REVOLVING CREDIT AGREEMENT dated as of April 20, 2009 among WALTER INVESTMENT MANAGEMENT CORP., as Borrower, THE LENDERS FROM TIME TO TIME PARTY HERETO, REGIONS BANK, as Syndication Agent and SUNTRUST BANK, as Administrative Agent SUNTRUST ROBINSON...
ExhibitΒ 10.1.1
dated as of AprilΒ 20, 2009
among
XXXXXX INVESTMENT MANAGEMENT CORP.,
as Borrower,
as Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
REGIONS BANK,
as Syndication Agent
as Syndication Agent
and
SUNTRUST BANK,
as Administrative Agent
as Administrative Agent
Β
SUNTRUST XXXXXXXX XXXXXXXX, INC.
and
REGIONS CAPITAL MARKETS, a division of Regions Bank,
as Joint Lead Arrangers and Co-Book Managers
and
REGIONS CAPITAL MARKETS, a division of Regions Bank,
as Joint Lead Arrangers and Co-Book Managers
Β
Β
TABLE OF CONTENTS
Β | Β | Β | Β | Β |
Β | Β | Page | ||
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ARTICLE I |
Β | Β | Β | Β |
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Β | Β | Β | Β |
DEFINITIONS; CONSTRUCTION |
Β | Β | 1 | Β |
SectionΒ 1.1. Definitions |
Β | Β | 1 | Β |
SectionΒ 1.2. Classifications of Loans and Borrowings |
Β | Β | 19 | Β |
SectionΒ 1.3. Accounting Terms and Determination |
Β | Β | 19 | Β |
SectionΒ 1.4. Terms Generally |
Β | Β | 19 | Β |
Β |
Β | Β | Β | Β |
ARTICLE II |
Β | Β | Β | Β |
Β |
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AMOUNT AND TERMS OF THE COMMITMENTS |
Β | Β | 20 | Β |
SectionΒ 2.1. General Description of Facilities |
Β | Β | 20 | Β |
SectionΒ 2.2. Revolving Loans |
Β | Β | 20 | Β |
SectionΒ 2.3. Procedure for Revolving Borrowings |
Β | Β | 20 | Β |
SectionΒ 2.4. Swingline Commitment |
Β | Β | 20 | Β |
SectionΒ 2.5. Funding of Borrowings |
Β | Β | 22 | Β |
SectionΒ 2.6. Interest Elections |
Β | Β | 22 | Β |
SectionΒ 2.7. Reduction and Termination of Commitments |
Β | Β | 23 | Β |
SectionΒ 2.8. Repayment of Loans |
Β | Β | 24 | Β |
SectionΒ 2.9. Evidence of Indebtedness |
Β | Β | 24 | Β |
SectionΒ 2.10. Optional Prepayments |
Β | Β | 24 | Β |
SectionΒ 2.11. Mandatory Prepayments |
Β | Β | 25 | Β |
SectionΒ 2.12. Interest on Loans |
Β | Β | 25 | Β |
SectionΒ 2.13. Fees |
Β | Β | 26 | Β |
SectionΒ 2.14. Computation of Interest and Fees |
Β | Β | 27 | Β |
SectionΒ 2.15. Inability to Determine Interest Rates |
Β | Β | 27 | Β |
SectionΒ 2.16. Illegality |
Β | Β | 27 | Β |
SectionΒ 2.17. Increased Costs |
Β | Β | 28 | Β |
SectionΒ 2.18. Funding Indemnity |
Β | Β | 28 | Β |
SectionΒ 2.19. Taxes |
Β | Β | 29 | Β |
SectionΒ 2.20. Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
Β | Β | 30 | Β |
SectionΒ 2.21. Letters of Credit |
Β | Β | 32 | Β |
SectionΒ 2.22. Cash Collateralization of Defaulting Lender Commitment |
Β | Β | 35 | Β |
SectionΒ 2.23. Mitigation of Obligations |
Β | Β | 36 | Β |
SectionΒ 2.24. Replacement of Lenders |
Β | Β | 36 | Β |
SectionΒ 2.25. Support Letter of Credit |
Β | Β | 37 | Β |
Β |
Β | Β | Β | Β |
ARTICLE III |
Β | Β | Β | Β |
Β |
Β | Β | Β | Β |
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT |
Β | Β | 37 | Β |
SectionΒ 3.1. Conditions To Effectiveness |
Β | Β | 37 | Β |
SectionΒ 3.2. Each Credit Event |
Β | Β | 39 | Β |
SectionΒ 3.3. Delivery of Documents |
Β | Β | 40 | Β |
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ARTICLE IV |
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REPRESENTATIONS AND WARRANTIES |
Β | Β | 40 | Β |
SectionΒ 4.1. Existence; Power |
Β | Β | 40 | Β |
SectionΒ 4.2. Organizational Power; Authorization |
Β | Β | 40 | Β |
SectionΒ 4.3. Governmental Approvals; No Conflicts |
Β | Β | 41 | Β |
SectionΒ 4.4. Financial Statements |
Β | Β | 41 | Β |
SectionΒ 4.5. Litigation and Environmental Matters |
Β | Β | 41 | Β |
SectionΒ 4.6. Compliance with Laws and Agreements |
Β | Β | 42 | Β |
SectionΒ 4.7. Investment Company Act, Etc. |
Β | Β | 42 | Β |
SectionΒ 4.8. Taxes |
Β | Β | 42 | Β |
SectionΒ 4.9. Margin Regulations |
Β | Β | 42 | Β |
SectionΒ 4.10. ERISA |
Β | Β | 42 | Β |
SectionΒ 4.11. Ownership of Property |
Β | Β | 42 | Β |
SectionΒ 4.12. Disclosure |
Β | Β | 43 | Β |
SectionΒ 4.13. Labor Relations |
Β | Β | 43 | Β |
SectionΒ 4.14. Subsidiaries |
Β | Β | 43 | Β |
SectionΒ 4.15. Solvency |
Β | Β | 43 | Β |
SectionΒ 4.16. OFAC |
Β | Β | 44 | Β |
SectionΒ 4.17. Patriot Act |
Β | Β | 44 | Β |
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Β | Β | Β | Β |
ARTICLE V |
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Β | Β | Β | Β |
AFFIRMATIVE COVENANTS |
Β | Β | 44 | Β |
SectionΒ 5.1. Financial Statements and Other Information |
Β | Β | 44 | Β |
SectionΒ 5.2. Notices of Material Events |
Β | Β | 45 | Β |
SectionΒ 5.3. Existence; Conduct of Business |
Β | Β | 46 | Β |
SectionΒ 5.4. Compliance with Laws, Etc. |
Β | Β | 46 | Β |
SectionΒ 5.5. Payment of Obligations |
Β | Β | 46 | Β |
SectionΒ 5.6. Books and Records |
Β | Β | 46 | Β |
SectionΒ 5.7. Visitation, Inspection, Etc. |
Β | Β | 47 | Β |
SectionΒ 5.8. Maintenance of Properties; Insurance |
Β | Β | 47 | Β |
SectionΒ 5.9. Use of Proceeds and Letters of Credit |
Β | Β | 47 | Β |
SectionΒ 5.10. Maintenance of Support Letter of Credit |
Β | Β | 47 | Β |
SectionΒ 5.11. Additional Subsidiaries |
Β | Β | 47 | Β |
Β |
Β | Β | Β | Β |
ARTICLE VI |
Β | Β | Β | Β |
