuant to clause (a) of the definition
of Revolving II Credit Commitment Termination Date shall require
that the then outstanding Revolving II Credit Loans be repaid.
SECTION III.2. Interest Provisions. Interest on the
outstanding principal amount of Revolving Credit Loans shall
accrue and be payable in accordance with this Section 3.2.
SECTION III.2.1. Rates. Pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice,
(a any Revolving Credit Borrower may elect that
Revolving Credit Loans (other than Swing Line Loans)
comprising a Borrowing accrue interest at a rate per annum:
(i on that portion maintained from time to time
as a Base Rate Loan, equal to the sum of the Alternate
Base Rate from time to time in effect plus the
Applicable Revolving Loan Margin; and
(ii on that portion maintained as a LIBO Rate
Loan, during each Interest Period applicable thereto,
equal to the sum of the LIBO Rate (Reserve Adjusted)
for such Interest Period plus the Applicable Revolving
Loan Margin (all LIBO Rate Loans shall bear interest
from and including the first day of the applicable
Interest Period to (but not including) the last day of
such Interest Period at the interest rate determined as
applicable to such LIBO Rate Loan); and
(b each Swing Line Loan shall accrue interest on the
unpaid principal amount thereof for each day from and
including the day upon which such Swing Line Loan was made
to but excluding the date such Swing Line Loan is repaid at
a rate per annum equal to the sum of the then effective
Alternate Base Rate plus the Applicable Revolving Loan
Margin minus the applicable commitment fee rate per annum
payable to any Revolving I Credit Lender pursuant to Section
3.3.1 in respect of its Revolving I Credit Commitment.
SECTION III.2.2. Post-Maturity Rates. Upon the occurrence
and continuance of (i) any Event of Default described in Section
9.1.1 or clauses (a) through (d) of Section 9.1.9 or (ii) any
other Event of Default which shall remain uncured for thirty days
(without giving effect to any grace period therefor), all
Revolving Credit Loans shall bear, and the Revolving Credit
Borrowers shall be obligated, on a joint and several basis, to
pay, but only to the extent permitted by law, interest (after as
well as before judgment) thereon in arrears at a rate per annum
equal to the rate that would otherwise be applicable to such
Revolving Credit Loans maintained as Base Rate Loans pursuant to
Section 3.2.1 plus 5.0% on the last day of each calendar month
or, if such day is not a Business Day, the next succeeding
Business Day.
SECTION III.2.3. Payment Dates. Interest accrued on each
Revolving Credit Loan shall be payable, without duplication:
(a on the Stated Maturity Date therefor;
(b subject to the proviso set forth in clause (c) of
Section 3.1, on the date of any optional or required payment
or prepayment, in whole or in part, of principal outstanding
on such Revolving Credit Loan to the extent of the unpaid
interest accrued through such date on the principal so paid
or prepaid;
(c with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the date of the initial
Borrowing hereunder;
(d with respect to LIBO Rate Loans, on the last day
of each applicable Interest Period (and, if such Interest
Period shall exceed three months, on the date occurring
three months after the commencement of such Interest
Period);
(e with respect to any Base Rate Loans converted into
LIBO Rate Loans on a day when interest would not otherwise
have been payable pursuant to clause (c), on the next
Quarterly Payment Date; and
(f on that portion of any Revolving Credit Loans the
Stated Maturity Date of which is accelerated pursuant to
Section 9.2 or Section 9.3, immediately upon such
acceleration.
Interest accrued on Revolving Credit Loans or other monetary
Revolving Credit Obligations arising under this Agreement or any
other Revolving Credit Document after the date such amount is due
and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION III.3. Fees. The Revolving Credit Borrowers,
jointly and severally, agree to pay the fees set forth in this
Section 3.3. All such fees shall be non-refundable.
SECTION III.3.1. Commitment Fee. The Revolving Credit
Borrowers, jointly and severally, agree to pay to the
Administrative Agent for the account of each Revolving Credit
Lender, for the period (including any portion thereof when any of
its Revolving Credit Commitments are suspended by reason of the
inability of the Revolving Credit Borrowers to satisfy any
condition of Article VI) commencing on the Restatement Effective
Date and continuing through the final Revolving Credit Commitment
Termination Date, a commitment fee at the following per annum
rates and for the following periods based on such Revolving
Credit Lender's Revolving Credit Percentage of the sum of the
average daily unused portion of each Revolving Credit Commitment
Amount: (i) 1.00% per annum for the period commencing on the
Restatement Effective Date through January 31, 2000, (ii) 1.125%
per annum for the period commencing on February 1, 2000 through
April 30, 2000, and (iii) 1.375% per annum for the period
commencing on May 1, 2000 and continuing thereafter through the
final Revolving Credit Commitment Termination Date. Such
commitment fees shall be payable by the Revolving Credit
Borrowers in arrears on each Quarterly Payment Date, commencing
with the first such day following the Restatement Effective Date,
and on each Revolving Credit Commitment Termination Date. The
making of Swing Line Loans shall not constitute usage of the
Revolving I Credit Commitment with respect to the calculation of
commitment fees to be paid by the Revolving Credit Borrowers to
the Revolving Credit Lenders.
SECTION III.3.2. Other Fees. The Revolving Credit
Borrowers, jointly and severally, agree to pay to the
Administrative Agent for its own account, the annual
administration fees referred to in the letter agreement, dated
March 13, 1998, among the Borrower, the Revolving Credit
Borrowers and the Administrative Agent with respect thereto.
SECTION III.3.3. Revolving Credit Letter of Credit Fee.
The Revolving Credit Borrowers, jointly and severally, agree to
pay to the Administrative Agent, for the account of each
Revolving Credit Lender having a Revolving I Credit Commitment, a
fee for each Revolving Credit Letter of Credit for the period
from and including the date of the issuance of such Revolving
Credit Letter of Credit to (but not including) the date upon
which such Revolving Credit Letter of Credit expires, at a rate
per annum equal to the Applicable Revolving Loan Margin for Base
Rate Loans multiplied by the Stated Amount of the face amount of
such Revolving Credit Letter of Credit. Such fee shall be
payable by the Revolving Credit Borrowers in arrears on each
Quarterly Payment Date, and on the Revolving I Credit Commitment
Termination Date for any period then ending for which such fee
shall not theretofore have been paid, commencing on the first
such date after the issuance of such Revolving Credit Letter of
Credit.
SECTION III.3.4. Revolving Credit Letter of Credit Issuing
Fee. The Revolving Credit Borrowers, jointly and severally,
agree to pay to the Administrative Agent, for the account of the
applicable Issuer, an issuing fee for each Revolving Credit
Letter of Credit for the period from and including the date of
issuance of such Revolving Credit Letter of Credit to (but not
including) the date upon which such Revolving Credit Letter of
Credit expires, of 0.25% per annum of the Stated Amount of such
Revolving Credit Letter of Credit. Such fee shall be payable by
the Revolving Credit Borrowers in arrears on each Quarterly
Payment Date and on the Revolving I Credit Commitment Termination
Date for any period then ending for which such fee shall not
theretofore have been paid, commencing on the first such date
after the issuance of such Revolving Credit Letter of Credit.
SECTION III.3.5. Revolving Credit Letter of Credit
Administrative Fee. The Revolving Credit Borrowers, jointly and
severally, agree to pay to the Administrative Agent, for the
account of the applicable Issuer, the amounts set forth in
Section 4.3.
SECTION III.3.6. Deferred Fees. Subject to the occurrence
of the Amendment No. 2 Effective Date, the Revolving Credit
Borrowers, jointly and severally, agree to pay to the
Administrative Agent, for the account of each Revolving Credit
Lender, deferred fees in the following amounts: (i) .25% of such
Revolving Credit Lender's Revolving Credit Commitments in effect
and Revolving Credit Loans outstanding on February 1, 2000, (ii)
1.00% of such Revolving Credit Lender's Revolving Credit
Commitments in effect and Revolving Credit Loans outstanding on
August 1, 2000 and (iii) 1.00% of such Revolving Credit Lender's
Revolving Credit Commitments in effect and Revolving Credit Loans
outstanding on January 30, 2001.
SECTION III.3.7. Amendment Fee. The Revolving Credit
Borrowers jointly and severally, agree to pay to the
Administrative Agent, for the account of each Revolving Credit
Lender, upon the later to occur of the Amendment No. 2 Effective
Date and the Restatement Effective Date, an amendment fee in the
amount of .50% of such Revolving Credit Lender's Revolving Credit
Commitments in effect and Revolving Credit Loans outstanding at
such time.
ARTICLE IV
REVOLVING CREDIT LETTERS OF CREDIT
SECTION IV.1. Issuance Requests. By delivering to the
Administrative Agent and the applicable Issuer an Issuance
Request on or before 12:00 noon, New York City time, any
Revolving Credit Borrower may request, from time to time prior to
the Revolving I Credit Commitment Termination Date and on not
less than three nor more than ten Business Days notice, that such
Issuer issue an irrevocable standby Revolving Credit Letter of
Credit in substantially the form of Exhibit C hereto, or in such
other form as may be requested by such Revolving Credit Borrower
and approved by such Issuer (each a Revolving Credit Letter of
Credit), in support of financial obligations of such Revolving
Credit Borrower incurred in such Revolving Credit Borrower's
ordinary course of business and which are described in such
Issuance Request. Upon receipt of an Issuance Request, the
Administrative Agent shall promptly notify the Revolving Credit
Lenders thereof. Each Revolving Credit Letter of Credit shall by
its terms:
(a be issued in a Stated Amount which does not exceed
(or would not exceed) the then Revolving I Credit Commitment
Availability;
(b be stated to expire on a date (its Stated Expiry
Date) no later than the earlier to occur of (i) the
Revolving I Credit Loan Commitment Termination Date and (ii)
one year from the date of its issuance; provided that,
notwithstanding the terms of clause (ii) above, a Revolving
Credit Letter of Credit may, if required by the beneficiary
thereof, contain evergreen provisions pursuant to which the
Stated Expiry Date shall be automatically extended, unless
notice to the contrary shall have been given to the
beneficiary by the Issuer or the account party more than a
specified period prior to the then existing Stated Expiry
Date; and
(c on or prior to its Stated Expiry Date
(i terminate immediately upon notice to the
Issuer thereof from the beneficiary thereunder that all
obligations covered thereby have been terminated, paid,
or otherwise satisfied in full,
(ii reduce in part immediately and to the extent
the beneficiary thereunder has notified the Issuer
thereof that the obligations covered thereby have been
paid or otherwise satisfied in part, or
(iii terminate 30 Business Days after notice to
the beneficiary thereunder from the Issuer thereof that
an Event of Default has occurred and is continuing.
So long as no Default has occurred and is continuing, by delivery
to the applicable Issuer and the Administrative Agent of an
Issuance Request at least three but not more than ten Business
Days or such longer period as required by the terms of any
Revolving Credit Letter of Credit prior to the Stated Expiry Date
of any Revolving Credit Letter of Credit, the applicable
Revolving Credit Borrower may request such Issuer to extend the
Stated Expiry Date of such Revolving Credit Letter of Credit for
an additional period not to exceed the earlier of one year from
its date of extension and the Revolving I Credit Commitment
Termination Date.
SECTION IV.2. Issuances and Extensions. On the terms and
subject to the conditions of this Agreement (including Article
VI), the Issuer shall issue Revolving Credit Letters of Credit,
and extend the Stated Expiry Dates of outstanding Revolving
Credit Letters of Credit, in accordance with the Issuance
Requests made therefor. Each Issuer will make available the
original of each Revolving Credit Letter of Credit which it
issues in accordance with the Issuance Request therefor to the
beneficiary thereof (and will promptly provide each of the
Revolving Credit Lenders with a Revolving I Credit Commitment
with a copy of such Revolving Credit Letter of Credit) and will
notify the beneficiary under any Revolving Credit Letter of
Credit of any extension of the Stated Expiry Date thereof.
SECTION IV.3. Expenses. Each Revolving Credit Borrower
agrees to pay to the Administrative Agent for the account of the
applicable Issuer(s) all administrative expenses of such
Issuer(s) in connection with the issuance, maintenance,
modification (if any) and administration of each Revolving Credit
Letter of Credit issued by such Issuer(s) upon demand from time
to time.
SECTION IV.4. Other Revolving Credit Lenders Participation.
Each Revolving Credit Letter of Credit issued pursuant to Section
4.2 shall, effective upon its issuance and without further
action, be issued on behalf of all Revolving Credit Lenders
(including the Issuer thereof) pro rata according to their
respective Revolving Credit Percentages of the Revolving I Credit
Commitment. Each Revolving Credit Lender shall, to the extent of
its Revolving Credit Percentage of the Revolving I Credit
Commitment, be deemed irrevocably to have participated in the
issuance of such Revolving Credit Letter of Credit and shall be
responsible to reimburse promptly the Issuer thereof for
Reimbursement Obligations which have not been reimbursed by the
Revolving Credit Borrowers in accordance with Section 4.5, or
which have been reimbursed by the Revolving Credit Borrowers but
must be returned, restored or disgorged by such Issuer for any
reason, and each Revolving Credit Lender shall, to the extent of
its Revolving Credit Percentage of the Revolving I Credit
Commitment Amount, be entitled to receive from the Administrative
Agent a ratable portion of the Revolving Credit Letter of Credit
fees received by the Administrative Agent pursuant to Section
3.3.3, with respect to each Revolving Credit Letter of Credit.
In the event that the Revolving Credit Borrowers shall fail to
reimburse any Issuer, or if for any reason Revolving I Credit
Loans shall not be made to fund any Reimbursement Obligation, all
as provided in Section 4.5 and in an amount equal to the amount
of any drawing honored by such Issuer under a Revolving Credit
Letter of Credit issued by it, or in the event such Issuer must
for any reason return or disgorge such reimbursement, such Issuer
shall promptly notify each Revolving Credit Lender with a
Revolving I Credit Commitment of the unreimbursed amount of such
drawing and of such Revolving Credit Lender's respective
participation therein. Each Revolving Credit Lender shall make
available to such Issuer, whether or not any Default shall have
occurred and be continuing, an amount equal to its respective
participation in same day or immediately available funds at the
office of such Issuer specified in such notice not later than
11:00 a.m., New York City time, on the Business Day (under the
laws of the jurisdiction of such Issuer) after the date notified
by such Issuer. In the event that any Revolving Credit Lender
fails to make available to such Issuer the amount of such
Revolving Credit Lender's participation in such Revolving Credit
Letter of Credit as provided herein, such Issuer shall be
entitled to recover such amount on demand from such Revolving
Credit Lender together with interest at the daily average Federal
Funds Rate for three Business Days (together with such other
compensatory amounts as may be required to be paid by such
Revolving Credit Lender to the Administrative Agent pursuant to
the Rules for Interbank Compensation of the council on
International Banking or the Clearinghouse Compensation
Committee, as the case may be, as in effect from time to time)
and thereafter at the Alternate Base Rate plus the Applicable
Revolving Loan Margin for Base Rate Loans. Nothing in this
Section shall be deemed to prejudice the right of any Revolving
Credit Lender to recover from any Issuer any amounts made
available by such Revolving Credit Lender to such Issuer pursuant
to this Section in the event that it is determined by a court of
competent jurisdiction that the payment with respect to a
Revolving Credit Letter of Credit by such Issuer in respect of
which payment was made by such Revolving Credit Lender
constituted gross negligence or wilful misconduct on the part of
such Issuer. Each Issuer shall distribute to each other
Revolving Credit Lender which has paid all amounts payable by it
under this Section with respect to any Revolving Credit Letter of
Credit issued by such Issuer such other Revolving Credit Lender's
Revolving Credit Percentage of the Revolving I Credit Commitment
Amount of all payments received by such Issuer from the Revolving
Credit Borrowers in reimbursement of drawings honored by such
Issuer under such Revolving Credit Letter of Credit when such
payments are received.