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Β | Β | Β | Β |
FINANCIAL COVENANTS |
Β | Β | 47 | Β |
SectionΒ 6.1. Minimum Unencumbered Assets |
Β | Β | 47 | Β |
SectionΒ 6.2. Minimum Interest Coverage Ratio |
Β | Β | 48 | Β |
SectionΒ 6.3. Maximum Portfolio Loss Ratio |
Β | Β | 48 | Β |
SectionΒ 6.4. Maximum Portfolio Delinquency Rate |
Β | Β | 48 | Β |
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Β | Β | Β | Β |
ii |
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ARTICLE VII |
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NEGATIVE COVENANTS |
Β | Β | 48 | Β |
SectionΒ 7.1. Indebtedness and Preferred Equity |
Β | Β | 48 | Β |
SectionΒ 7.2. Negative Pledge |
Β | Β | 49 | Β |
SectionΒ 7.3. Fundamental Changes |
Β | Β | 49 | Β |
SectionΒ 7.4. Investments, Loans, Etc. |
Β | Β | 50 | Β |
SectionΒ 7.5. Restricted Payments |
Β | Β | 50 | Β |
SectionΒ 7.6. Sale of Assets |
Β | Β | 51 | Β |
SectionΒ 7.7. Transactions with Affiliates |
Β | Β | 51 | Β |
SectionΒ 7.8. Restrictive Agreements |
Β | Β | 51 | Β |
SectionΒ 7.9. Sale and Leaseback Transactions |
Β | Β | 52 | Β |
SectionΒ 7.10. Hedging Transactions |
Β | Β | 52 | Β |
SectionΒ 7.11. Amendment to Material Documents |
Β | Β | 52 | Β |
SectionΒ 7.12. Accounting Changes |
Β | Β | 52 | Β |
SectionΒ 7.13. Government Regulation |
Β | Β | 52 | Β |
Β |
Β | Β | Β | Β |
ARTICLE VIII |
Β | Β | Β | Β |
Β |
Β | Β | Β | Β |
EVENTS OF DEFAULT |
Β | Β | 52 | Β |
SectionΒ 8.1. Events of Default |
Β | Β | 52 | Β |
Β |
Β | Β | Β | Β |
ARTICLE IX |
Β | Β | Β | Β |
Β |
Β | Β | Β | Β |
THE ADMINISTRATIVE AGENT |
Β | Β | 55 | Β |
SectionΒ 9.1. Appointment of Administrative Agent |
Β | Β | 55 | Β |
SectionΒ 9.2. Nature of Duties of Administrative Agent |
Β | Β | 55 | Β |
SectionΒ 9.3. Lack of Reliance on the Administrative Agent |
Β | Β | 56 | Β |
SectionΒ 9.4. Certain Rights of the Administrative Agent |
Β | Β | 56 | Β |
SectionΒ 9.5. Reliance by Administrative Agent |
Β | Β | 56 | Β |
SectionΒ 9.6. The Administrative Agent in its Individual Capacity |
Β | Β | 56 | Β |
SectionΒ 9.7. Successor Administrative Agent |
Β | Β | 57 | Β |
SectionΒ 9.8. Withholding Tax |
Β | Β | 57 | Β |
SectionΒ 9.9. Administrative Agent May File Proofs of Claim |
Β | Β | 58 | Β |
SectionΒ 9.10. Authorization to Execute other Loan Documents |
Β | Β | 58 | Β |
SectionΒ 9.11. Syndication Agent |
Β | Β | 58 | Β |
Β |
Β | Β | Β | Β |
ARTICLE X |
Β | Β | Β | Β |
Β |
Β | Β | Β | Β |
MISCELLANEOUS |
Β | Β | 59 | Β |
SectionΒ 10.1. Notices |
Β | Β | 59 | Β |
SectionΒ 10.2. Waiver; Amendments |
Β | Β | 61 | Β |
SectionΒ 10.3. Expenses; Indemnification |
Β | Β | 62 | Β |
SectionΒ 10.4. Successors and Assigns |
Β | Β | 64 | Β |
SectionΒ 10.5. Governing Law; Jurisdiction; Consent to Service of Process |
Β | Β | 67 | Β |
SectionΒ 10.6. WAIVER OF JURY TRIAL |
Β | Β | 67 | Β |
SectionΒ 10.7. Right of Setoff |
Β | Β | 68 | Β |
SectionΒ 10.8. Counterparts; Integration |
Β | Β | 68 | Β |
SectionΒ 10.9. Survival |
Β | Β | 68 | Β |
SectionΒ 10.10. Severability |
Β | Β | 69 | Β |
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iii |
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SectionΒ 10.11. Confidentiality |
Β | Β | 69 | Β |
SectionΒ 10.12. Interest Rate Limitation |
Β | Β | 69 | Β |
SectionΒ 10.13. Waiver of Effect of Corporate Seal |
Β | Β | 70 | Β |
SectionΒ 10.14. Patriot Act |
Β | Β | 70 | Β |
SectionΒ 10.15. Location of Closing |
Β | Β | 70 | Β |
Schedules
Β | Β | Β | Β | Β | Β | Β |
Β
|
Β | ScheduleΒ I | Β | - | Β | Commitment Amounts |
Β
|
Β | ScheduleΒ 4.5(a) | Β | - | Β | Litigation |
Β
|
Β | ScheduleΒ 4.5(b) | Β | - | Β | Environmental Matters |
Β
|
Β | ScheduleΒ 4.8 | Β | - | Β | Tax Assessments |
Β
|
Β | ScheduleΒ 4.14 | Β | - | Β | Subsidiaries |
Β
|
Β | ScheduleΒ 7.1 | Β | - | Β | Outstanding Indebtedness |
Β
|
Β | ScheduleΒ 7.2 | Β | - | Β | Existing Liens |
Β
|
Β | ScheduleΒ 7.4 | Β | - | Β | Existing Investments |
Β
|
Β | ScheduleΒ 10.1 | Β | - | Β | Borrowerβs URL |
Exhibits
Β | Β | Β | Β | Β | Β | Β |
Β
|
Β | ExhibitΒ A | Β | - | Β | Form of Assignment and Acceptance |
Β
|
Β | ExhibitΒ B | Β | - | Β | Form of Subsidiary Guaranty Agreement |
Β
|
Β | ExhibitΒ C | Β | - | Β | Form of Support Letter of Credit |
Β |
Β | Β | Β | Β | Β | Β |
Β
|
Β | ExhibitΒ 2.3 | Β | - | Β | Form of Notice of Revolving Borrowing |
Β
|
Β | ExhibitΒ 2.4 | Β | - | Β | Form of Notice of Swingline Borrowing |
Β
|
Β | ExhibitΒ 2.6 | Β | - | Β | Form of Notice of Conversion/Continuation |
Β
|
Β | ExhibitΒ 3.1(b)(v) | Β | - | Β | Form of Secretaryβs Certificate |
Β
|
Β | ExhibitΒ 5.1(c) | Β | - | Β | Form of Compliance Certificate |
Β |
Β | Β | Β | Β | Β | Β |
iv
Β
Β
Β Β Β Β Β Β Β Β Β Β THIS REVOLVING CREDIT AGREEMENT (this βAgreementβ) is made and entered into as of
AprilΒ 20, 2009, by and among XXXXXX INVESTMENT MANAGEMENT CORP., a Maryland corporation (the
βBorrowerβ), the several banks and other financial institutions and lenders from time to
time party hereto (the βLendersβ), and SUNTRUST BANK, in its capacity as administrative
agent for the Lenders (in such capacity, the βAdministrative Agentβ), as issuing bank (in
such capacity, the βIssuing Bankβ) and as swingline lender (in such capacity, the
βSwingline Lenderβ).
W I T N E S S E T H:
Β Β Β Β Β Β Β Β Β Β WHEREAS, the Borrower has requested that the Lenders establish a $15,000,000 revolving credit
facility in favor of the Borrower;
Β Β Β Β Β Β Β Β Β Β WHEREAS, subject to the terms and conditions of this Agreement, the Lenders, the Issuing Bank
and the Swingline Lender are willing severally to establish the requested revolving credit
facility, letter of credit subfacility and swingline subfacility in favor of the Borrower.
Β Β Β Β Β Β Β Β Β Β NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the Borrower, the Lenders, the Administrative Agent, the Issuing Bank and the Swingline Lender
agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Β Β Β Β Β SectionΒ 1.1. Definitions. In addition to the other terms defined herein, the
following terms used herein shall have the meanings herein specified (to be equally applicable to
both the singular and plural forms of the terms defined):
Β Β Β Β Β Β Β Β Β Β βAccountβ shall mean the obligations of any Mortgage Obligor under an Account Note,
together with the related Mortgage.
Β Β Β Β Β Β Β Β Β Β βAccount Noteβ shall mean the original note, building or sales contract, loan
agreement, if applicable, or other evidence of indebtedness executed by an Mortgage Obligor that
evidences the indebtedness of such Mortgage Obligor under an Account.
Β Β Β Β Β Β Β Β Β Β βAdjusted LIBO Rateβ shall mean, with respect to each Interest Period for a Eurodollar
Borrowing, the rate per annum obtained by dividing (i)Β LIBOR for such Interest Period by (ii)Β a
percentage equal to 1.00 minus the Eurodollar Reserve Percentage.
Β Β Β Β Β Β Β Β Β Β βAdministrative Agentβ shall have the meaning assigned to such term in the opening
paragraph hereof.
Β Β Β Β Β Β Β Β Β Β βAdministrative Questionnaireβ shall mean, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent and submitted to the
Administrative Agent duly completed by such Lender.
Β Β Β Β Β Β Β Β Β Β βAffiliateβ shall mean, as to any Person, any other Person that directly, or
indirectly through one or more intermediaries, Controls, is Controlled by, or is under common
Control with, such
Person. For the purposes of this definition, βControlβ shall mean the power, directly or
indirectly, either to (i)Β vote 5% or more of the securities having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person or (ii)Β direct or cause
the direction of the management
Β
Β
and policies of a Person, whether through the ability to exercise
voting power, by control or otherwise. The terms βControllingβ, βControlled byβ, and βunder common
Control withβ have the meanings correlative thereto.
Β Β Β Β Β Β Β Β Β Β βAggregate Revolving Commitment Amountβ shall mean the aggregate principal amount of
the Aggregate Revolving Commitments from time to time. On the Closing Date, the Aggregate
Revolving Commitment Amount is $15,000,000.
Β Β Β Β Β Β Β Β Β Β βAggregate Revolving Commitmentsβ shall mean, collectively, all Revolving Commitments
of all Lenders at any time outstanding.
Β Β Β Β Β Β Β Β Β Β βAnti-Terrorism Orderβ shall mean Executive Order 13224, signed by President Xxxxxx X.
Xxxx on SeptemberΒ 24, 2001.
Β Β Β Β Β Β Β Β Β Β βApplicable Lending Officeβ shall mean, for each Lender and for each Type of Loan, the
βLending Officeβ of such Lender (or an Affiliate of such Lender) designated for such Type of Loan
in the Administrative Questionnaire submitted by such Lender or such other office of such Lender
(or an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained.
Β Β Β Β Β Β Β Β Β Β βApplicable Marginβ shall mean, as of any date, with respect to all Loans outstanding
on any date or the letter of credit fee, as the case may be, the percentage per annum determined by
reference to the applicable Credit Rating of the Support L/C Bank from time to time in effect as
set forth below; provided, that a change in the Applicable Margin resulting from a change
in the Credit Rating of the Support L/C Bank shall be effective on the day on which either rating
agency changes its rating and shall continue until the day prior to the day that a further change
becomes effective. The initial Applicable Margin shall be at Level I.
Β | Β | Β | Β | Β | Β | Β |
Β | Β | Credit Rating of | Β | Applicable Margin for | Β | Β |
Pricing | Β | the Support L/C | Β | Eurodollar Loans and | Β | Applicable Margin for |
Level | Β | Bank | Β | Letter of Credit Fee | Β | Base Rate Loans |
I | Β | A2 or higher/A or higher |
Β | 4.00% per annum | Β | 3.00% per annum |
II | Β | Less than A2/A |
Β | 5.00% per annum | Β | 4.00% per annum |
Β Β Β Β Β The βCredit Ratingβ shall mean the Bank Deposit Rating assigned to the Support L/C Bank, and
any rating assigned to any other obligation of the Support L/C Bank shall be disregarded. The
Credit Rating in effect on any date is that in effect at the close of business on such date. If
the Credit Rating is split-rated and (1)Β the ratings differential is one category, the lower of the
two ratings will apply or (2)Β the ratings differential is more than one category, the rate shall be
determined by reference to the category next above that of the lower of the two ratings. If the
Support L/C Bank has a Bank Deposit Rating from either Xxxxxβx or S&P but not both, then the Credit
Rating shall be determined by reference to the Bank Deposit Rating of such agency; if Support L/C
Bank does not have a Bank Deposit Rating from either Xxxxxβx or S&P, then the Credit Rating shall
be determined by reference to Level II.
Β Β Β Β Β Β Β Β Β Β βApproved Fundβ shall mean any Person (other than a natural Person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
2
Β
extensions of credit in the ordinary course of its business and that is administered or managed by
(i)Β a Lender, (ii)Β an Affiliate of a Lender or (iii)Β an entity or an Affiliate of an entity that
administers or manages a Lender.
Β Β Β Β Β Β Β Β Β Β βAsset Transferβ shall have the meaning set forth in SectionΒ 2.1(a) of the Merger
Agreement.
Β Β Β Β Β Β Β Β Β Β βAssignment and Acceptanceβ shall mean an assignment and acceptance entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
10.4(b)) and accepted by the Administrative Agent, in the form of ExhibitΒ A attached
hereto or any other form approved by the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β βAvailability Periodβ shall mean the period from the Closing Date to but excluding the
Revolving Commitment Termination Date.
Β Β Β Β Β Β Β Β Β Β βBank Deposit Ratingβ shall mean the rating assigned by either Xxxxxβx or S&P with
respect to a bankβs ability to repay punctually its foreign and/or domestic currency deposit
obligations.