SECTION IV.5. Disbursements. Each Issuer will notify the
applicable Revolving Credit Borrower and the Administrative Agent
promptly of the presentment for payment of any Revolving Credit
Letter of Credit, together with notice of the date (a
Disbursement Date) such payment shall be made. Subject to the
terms and provisions of such Revolving Credit Letter of Credit,
the applicable Issuer shall make such payment to the beneficiary
(or its designee) of such Revolving Credit Letter of Credit.
Prior to 12:00 noon, New York City time, on the Disbursement
Date, the Revolving Credit Borrowers will be obligated, on a
joint and several basis, to reimburse the applicable Issuer for
all amounts which it has disbursed under the Revolving Credit
Letter of Credit. To the extent the applicable Issuer is not
reimbursed in full in accordance with the third sentence of this
Section, the Revolving Credit Borrowers Reimbursement Obligation
shall accrue interest at a fluctuating rate determined by
reference to the Alternate Base Rate plus the Applicable
Revolving Loan Margin for Base Rate Loans plus a margin of 5.0%
per annum, payable on demand. In the event the applicable Issuer
is not reimbursed by the Revolving Credit Borrowers on the
Disbursement Date, or if such Issuer must for any reason return
or disgorge such reimbursement, the Revolving Credit Lenders
(including such Issuer) shall, on the terms and subject to the
conditions of this Agreement, fund the Reimbursement Obligation
therefor by making, on the next Business Day, Revolving Credit
Loans which are Base Rate Loans as provided in Section 2.1.2 (the
Revolving Credit Borrowers being deemed to have given a timely
Borrowing Request therefor for such amount); provided, however,
for the purpose of determining the availability of the Revolving
I Credit Commitments to make Revolving I Credit Loans immediately
prior to giving effect to the application of the proceeds of such
Revolving Credit Loans, such Reimbursement Obligation shall be
deemed not to be outstanding at such time.
SECTION IV.6. Reimbursement. The Revolving Credit
Borrowers obligations (a Reimbursement Obligation) under Section
4.5 to reimburse an Issuer with respect to each Disbursement
(including interest thereon), and each Revolving Credit Lender's
obligation to make participation payments in each drawing which
has not been reimbursed by the Revolving Credit Borrowers, shall
be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim, or defense to payment
which the Revolving Credit Borrowers may have or have had against
any Revolving Credit Lender or any beneficiary of a Revolving
Credit Letter of Credit, including any defense based upon the
occurrence of any Default, any draft, demand or certificate or
other document presented under a Revolving Credit Letter of
Credit proving to be forged, fraudulent, invalid or insufficient,
the failure of any Disbursement to conform to the terms of the
applicable Revolving Credit Letter of Credit (if, in the
applicable Issuer's good faith opinion, such Disbursement is
determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such
Disbursement, or the legality, validity, form, regularity, or
enforceability of such Revolving Credit Letter of Credit;
provided, however, that nothing herein shall adversely affect the
right of the Revolving Credit Borrowers to commence any
proceeding against the applicable Issuer for any wrongful
Disbursement made by such Issuer under a Revolving Credit Letter
of Credit as a result of acts or omissions constituting gross
negligence or wilful misconduct on the part of such Issuer.
SECTION IV.7. Deemed Disbursements. Upon the occurrence
and during the continuation of any Event of Default or the
occurrence of the Revolving I Credit Commitment Termination Date,
an amount equal to that portion of Revolving Credit Letter of
Credit Outstandings attributable to outstanding and undrawn
Revolving Credit Letters of Credit shall, at the election of the
applicable Issuer acting on instructions from the Required
Revolving Credit Lenders, and without demand upon or notice to
any Revolving Credit Borrower, be deemed to have been paid or
disbursed by such Issuer under such Revolving Credit Letters of
Credit (notwithstanding that such amount may not in fact have
been so paid or disbursed), and, upon notification by such Issuer
to the Administrative Agent and any Revolving Credit Borrower of
its obligations under this Section, such Revolving Credit
Borrower shall be immediately obligated to reimburse such Issuer
the amount deemed to have been so paid or disbursed by such
Issuer. Any amounts so received by such Issuer from any
Revolving Credit Borrower pursuant to this Section shall be held
as collateral security for the repayment of such Revolving Credit
Borrower's obligations in connection with the Revolving Credit
Letters of Credit issued by such Issuer. At any time when such
Revolving Credit Letters of Credit shall terminate and all
Revolving Credit Obligations of each Issuer are either
terminated or paid or reimbursed to such Issuer in full, the
Revolving Credit Obligations of the Revolving Credit Borrowers
under this Section shall be reduced accordingly (subject,
however, to reinstatement in the event any payment in respect of
such Revolving Credit Letters of Credit is recovered in any
manner from such Issuer), and such Issuer will return to the
Revolving Credit Borrowers the excess, if any, of
(a the aggregate amount deposited by the Revolving
Credit Borrowers with such Issuer and not theretofore
applied by such Issuer to any Reimbursement Obligation
over
(b the aggregate amount of all Reimbursement
Obligations to such Issuer pursuant to this Section, as so
adjusted.
At such time when all Events of Default shall have been cured or
waived, each Issuer shall return to the Revolving Credit
Borrowers all amounts then on deposit with such Issuer pursuant
to this Section. All amounts on deposit pursuant to this Section
shall, until their application to any Reimbursement Obligation or
their return to any Revolving Credit Borrower, as the case may
be, bear interest at the daily average Federal Funds Rate from
time to time in effect (net of the costs of any reserve
requirements, in respect of amounts on deposit pursuant to this
Section, pursuant to F.R.S. Board Regulation D), which interest
shall be held by the applicable Issuer as additional collateral
security for the repayment of the Revolving Credit Obligations in
connection with the Revolving Credit Letters of Credit issued by
such Issuer.
SECTION IV.8. Nature of Reimbursement Obligations. The
Revolving Credit Borrowers shall assume all risks of the acts,
omissions, or misuse of any Revolving Credit Letter of Credit by
the beneficiary thereof. Neither any Issuer nor any Revolving
Credit Lender (except to the extent of its own gross negligence
or wilful misconduct) shall be responsible for:
(a the form, validity, sufficiency, accuracy,
genuineness, or legal effect of any Revolving Credit Letter
of Credit or any document submitted by any party in
connection with the application for and issuance of a
Revolving Credit Letter of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent, or forged;
(b the form, validity, sufficiency, accuracy,
genuineness, or legal effect of any instrument transferring
or assigning or purporting to transfer or assign a Revolving
Credit 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;
(c failure of the beneficiary to comply fully with
conditions required in order to demand payment under a
Revolving Credit Letter of Credit;
(d errors, omissions, interruptions, or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex, or otherwise; or
(e any loss or delay in the transmission or otherwise
of any document or draft required in order to make a
Disbursement under a Revolving Credit Letter of Credit or of
the proceeds thereof.
None of the foregoing shall affect, impair, or prevent the
vesting of any of the rights or powers granted any Issuer or any
Revolving Credit Lender hereunder. In furtherance and extension,
and not in limitation or derogation, of any of the foregoing, any
action taken or omitted to be taken by any Issuer in good faith
shall be binding (jointly and severally) upon each Revolving
Credit Borrower and shall not put such Issuer under any resulting
liability to any Revolving Credit Borrower.
SECTION IV.9. Increased Costs; Indemnity. If by reason of
(a any change in applicable law, regulation, rule,
decree or regulatory requirement or any change in the
interpretation or application by any judicial or regulatory
authority of any law, regulation, rule, decree or regulatory
requirement, or
(b compliance by any Issuer or any Revolving Credit
Lender with any direction, request or requirement (whether
or not having the force of law) of any governmental or
monetary authority, including Regulation D of the F.R.S.
Board:
(i any Issuer or any Revolving Credit Lender
shall be subject to any tax (other than taxes on net
income and franchises), levy, charge or withholding of
any nature or to any variation thereof or to any
penalty with respect to the maintenance or fulfillment
of its obligations under this Article IV, whether
directly or by such being imposed on or suffered by
such Issuer or any Revolving Credit Lender;
(ii any reserve, deposit or similar requirement
is or shall be applicable, imposed or modified in
respect of any Revolving Credit Letters of Credit
issued by any Issuer or participations therein
purchased by any Revolving Credit Lender; or
(iii there shall be imposed on any Issuer or any
Revolving Credit Lender any other condition regarding
this Article IV, any Revolving Credit Letter of Credit
or any participation therein;
and the result of the foregoing is directly or indirectly to
increase the cost to such Issuer or such Revolving Credit Lender
of issuing, making or maintaining any Revolving Credit Letter of
Credit or of purchasing or maintaining any participation therein,
or to reduce any amount receivable in respect thereof by such
Issuer or such Revolving Credit Lender, then and in any such case
such Issuer or such Revolving Credit Lender may, at any time
after the additional cost is incurred or the amount received is
reduced, notify the Revolving Credit Borrowers thereof, and the
Revolving Credit Borrowers shall pay on demand such amounts as
such Issuer or Revolving Credit Lender may specify to be
necessary to compensate such Issuer or Revolving Credit Lender
for such additional cost or reduced receipt, together with
interest on such amount from the date demanded until payment in
full thereof at a rate equal at all times to the Alternate Base
Rate plus the Applicable Revolving Loan Margin for Base Rate
Loans plus 5.0% per annum. The determination by such Issuer or
Revolving Credit Lender, as the case may be, of any amount due
pursuant to this Section, as set forth in a statement setting
forth the calculation thereof in reasonable detail, shall, in the
absence of manifest error, be final and conclusive and binding on
all of the parties hereto. In addition to amounts payable as
elsewhere provided in this Article IV, each Revolving Credit
Borrower hereby agrees to protect, indemnify, pay and save each
Issuer harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys fees and allocated costs of
internal counsel) which such Issuer may incur or be subject to as
a consequence, direct or indirect, of
(c the issuance of the Revolving Credit Letters of
Credit, other than as a result of the gross negligence or
wilful misconduct of such Issuer as determined by a court of
competent jurisdiction, or
(d the failure of such Issuer to honor a drawing
under any Revolving Credit Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or
governmental authority.
ARTICLE V
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION V.1. LIBO Rate Lending Unlawful. If any Revolving
Credit Lender shall determine (which determination shall, upon
notice thereof to any Revolving Credit Borrower and the Revolving
Credit Lenders, be conclusive and binding on the Revolving Credit
Borrowers) that the introduction of or any change in or in the
interpretation of any law, in each case after the date upon which
such Revolving Credit Lender shall have become a Revolving Credit
Lender hereunder, makes it unlawful, or any central bank or other
Regulatory Authority asserts, after such date, that it is
unlawful, for such Revolving Credit Lender to make, continue or
maintain any Revolving Credit as, or to convert any Revolving
Credit into, a LIBO Rate Loan, the obligations of such Revolving
Credit Lender to make, continue, maintain or convert any such
LIBO Rate Loan shall, upon such determination, forthwith be
suspended until such Revolving Credit Lender shall notify the
Administrative Agent that the circumstances causing such
suspension no longer exist, and all outstanding LIBO Rate Loans
of such Revolving Credit Lender shall automatically convert into
Base Rate Loans at the end of the then current Interest Periods
with respect thereto or sooner, if required by such law or
assertion. Each Revolving Credit Lender agrees to promptly give
notice to the Administrative Agent and each Revolving Credit
Borrower when the circumstances causing such suspension cease to
exist.
SECTION V.2. Deposits Unavailable. If the Administrative
Agent shall have determined that
(a with respect to any proposed LIBO Rate Loan,
Dollar deposits in the relevant amount and for the relevant
Interest Period are not generally available in the relevant
market; or
(b by reason of circumstances affecting the relevant
market, adequate means do not exist for ascertaining the
interest rate applicable hereunder to LIBO Rate Loans for
the relevant Interest Period;
then, upon notice from the Administrative Agent to the Revolving
Credit Borrowers and the Revolving Credit Lenders, the
obligations of all Revolving Credit Lenders under Section 2.3 and
Section 2.4 to make or continue after the relevant Interest
Period any Revolving Credit Loans as, or to convert any Revolving
Credit Loans into, LIBO Rate Loans shall forthwith be suspended
until the Administrative Agent shall notify the Revolving Credit
Borrowers and the Revolving Credit Lenders that the circumstances
causing such suspension no longer exist.
SECTION V.3. Increased LIBO Rate Loan Costs, etc. Each
Revolving Credit Borrower, jointly and severally, agrees to
reimburse each Revolving Credit Lender for any increase in the
cost to such Revolving Credit Lender of, or any reduction in the
amount of any sum receivable by such Revolving Credit Lender in
respect of, making, continuing or maintaining (or of its
obligation to make, continue or maintain) any Revolving Credit
Loans as, or of converting (or of its obligation to convert) any
Revolving Credit Loans into, LIBO Rate Loans (except for any
increase taken into account in determining the LIBOR Reserve
Percentage and except for increased capital costs and Taxes which
are governed by Sections 5.5 and 5.6, respectively) that arise in
connection with any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in after
the date hereof of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of
any court, central bank, regulator or other Regulatory Authority.
Such Revolving Credit Lender shall use all commercially
reasonable efforts to promptly notify the Administrative Agent
and the Revolving Credit Borrowers in writing within 90 days of
the occurrence of any such event (which notice shall in any event
be delivered no later than 120 days after the annual audited
financial statements are reported for the fiscal year of such
Revolving Credit Lender ended following the payment and
performance in full of all Obligations, the termination of all
Commitments and the expiration of all Revolving Credit Letters of
Credit), such notice to state, in reasonable detail, the reasons
therefor and the additional amount required fully to compensate
such Revolving Credit Lender for such increased cost or reduced
amount. Such additional amounts shall be payable by the
Revolving Credit Borrowers, and the Revolving Credit Borrowers
hereby acknowledge and agree that they are jointly and severally
liable to pay such additional amounts, directly to such Revolving
Credit Lender within five days of its receipt of such notice, and
such notice shall, in the absence of manifest error, be
conclusive and binding on the Revolving Credit Borrowers.