Β Β Β Β Β Β Β Β Β Β βBase Rateβ shall mean the highest of (i)Β the rate which the Administrative Agent
announces from time to time as its prime lending rate, as in effect from time to time, (ii)Β the
Federal Funds rate, as in effect from time to time, plus one-half of one percent (1/2%) per annum and
(iii)Β the Eurodollar Rate determined on a daily basis for an Interest Period of one (1)Β month, plus
one percent (1.00%) per annum (any changes in such rates to be effective as of the date of any
change in such rate). The Administrative Agentβs prime lending rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged to any customer. The
Administrative Agent may make commercial loans or other loans at rates of interest at, above, or
below the Administrative Agentβs prime lending rate.
Β Β Β Β Β Β Β Β Β Β βBorrowerβ shall have the meaning in the introductory paragraph hereof.
Β Β Β Β Β Β Β Β Β Β βBorrowingβ shall mean a borrowing consisting of (i)Β Loans of the same Class and Type,
made, converted or continued on the same date and in the case of Eurodollar Loans, as to which a
single Interest Period is in effect, or (ii)Β a Swingline Loan.
Β Β Β Β Β Β Β Β Β Β βBusiness Dayβ shall mean (i)Β any day other than a Saturday, Sunday or other day on
which commercial banks in Atlanta, Georgia are authorized or required by law to close and (ii)Β if
such day relates to a Borrowing of, a payment or prepayment of principal or interest on, a
conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice with respect to any
of the foregoing, any day on which banks are not open for dealings in dollar deposits are carried
on in the London interbank market.
Β Β Β Β Β Β Β Β Β Β βCapital Lease Obligationsβ of any Person shall mean all obligations of such Person to
pay rent or other amounts under any lease (or other arrangement conveying the right to use) of real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Β Β Β Β Β Β Β Β Β Β βCapital Stockβ shall mean all shares, options, warrants, general or limited
partnership interests, membership interests or other equivalents (regardless of how designated) of
or in a corporation, partnership, limited liability company or equivalent entity whether voting or
nonvoting, including
common stock, preferred stock or any other βequity securityβ (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934).
3
Β
Β Β Β Β Β Β Β Β Β Β βCash Collateralizeβ shall mean, in respect of any obligations, to provide and pledge
(as a first priority perfected security interest) cash collateral for such obligations in Dollars,
with a depository institution, and pursuant to documentation in form and substance, reasonably
satisfactory to the Administrative Agent (and βCash Collateralizationβ has a corresponding
meaning).
Β Β Β Β Β Β Β Β Β Β βChange in Controlβ shall mean the occurrence of one or more of the following events:
(i)Β any sale, lease, exchange or other transfer (in a single transaction or a series of related
transactions) of all or substantially all of the assets of the Borrower to any Person or βgroupβ
(within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder in effect on the date hereof), (ii)Β the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or βgroupβ (within the meaning of
the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof) of 30% or more of the outstanding shares of the voting
stock of the Borrower, or (iii)Β occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Borrower by Persons who were neither (a)Β nominated by the current
board of directors nor (b)Β appointed by directors so nominated.
Β Β Β Β Β Β Β Β Β Β βChange in Lawβ shall mean (i)Β the adoption of any applicable law, rule or regulation
after the date of this Agreement, (ii)Β any change in any applicable law, rule or regulation, or any
change in the interpretation or application thereof, by any Governmental Authority after the date
of this Agreement, or (iii)Β compliance by any Lender (or its Applicable Lending Office) or the
Issuing Bank (or for purposes of SectionΒ 2.17(b), by the parent corporation of such Lender
or the Issuing Bank, if applicable) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after the date of this Agreement.
Β Β Β Β Β Β Β Β Β Β βClassβ, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans and when used in
reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or a
Swingline Commitment.
Β Β Β Β Β Β Β Β Β Β βClosing Dateβ shall mean the date on which the conditions precedent set forth in
SectionΒ 3.1 and SectionΒ 3.2 have been satisfied or waived in accordance with
SectionΒ 10.2.
Β Β Β Β Β Β Β Β Β Β βClosing Date Fee Letterβ shall mean that certain fee letter, dated as of the date
hereof, executed by SunTrust Xxxxxxxx Xxxxxxxx, Inc. and SunTrust Bank and accepted by Borrower.
Β Β Β Β Β Β Β Β Β Β βCodeβ shall mean the Internal Revenue Code of 1986, as amended and in effect from
time to time.
Β Β Β Β Β Β Β Β Β Β βCommitmentβ shall mean a Revolving Commitment or a Swingline Commitment or any
combination thereof (as the context shall permit or require).
Β Β Β Β Β Β Β Β Β Β βCompliance Certificateβ shall mean a certificate from the principal executive officer
or the principal financial officer of the Borrower in the form of, and containing the
certifications set forth in, the certificate attached hereto as ExhibitΒ 5.1(c).
Β Β Β Β Β Β Β Β Β Β βConsolidated EBITDAβ shall mean, for the Borrower and its Subsidiaries for any
period, an amount equal to the sum of (i)Β Consolidated Net Income for such period plus (ii)Β to the
extent
deducted in determining Consolidated Net Income for such period, and without duplication, (A)
Consolidated Interest Expense (excluding Consolidated Interest Expense attributable to Non-Recourse
Indebtedness of the Borrower and its Subsidiaries), (B)Β income tax expense determined on a
consolidated
4
Β
basis in accordance with GAAP, (C)Β depreciation and amortization determined on a
consolidated basis in accordance with GAAP, and (D)Β all other non-cash charges acceptable to the
Administrative Agent, determined on a consolidated basis in accordance with GAAP, in each case for
such period.
Β Β Β Β Β Β Β Β Β Β βConsolidated Interest Expenseβ shall mean, for the Borrower and its Subsidiaries for
any period determined on a consolidated basis in accordance with GAAP, the sum of (i)Β total
interest expense, including without limitation the interest component of any payments in respect of
Capital Lease Obligations capitalized or expensed during such period (whether or not actually paid
during such period) plus (ii)Β the net amount payable (or minus the net amount receivable) with
respect to Hedging Transactions during such period (whether or not actually paid or received during
such period).
Β Β Β Β Β Β Β Β Β Β βConsolidated Net Incomeβ shall mean, for the Borrower and its Subsidiaries for any
period, the net income (or loss) of the Borrower and its Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP, but excluding therefrom (to the extent otherwise
included therein) (i)Β any extraordinary gains or losses, (ii)Β any gains attributable to write-ups
of assets, (iii)Β any equity interest of the Borrower or any Subsidiary of the Borrower in the
unremitted earnings of any Person that is not a Subsidiary and (iv)Β any income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the
Borrower or any Subsidiary on the date that such Personβs assets are acquired by the Borrower or
any Subsidiary.
Β Β Β Β Β Β Β Β Β Β βContractual Obligationβ of any Person shall mean any provision of any security issued
by such Person or of any agreement, instrument or undertaking under which such Person is obligated
or by which it or any of the property in which it has an interest is bound.
Β Β Β Β Β Β Β Β Β Β βCredit Ratingβ shall have the meaning assigned to such term in the definition of
Applicable Margin.
Β Β Β Β Β Β Β Β Β Β βDefaultβ shall mean any condition or event that, with the giving of notice or the
lapse of time or both, would constitute an Event of Default.
Β Β Β Β Β Β Β Β Β Β βDefault Interestβ shall have the meaning set forth in Section
2.12(c).
Β Β Β Β Β Β Β Β Β Β βDefaulting Lenderβ shall mean, at any time, a Lender as to which the Administrative
Agent has notified the Borrower that (i)Β such Lender has failed for three or more Business Days to
comply with its obligations under this Agreement to make a Loan, make a payment to the Issuing Bank
in respect of a Letter of Credit and/or make a payment to the Swingline Lender in respect of a
Swingline Loan (each a βfunding obligationβ), (ii)Β such Lender has notified the
Administrative Agent, or has stated publicly, that it will not comply with any such funding
obligation hereunder, (iii)Β such Lender has, for three or more Business Days, failed to confirm in
writing to the Administrative Agent, in response to a written request of the Administrative Agent,
that it will comply with its funding obligations hereunder, or (iv)Β a Lender Insolvency Event has
occurred and is continuing with respect to such Lender. Any determination that a Lender is a
Defaulting Lender under clauses (i)Β through (iv)Β above will be made by the Administrative Agent in
its sole discretion acting in good faith. The Administrative Agent will promptly send to all
parties hereto a copy of any notice to the Borrower provided for in this definition.
Β Β Β Β Β Β Β Β Β Β βDelinquent Accountβ shall mean an Account as to which any payment, or part thereof,
remains unpaid for more than thirty days (30)Β from the original Due Date for such payment,
excluding (i)Β those Accounts owed by an Mortgage Obligor in a bankruptcy proceeding that is making
payments on the
Account in contractual compliance with the mortgage payment plan approved by the bankruptcy
court and (ii)Β Accounts that have been foreclosed.
5
Β
Β Β Β Β Β Β Β Β Β Β βDollar(s)β and the sign β$β shall mean lawful money of the United States of America.
Β Β Β Β Β Β Β Β Β Β βDue Dateβ shall mean with respect to any Account, the date each month on which the
Monthly Payment is payable.
Β Β Β Β Β Β Β Β Β Β βEnvironmental Lawsβ shall mean all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, Release or threatened Release of
any Hazardous Material or to health and safety matters.
Β Β Β Β Β Β Β Β Β Β βEnvironmental Liabilityβ shall mean any liability, contingent or otherwise (including
any liability for damages, costs of environmental investigation and remediation, costs of
administrative oversight, fines, natural resource damages, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (i)Β any actual or
alleged violation of any Environmental Law, (ii)Β the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (iii)Β any actual or alleged exposure to
any Hazardous Materials, (iv)Β the Release or threatened Release of any Hazardous Materials or (v)
any contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
Β Β Β Β Β Β Β Β Β Β βERISAβ shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and any successor statute.
Β Β Β Β Β Β Β Β Β Β βERISA Affiliateβ shall mean any trade or business (whether or not incorporated),
which, together with the Borrower, is treated as a single employer under Section 414(b) or (c)Β of
the Code or, solely for the purposes of SectionΒ 302 of ERISA and SectionΒ 412 of the Code, is
treated as a single employer under SectionΒ 414 of the Code.
Β Β Β Β Β Β Β Β Β Β βERISA Eventβ shall mean (i)Β any βreportable eventβ, as defined in SectionΒ 4043 of
ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which
the 30-day notice period is waived); (ii)Β the failure of any Plan to meet the minimum funding
standard applicable to the Plan for a plan year under SectionΒ 412 of the Code or SectionΒ 302 of
ERISA, whether or not waived; (iii)Β the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any
Plan; (iv)Β the incurrence by the Borrower or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (v)Β the receipt by the Borrower or
any ERISA Affiliate from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any
Plan; (vi)Β the incurrence by the Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (vii)Β the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer
Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA.
Β Β Β Β Β Β Β Β Β Β βEurodollarβ when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to
the Adjusted LIBO Rate.
Β Β Β Β Β Β Β Β Β Β βEurodollar Reserve Percentageβ shall mean the aggregate of the maximum reserve
percentages (including, without limitation, any emergency, supplemental, special or other marginal
reserves) expressed as a decimal (rounded upwards to the next 1/100th of 1%) in effect
on any day to
6
Β
which the Administrative Agent is subject with respect to the Adjusted LIBO Rate
pursuant to regulations issued by the Board of Governors of the Federal Reserve System (or any
Governmental Authority succeeding to any of its principal functions) with respect to eurocurrency
funding (currently referred to as βeurocurrency liabilitiesβ under RegulationΒ D). Eurodollar Loans
shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be available from time
to time to any Lender under RegulationΒ D. The Eurodollar Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in any reserve percentage.
Β Β Β Β Β Β Β Β Β Β βEvent of Defaultβ shall have the meaning provided in ArticleΒ VIII.
Β Β Β Β Β Β Β Β Β Β βExcluded Taxesβ shall mean with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a)Β income or franchise taxes imposed on (or measured by) its net income by
the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
Applicable Lending Office is located, or with respect to which the recipient of the payment has a
present or former connection (other than a connection resulting solely from the transactions
hereunder), (b)Β any branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which any Lender is located and (c)Β in the case of a Foreign
Lender, any withholding tax that (i)Β is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement, (ii)Β is imposed on amounts payable to
such Foreign Lender at any time that such Foreign Lender designates a new lending office, other
than taxes that have accrued prior to the designation of such lending office that are otherwise not
Excluded Taxes, or (iii)Β is attributable to such Foreign Lenderβs failure to comply with
SectionΒ 2.19(e).
Β Β Β Β Β Β Β Β Β Β βFederal Funds Rateβ shall mean, for any day, the rate per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve System arranged by
Federal funds brokers, as published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the
quotations for such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β βFiscal Quarterβ shall mean any fiscal quarter of the Borrower.
Β Β Β Β Β Β Β Β Β Β βFiscal Yearβ shall mean any fiscal year of the Borrower.
Β Β Β Β Β Β Β Β Β Β βForeign Lenderβ shall mean any Lender that is not a United States person under
SectionΒ 7701(a)(30) of the Code.
Β Β Β Β Β Β Β Β Β Β βGAAPβ shall mean generally accepted accounting principles in the United States
applied on a consistent basis and subject to the terms of SectionΒ 1.3.
Β Β Β Β Β Β Β Β Β Β βGovernmental Authorityβ shall mean the government of the United States of America,
any other nation or any political subdivision thereof, whether state or local, and any agency,
authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.
7
Β
Β Β Β Β Β Β Β Β Β Β βGuaranteeβ of or by any Person (the βguarantorβ) shall mean any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the βprimary
obligorβ) in any manner, whether directly or indirectly and including any obligation, direct or
indirect, of the guarantor (i)Β to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for
the purchase of) any security for the payment thereof, (ii)Β to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (iii)Β to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (iv)Β as an account party in respect of any
letter of credit or letter of guaranty issued in support of such Indebtedness or obligation;
provided, that the term βGuaranteeβ shall not include endorsements for collection or
deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith. The term βGuaranteeβ used as a verb has a corresponding meaning.
Β Β Β Β Β Β Β Β Β Β βHazardous Materialsβ shall mean all explosive or radioactive substances or wastes and
all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
Β Β Β Β Β Β Β Β Β Β βHedging Obligationsβ of any Person shall mean any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
under (i)Β any and all Hedging Transactions, (ii)Β any and all cancellations, buy backs, reversals,
terminations or assignments of any Hedging Transactions and (iii)Β any and all renewals, extensions
and modifications of any Hedging Transactions and any and all substitutions for any Hedging
Transactions.