SECTION V.4. Funding Losses. In the event any Revolving
Credit Lender shall incur any loss or expense (including any loss
or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Revolving Credit
Lender to make, continue or maintain any portion of the principal
amount of any Revolving Credit Loan as, or to convert any portion
of the principal amount of any Revolving Credit Loan into, a LIBO
Rate Loan) as a result of
(a any conversion or repayment or prepayment of the
principal amount of any LIBO Rate Loans on a date other than
the scheduled last day of the Interest Period applicable
thereto, whether pursuant to Section 3.1 or otherwise;
(b any Revolving Credit Loans not being made as LIBO
Rate Loans in accordance with the Borrowing Request
therefor; or
(c any Revolving Credit Loans not being continued as,
or converted into, LIBO Rate Loans in accordance with the
Continuation/Conversion Notice therefor,
then, upon the written notice of such Revolving Credit Lender to
the Revolving Credit Borrowers (with a copy to the Administrative
Agent) (which notice such Revolving Credit Lender shall use all
commercially reasonable efforts to deliver to the Revolving
Credit Borrowers within 90 days of the occurrence of any such
event and which notice shall in any event be delivered no later
than 120 days after the annual audited financial statements are
reported for the fiscal year of such Revolving Credit Lender
ended following the payment and performance in full of all
Obligations, the termination of all Commitments and the
expiration of all Revolving Credit Letters of Credit), the
Revolving Credit Borrowers shall, and the Revolving Credit
Borrowers hereby acknowledge and agree that they are jointly and
severally liable to pay, within five days of its receipt thereof,
pay directly to such Revolving Credit Lender such amount as will
(in the reasonable determination of such Revolving Credit Lender)
reimburse such Revolving Credit Lender for such loss or expense.
Such written notice (which shall include calculations in
reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Revolving Credit Borrowers.
SECTION V.5. Increased Capital Costs. If any change in, or
the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not having
the force of law) of any court, central bank, regulator or other
Regulatory Authority, in each case occurring after the applicable
Revolving Credit Lender becomes a Revolving Credit Lender
hereunder, affects or would affect the amount of capital required
or expected to be maintained by any Revolving Credit Lender or
any Person controlling such Revolving Credit Lender, and such
Revolving Credit Lender determines (in good faith but in its sole
and absolute discretion) that the rate of return on its or such
controlling Persons capital as a consequence of the Revolving
Credit Commitments, issuance of the participation in Revolving
Credit Letters of Credit or the Revolving Credit Loans made by
such Revolving Credit Lender is reduced to a level below that
which such Revolving Credit Lender or such controlling Person
could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to
time by such Revolving Credit Lender to the Revolving Credit
Borrowers (which notice such Revolving Credit Lender shall use
all commercially reasonable efforts to deliver to the Borrower
within 90 days of the occurrence of any such event and which
notice shall in any event be delivered no later than 120 days
after the annual audited financial statements are reported for
the fiscal year of such Revolving Credit Lender ended following
the payment and performance in full of all Obligations, the
termination of all Commitments and the expiration of all
Revolving Credit Letters of Credit), the Revolving Credit
Borrowers shall be jointly and severally obligated to immediately
pay directly to such Revolving Credit Lender additional amounts
sufficient to compensate such Revolving Credit Lender or such
controlling Person for such reduction in rate of return. A
statement of such Revolving Credit Lender as to any such
additional amount or amounts (including calculations thereof in
reasonable detail) shall be sent by such Revolving Credit Lender
to the Revolving Credit Borrowers and shall, in the absence of
manifest error, be conclusive and binding on the Revolving Credit
Borrowers. In determining such amount, such Revolving Credit
Lender may use any method of averaging and attribution that it
(in its sole and absolute discretion) shall deem applicable.
SECTION V.6. Taxes. (a) All payments by the Revolving
Credit Borrowers of principal of, and interest on, or other
amounts in respect of, the Revolving Credit Loans and all other
amounts payable hereunder (including fees) and the Revolving
Credit Notes shall be made free and clear of and without
deduction for any Taxes, except to the extent that any such
withholdings or deductions are required by applicable law, rule
or regulations. In that event, the Revolving Credit Borrowers
shall be jointly and severally obligated to
(i pay directly to the relevant authority the
full amount of Taxes required to be so withheld or
deducted;
(ii promptly forward to the Administrative Agent
an official receipt or other documentation reasonably
satisfactory to the Administrative Agent evidencing
such payment to such authority; and
(iii if such Taxes are Covered Taxes, pay to the
Administrative Agent for the account of the Revolving
Credit Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually
received by each Revolving Credit Lender will equal the
full amount such Revolving Credit Lender would have
received had no such withholding or deduction been
required.
In addition, if the Revolving Credit Borrowers, any
Revolving Credit Lender, or the Administrative Agent is
required by law at any time to pay any Covered Tax on, or
calculated by reference to, any sum received or receivable
by or on behalf of any Revolving Credit Lender or the
Administrative Agent under this Agreement or any Notes, then
(i) with respect solely to any such requirement with respect
to a Revolving Credit Lender or the Administrative Agent,
any applicable Revolving Credit Lender or the Administrative
Agent shall, as promptly as practicable following such
Person having notice of such requirement, give notice to the
Revolving Credit Borrowers of such requirement and (ii) the
Revolving Credit Borrowers shall be jointly and severally
obligated, promptly after having received such notice, to
pay or procure the payment of such Covered Tax. If any the
Revolving Credit Borrower pays any such Covered Taxes as
required by the immediately preceding sentence, then such
Revolving Credit Borrower will promptly forward to the
Administrative Agent an official receipt or other
documentation reasonably satisfactory to the Administrative
Agent evidencing such payment of Covered Taxes to the
relevant taxing authority. Without prejudice to the
preceding provisions, if the Administrative Agent or any
Revolving Credit Lender is required by law to make any
payment on account of Covered Taxes on or in relation to any
sum received under this Agreement or any Note, or any
liability for Covered Taxes in respect of any such sum is
imposed, levied or assessed against any Revolving Credit
Lender or the Administrative Agent, the Revolving Credit
Borrowers will indemnify each such Revolving Credit Lender
and the Administrative Agent for the full amount of Covered
Taxes paid by such Revolving Credit Lender or the
Administrative Agent (as the case may be), whether or not
such Covered Taxes were correctly or legally asserted. Such
indemnification shall be made within 30 days of the demand
of the Revolving Credit Lender or the Administrative Agent
therefor. In addition, if any the Revolving Credit Borrower
fails to remit to the Administrative Agent, for the account
of the respective Revolving Credit Lenders, the required
receipts or other required documentary evidence of its
payment of any Taxes, the Revolving Credit Borrowers shall,
jointly and severally, indemnify the Administrative Agent
and the Revolving Credit Lenders for any incremental Taxes,
interest or penalties that may become payable by the
Administrative Agent and any Revolving Credit Lender as a
result of any such failure. For purposes of this Section
5.6, the transfer by the Administrative Agent or any
Revolving Credit Lender to or for the account of any
Revolving Credit Lender of any sum received from any
Revolving Credit Borrower on account of amounts required to
be paid by the Revolving Credit Borrowers hereunder in
respect of Covered Taxes imposed with respect to the
recipient shall be deemed a payment by the Revolving Credit
Borrowers of such amounts.
(b Each Revolving Credit Lender that is an original
signatory to this Agreement and the Administrative Agent
hereby severally (but not jointly) represent that, under
applicable law and treaties in effect as of the date of the
Loans, no United States federal income taxes will be
required to be withheld by the Administrative Agent or the
Revolving Credit Borrowers with respect to any payments to
be made to such Person in respect of this Agreement. Each
Revolving Credit Lender that is an original signatory hereto
(and each Person which becomes a Revolving Credit Lender by
assignment, transfer or participation pursuant to
Section 11.11 hereof) and the Administrative Agent (and each
Person that becomes the Administrative Agent by appointment
pursuant to Section 10.4 hereof), agrees severally (but not
jointly) that, on or prior to the date of the Revolving
Credit Loans (or on or prior to the date of such assignment,
transfer or appointment, as the case may be) it will in each
case deliver to the Revolving Credit Borrowers and the
Administrative Agent the following:
(i) in the case of a Person other than a Non-U.S.
Revolving Credit Lender, two copies of a statement
certifying that such Person is a U.S. Person, which
statement shall contain the address, if any, of such
Persons office or place of business in the United
States, and shall be signed by an authorized officer of
such Person, together with two duly completed copies of
United States Internal Revenue Service Form W-9 (or
applicable successor form) (unless it establishes to
the reasonable satisfaction of the Administrative Agent
and the Revolving Credit Borrowers that it is otherwise
eligible for an exemption from backup withholding tax
or other applicable withholding tax), or
(ii) in the case of a Non-U.S. Revolving Credit
Lender, either (A) two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224 (or
applicable successor form) certifying in each case that
such Person is entitled to receive payments under this
Agreement and the Revolving Credit Notes payable to it
without deduction or withholding of any United States
federal income taxes and two duly completed copies of
United States Internal Revenue Service Form W-8 or Form
W-9 (or applicable successor form) or (B) in the case
of an assignee Revolving Credit Lender that is not a
bank within the meaning of Section 881(c)(3)(A) of the
Code and that does not comply with the requirements of
clause (i) hereof, then a statement in the form of
statement in substantially the form of Exhibit M hereto
(an Exemption Certificate) to the effect that such
assignee Revolving Credit Lender is eligible for a
complete exemption from withholding of United States
withholding tax under Section 871(h) or Section 881(c)
of the Code and two duly completed and signed original
copies of Internal Revenue Service Form W-8.
Each Person who delivers to the Revolving Credit Borrowers
and the Administrative Agent a Form W-8, W-9, 1001 or 4224,
or applicable successor form, pursuant to this clause,
further undertakes to deliver to the Revolving Credit
Borrowers and the Administrative Agent two further copies of
said Form W-8, W-9, 1001, 4224, or applicable successor
form, or other manner of certification, as the case may be,
on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to
the Revolving Credit Borrowers, and such extensions or
renewals thereof as may reasonably be requested by the
Revolving Credit Borrowers, certifying that such Person is
entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes, unless in any such case any change in law, rule,
regulation, treaty or directive, or in the interpretation or
application thereof (a Law Change), has occurred prior to
the date on which any such delivery would otherwise be
required, which Law Change renders any such form
inapplicable or which would prevent such Person from duly
completing and delivering any such form with respect to it.
The Revolving Credit Borrowers shall not be required to
indemnify any Non-U.S. Revolving Credit Lender, or pay any
additional amounts to any Non-U.S. Revolving Credit Lender,
in respect of United States Federal withholding tax pursuant
to clause (a) above to the extent that the obligation to pay
such additional amounts would not have arisen but for a
failure by such Non-U.S. Revolving Credit Lender to comply
with this clause (b); provided, however, that this clause
(b) shall not limit the indemnity obligations of the
Revolving Credit Borrowers to the Administrative Agent.
Any Revolving Credit Lender claiming any indemnity
payment or additional amounts payable pursuant to this
Section 5.6 shall file any certificate or document
reasonably requested in writing by the Borrower if the
making of such a filing would avoid the need for or reduce
the amount of any such indemnity payment or additional
amount which may thereafter accrue and would not, in the
determination of such Revolving Credit Lender, be otherwise
disadvantageous to such Revolving Credit Lender.
(c) The agreements in this Section shall survive the
termination of this Agreement and the payment of the
Revolving Credit Notes and all other amounts payable
hereunder.
SECTION V.7. Payments, Computations, etc. Unless otherwise
expressly provided, all payments by the Revolving Credit Loan
Borrowers pursuant to this Agreement, the Revolving Credit Notes,
or any other Revolving Credit Loan Document shall be made by the
Revolving Credit Borrowers to the Administrative Agent for the
pro rata account of the Revolving Credit Lenders entitled to
receive such payment. All such payments required to be made to
the Administrative Agent shall be made, without setoff, deduction
or counterclaim, not later than 12:00 noon, New York City time,
on the date due, in same day or immediately available funds, to
such account as the Administrative Agent shall specify from time
to time by notice to the Revolving Credit Borrowers. Funds
received after that time shall be deemed to have been received by
the Administrative Agent on the next succeeding Business Day.
The Administrative Agent shall promptly remit on the day it has
received (or is deemed to have received under the preceding
sentence) in same day funds to each Revolving Credit Lender its
share, if any, of such payments received by the Administrative
Agent for the account of such Revolving Credit Lender. All
interest (including interest on LIBO Rate Loans) and fees shall
be computed on the basis of the actual number of days (including
the first day but excluding the last day) occurring during the
period for which such interest or fee is payable over a year
comprised of 360 days (or, in the case of interest on a Base Rate
Loan (calculated at other than the Federal Funds Rate), 365 days
or, if appropriate, 366 days). Whenever any payment to be made
shall otherwise be due on a day which is not a Business Day, such
payment shall (except as otherwise required by clause (c) of the
definition of the term Interest Period) be made on the next
succeeding Business Day and such extension of time shall be
included in computing interest and fees, if any, in connection
with such payment.
SECTION V.8. Sharing of Payments. If any Revolving Credit
Lender shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of setoff or otherwise) on
account of any Revolving Credit Loan (other than pursuant to the
terms of Section 5.3, 5.4, 5.5 or 5.6) in excess of its pro rata
share of payments then or therewith obtained by all Revolving
Credit Lenders, such Revolving Credit Lender shall purchase from
the other Revolving Credit Lenders such participations in
Borrowings made by them as shall be necessary to cause such
purchasing Revolving Credit Lender to share the excess payment or
other recovery ratably with each of them; provided, however, that
if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Revolving Credit
Lender, the purchase shall be rescinded and each Revolving Credit
Lender which has sold a participation to the purchasing Revolving
Credit Lender shall repay to the purchasing Revolving Credit
Lender the purchase price to the ratable extent of such recovery
together with an amount equal to such selling Revolving Credit
Lender's ratable share (according to the proportion of
(a) the amount of such selling Revolving Credit
Lender's required repayment to the purchasing Revolving
Credit Lender
to
(b) total amount so recovered from the purchasing
Revolving Credit Lender)
of any interest or other amount paid or payable by the purchasing
Revolving Credit Lender in respect of the total amount so
recovered. The Revolving Credit Borrowers agree that any
Revolving Credit Lender so purchasing a participation from
another Revolving Credit Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of
payment (including pursuant to Section 5.9) with respect to such
participation as fully as if such Revolving Credit Lender were
the direct creditor of the Revolving Credit Borrowers in the
amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Revolving Credit
Lender receives a secured claim in lieu of a setoff to which this
Section applies, such Revolving Credit Lender shall, to the
extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the
Revolving Credit Lenders entitled under this Section to share in
the benefits of any recovery on such secured claim.
SECTION V.9. Setoff. Each Revolving Credit Lender shall,
upon the occurrence and during the continuance of any Event of
Default described in clauses (a) through (d) of Section 9.1.9,
or, with the consent of the Required Revolving Credit Lenders,
upon the occurrence and during the continuance of any other Event
of Default, have the right to appropriate and apply to the
payment of all Revolving Credit Obligations then due and payable
to it (whether as a result of stated maturity, acceleration or
otherwise) and after giving effect to the operation of Section
5.8, and (as security for such Revolving Credit Obligations) each
Revolving Credit Borrower hereby grants to each Revolving Credit
Lender a continuing security interest in, any and all balances,
credits, deposits, accounts or moneys of such Revolving Credit
Borrower then or thereafter maintained with such Revolving Credit
Lender; provided, however, that any such appropriation and
application shall be subject to the provisions of Section 5.8.
Each Revolving Credit Lender agrees promptly to notify the
Revolving Credit Borrowers and the Administrative Agent after any
such setoff and application made by such Revolving Credit Lender;
provided, however, that the failure to give such notice shall not
affect the validity of such setoff and application. The rights
of each Revolving Credit Lender under this Section are in
addition to other rights and remedies (including other rights of
setoff under applicable law or otherwise) which such Revolving
Credit Lender may have.
SECTION V.10. Replacement of Revolving Credit Lenders.
Each Revolving Credit Lender hereby severally agrees as set forth
in this Section:
(a) If any Revolving Credit Lender (a Subject Lender)
makes demand upon any Revolving Credit Borrower for (or if
any Revolving Credit Borrower is otherwise required to pay)
amounts pursuant to Section 5.3, 5.5 or 5.6, or gives notice
pursuant to Section 5.1 requiring a conversion of such
Subject Lender's LIBO Rate Loans to Base Rate Loans, or if
such Subject Lender defaults in its obligation to fund
Borrowings hereunder, such Revolving Credit Borrower may,
within 90 days of receipt by such Revolving Credit Borrower
of such demand or notice, or the occurrence of such other
event causing such Revolving Credit Borrower to be required
to pay such compensation), or the occurrence of such
default, as the case may be, give notice (a Replacement
Notice) in writing to the Syndication Agent and such Subject
Lender of its intention to replace such Subject Lender with
a financial institution designated in such Replacement
Notice. If the Syndication Agent shall, in the exercise of
its reasonable discretion and within 30 days of its receipt
of such Replacement Notice, notify the Revolving Credit
Borrowers and such Subject Lender in writing that the
designated financial institution is reasonably satisfactory
to the Syndication Agent, then such Subject Lender shall,
subject to the payment of any amounts due pursuant to
Section 5.4, assign, in accordance with Section 11.11.1, all
of its Revolving Credit Commitments, Revolving Credit Loans,
Revolving Credit Notes and other rights and obligations
under this Agreement and all other Revolving Credit Loan
Documents to such designated financial institution;
provided, however, that (i) such assignment shall be without
recourse, representation or warranty (other than that such
Revolving Credit Lender owns the Revolving Credit
Commitments, Revolving Credit Loans and Revolving Credit
Notes being assigned, free and clear of any Liens) and shall
be on terms and conditions reasonably satisfactory to such
Subject Lender and such designated financial institution and
(ii) the purchase price paid by such designated financial
institution shall be in the amount of such Subject Lender's
Revolving Credit Loans, together with all accrued and unpaid
interest and fees in respect thereof, plus all other amounts
(other than the amounts demanded and unreimbursed under
Sections 5.3, 5.5 and 5.6, which shall be payable upon
demand by the Revolving Credit Borrowers), owing to such
Subject Lender hereunder.
ARTICLE VI
CONDITIONS TO RESTATEMENT EFFECTIVENESS
SECTION VI.1. Effectiveness. This Agreement, and the
restatement of the Existing Revolving Credit Agreement by this
Agreement, shall become effective upon the satisfaction of each
of the conditions precedent set forth in this Section 6.1.
SECTION VI.1.1. Execution of Counterparts. The Collateral
Agent shall have received counterparts of this Agreement, duly
executed and delivered on behalf of each Revolving Credit
Borrower, each Revolving Credit Lender, the Agents and the
Collateral Agent. By delivery of executed counterparts hereof,
each Revolving Credit Lender shall have evidenced consent to the
amendment and restatement of Sections 3.1, 7.1, 7.2 and 7.3 of
the Existing Term Loan Agreement by the Term Loan Agreement.
SECTION VI.1.2. Resolutions, etc. The Collateral Agent
shall have received from each Revolving Credit Obligor, (i) a
copy of a good standing certificate, dated a date reasonably
close to the Restatement Effective Date, for each such Person and
(ii) a certificate, dated the Restatement Effective Date and with
counterparts for each Revolving Credit Lender, duly executed and
delivered by such Persons Secretary or Assistant Secretary as to
(a) resolutions of each such Persons Board of
Directors then in full force and effect authorizing, to the
extent relevant, the credit extensions to be made pursuant
to this Agreement, the execution, delivery and performance
of this Agreement, the Revolving Credit Notes, each other
Revolving Credit Document to be executed by such Person and
the transactions contemplated hereby and thereby;
(b) the incumbency and signatures of those of its
officers or managing members authorized to act with respect
to this Agreement, the Revolving Credit Notes and each other
Revolving Credit Document to be executed by such Person; and
(c) the full force and validity of each Organic
Document of such Person and copies thereof,
upon which certificates each Agent, the Collateral Agent and
Revolving Credit Lender may conclusively rely until it shall have
received a further certificate of the Secretary, Assistant
Secretary or other duly authorized representative of any such
Person canceling or amending the prior certificate of such
Person.
SECTION VI.1.3. Affirmation and Consent. The Collateral
Agent shall have received an affirmation and consent in the form
set forth as Exhibit O hereto, executed and delivered by an
Authorized Officer of each Revolving Credit Obligor (other than a
Revolving Credit Borrower)
SECTION VI.1.4. Restatement Effective Date Certificate.
The Collateral Agent shall have received, with counterparts for
each Agent and Revolving Credit Lender, the Restatement Effective
Date Certificate, dated as of the Restatement Effective Date,
appropriately completed and duly executed and delivered by an
Authorized Officer of each Revolving Credit Borrower, in which
certificates such Revolving Credit Borrower shall agree and
acknowledge that the statements made therein shall be deemed to
be true and correct representations and warranties of such
Revolving Credit Borrower. All documents and agreements required
to be appended to the Restatement Effective Date Certificate
shall be in form and substance satisfactory to the Syndication
Agent.
SECTION VI.1.5. Perfection Certificate. The Collateral
Agent shall have received Perfection Certificates, dated the
Restatement Effective Date, duly executed and delivered by an
Authorized Officer of each Revolving Credit Borrower.
SECTION VI.1.6. Opinions of Counsel. The Collateral Agent
shall have received the following opinions, dated the Restatement
Effective Date and addressed to the Agents, the Collateral Agent
and all Revolving Credit Lenders:
(a) the executed legal opinion of ▇▇▇▇, Weiss,
Rifkind, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, special New York counsel to
the Term Loan Borrower and the Revolving Credit Borrowers,
satisfactory in form and substance to the Collateral Agent
and its counsel;
(b) the executed legal opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
Vice President and General Counsel of the Term Loan Borrower
and the Revolving Credit Borrowers, satisfactory in form and
substance to the Collateral Agent and its counsel; and
(c) the executed legal opinions of local counsel
(acceptable to the Collateral Agent) to the Revolving Credit
Obligors in each jurisdiction which the Collateral Agent may
reasonably request, satisfactory in form and substance to
the Collateral Agent and its counsel.
Each such legal opinion shall cover such other matters incident
to the transactions contemplated by this Agreement as the
Collateral Agent may reasonably require.
SECTION VI.1.7. Closing Fees, Expenses, etc. The Agents
and the Arranger shall have received, each for its own account,
or, in the case of the Administrative Agent, for the account of
each Revolving Credit Lender, as the case may be, all fees, costs
and expenses due and payable pursuant to Sections 3.3 and 11.3,
if then invoiced.
SECTION VI.2. All Revolving Credit Extensions. The
obligation of each Revolving Credit Lender to make any Revolving
Credit Extension (including the initial Revolving Credit
Extension) shall be subject to the satisfaction of each of the
conditions precedent set forth in this Section 6.2.
SECTION VI.2.1. Compliance with Warranties, No Default,
etc. Both before and after giving effect to any Revolving Credit
Extension (but, if any Default of the nature referred to in
Section 9.1.5 shall have occurred with respect to any other
Indebtedness, without giving effect to the application, directly
or indirectly, of the proceeds of any Borrowing) the following
statements shall be true and correct:
(a) the representations and warranties set forth in
Article VI of the Term Loan Agreement as in effect on the
date hereof, unless the Required Revolving Credit Lenders
shall otherwise consent (excluding, however, those contained
in Section 6.7 of the Term Loan Agreement as in effect on
the date hereof, unless the Required Revolving Credit
Lenders shall otherwise consent) shall be true and correct
with the same effect as if then made (unless stated to
relate solely to an early date, in which case such
representations and warranties shall be true and correct as
of such earlier date);
(b) except as disclosed by any Revolving Credit
Borrower to the Syndication Agent and the Revolving Credit
Lenders pursuant to Section 6.7 of the Term Loan Agreement
as in effect on the date hereof, unless the Required
Revolving Credit Lenders shall otherwise consent
(i) no labor controversy, litigation, arbitration
or governmental investigation or proceeding shall be
pending or, to the knowledge of any Revolving Credit
Borrower, threatened in writing against any Revolving
Credit Borrower or any of its Subsidiaries which could
reasonably be expected to materially adversely affect
the consolidated businesses, operations, assets,
revenues, properties or prospects of the Term Loan
Borrower, the Revolving Credit Borrowers or any of
their Subsidiaries or which purports to materially
adversely affect the legality, validity or
enforceability of this Agreement, the Notes or any
other Revolving Credit Document; and
(ii) no development shall have occurred in any
labor controversy, litigation, arbitration or
governmental investigation or proceeding disclosed
pursuant to Section 6.7 of the Term Loan Agreement as
in effect on the date hereof, unless the Required
Revolving Credit Lenders shall otherwise consent, which
could reasonably be expected to have a Material Adverse
Effect; and
(c) no Default shall have then occurred and be
continuing, and neither any Revolving Credit Borrower, any
other Revolving Credit Obligor, nor any of their respective
Subsidiaries are in material violation of any law or
governmental regulation or court order or decree.
SECTION VI.2.2. Credit Request. The Administrative Agent
shall have received a Borrowing Request or Issuance Request, as
the case may be, for such Revolving Credit Extension. Each of
the delivery of a Borrowing Request or an Issuance Request and
the acceptance by the applicable Revolving Credit Borrower of the
proceeds of the Borrowing or the issuance of the Revolving Credit
Letter of Credit, as applicable, shall constitute a
representation and warranty by each Revolving Credit Borrower
that on the date of such Borrowing (both immediately before and
after giving effect to such Borrowing and the application of the
proceeds thereof) or the issuance of the Revolving Credit Letter
of Credit, as applicable, the statements made in Section 6.2.1
are true and correct.
SECTION VI.2.3. Satisfactory Legal Form. All documents
executed or submitted pursuant hereto by or on behalf of any
Revolving Credit Borrower or any of its Subsidiaries or any other
Revolving Credit Obligors shall be satisfactory in form and
substance to the Collateral Agent and its counsel; the Collateral
Agent and its counsel shall have received all information,
approvals, opinions, documents or instruments as the Collateral
Agent or its counsel may reasonably request.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce the Revolving Credit Lenders, the Agents
and the Collateral Agent to enter into this Agreement, continue
the Existing Revolving Credit Loans hereunder and to make
Revolving Credit Loans and issue Revolving Credit Letters of
Credit hereunder, the Revolving Credit Borrowers jointly and
severally hereby (i) represent and warrant to the Agents, the
Collateral Agent and each Revolving Credit Lender that each of
the representations and warranties set forth in Article VI of the
Term Loan Agreement as in effect the date hereof, unless the
Required Revolving Credit Lenders shall otherwise consent, is
true and correct on and as of the Restatement Effective Date and
on the dates and to the extent provided in Section 6.2 and (ii)
agree that such representations and warranties are by this
reference deemed incorporated herein mutatis mutandis, as if set
forth at length herein, notwithstanding the termination of the
Term Loan Agreement.
ARTICLE VIII
COVENANTS
SECTION VIII.1. Affirmative Covenants. The Revolving
Credit Borrowers jointly and severally agree with the Agents and
the Collateral Agent and each Revolving Credit Lender that, until
all Revolving Credit Commitments have terminated and all
Revolving Credit Obligations have been paid and performed in
full, each of the Revolving Credit Borrowers will perform the
obligations set forth in this Section 8.1.
SECTION VIII.1.1. Affirmative Covenants in Term Loan
Agreement. Each Revolving Credit Borrower hereby agrees (on a
joint and several basis with each of the other Revolving Credit
Borrowers) that, unless and until the Revolving Credit
Obligations have been paid and performed in full, the Revolving
Credit Commitments have terminated and the Revolving Credit
Letters of Credit have (x) expired or been returned to the
Issuers or (y) been cash collateralized to the reasonable
satisfaction of the Agents and the Issuer, such Revolving Credit
Borrower shall not, and shall not permit any of its Subsidiaries
to, take any action, and shall refrain from taking action, that
would result in a violation of the covenants of the Term Loan
Borrower contained in Section 7.1 of the Term Loan Agreement as
in effect on the date hereof, notwithstanding the termination of
the Term Loan Agreement, unless the Required Revolving Credit
Lenders shall otherwise consent. Each such agreement, covenant
and obligation contained in Section 7.1 of the Term Loan
Agreement and all other terms of the Term Loan Agreement and the
documents executed in connection therewith to which reference is
made therein, together with all related definitions and ancillary
provisions, each as in effect on the date hereof, is hereby
incorporated into this Agreement by reference as though
specifically set forth in this Section 8.1.1, and each such
agreement, covenant and obligation shall, for purposes hereof,
survive the termination of the Term Loan Agreement.
SECTION VIII.1.2. Use of Proceeds. Each Revolving Credit
Borrower shall apply the proceeds of the Revolving Credit Loans
for general corporate and working capital purposes of such
Revolving Credit Borrower and its Subsidiaries.
SECTION VIII.1.3. Additional Collateral.
(a) Upon any Person becoming, after the date hereof,
either a direct or indirect Subsidiary of any Revolving
Credit Borrower, or upon any Revolving Credit Borrower
directly or indirectly acquiring additional Capital Stock of
any existing Subsidiary having voting rights or contingent
voting rights, such Revolving Credit Borrower shall notify
the Collateral Agent of such acquisition, and, within 45
days thereafter, unless otherwise agreed to among such
Revolving Credit Borrower, the Collateral Agent and the
Required Revolving Credit Lenders,
(i) subject to the last sentence of this Section,
such Person shall, if it is a U.S. Subsidiary,
(i) execute and deliver to the Collateral Agent a copy
of (A) the Subsidiary Guaranty and (B) the Subsidiary
Security Agreement and (ii) to the extent such U.S.
Subsidiary is required to pledge stock of a Subsidiary
pursuant to clause (a)(ii) of this Section 8.1.3,
become a party to the Subsidiary Pledge Agreement, if
not already a party thereto as a pledgor, in a manner
satisfactory to the Collateral Agent;
(ii) subject to the last sentence of this
Section, such Revolving Credit Borrower and each U.S.
Subsidiary shall, pursuant to the Subsidiary Pledge
Agreement (as supplemented, if necessary, by a Foreign
Pledge Agreement), pledge to the Collateral Agent, for
its benefit and that of the Agents and the Revolving
Credit Lenders and the Issuers, all of the outstanding
shares of capital stock of (i) any Subsidiary owned
directly by the Borrower or such Subsidiary (provided,
that, subject to the last sentence of this Section, not
more than 65% of the capital stock of any non-U.S.