Β Β Β Β Β Β Β Β Β Β βHedging Transactionβ of any Person shall mean (a)Β any transaction (including an
agreement with respect to any such transaction) now existing or hereafter entered into by such
Person that is a rate swap transaction, swap option, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option, spot transaction,
credit protection transaction, credit swap, credit default swap, credit default option, total
return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction,
buy/sell-back transaction, securities lending transaction, or any other similar transaction
(including any option with respect to any of these transactions) or any combination thereof,
whether or not any such transaction is governed by or subject to any master agreement and (b)Β any
and all transactions of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with any related schedules, a βMaster
Agreementβ), including any such obligations or liabilities under any Master Agreement.
Β Β Β Β Β Β Β Β Β Β βIndebtednessβ of any Person shall mean, without duplication (i)Β all obligations of
such Person for borrowed money, (ii)Β all obligations of such Person evidenced by bonds, debentures,
notes or
other similar instruments, (iii)Β all obligations of such Person in respect of the deferred purchase
price of property or services (other than trade payables incurred in the ordinary course of
business; provided, that for purposes of SectionΒ 8.1(f), trade payables
overdue by more than 120Β days shall be included in this
8
Β
definition except to the extent that any of
such trade payables are being disputed in good faith and by appropriate measures), (iv)Β all
obligations of such Person under any conditional sale or other title retention agreement(s)
relating to property acquired by such Person, (v)Β all Capital Lease Obligations of such Person,
(vi)Β all obligations, contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii)Β all Guarantees of such Person of the type of
Indebtedness described in clauses (i)Β through (vi)Β above, (viii)Β all Indebtedness of a third party
secured by any Lien on property owned by such Person, whether or not such Indebtedness has been
assumed by such Person, (ix)Β all obligations of such Person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value any Capital Stock of such Person, (x)Β Off-Balance
Sheet Liabilities and (xi)Β all Hedging Obligations. The Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a general partner or a
joint venturer, except to the extent that the terms of such Indebtedness provide that such Person
is not liable therefor.
Β Β Β Β Β Β Β Β Β Β βIndemnified Taxesβ shall mean Taxes other than Excluded Taxes and Other Taxes.
Β Β Β Β Β Β Β Β Β Β βInterest Coverage Ratioβ shall mean, as of any date, the ratio of (i)Β Consolidated
EBITDA for the four consecutive Fiscal Quarters ending on or immediately prior to such date to (ii)
the sum of (A)Β Consolidated Interest Expense for the four consecutive Fiscal Quarters ending on or
immediately prior to such date (excluding Consolidated Interest Expense related to Non-Recourse
Indebtedness of the Subsidiaries), plus (B)Β if the Borrower fails to maintain its status as
a REIT, the Restricted Payments on the common stock of the Borrower paid in cash for the four
consecutive Fiscal Quarters ending on or immediately prior to such date; provided,
however, that for purposes of calculating the Interest Coverage Ratio (i)Β as of September
30, 2009, the Interest Coverage Ratio shall be measured for the single Fiscal Quarter ending
SeptemberΒ 30, 2009, (ii)Β DecemberΒ 31, 2009, the Interest Coverage Ratio shall be measured for the
two Fiscal Quarter period ending DecemberΒ 31, 2009, and (iii)Β MarchΒ 31, 2010, the Interest Coverage
Ratio shall be measured for the three Fiscal Quarter period ending MarchΒ 31, 2010.
Β Β Β Β Β Β Β Β Β Β βInterest Periodβ shall mean with respect to (i)Β any Swingline Borrowing, such period
as the Swingline Lender and the Borrower shall mutually agree and (ii)Β any Eurodollar Borrowing, a
period of one, two, three or six months; provided, that:
Β Β Β Β Β (i) the initial Interest Period for such Borrowing shall commence on the date of such
Borrowing (including the date of any conversion from a Borrowing of another Type), and each
Interest Period occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
Β Β Β Β Β (ii) if any Interest Period would otherwise end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day, unless such
Business Day falls in another calendar month, in which case such Interest Period would end
on the next preceding Business Day;
Β Β Β Β Β (iii) any Interest Period which begins on the last Business Day of a calendar month or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period shall end on the last Business Day of such calendar month; and
Β Β Β Β Β (iv) no Interest Period may extend beyond the Revolving Commitment Termination Date.
9
Β
Β Β Β Β Β Β Β Β Β Β βIssuing Bankβ shall mean SunTrust Bank in its capacity as the issuer of Letters of
Credit pursuant to SectionΒ 2.21.
Β Β Β Β Β Β Β Β Β Β βLC Commitmentβ shall mean that portion of the Aggregate Revolving Commitment Amount
that may be used by the Borrower for the issuance of Letters of Credit in an aggregate face amount
not to exceed $10,000,000.
Β Β Β Β Β Β Β Β Β Β βLC Disbursementβ shall mean a payment made by the Issuing Bank pursuant to a Letter
of Credit.
Β Β Β Β Β Β Β Β Β Β βLC Documentsβ shall mean all applications, agreements and instruments relating to the
Letters of Credit but excluding the Letters of Credit.
Β Β Β Β Β Β Β Β Β Β βLC Exposureβ shall mean, at any time, the sum of (i)Β the aggregate undrawn amount of
all outstanding Letters of Credit at such time, plus (ii)Β the aggregate amount of all LC
Disbursements that have not been reimbursed by or on behalf of the Borrower at such time. The LC
Exposure of any Lender shall be its Pro Rata Share of the total LC Exposure at such time.
Β Β Β Β Β Β Β Β Β Β βLender Insolvency Eventβ shall mean that (i)Β a Lender or its Parent Company is
insolvent, or is generally unable to pay its debts as they become due, or admits in writing its
inability to pay its debts as they become due, or makes a general assignment for the benefit of its
creditors, or (ii)Β such Lender or its Parent Company is the subject of a bankruptcy, insolvency,
reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor
or sequestrator or the like has been appointed for such Lender or its Parent Company, or such
Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or
acquiescence in any such proceeding or appointment.
Β Β Β Β Β Β Β Β Β Β βLendersβ shall have the meaning assigned to such term in the opening paragraph of
this Agreement and shall include, where appropriate, the Swingline Lender.
Β Β Β Β Β Β Β Β Β Β βLetter of Creditβ shall mean any stand-by letter of credit issued pursuant to
SectionΒ 2.21 by the Issuing Bank for the account of the Borrower pursuant to the LC
Commitment.
Β Β Β Β Β Β Β Β Β Β βLIBORβ shall mean, for any Interest Period with respect to a Eurodollar Loan, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00Β a.m. (London, England time), two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period. If for any reason such
rate is not available, LIBOR shall be, for any Interest Period, the rate per annum reasonably
determined by the Administrative Agent as the rate of interest at which Dollar deposits in the
approximate amount of the Eurodollar Loan comprising part of such borrowing would be offered by the
Administrative Agent to major banks in the London interbank Eurodollar market at their request at
or about 10:00Β a.m. (New York, New York time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period.
Β Β Β Β Β Β Β Β Β Β βLienβ shall mean any mortgage, pledge, security interest, lien (statutory or
otherwise), charge, encumbrance, hypothecation, assignment, deposit arrangement, or other
arrangement having the practical effect of any of the foregoing or any preference, priority or
other security agreement or
preferential arrangement of any kind or nature whatsoever (including any conditional sale or other
title retention agreement and any capital lease having the same economic effect as any of the
foregoing).