Subsidiary shall be so pledged), along with undated
stock powers for such certificates, executed in blank
(or, if any such shares of capital stock are
uncertificated, confirmation and evidence satisfactory
to the Collateral Agent that the security interest in
such uncertificated securities has been transferred to
and perfected by the Collateral Agent, for the benefit
of the Agents and the Revolving Credit Lenders and the
Issuers, in accordance with Section 9-115 of the U.C.C.
or any other similar or local or foreign law which may
be applicable); and
(iii) subject to the last sentence of this
Section, such Revolving Credit Borrower and each U.S.
Subsidiary shall, pursuant to the Subsidiary Pledge
Agreement, pledge to the Collateral Agent for its
benefit and that of the Agents and the Revolving Credit
Lenders and the Issuer, all intercompany notes
evidencing Indebtedness in favor of such Revolving
Credit Borrower or such U.S. Subsidiary (which shall,
unless the Collateral Agent shall otherwise agree, be
in the form of Exhibit A to the Subsidiary Pledge
Agreement), as the case may be;
together, in each case, with such opinions of legal counsel
for such Revolving Credit Borrower relating thereto, which
legal opinions shall be in form and substance reasonably
satisfactory to the Collateral Agent. Each Revolving Credit
Borrower agrees that if, as a result of a change in law
after the date hereof, (i) a non-U.S. Subsidiary of any
Revolving Credit Borrower is permitted to execute and
deliver the Subsidiary Guaranty or become a party to the
Subsidiary Pledge Agreement as a pledgor or (ii) any
Revolving Credit Borrower or any Subsidiary thereof is
permitted to pledge more than 65% of the capital stock of
any non-U.S. Subsidiary or any intercompany Indebtedness of
any direct and indirect Subsidiary of any Revolving Credit
Borrower evidenced by a note or other instrument, in any
such case without material adverse tax consequences to such
Revolving Credit Borrower or such Subsidiary, then the
provisions of clause (a)(i) of this Section 8.1.3 shall
thereafter apply to any non-U.S. Subsidiary and/or (as the
case may be) the provisions of clause (a)(ii) of this
Section 8.1.3 shall thereafter apply to 100% of the capital
stock of such non-U.S. Subsidiary.
(b) Each Revolving Credit Borrower shall, and shall
cause each of its U.S. Subsidiaries to, unless otherwise
agreed to by such Revolving Credit Borrower, the Collateral
Agent and the Required Revolving Credit Lenders, cause the
Collateral Agent, the Issuers and the Revolving Credit
Lenders to have at all times a first priority perfected
security interest (subject only to Liens and encumbrances
permitted under Section 7.2.4 of the Term Loan Agreement as
in effect on the date hereof, unless the Required Revolving
Credit Lenders shall otherwise consent) in all of the
property (real and personal) hereafter acquired from time to
time by such Revolving Credit Borrower and such U.S.
Subsidiaries (other than the Receivables Subsidiary) to the
extent the same constitutes or would constitute Collateral
under each of the Security Agreements and under each of the
Revolving Credit Mortgages. Without limiting the generality
of the foregoing, each Revolving Credit Borrower shall, and
shall cause each of its U.S. Subsidiaries (other than the
Receivables Subsidiary) to, execute, deliver and/or file (as
applicable) or cause to be executed, delivered and/or filed
(as applicable), the Subsidiary Pledge Agreement, the
Subsidiary Security Agreement, Uniform Commercial Code (Form
UCC-1) financing statements, Uniform Commercial Code (Form
UCC-3) termination statements, and other documentation
necessary to grant and perfect such security interest, in
each case in form and substance reasonably satisfactory to
the Collateral Agent together, in each case, with such
opinions of legal counsel for the applicable Revolving
Credit Borrower relating thereto, which legal opinions shall
be in form and substance reasonably satisfactory to the
Collateral Agent.
SECTION VIII.2. Negative Covenants. The Revolving Credit
Borrowers jointly and severally agree with the Agents and the
Collateral Agent and each Revolving Credit Lender that, until all
Revolving Credit Commitments have terminated and all Revolving
Credit Obligations have been paid and performed in full, each of
the Revolving Credit Borrowers will perform the obligations set
forth in this Section 8.2.
SECTION VIII.2.1. Negative Covenants in Term Loan
Agreement. Each Revolving Credit Borrower hereby agrees (on a
joint and several basis with each of the other Revolving Credit
Borrowers) that, unless and until the Revolving Credit
Obligations have been paid and performed in full, the Revolving
Credit Commitments have terminated and the Revolving Credit
Letters of Credit have (x) expired or been returned to the
Issuers or (y) been cash collateralized to the reasonable
satisfaction of the Agents and the Issuer, such Revolving Credit
Borrower shall not, and shall not permit any of its Subsidiaries
to, take any action, and shall refrain from taking action, that
would result in a violation of the covenants of the Term Loan
Borrower contained in Sections 7.2 and 7.3 of the Term Loan
Agreement, notwithstanding the termination of the Term Loan
Agreement as in effect on the date hereof, unless the Required
Revolving Credit Lenders shall otherwise consent. Each such
agreement, covenant and obligation contained in Sections 7.2 and
7.3 of the Term Loan Agreement and all other terms of the Term
Loan Agreement and the documents executed in connection therewith
to which reference is made therein, together with all related
definitions and ancillary provisions, each as in effect on the
date hereof, is hereby incorporated into this Agreement by
reference as though specifically set forth in this Section 8.2.1,
and each such agreement, covenant and obligation shall, for
purposes hereof, survive the termination of the Term Loan
Agreement.
ARTICLE IX
EVENTS OF DEFAULT
SECTION IX.1. Listing of Events of Default. Each of the
following events or occurrences described in this Section 9.1
shall constitute an Event of Default.
SECTION IX.1.1. Non-Payment of Obligations. Any Revolving
Credit Borrower shall default in the payment or prepayment when
due of (a) any principal of any Revolving Credit Loan or any
Reimbursement Obligations or any deposit of cash for collateral
purposes pursuant to Section 4.5 or Section 4.7, as the case may
be, or (b) any Revolving Credit Obligor (including any Revolving
Credit Borrower) shall default in the payment when due of any
interest or commitment fee with respect to the Revolving Credit
Loans or Revolving Credit Commitments or of any other monetary
Revolving Credit Obligation and such default shall continue
unremedied for a period of three Business Days.
SECTION IX.1.2. Breach of Warranty. Any representation or
warranty of any Revolving Credit Borrower or any other Revolving
Credit Obligor made or deemed to be made hereunder or in any
other Revolving Credit Document executed by it or any other
writing or certificate (including the Restatement Effective Date
Certificate) furnished by or on behalf of any Revolving Credit
Borrower or any other Revolving Credit Obligor to the Agents, the
Collateral Agent, the Arranger or any Revolving Credit Lender for
the purposes of or in connection with this Agreement or any such
other Revolving Credit Document (including any certificates
delivered pursuant to Article VI), is or shall be incorrect in
any material respect when made or deemed to have been made.
SECTION IX.1.3. Non-Performance of Certain Covenants and
Obligations. Any Revolving Credit Borrower shall default in the
due performance and observance of any of its obligations under
Sections 8.1.2, 8.1.3 or 8.2.
SECTION IX.1.4. Non-Performance of Other Covenants and
Obligations. Any Revolving Credit Borrower or any other
Revolving Credit Obligor shall default in the due performance and
observance of any other agreement contained herein or in any
other Revolving Credit Document executed by it, and such default
shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Revolving Credit Borrowers
by any Agent, the Collateral Agent or any Revolving Credit
Lender.
SECTION IX.1.5. Default on Other Indebtedness. A default
shall occur (i) in the payment when due (subject to any
applicable grace period), whether by acceleration or otherwise,
of any Indebtedness (other than Indebtedness described in
Section 9.1.1) of any Revolving Credit Borrower or any of its
Subsidiaries having a principal amount, individually or in the
aggregate, in excess of $5,000,000, or (ii) a default shall occur
in the performance or observance of any obligation or condition
with respect to such Indebtedness if the effect of such default
is to accelerate the maturity of any such Indebtedness or such
default shall continue unremedied for any applicable period of
time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or agent for such holders, to cause
or declare such Indebtedness to become due and payable prior to
its expressed maturity.
SECTION IX.1.6. Judgments. Any judgment or order for the
payment of money in excess of $5,000,000 (not covered by
insurance from a responsible insurance company that is not
denying its liability with respect thereto) shall be rendered
against any Revolving Credit Borrower or any of its Subsidiaries
and remain unpaid and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order,
or (ii) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect.
SECTION IX.1.7. Pension Plans. Any of the following events
shall occur with respect to any Pension Plan: (i) the
termination of any Pension Plan if, as a result of such
termination, any Revolving Credit Borrower would be required to
make a contribution to such Pension Plan, or would reasonably
expect to incur a liability or obligation to such Pension Plan,
in excess of $1,000,000, or (ii) a contribution failure occurs
with respect to any Pension Plan sufficient to give rise to a
Lien under section 302(f) of ERISA in an amount in excess of
$1,000,000.
SECTION IX.1.8. Change in Control. Any Change in Control
shall occur.
SECTION IX.1.9. Bankruptcy, Insolvency, etc. Any Revolving
Credit Borrower or any of its Subsidiaries or any other Revolving
Credit Obligor shall
(a) apply for, approve, consent to, or acquiesce in,
the appointment of a trustee, receiver, sequestrator or
other custodian for such Revolving Credit Borrower, any such
Subsidiary or any other Revolving Credit Obligor or any
property of any thereof, or make a general assignment for
the benefit of creditors;
(b) in the absence of such application, approval,
consent, acquiescence or assignment, permit or suffer to
exist the appointment of a trustee, receiver, sequestrator
or other custodian for such Revolving Credit Borrower, any
such Subsidiary or any other Revolving Credit Obligor or for
a substantial part of the property of any thereof, and (x)
such trustee, receiver, sequestrator or other custodian
shall not be discharged within 60 days or (y) such Revolving
Credit Borrower, any such Subsidiary or any other Revolving
Credit Obligor takes any action in furtherance of such
appointment; provided, that such Revolving Credit Borrower,
each such Subsidiary and each other Revolving Credit Obligor
hereby expressly authorizes the Collateral Agent and each
Lender to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect
and defend their rights under the Loan Documents;
(c) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case
or proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in
respect of such Revolving Credit Borrower or any of its
Subsidiaries or any other Revolving Credit Obligor (or any
such Revolving Credit Borrower, any such Subsidiary or any
other Revolving Credit Obligor shall take any action in
furtherance of any of the foregoing), and, if any such case
or proceeding is not commenced by such Revolving Credit
Borrower or such Subsidiary or such other Revolving Credit
Obligor, such case or proceeding shall be consented to or
acquiesced in by such Revolving Credit Borrower or such
Subsidiary or such other Revolving Credit Obligor or shall
result in the entry of an order for relief or shall remain
for 60 days undismissed; provided that such Revolving Credit
Borrower, each such Subsidiary and each other Revolving
Credit Obligor hereby expressly authorizes the Collateral
Agent and each Revolving Credit Lender to appear in any
court conducting any such case or proceeding during such
60-day period to preserve, protect and defend their rights
under the Revolving Credit Loan Documents; or
(d) take any action (corporate or otherwise)
authorizing any of the foregoing; or
(e) become insolvent or generally fail to pay, or
admit in writing its inability or unwillingness to pay, its
debts as they become due.
SECTION IX.1.10. Impairment of Security, etc. Any
Revolving Credit Security Document shall (except in accordance
with its terms), in whole or in part, cease to be effective or
cease to be the legally valid, binding and enforceable obligation
any Revolving Credit Borrower or any other Revolving Credit
Obligor, as the case may be; any Revolving Credit Borrower or any
other Revolving Credit Obligor shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding
nature or enforceability; or, except as permitted under any
Revolving Credit Security Document, any Lien securing any
Revolving Credit Obligation shall, in whole or in part, cease to
be a perfected first priority Lien.
SECTION IX.1.11. Term Loan Agreement Event of Default. (i)
Any Event of Default under and as defined in the Term Loan
Agreement shall have occurred and be continuing; or (ii) any
termination event under and as defined in the Receivables Sale
Agreement as in effect on the date hereof, or any event entitling
the Persons financing the Receivables to stop funding the
purchase of Receivables from all sellers of Receivables under any
subsequent Receivables Sale Agreement, shall have occurred and be
continuing.
SECTION IX.2. Action if Bankruptcy, etc. If any Event of
Default described in clauses (a) through (d) of Section 9.1.9
shall occur with respect to any Revolving Credit Obligor, the
Revolving Credit Commitments (if not theretofore terminated)
shall automatically terminate and the outstanding principal
amount of all outstanding Revolving Credit Loans and all other
Revolving Credit Obligations shall automatically be and become
immediately due and payable, without notice or demand.
SECTION IX.3. Action if Other Event of Default. If any
Event of Default (other than an Event of Default described in
clauses (a) through (d) of Section 9.1.9 with respect to any
Revolving Credit Obligor) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative
Agent, upon the direction of the Required Revolving Credit
Lenders, shall by notice to the Revolving Credit Borrowers
declare all or any portion of the outstanding principal amount of
the Revolving Credit Loans and other Revolving Credit Obligations
to be due and payable, and/or declare the Revolving Credit
Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Revolving Credit Loans
and other Revolving Credit Obligations which shall be so declared
due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the
case may be, the Revolving Credit Commitments shall terminate.
ARTICLE X
THE AGENTS
SECTION X.1. Actions. Each Revolving Credit Lender hereby
appoints DLJ as its Syndication Agent and Collateral Agent and
ABN as its Administrative Agent under and for purposes of this
Agreement, the Revolving Credit Notes and each other Loan
Document. Each Revolving Credit Lender authorizes the Agents and
the Collateral Agent to act on behalf of such Revolving Credit
Lender under this Agreement, the Revolving Credit Notes and each
other Loan Document and, in the absence of other written
instructions from the Required Revolving Credit Lenders received
from time to time by the Agents and the Collateral Agent (with
respect to which each of the Agents and the Collateral Agent
agrees that it will comply, except as otherwise provided in this
Section or as otherwise advised by counsel), to exercise such
powers hereunder and thereunder as are specifically delegated to
or required of the Agents and the Collateral Agent by the terms
hereof and thereof, together with such powers as may be
reasonably incidental thereto. Each Revolving Credit Lender
acknowledges and consents to DLJ's acting as Syndication Agent
and Collateral Agent and ABN's acting as Administrative Agent and
for the Term Loan Lenders under the Term Loan Agreement and the
other Revolving Credit Documents. Each Revolving Credit Lender
hereby indemnifies (which indemnity shall survive any termination
of this Agreement) the Agents and the Collateral Agent, ratably
in accordance with their respective Revolving Credit Loans
outstanding and Revolving Credit Commitments (or, if no Revolving
Credit Loans or Revolving Credit Commitments are at the time
outstanding and in effect, then ratably in accordance with the
principal amount of Revolving Credit Loans held by such Revolving
Credit Lender, and their respective Revolving Credit Commitments
as in effect in each case on the date of the termination of this
Agreement), from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any
kind or nature whatsoever which may at any time be imposed on,
incurred by, or asserted against, either of the Agents or the
Collateral Agent in any way relating to or arising out of this
Agreement, the Revolving Credit Notes and any other Loan
Document, including reasonable attorneys fees, and as to which
any Agent is not reimbursed by the Revolving Credit Borrowers or
any other Revolving Credit Obligor (and without limiting the
obligation of the Revolving Credit Borrowers or any other
Revolving Credit Obligor to do so); provided, however, that no
Revolving Credit Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages,
claims, costs or expenses which are determined by a court of
competent jurisdiction in a final proceeding to have resulted
solely from such Agents or the Collateral Agents gross negligence
or willful misconduct. The Agents and the Collateral Agent
shall not be required to take any action hereunder, under the
Revolving Credit Notes or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement, the
Revolving Credit Notes or any other Loan Document, unless it is
indemnified hereunder to its satisfaction; provided, however,
that, notwithstanding the foregoing, (i) no Agent or the
Collateral Agent shall be obligated to take any action which is
inconsistent with the terms of this Agreement or any Loan
Document, (ii) no Agent or the Collateral Agent shall be
obligated to take any action which exposes it to personal
liability or which, in its judgment is contrary to applicable
law, and (iii) no Agent or the Collateral Agent shall have any
right or be obligated or entitled to enforce any right or remedy
contained herein, in any Loan Document or available at law or
equity (other that the rights of set off) except through the
Collateral Agent who is hereby granted sole and exclusive
authority on behalf of the Agents with respect thereto. If any
indemnity in favor of either of the Agents or the Collateral
Agent shall be or become, in such Agents or the Collateral Agents
determination, inadequate, the Agents or the Collateral Agent may
call for additional indemnification from the Revolving Credit
Lenders and cease to do the acts indemnified against hereunder
until such additional indemnity is given.
SECTION X.2. Funding Reliance, etc. Unless the
Administrative Agent shall have been notified by telephone,
confirmed in writing, by any Revolving Credit Lender by 5:00
p.m., New York City time, on the day prior to a Borrowing that
such Revolving Credit Lender will not make available the amount
which would constitute its Revolving Credit Percentage of such
Borrowing on the date specified therefor, the Administrative
Agent may assume that such Revolving Credit Lender has made such
amount available to the Administrative Agent and, in reliance
upon such assumption, make available to the Revolving Credit
Borrowers a corresponding amount. If and to the extent that such
Revolving Credit Lender shall not have made such amount available
to the Administrative Agent, such Revolving Credit Lender and the
Revolving Credit Borrowers severally agree to repay the
Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date
the Administrative Agent made such amount available to the
Revolving Credit Borrowers to the date such amount is repaid to
the Administrative Agent, at the interest rate applicable at the
time to Revolving Credit Loans comprising such Borrowing.
SECTION X.3. Exculpation. None of the Agents, the
Collateral Agent or the Arranger nor any of their
respective directors, officers, employees or Agents shall be
liable to any Revolving Credit Lender for any action taken or
omitted to be taken by it under this Agreement or any other
Revolving Credit Document, or in connection herewith or
therewith, except for its own wilful misconduct or gross
negligence, nor responsible for any recitals or warranties herein
or therein, nor for the effectiveness, enforceability,
sufficiency, validity or due execution of this Agreement or any
other Revolving Credit Document, nor for the creation,
attachment, perfection or priority of any Liens purported to be
created by any of the Revolving Credit Documents, or the
validity, genuineness, enforceability, existence, value or
sufficiency of any collateral security, nor to make any inquiry
respecting the performance by the Revolving Credit Borrowers of
their obligations hereunder or under any other Revolving Credit
Document. Any such inquiry which may be made by any Agent or the
Collateral Agent shall not obligate it to make any further
inquiry or to take any action. No Agent or the Collateral Agent
shall have any duties or responsibilities except those
specifically set forth in this Agreement and the other Revolving
Credit Documents and shall not by reason of the relationship
established herein be a trustee of fiduciary of any other Agent,
the Collateral Agent or any Lender. Unless it specifically
agrees to do so in writing, no Agent shall be obligated to
initiate, conduct or supervise any litigation or collection
proceedings, whether in bankruptcy or otherwise, any work-out or
post-default negotiations or take any other similar actions;
provided, that, at the written request of the Required Revolving
Credit Lenders, the Administrative Agent shall be obligated to
foreclose upon or set off against the cash collateral deposited
with it under clause (c) of Section 3.1 in accordance with
Section 5.9. Each Agent and the Collateral Agent shall be
entitled to rely: (a) upon any certification, notice or other
communication (including any thereof by telephone, telex,
telegram or cable) believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the proper Person
or Persons; and (b) upon advice and statements of legal counsel,
independent accountants and other experts selected by it in good
faith. As to any matters not expressly provided for by this
Agreement or any Revolving Credit Document, each Agent and the
Collateral Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder in accordance with
instructions signed by the Required Revolving Credit Lenders; and
such instructions of the Required Revolving Credit Lenders and
any action taken or failure to act pursuant thereto shall be
binding on all of the Revolving Credit Lenders.
SECTION X.4. Successor. The Administrative Agent, the
Syndication Agent and the Collateral Agent may resign as such at
any time upon at least 30 days prior notice to the Revolving
Credit Borrowers, the Syndication Agent, all Revolving Credit
Lenders and, in the case of the Administrative Agent, the
Collateral Agent, and, in the case of the Collateral Agent, the
Administrative Agent. If the Administrative Agent, the
Syndication Agent or the Collateral Agent at any time shall
resign, the Required Revolving Credit Lenders may, with the prior
consent of the Revolving Credit Borrowers and the Syndication
Agent (which consents shall not be unreasonably withheld or
delayed), appoint another Lender as a successor Administrative
Agent or the Collateral Agent which shall thereupon become the
Administrative Agent or the Collateral Agent hereunder. If no
successor Administrative Agent, Syndication Agent or Collateral
Agent shall have been so appointed by the Required Revolving
Credit Lenders, and shall have accepted such appointment, within
30 days after the retiring Administrative Agents, Syndication
Agents or Collateral Agents giving notice of resignation, then
the retiring Administrative Agent, Syndication Agent or
Collateral Agent may, on behalf of the Revolving Credit Lenders,
appoint a successor Administrative Agent, Syndication Agent or
Collateral Agent, which shall be one of the Lenders or a
commercial banking institution organized under the laws of the
United States or a United States branch or agency of a commercial
banking institution, and having a combined capital and surplus of
at least $500,000,000. Notwithstanding the foregoing, for so
long as ABN shall act as Administrative Agent, if no successor
Administrative Agent has been named and accepted its appointment
as Administrative Agent, then ABN shall be permitted to resign
and the Syndication Agent or the Collateral Agent shall succeed
to the responsibilities of ABN as Administrative Agent; provided,
that at no time during the period commencing with the
Administrative Agent tendering its notice of resignation and
ending at the time that a successor Administrative Agent is
named, may DLJ resign as either the Syndication Agent or the
Collateral Agent. Upon the acceptance of any appointment as
Administrative Agent, Syndication Agent or Collateral Agent
hereunder by a successor Administrative Agent, Syndication Agent
or Collateral Agent, such successor Administrative Agent,
Syndication Agent or Collateral Agent shall be entitled to
receive from the retiring Administrative Agent, Syndication Agent
or Collateral Agent such documents of transfer and assignment as
such successor Administrative Agent, Syndication Agent or
Collateral Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges
and duties of the retiring Administrative Agent, Syndication
Agent or Collateral Agent, and the retiring Administrative Agent
or Collateral Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring
Administrative Agents, Syndication Agents or Collateral Agents
resignation hereunder as the Administrative Agent, Syndication
Agent or Collateral Agent, the provisions of
(a) this Article X shall inure to its benefit as to
any actions taken or omitted to be taken by the retiring
Administrative Agent, retiring Syndication Agent or retiring
Collateral Agent while it was the Administrative Agent, the
Syndication Agent or the Collateral Agent under this
Agreement; and
(b) Section 11.3 and Section 11.4 shall continue to
inure to its benefit.
SECTION X.5. Revolving Credit Loans and Revolving Credit
Letters of Credit by each Agent and the Collateral Agent. Each
Agent and the Collateral Agent and the Issuer shall have the
same rights and powers with respect to (x) (i) in the case of the
Agents and the Collateral Agent, the Revolving Credit Loans and
Revolving Credit Letters of Credit made by it or any of its
Affiliates and (ii) in the case of the Issuer, the Revolving
Credit Loans made by it or any of its Affiliates, and (y) the
Revolving Credit Notes held by it or any of its Affiliates as any
other Revolving Credit Lender and may exercise the same as if it
were not an Agent or the Collateral Agent. Each Agent and the
Collateral Agent and each of their respective Affiliates may
accept deposits from, lend money to, and generally engage in any
kind of business with the Revolving Credit Borrowers or any
Subsidiary or Affiliate of the Revolving Credit Borrowers as if
such Agent or Collateral Agent were not an Agent or Collateral
Agent hereunder.
SECTION X.6. Credit Decisions. Each Revolving Credit
Lender acknowledges that it has, independently of each Agent, the
Collateral Agent, the Documentation Agent, the Arranger and each
other Revolving Credit Lender, and based on such Revolving Credit
Lender's review of the financial information of the Revolving
Credit Borrowers, this Agreement, the other Loan Documents (the
terms and provisions of which being satisfactory to such
Revolving Credit Lender) and such other documents, information
and investigations as such Revolving Credit Lender has deemed
appropriate, made its own credit decision to extend its Revolving
Credit Commitment. Each Revolving Credit Lender also
acknowledges that it will, independently of each Agent, the
Collateral Agent, the Documentation Agent, the Arranger and each
other Revolving Credit Lender, and based on such other documents,
information and investigations as it shall deem appropriate at
any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan
Document.
SECTION X.7. Copies, etc. Either Agent or the Collateral
Agent shall give prompt notice to each Revolving Credit Lender of
each notice or request required or permitted to be given to such
Agent or Collateral Agent by any Revolving Credit Borrower
pursuant to the terms of this Agreement (unless concurrently
delivered to the Revolving Credit Lenders by a Revolving Credit
Borrower). To the extent that either Agent or the Collateral
Agent receives any document or instrument or other communication
for distribution to the Revolving Credit Lenders, such Agent or
the Collateral Agent will distribute to each Revolving Credit
Lender each document or instrument received for its account and
copies of all other communications received by such Agent or the
Collateral Agent from any Revolving Credit Borrower for
distribution to the Revolving Credit Lenders by such Agent or
the Collateral Agent in accordance with the terms of this
Agreement (except, in the case of non-public information, as any
such Revolving Credit Lender shall have notified the Revolving
Credit Borrowers and such Agent or the Collateral Agent in
writing that such Revolving Credit Lender shall not be furnished
with such document or instrument). Except for notices, reports
and other documents and information expressly required to be
furnished to the Revolving Credit Lenders by an Agent or the
Collateral Agent hereunder or under a Loan Document, no Agent or
the Collateral Agent shall have any duty or responsibility to
provide any other Agent or the Collateral Agent or Revolving
Credit Lender with any credit or other information concerning the
affairs, financial condition or business of any Revolving Credit
Borrower (or any of their Affiliates) which may come into the
possession of such Agent or the Collateral Agent or any of their
Affiliates.
SECTION X.8. The Syndication Agent, the Documentation
Agent, the Administrative Agent and the Collateral Agent.
Notwithstanding anything else to the contrary contained in this
Agreement or any other Loan Document, the Agents, the Collateral
Agent and the Documentation Agent, in their respective capacities
as such, each in such capacity, shall have no duties or
responsibilities under this Agreement or any other Loan Document
nor any fiduciary relationship with any Revolving Credit Lender,
and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
otherwise exist against either Agent, the Collateral Agent or the
Documentation Agent, as applicable, in such capacity except as
are explicitly set forth herein or in the other Loan Documents.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION XI.1. Waivers, Amendments, etc. The provisions of
this Agreement and of each other Revolving Credit Document may
from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to
by each Revolving Credit Borrower (as to this Agreement and each
other Revolving Credit Document to which such Revolving Credit
Borrower is a party) and the Required Revolving Credit Lenders;
provided, however, that no such amendment, modification or waiver
which would:
(a) modify any requirement hereunder that any
particular action be taken by all the Revolving Credit
Lenders or by the Required Revolving Credit Lenders shall be
effective unless consented to by each Revolving Credit
Lender;
(b) modify this Section 11.1, change the definition of
Required Revolving Credit Lenders, increase any Revolving
Credit Commitment Amount or the Percentage of any Revolving
Credit Lender, reduce any fees described in Article III,
release all or substantially all collateral security, except
as otherwise specifically provided in any Revolving Credit
Document or extend any Revolving Credit Commitment
Termination Date shall be made without the consent of each
Revolving Credit Lender and each holder of a Revolving
Credit Note affected thereby;
(c) extend the due date for, or reduce the amount or
application of, any scheduled repayment or prepayment of
principal of or interest on any Revolving Credit Loan (or
reduce the principal amount of or rate of interest on any
Revolving Credit Loan) shall be made without the consent of
each affected Revolving Credit Lender;
(d) affect adversely the interests, rights or
obligations of the Issuer qua the Issuer shall be made
without the consent of the Issuer;
(e) affect adversely the interests, rights or
obligations of the Swing Line Lender qua the Swing Line
Lender shall be made without the consent of the Swing Line
Lender;
(f) affect adversely the interests, rights or
obligations of any Agent, the Collateral Agent or Arranger
(in its capacity as Agent, the Collateral Agent or
Arranger), unless consented to by such Agent, the Collateral
Agent or Arranger, as the case may be; or
(g) amend, modify or waive the provisions of clause (d)
of Section 3.1.1 of the Term Loan Agreement or the
penultimate paragraph of Section 7.2.12 of the Term Loan
Agreement without the consent of each Revolving Credit
Lender or Assignee Revolving Credit Lender.
No failure or delay on the part of any Agent, the Collateral
Agent, any Revolving Credit Lender or the holder of any Revolving
Credit Note in exercising any power or right under this Agreement
or any other Revolving Credit Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
power or right preclude any other or further exercise thereof or
the exercise of any other power or right. No notice to or demand
on any Revolving Credit Borrower in any case shall entitle it to
any notice or demand in similar or other circumstances. No
waiver or approval by any Agent, the Collateral Agent, any
Revolving Credit Lender or the holder of any Revolving Credit
Note under this Agreement or any other Revolving Credit Document
shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or
approval hereunder shall require any similar or dissimilar waiver
or approval thereafter to be granted hereunder.