10
Β
Β Β Β Β Β Β Β Β Β Β βLoan Documentsβ shall mean, collectively, this Agreement, the LC Documents, the
Closing Date Fee Letter, the Subsidiary Guaranty Agreement, all Notices of Borrowing, all Notices
of Conversion/Continuation, all Compliance Certificates, any promissory notes issued hereunder and
any and all other instruments, agreements, documents and writings executed in connection with any
of the foregoing.
Β Β Β Β Β Β Β Β Β Β βLoan Partiesβ shall mean the Borrower and the Subsidiary Loan Parties.
Β Β Β Β Β Β Β Β Β Β βLoansβ shall mean all Revolving Loans and Swingline Loans in the aggregate or any of
them, as the context shall require.
Β Β Β Β Β Β Β Β Β Β βMaterial Adverse Effectβ shall mean (a)Β a material adverse change in, or a material
adverse effect upon, the operations, business, assets, properties, liabilities (actual or
contingent), condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries
taken as a whole; (b)Β a material impairment of the ability of any Loan Party to perform its
obligations under any Loan Document to which it is a party; (c)Β a material impairment of the rights
and remedies of the Administrative Agent, the Issuing Bank, Swingline Lender, and the Lenders under
any of the Loan Documents; or (d)Β a material adverse effect upon the effect, validity, binding
effect or enforceability against any Loan Party of any Loan Document to which it is a party.
Β Β Β Β Β Β Β Β Β Β βMaterial Indebtednessβ shall mean any Indebtedness (other than the Loans, Letters of
Credit and Non-Recourse Indebtedness) and Hedging Obligations of the Borrower or any of its
Subsidiaries, individually or in an aggregate committed or outstanding principal amount exceeding
$5,000,000. For purposes of determining the amount of attributed Indebtedness from Hedging
Obligations, the βprincipal amountβ of any Hedging Obligations at any time shall be the Net
Xxxx-to-Market Exposure of such Hedging Obligations.
Β Β Β Β Β Β Β Β Β Β βMergerβ shall mean the merger of Xxxxxx Investment Management LLC into the Borrower,
with the Borrower being the surviving corporation, in accordance with the terms of the Merger
Agreement.
Β Β Β Β Β Β Β Β Β Β βMerger Agreementβ shall mean that certain Second Amended and Restated Agreement and
Plan of Merger, dated as of FebruaryΒ 6, 2009, among Xxxxxx Industries, JWH Holding Company, LLC, a
Delaware limited liability company wholly-owned by Xxxxxx Industries, Xxxxxx Investment Management
LLC, a Delaware limited liability company wholly-owned by Xxxxxx Industries and Borrower.
Β Β Β Β Β Β Β Β Β Β βMerger Documentsβ shall mean the Merger Agreement and each of the βExecuted
Transaction Agreementsβ (as defined in the Merger Agreement).
Β Β Β Β Β Β Β Β Β Β βMonthly Payment shall mean with respect to any Account, the scheduled monthly payment
payable to the holder of such Account in accordance with the terms of the related Account Note.
Β Β Β Β Β Β Β Β Β Β βMoodyβsβ shall mean Xxxxxβx Investors Service, Inc.
Β Β Β Β Β Β Β Β Β Β βMortgageβ shall mean with respect to an Account, the original mortgage, deed of trust
or other security instrument executed by an Mortgage Obligor which creates a lien on real property
securing an Account Note.
Β Β Β Β Β Β Β Β Β Β βMortgage Obligorβ shall mean each Person who is indebted under an Account Note or who
has acquired real property subject to the Mortgage securing an Account Note.
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Β
Β Β Β Β Β Β Β Β Β Β βMultiemployer Planβ shall have the meaning set forth in SectionΒ 4001(a)(3) of ERISA.
Β Β Β Β Β Β Β Β Β Β βNet Xxxx-to-Market Exposureβ of any Person shall mean, as of any date of
determination with respect to any Hedging Obligation, the excess (if any) of all unrealized losses
over all unrealized profits of such Person arising from such Hedging Obligation. βUnrealized
lossesβ shall mean the fair market value of the cost to such Person of replacing the Hedging
Transaction giving rise to such Hedging Obligation as of the date of determination (assuming the
Hedging Transaction were to be terminated as of that date), and βunrealized profitsβ means the fair
market value of the gain to such Person of replacing such Hedging Transaction as of the date of
determination (assuming such Hedging Transaction were to be terminated as of that date).
Β Β Β Β Β Β Β Β Β Β βNon-Defaulting Lenderβ shall mean, at any time, a Lender that is not a Defaulting
Lender.
Β Β Β Β Β Β Β Β Β Β βNon-Recourse Indebtednessβ shall mean, for any Person, Indebtedness for borrowed
money in respect of which recourse for payment is contractually limited to specific assets of such
Person encumbered by a Lien securing such Indebtedness.
Β Β Β Β Β Β Β Β Β Β βNotices of Borrowingβ shall mean, collectively, the Notices of Revolving Borrowing
and the Notices of Swingline Borrowing.
Β Β Β Β Β Β Β Β Β Β βNotice of Conversion/Continuationβ shall mean the notice given by the Borrower to the
Administrative Agent in respect of the conversion or continuation of an outstanding Borrowing as
provided in SectionΒ 2.6(b).
Β Β Β Β Β Β Β Β Β Β βNotice of Revolving Borrowingβ shall have the meaning as set forth in Section
2.3.
Β Β Β Β Β Β Β Β Β Β βNotice of Swingline Borrowingβ shall have the meaning as set forth in Section
2.4.
Β Β Β Β Β Β Β Β Β Β βObligationsβ shall mean (a)Β all amounts owing by the Loan Parties to the
Administrative Agent, the Issuing Bank, any Lender (including the Swingline Lender), or SunTrust
Xxxxxxxx Xxxxxxxx, Inc. or Regions Capital Markets as Joint Lead Arrangers pursuant to or in
connection with this Agreement or any other Loan Document or otherwise with respect to any Loan or
Letter of Credit including without limitation, all principal, interest (including any interest
accruing after the filing of any petition in bankruptcy or the commencement of any insolvency,
reorganization or like proceeding relating to the Borrower, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding), all reimbursement obligations, fees,
expenses, indemnification and reimbursement payments, costs and expenses (including all fees and
expenses of counsel to the Administrative Agent, the Issuing Bank and any Lender (including the
Swingline Lender) incurred pursuant to this Agreement or any other Loan Document), whether direct
or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter arising
hereunder or thereunder, (b)Β all Hedging Obligations owed by any Loan Party to any Lender or
Affiliate of any Lender, and (c)Β all Treasury Management Obligations between any Loan Party and any
Lender or Affiliate of any Lender, together with all renewals, extensions, modifications or
refinancings of any of the foregoing.
Β Β Β Β Β Β Β Β Β Β βOFACβ shall mean the U.S. Department of the Treasuryβs Office of Foreign Assets
Control.
Β Β Β Β Β Β Β Β Β Β βOff-Balance Sheet Liabilitiesβ of any Person shall mean (i)Β any repurchase obligation
or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii)
any
12
Β
liability of such Person under any sale and leaseback transactions that do not create a
liability on the balance sheet of such Person, (iii)Β any Synthetic Lease Obligation or (iv)Β any
obligation arising with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the balance sheet of such
Person.