SECTION XI.2. Notices. All notices and other
communications provided to any party hereto under this Agreement
or any other Revolving Credit Document shall be in writing or by
facsimile and addressed, delivered or transmitted to such party
at its address or facsimile number set forth on Schedule II
hereto or, in the case of a Revolving Credit Lender that becomes
a party hereto after the date hereof, as set forth in the Lender
Assignment Agreement pursuant to which such Revolving Credit
Lender becomes a Revolving Credit Lender hereunder or at such
other address or facsimile number as may be designated by such
party in a notice to the other parties. Any notice, if mailed
and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed
given when received; any notice, if transmitted by facsimile,
shall be deemed given when transmitted (and telephonic
confirmation of receipt thereof has been received).
SECTION XI.3. Payment of Costs and Expenses. The
Revolving Credit Borrowers jointly and severally agree to pay on
demand all reasonable expenses of the Agents and the Collateral
Agent (including the reasonable fees and out-of-pocket expenses
of counsel to the Agents and the Collateral Agent and of local
counsel, if any, who may be retained by counsel to the Agents and
the Collateral Agent) in connection with
(a) the syndication by the Syndication Agent and the
Arranger of the Revolving Credit Loans, the negotiation,
preparation, execution and delivery of this Agreement and of
each other Revolving Credit Document, including schedules
and exhibits, and any amendments, waivers, consents,
supplements or other modifications to this Agreement or any
other Revolving Credit Document as may from time to time
hereafter be required, whether or not the transactions
contemplated hereby are consummated,
(b) the filing, recording, refiling or rerecording of
each Revolving Credit Mortgage, each Pledge Agreement and
each Security Agreement and/or any Uniform Commercial Code
financing statements relating thereto and all amendments,
supplements and modifications to any thereof and any and all
other documents or instruments of further assurance required
to be filed or recorded or refiled or rerecorded by the
terms hereof or of such Revolving Credit Mortgage, Pledge
Agreement or Security Agreement, and
(c) the preparation and review of the form of any
document or instrument relevant to this Agreement or any
other Revolving Credit Document.
The Revolving Credit Borrowers further jointly and severally
agree to pay, and to save the Agents, the Collateral Agent and
the Revolving Credit Lenders harmless from all liability for, any
stamp or other taxes which may be payable in connection with the
execution or delivery of this Agreement, the Revolving Credit
Loans made hereunder, the issuance of the Notes, the issuance of
the Revolving Credit Letters of Credit, or any other Revolving
Credit Documents. The Revolving Credit Borrowers jointly and
severally also agree to reimburse each Agent, the Collateral
Agent and each Revolving Credit Lender upon demand for all
reasonable out-of-pocket expenses (including reasonable attorneys
fees and legal expenses) incurred by such Agent, the Collateral
Agent or such Revolving Credit Lender in connection with (x) the
negotiation of any restructuring or work-out, whether or not
consummated, of any Revolving Credit Obligations and (y) the
enforcement of any Revolving Credit Obligations.
SECTION XI.4. Indemnification. In consideration of the
execution and delivery of this Agreement by each Revolving Credit
Lender and the extension of the Revolving Credit Commitments, the
Revolving Credit Borrowers hereby jointly and severally
indemnify, exonerate and hold each Agent, the Collateral Agent,
the Documentation Agent, the Arranger, the Issuer and each
Revolving Credit Lender and each of their respective partners,
officers, directors, trustees, employees and agents, and each
other Person controlling any of the foregoing within the meaning
of either Section 15 of the Securities Act of 1933, as amended,
or Section 20 of the Securities Exchange Act of 1934, as amended
(collectively, the Indemnified Parties) free and harmless from
and against any and all actions, causes of action, suits, losses,
costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such
Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable
attorneys fees and disbursements (collectively, the Indemnified
Liabilities), incurred by the Indemnified Parties or any of them
as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in
whole or in part, directly or indirectly, with the proceeds
of any Revolving Credit Loan or the use of any Revolving
Credit Letter of Credit;
(b) the entering into and performance of this
Agreement and any other Revolving Credit Document by any of
the Indemnified Parties (including any action brought by or
on behalf of any Revolving Credit Borrower as the result of
any determination by the Required Revolving Credit Lenders
pursuant to Article VI not to make any Revolving Credit
Extension);
(c) any investigation, litigation or proceeding
related to any acquisition or proposed acquisition by any
Revolving Credit Borrower or any of its Subsidiaries of all
or any portion of the stock or assets of any Person, whether
or not such Agent, such Documentation Agent, such Arranger
or such Revolving Credit Lender is party thereto;
(d) any investigation, litigation or proceeding
related to any environmental cleanup, audit, compliance or
other matter relating to any Borrowers or any of its
Subsidiaries compliance with or liability under any
Environmental Law or the Release by any Revolving Credit
Borrower or any of its Subsidiaries of any Hazardous
Material; or
(e) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or
releases from, any real property owned or operated by any
Revolving Credit Borrower or any Subsidiary thereof of any
Hazardous Material present on or under such property in a
manner giving rise to liability at or prior to the time any
Revolving Credit Borrower or any Subsidiary thereof owned or
operated such property (including any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or
arising under any Environmental Law), regardless of whether
caused by, or within the control of, such Revolving Credit
Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the
account of a particular Indemnified Party by reason of the
relevant Indemnified Party's gross negligence or wilful
misconduct or any Hazardous Materials that are first
manufactured, emitted, generated, treated, released, stored or
disposed of on any real property of any Revolving Credit Borrower
or any of its Subsidiaries or any violation of Environmental Law
that first occurs on or with respect to any real property of such
Revolving Credit Borrower or any of its Subsidiaries after such
real property is transferred to any Indemnified Person or its
successor by foreclosure sale, deed in lieu of foreclosure, or
similar transfer, except to the extent such manufacture,
emission, release, generation, treatment, storage or disposal or
violation is actually caused by the Term Loan Borrower, any
Revolving Credit Borrower or any of such Revolving Credit
Borrower's Subsidiaries. Each Revolving Credit Borrower and its
permitted successors and assigns hereby waive, release and agree
not to make any claim, or bring any cost recovery action against,
any Agent, the Documentation Agent, the Arranger or any Revolving
Credit Lender under CERCLA or any state equivalent, or any
similar law now existing or hereafter enacted, except to the
extent arising out of the gross negligence or willful misconduct
of any Indemnified Party. It is expressly understood and agreed
that to the extent that any of such Persons is strictly liable
under any Environmental Laws, each Revolving Credit Borrower's
obligation to such Person under this indemnity shall likewise be
without regard to fault on the part of such Revolving Credit
Borrower, to the extent permitted under applicable law, with
respect to the violation or condition which results in liability
of such Person. Notwithstanding anything to the contrary herein,
each Agent, the Collateral Agent, the Documentation Agent, the
Arranger and each Revolving Credit Lender shall be responsible
for any act or occurrence resulting from their own gross
negligence or willful misconduct with respect to any Hazardous
Materials that are first manufactured, emitted, generated,
treated, released, stored or disposed of on any real property of
any Revolving Credit Borrower or any of its Subsidiaries or any
violation of Environmental Law that first occurs on or with
respect to any such real property after such real property is
transferred to any Agent, the Collateral Agent, Documentation
Agent, Arranger or Revolving Credit Lender to its successor by
foreclosure sale, deed in lieu of foreclosure, or similar
transfer, except to the extent such manufacture, emission,
release, generation, treatment, storage or disposal or violation
is actually caused by the Term Loan Borrower, such Revolving
Credit Borrower or any of such Revolving Credit Borrower's
Subsidiaries. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, each Revolving
Credit Borrower hereby agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
SECTION XI.5. Survival. The obligations of each Revolving
Credit Borrower under Sections 5.3, 5.4, 5.5, 5.6, 11.3 and 11.4,
and the obligations of the Revolving Credit Lenders under Section
4.8 and Section 10.1, shall in each case survive any termination
of this Agreement, the payment in full of all Revolving Credit
Obligations and the termination of all Revolving Credit
Commitments. The representations and warranties made by each
Revolving Credit Obligor in this Agreement and in each other
Revolving Credit Document shall survive the execution and
delivery of this Agreement and each such other Revolving Credit
Document.
SECTION XI.6. Severability. Any provision of this
Agreement or any other Revolving Credit Document which is
prohibited or unenforceable in any jurisdiction shall, as to such
provision and such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or such Revolving Credit
Document or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION XI.7. Headings. The various headings of this
Agreement and of each other Revolving Credit Document are
inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or such other Revolving Credit
Document or any provisions hereof or thereof.
SECTION XI.8. Execution in Counterparts, Effectiveness,
etc. This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and
the same agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Revolving Credit
Borrowers and each Revolving Credit Lender (or notice thereof
satisfactory to the Agents) shall have been received by the
Agents and notice thereof shall have been given by the Agents to
the Revolving Credit Borrowers and each Revolving Credit Lender.
SECTION XI.9. Governing Law; Entire Agreement. THIS
AGREEMENT, THE REVOLVING CREDIT NOTES AND EACH OTHER REVOLVING
CREDIT DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This
Agreement, the Revolving Credit Notes and the other Revolving
Credit Documents constitute the entire understanding among the
parties hereto with respect to the subject matter hereof and
supersede any prior agreements, written or oral, with respect
thereto.
SECTION XI.10. Successors and Assigns. This Agreement
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns;
provided, however, that (i) no Revolving Credit Borrower may
assign or transfer its rights or obligations hereunder without
the prior written consent of each of the Agents and all Revolving
Credit Lenders; and (ii) the rights of sale, assignment and
transfer of the Revolving Credit Lenders are subject to Section
11.11.
SECTION XI.11. Sale and Transfer of Revolving Credit Loans
and Revolving Credit Commitments; Participations in Revolving
Credit Loans and Revolving Credit Commitments. Each Revolving
Credit Lender may assign, or sell participations in, its
Revolving Credit Loans and Revolving Credit Commitments so long
as each such assignment or sale is made, in the case of Revolving
II Credit Commitments and Revolving II Credit Loans, on a pro
rata basis with the assignment, or sale of participations in, its
Term Loans, and, in the case of Revolving I Credit Loans and
Revolving II Credit Loans, respectively, on a pro rata basis with
the assignment, or sale of participations in, its Revolving I
Credit Commitments and Revolving II Credit Commitments, to one or
more other Persons in accordance with this Section 11.11 and
Section 10.11 of the Term Loan Agreement; provided, that in the
event any Revolving Credit Lender (for purposes of this proviso,
a Selling Lender) desires to sell a participation to any
prospective purchaser of any such participation which cannot,
purchase a participation in unfunded Revolving II Credit
Commitments (a Restricted Participant), such Selling Lender shall
not be obligated pursuant this Section 11.11 to sell such
Restricted Participant a pro rata share of such Selling Lender's
unfunded Revolving II Credit Commitment so long as such
Restricted Participant is obligated to purchase a pro rata share
of each Revolving II Credit Loan as and when made by such Selling
Lender pursuant to its Revolving II Credit Commitment; provided,
further, that such Restricted Participant shall be obligated to
purchase its pro rata share of such unfunded Revolving II Credit
Commitment whenever it would otherwise be permitted to do so
(including, if applicable, upon the occurrence of an Event of
Default).
SECTION XI.11.1. Assignments. Any Revolving Credit Lender
(the Assignor Revolving Credit Lender),
(a) with the written consents of each Revolving Credit
Borrower and the Syndication Agent and (in the case of any
assignments or participations in Revolving Credit Letters of
Credit or Revolving Credit Commitments) the Issuer and the
Swing Line Lender, (which consents shall not be unreasonably
delayed or withheld and which consent of the Syndication
Agent and the Issuer and the Swing Line Lender shall not be
required in the case of assignments made by or to DLJ or any
of its Affiliates and which consent of such Revolving Credit
Borrower shall not be required if a Default of the type
described in clauses (a) through (d) of Section 9.1.9 or an
Event of Default shall have occurred and be continuing), may
at any time assign and delegate to one or more commercial
banks or other financial institutions or funds which are
regularly engaged in making, purchasing or investing in
loans or securities, and
(b) with notice to each Revolving Credit Borrower and
the Agents, and (in the case of any assignments or
participations in Revolving Credit Letters of Credit or
Revolving Credit Commitments) the Issuer and the Swing Line
Lender, but without the consent of any Revolving Credit
Borrower, the Agents, the Issuer or the Swing Line Lender,
may assign and delegate to any of its Affiliates or Related
Funds or to any other Revolving Credit Lender or any other
financial institution so long as such assignment and
delegation to such financial institution is made within ten
Business Days of the Closing Date
(each Person described in either of the foregoing clauses as
being the Person to whom such assignment and delegation is to be
made, being hereinafter referred to as an Assignee Revolving
Credit Lender), all or any fraction of such Revolving Credit
Lender's total Revolving Credit Loans, participations in
Revolving Credit Letters of Credit and Revolving Credit Letters
of Credit Outstandings with respect thereto and Revolving Credit
Commitments and total Term Loans in a minimum aggregate amount of
(i) $1,000,000 or (ii) the then remaining amount of such
Revolving Credit Lender's Revolving Credit Loans and Revolving
Credit Commitments and Term Loans; provided, however, that any
such Assignee Revolving Credit Lender will comply, if applicable,
with the provisions contained in Section 5.6 and each Revolving
Credit Borrower, each other Revolving Credit Obligor and the
Agents shall be entitled to continue to deal solely and directly
with such Revolving Credit Lender in connection with the
interests so assigned and delegated to an Assignee Revolving
Credit Lender until
(c) written notice of such assignment and delegation,
together with payment instructions, addresses and related
information with respect to such Assignee Revolving Credit
Lender, shall have been given to each Revolving Credit
Borrower and the Agents by such Revolving Credit Lender and
such Assignee Revolving Credit Lender;
(d) such Assignee Revolving Credit Lender shall have
executed and delivered to each Revolving Credit Borrower and
the Agents a Lender Assignment Agreement, accepted by the
Agents;
(e) the processing fees described below shall have
been paid; and
(f) the Administrative Agent shall have registered
such assignment and delegation in the Register pursuant to
clause (b) of Section 2.6.
From and after the date that the Administrative Agent accepts
such Lender Assignment Agreement and such assignment and
delegation is registered in the Register pursuant to clause (b)
of Section 2.6, (x) the Assignee Revolving Credit Lender
thereunder shall be deemed automatically to have become a party
hereto and to the extent that rights and obligations hereunder
have been assigned and delegated to such Assignee Revolving
Credit Lender in connection with such Lender Assignment
Agreement, shall have the rights and obligations of a Revolving
Credit Lender hereunder and under the other Revolving Credit
Documents, and (y) the Assignor Revolving Credit Lender, to the
extent that rights and obligations hereunder have been assigned
and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and
under the other Revolving Credit Documents. Within ten Business
Days after its receipt of notice that the Administrative Agent
has received an executed Lender Assignment Agreement, and upon
request pursuant to Section 2.6, the Revolving Credit Borrowers
shall execute and deliver to the Administrative Agent (for
delivery to the relevant Assignee Revolving Credit Lender) new
Revolving Credit Notes evidencing such Assignee Revolving Credit
Lender's assigned Revolving Credit Loans and Revolving Credit
Commitments and, if the Assignor Revolving Credit Lender has
retained Revolving Credit Loans and Revolving Credit Commitments
hereunder, replacement Revolving Credit Notes in the principal
amount of the Revolving Credit Loans and Revolving Credit
Commitments retained by the Assignor Revolving Credit Lender
hereunder (such Revolving Credit Notes to be in exchange for, but
not in payment of, those Revolving Credit Notes then held by such
Assignor Revolving Credit Lender). Each such Revolving Credit
Note shall be dated the date of the predecessor Revolving Credit
Notes. The Assignor Revolving Credit Lender shall ▇▇▇▇ the
predecessor Revolving Credit Notes exchanged and deliver them to
the Revolving Credit Borrowers. Accrued interest on that part of
the predecessor Revolving Credit Notes evidenced by the new
Revolving Credit Notes, and accrued fees, shall be paid as
provided in the Lender Assignment Agreement. Accrued interest on
that part of the predecessor Revolving Credit Notes evidenced by
the replacement Revolving Credit Notes shall be paid to the
Assignor Revolving Credit Lender. Accrued interest and accrued
fees shall be paid at the same time or times provided in the
predecessor Revolving Credit Notes and in this Agreement. Such
Assignor Revolving Credit Lender or such Assignee Revolving
Credit Lender must also pay a processing fee to the
Administrative Agent upon delivery of any Lender Assignment
Agreement in connection with the concurrent assignment of Term
Loans and Revolving II Credit Commitments in the amount of
$1,500, unless such assignment and delegation is by a Revolving
Credit Lender to its Affiliate or Related Fund or if such
assignment and delegation consists of a pledge by a Revolving
Credit Lender to a Federal Reserve Bank (or, in the case of a
Revolving Credit Lender that is an investment fund, to the
trustee under the indenture to which such fund is a party), as
provided below or is otherwise consented to by the Syndication
Agent. Any attempted assignment and delegation not made in
accordance with this Section 11.11.1 shall be null and void.
Nothing contained in this Section 11.11.1 shall prevent or
prohibit any Revolving Credit Lender from pledging its rights
(but not its obligations to make Revolving Credit Loans) under
this Agreement and/or its Revolving Credit Loans and/or its
Revolving Credit Notes hereunder (i) to a Federal Reserve Bank in
support of borrowings made by such Revolving Credit Lender from
such Federal Reserve Bank, or (ii) in the case of a Revolving
Credit Lender that is an investment fund, to the trustee under
the indenture to which such fund is a party in support of its
obligations to such trustee, in either case without notice to or
consent of the Revolving Credit Borrowers or the Agents;
provided, however, that (A) such Revolving Credit Lender shall
remain a Revolving Credit Lender under this Agreement and shall
continue to be bound be the terms and conditions set forth in
this Agreement and the other Revolving Credit Documents, and (B)
any assignment by such trustee shall be subject to the provisions
of clause (a) of this Section 11.11.1.
SECTION XI.11.2. Participations. Any Revolving Credit
Lender may at any time sell to one or more commercial banks or
other financial institutions or funds which are regularly engaged
in making, purchasing or investing in loans or securities (each
such commercial bank and other financial institution or fund
being herein called a Participant) participating interests in any
of the Revolving Credit Loans, Revolving Credit Commitments,
participations in Revolving Credit Letters of Credit and
Revolving Credit Letters of Credit Outstandings or other
interests of such Revolving Credit Lender hereunder; provided,
however, that
(a) no participation contemplated in this
Section shall relieve such Revolving Credit Lender from its
Revolving Credit Commitments or its other obligations
hereunder or under any other Revolving Credit Document;
(b) such Revolving Credit Lender shall remain solely
responsible for the performance of its Revolving Credit
Commitments and such other obligations;
(c) each Revolving Credit Borrower and each other
Revolving Credit Obligor and the Agents shall continue to
deal solely and directly with such Revolving Credit Lender
in connection with such Revolving Credit Lender's rights and
obligations under this Agreement and each of the other
Revolving Credit Documents;
(d) no Participant, unless such Participant is an
Affiliate of such Revolving Credit Lender, or is itself a
Revolving Credit Lender, shall be entitled to require such
Revolving Credit Lender to take or refrain from taking any
action hereunder or under any other Revolving Credit
Document, except that such Revolving Credit Lender may agree
with any Participant that such Revolving Credit Lender will
not, without such Participant's consent, agree to (i) any
reduction in the interest rate or amount of fees that such
Participant is otherwise entitled to, (ii) a decrease in the
principal amount, or an extension of the final Stated
Maturity Date, of any Revolving Credit Loan in which such
Participant has purchased a participating interest or
(iii) a release of all or substantially all of the
collateral security under the Revolving Credit Documents or
any Subsidiary Guarantor under any Subsidiary Guaranty, if
any, in each case except as otherwise specifically provided
in a Revolving Credit Document; and
(e) the Revolving Credit Borrowers shall not be
required to pay any amount under Sections 5.3, 5.4, 5.5,
5.6, 11.3 and 11.4 that is greater than the amount which it
would have been required to pay had no participating
interest been sold.
Each Revolving Credit Borrower acknowledges and agrees, subject
to clause (e) above, that, to the fullest extent permitted under
applicable law, each Participant, for purposes of Sections 5.3,
5.4, 5.5, 5.6, 5.8, 5.9, 11.3 and 11.4, shall be considered a
Revolving Credit Lender.
SECTION XI.12. Other Transactions. Nothing contained
herein shall preclude any Agent, the Collateral Agent or any
other Revolving Credit Lender from engaging in any transaction,
in addition to those contemplated by this Agreement or any other
Revolving Credit Document, with any Revolving Credit Borrower or
any of their respective Affiliates in which such Revolving Credit
Borrower or such Affiliate is not restricted hereby from engaging
with any other Person.
SECTION XI.13. Forum Selection and Consent to Jurisdiction.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER REVOLVING CREDIT
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
COLLATERAL AGENT, THE REVOLVING CREDIT LENDERS OR THE REVOLVING
CREDIT BORROWERS SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY (TO
THE EXTENT PERMITTED UNDER APPLICABLE LAW) IN THE COURTS OF THE
STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, NEW YORK COUNTY; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY REVOLVING
CREDIT COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
COLLATERAL AGENT?S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH REVOLVING CREDIT COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. EACH REVOLVING CREDIT BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK, NEW YORK COUNTY, AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. EACH REVOLVING CREDIT BORROWER
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN
OR WITHOUT THE STATE OF NEW YORK. EACH REVOLVING CREDIT BORROWER
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT ANY REVOLVING CREDIT BORROWER HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE)
WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH REVOLVING CREDIT
BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF
ITS REVOLVING CREDIT OBLIGATIONS UNDER THIS AGREEMENT AND THE
OTHER REVOLVING CREDIT DOCUMENTS.
SECTION XI.14. Waiver of Jury Trial. THE AGENTS, THE
COLLATERAL AGENT, THE REVOLVING CREDIT LENDERS AND EACH REVOLVING
CREDIT BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER REVOLVING CREDIT
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
COLLATERAL AGENT, THE REVOLVING CREDIT LENDERS OR THE REVOLVING
CREDIT BORROWERS RELATING THERETO. EACH REVOLVING CREDIT
BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER REVOLVING CREDIT DOCUMENT TO WHICH IT IS
A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
AGENTS, THE COLLATERAL AGENT, AND THE REVOLVING CREDIT LENDERS
ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER REVOLVING CREDIT
DOCUMENT.
SECTION XI.15. Confidentiality. The Agents, the Collateral
Agent, the Arranger and the Revolving Credit Lenders shall hold
all non-public information obtained pursuant to or in connection
with this Agreement or obtained by them based on a review of the
books and records of any Revolving Credit Borrower or any of its
Subsidiaries in accordance with their customary procedures for
handling confidential information of this nature, but may make
disclosure to any of their examiners, regulators (including,
without limitation, the National Association of Insurance
Commissioners), Affiliates, outside auditors, counsel and other
professional advisors in connection with this Agreement or as
reasonably required by any potential bona fide transferee,
participant or assignee, or in connection with the exercise of
remedies under a Revolving Credit Document, or as requested by
any governmental agency or representative thereof or pursuant to
legal process; provided, however, that
(a) unless specifically prohibited by applicable law
or court order, each Agent, the Collateral Agent, the
Arranger and each Revolving Credit Lender shall promptly
notify each Revolving Credit Borrower of any request by any
governmental agency or representative thereof (other than
any such request in connection with an examination of the
financial condition of such Agent, the Collateral Agent,
Arranger and Revolving Credit Lender by such governmental
agency) for disclosure of any such non-public information
and, where practicable, prior to disclosure of such
information;
(b) prior to any such disclosure pursuant to this
Section 11.15, each Agent, the Collateral Agent, the
Arranger and each Revolving Credit Lender shall require any
such bona fide transferee, participant and assignee
receiving a disclosure of non-public information to agree in
writing
(i) to be bound by this Section 11.15; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this Section
11.15;
(c) disclosure may, with the consent of the
Syndication Agent and each Revolving Credit Borrower, be
made by any Revolving Credit Lender to any direct or
indirect contractual counter parties of such Revolving
Credit Lender in swap agreements or such contractual
counterparties professional advisors; provided that such
contractual counterparty or professional advisor agrees in
writing to keep such information confidential to the same
extent required of the Revolving Credit Lenders hereunder;
and
(d) except as may be required by an order of a court
of competent jurisdiction and to the extent set forth
therein, no Revolving Credit Lender shall be obligated or
required to return any materials furnished by any Revolving
Credit Borrower or any Subsidiary.
SECTION XI.16. Liens on Sold Assets. The Collateral Agent
will execute and deliver to the Revolving Credit Borrowers, at
the Revolving Credit Borrowers sole cost and expense, any
releases, termination statements or other documents reasonably
necessary to (a) release the Liens granted by the Security
Documents on any property or other assets sold, transferred or
otherwise disposed of in a transaction permitted by the Term Loan
Agreement as in effect on the date hereof and (b) if the property
or other assets sold, transferred or otherwise disposed of in a
transaction permitted by the Term Loan Agreement consists of all
the Capital Stock of a Subsidiary, release such Subsidiary from
the Subsidiary Guaranty, the Subsidiary Pledge Agreement, the
Subsidiary Security Agreement and each other Revolving Credit
Document if such Subsidiary is a party thereto.
SECTION XI.17. Termination of SFC's and SFC Sub's
Obligations. Upon the Restatement Effective Date, all
obligations (other than those expressly stated to survive such
termination) of SFC and SFC Sub under the Loan Documents to which
each of SFC and SFC Sub is a party shall terminate and such Loan
Documents, with regard to SFC and SFC Sub, shall be of no further
force and effect. Upon such termination, the Collateral Agent
shall deliver to SFC (at its sole expense) the certificates
evidencing all of the issued and outstanding shares of Capital
Stock of SFC Sub pledged to the Collateral Agent pursuant to the
Borrower Pledge Agreement executed by SFC on the Closing Date as
well as any releases, termination statements or other documents
reasonably necessary to evidence such termination and for the
release of Liens granted to the Collateral Agent pursuant to the
Borrower Security Agreement and the Borrower Pledge Agreement
executed by SFC on the Closing Date on any property or other
assets of SFC, and shall deliver to SFC Sub any releases,
termination statements or other documents reasonably necessary to
evidence such termination and for the release of Liens granted to
the Collateral Agent pursuant to the Subsidiary Security
Agreement and Subsidiary Pledge Agreement executed by SFC Sub on
the Closing Date on any property or other assets of SFC Sub.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the day and year first above written.
MOTHER?S CAKE & COOKIE CO.,
a California corporation
By:
________________________________
Name:
Title:
GWI, INC.,
a Delaware corporation
By:
________________________________
Name:
Title:
▇▇▇▇ BAKING COMPANY,
an Iowa corporation
By:
________________________________
Name:
Title:
SFFB HOLDINGS, INC.,
a Delaware corporation
By:
________________________________
Name:
Title:
BELSEA HOLDINGS, INC.,
a Delaware corporation
By:
________________________________
Name:
Title:
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent,
Collateral Agent
and as a Revolving Credit Lender
By:
Title:
ABN AMRO BANK N.V.,
as the Administrative Agent and
as a Revolving Credit Lender
By:
Title:
By:
Title:
BANQUE PARIBAS, as the
Documentation Agent
and as a Revolving Credit Lender
By:
Title:
EQUITABLE LIFE INSURANCE
NON PAR HIGH YIELD,
as a Revolving Credit Lender
By:
Name:
Title:
EQUITABLE LIFE INSURANCE ASST.
CORP. HIGH YIELD,
as a Revolving Credit Lender
By:
Name:
Title:
EQUITABLE LIFE ASSURANCE HIGH INCOME,
as a Revolving Credit Lender
By:
Name:
Title:
EQUITABLE LIFE ASSURANCE NUTMEG,
as a Revolving Credit Lender
By:
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND,
as a Revolving Credit Lender
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.,
as a Revolving Credit Lender
By:
Name:
Title:
BAVARIA TRR CORP.,
as a Revolving Credit Lender
By:
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
PRIME INCOME TRUST,
as a Revolving Credit Lender
By:
Name:
Title:
SENIOR DEBT PORTFOLIO,
as a Revolving Credit Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
as Investment Advisor
By:
Name:
Title:
KZH CNC LLC,
as a Revolving Credit Lender
By:
Name:
Title:
PPM AMERICA,
as a Revolving Credit Lender
By:
Name:
Title:
PRESIDENT AND FELLOWS OF HARVARD COLLEGE,
as a Revolving Credit Lender
By:
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET MANAGEMENT,
as a Revolving Credit Lender
By:
Name:
Title:
MAGTEN,
as a Revolving Credit Lender
By:
Name:
Title:
AG CAPITAL FUNDING PARTNERS, L.P.,
as a Revolving Credit Lender
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P.,
as Investment Advisor
By:
Name:
Title:
NORTHWOODS CAPITAL, LIMITED,
as a Revolving Credit Lender
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P.,
as Collateral Manager
By:
Name:
Title:
FOOTHILL CAPITAL,
as a Revolving Credit Lender
By:
Name:
Title:
ING CAPITAL,
as a Revolving Credit Lender
By:
Name:
Title:
▇▇▇ CAPITAL FUNDING L.P.,
as a Revolving Credit Lender
By:
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as a Revolving Credit Lender
By:
Name:
Title:
OXFORD STRATEGIC INCOME,
as a Revolving Credit Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
as Investment Advisor
By:
Name:
Title:
SCHEDULE I
to
Revolving Credit
Agreement
DISCLOSURE SCHEDULE
ITEM 8.2.2(b) Indebtedness to be Paid.
Creditor Outstanding Principal Amount
SCHEDULE II
to
Revolving Credit
Agreement
REVOLVING CREDIT PERCENTAGES
Revolving I Revolving II
Credit Credit
Revolving Credit Lender Commitment Commitment
DLJ Capital Funding, Inc. 100%
ABN AMRO Bank N.V. 40%
Banque Paribas 60%
ADMINISTRATIVE INFORMATION
Notice Information
Revolving Credit Borrowers c/o Specialty Foods
Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
DLJ Capital Funding, Inc.,
as Syndication Agent and
Collateral Agent ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