Β Β Β Β Β Β Β Β Β Β βOSHAβ shall mean the Occupational Safety and Health Act of 1970, as amended from time
to time, and any successor statute.
Β Β Β Β Β Β Β Β Β Β βOther Taxesβ shall mean any and all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.
Β Β Β Β Β Β Β Β Β Β βParent Companyβ shall mean, with respect to a Lender, the bank holding company (as
defined in Federal Reserve Board RegulationΒ Y), if any, of such Lender, and/or any Person owning,
beneficially or of record, directly or indirectly, a majority of the shares of such Lender.
Β Β Β Β Β Β Β Β Β Β βParticipantβ shall have the meaning set forth in SectionΒ 10.4(d).
Β Β Β Β Β Β Β Β Β Β βPatriot Actβ shall have the meaning set forth in SectionΒ 10.14.
Β Β Β Β Β Β Β Β Β Β βPayment Officeβ shall mean the office of the Administrative Agent located at 000
Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, or such other location as to which the
Administrative Agent shall have given written notice to the Borrower and the other Lenders.
Β Β Β Β Β Β Β Β Β Β βPBGCβ shall mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA, and any successor entity performing similar functions.
Β Β Β Β Β Β Β Β Β Β βPermitted Encumbrancesβ shall mean:
Β Β Β Β Β (i) Liens imposed by law for taxes not yet due or which are being contested in good
faith by appropriate proceedings diligently conducted and with respect to which adequate
reserves are being maintained in accordance with GAAP;
Β Β Β Β Β (ii) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen and
other Liens imposed by law in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and with respect to which
adequate reserves are being maintained in accordance with GAAP;
Β Β Β Β Β (iii) pledges and deposits made in the ordinary course of business in compliance with
workersβ compensation, unemployment insurance and other social security laws or regulations;
Β Β Β Β Β (iv) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
Β Β Β Β Β (v) judgment and attachment liens not giving rise to an Event of Default or Liens
created by or existing from any litigation or legal proceeding that are currently being
contested in good faith by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP;
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Β
Β Β Β Β Β (vi) customary rights of set-off, revocation, refund or chargeback under deposit
agreements or under the Uniform Commercial Code or common law of banks or other financial
institutions where Borrower or any of its Subsidiaries maintains deposits (other than
deposits intended as cash collateral) in the ordinary course of business; and
Β Β Β Β Β (vii) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or materially interfere with the ordinary conduct of business of the Borrower and its
Subsidiaries taken as a whole;
Β Β Β Β Β provided, that the term βPermitted Encumbrancesβ shall not include any Lien securing
Indebtedness.
Β Β Β Β Β Β Β Β Β Β βPermitted Investmentsβ shall mean:
Β Β Β Β Β (i) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States), in each case
maturing within one year from the date of acquisition thereof;
Β Β Β Β Β (ii) commercial paper having the highest rating, at the time of acquisition thereof, of
S&P or Moodyβs and in either case maturing within six months from the date of acquisition
thereof;
Β Β Β Β Β (iii) certificates of deposit, bankersβ acceptances and time deposits maturing within
180Β days of the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States or any state thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
Β Β Β Β Β (iv) fully collateralized repurchase agreements with a term of not more than 30Β days
for securities described in clause (i)Β above and entered into with a financial institution
satisfying the criteria described in clause (iii)Β above; and
Β Β Β Β Β (v) mutual funds investing solely in any one or more of the Permitted Investments
described in clauses (i)Β through (iv)Β above.
Β Β Β Β Β Β Β Β Β Β βPersonβ shall mean any individual, partnership, firm, corporation, association, joint
venture, limited liability company, trust or other entity, or any Governmental Authority.
Β Β Β Β Β Β Β Β Β Β βPlanβ shall mean any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or SectionΒ 412 of the Code or SectionΒ 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under SectionΒ 4069 of ERISA be deemed to be) an βemployerβ as defined in SectionΒ 3(5) of
ERISA.
Β Β Β Β Β Β Β Β Β Β βPortfolio Loss Ratioβ shall mean, as of any date, the ratio (expressed as a
percentage) of (i)Β the sum of the realized portfolio losses for the Borrower and its Subsidiaries
to (ii)Β the average balance sheet portfolio balance for the Borrower and its Subsidiaries before
allowances, in each case measured for the four consecutive Fiscal Quarters ending on or immediately
prior to such date.
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Β
Β Β Β Β Β Β Β Β Β Β βPortfolio Delinquency Ratioβ shall mean, as of any date, the average delinquency
ratio (expressed as a percentage) of the Delinquent Accounts of the Borrower and its Subsidiaries
compared to the average balance of Accounts for the Borrower and its Subsidiaries, in each case
measured for the Fiscal Quarter ending on or immediately prior to such date, as reported in a
manner consistent with past practice as of the Closing Date.
Β Β Β Β Β Β Β Β Β Β βPro Rata Shareβ shall mean (i)Β with respect to any Commitment of any Lender at any
time, a percentage, the numerator of which shall be such Lenderβs Commitment (or if such
Commitments have been terminated or expired or the Loans have been declared to be due and payable,
such Lenderβs Revolving Credit Exposure), and the denominator of which shall be the sum of such
Commitments of all Lenders (or if such Commitments have been terminated or expired or the Loans
have been declared to be due and payable, all Revolving Credit Exposure of all Lenders) and (ii)
with respect to all Commitments of any Lender at any time, the numerator of which shall be the sum
of such Lenderβs Revolving Commitment (or if such Revolving Commitments have been terminated or
expired or the Loans have been declared to be due and payable, such Lenderβs Revolving Credit
Exposure) and the denominator of which shall be the sum of all Lendersβ Revolving Commitments (or
if such Revolving Commitments have been terminated or expired or the Loans have been declared to be
due and payable, all Revolving Credit Exposure of all Lenders funded under such Commitments).
Β Β Β Β Β Β Β Β Β Β βRegulationΒ Dβ shall mean RegulationΒ D of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and any successor regulations.
Β Β Β Β Β Β Β Β Β Β βRegulationΒ Tβ shall mean RegulationΒ T of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and any successor regulations.
Β Β Β Β Β Β Β Β Β Β βRegulationΒ Uβ shall mean RegulationΒ U of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and any successor regulations.
Β Β Β Β Β Β Β Β Β Β βRegulationΒ Xβ shall mean RegulationΒ X of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and any successor regulations.
Β Β Β Β Β Β Β Β Β Β βREITβ shall mean a Person qualifying for treatment as a βreal estate investment
trustβ under the Code.
Β Β Β Β Β Β Β Β Β Β βRelated Partiesβ shall mean, with respect to any specified Person, such Personβs
Affiliates and the respective managers, administrators, trustees, partners, directors, officers,
employees, agents, advisors or other representatives of such Person and such Personβs Affiliates.
Β Β Β Β Β Β Β Β Β Β βRelated Transactionsβ shall mean the Asset Transfer, the Merger, the initial
borrowing under the Revolving Commitments on the Closing Date, the payment of all fees, costs and
expenses associated with all of the foregoing, the execution and delivery of all of the Related
Transactions Documents and the consummation of the transactions contemplated by the Related
Transactions Documents.
Β Β Β Β Β Β Β Β Β Β βRelated Transactions Documentsβ shall mean the Loan Documents, the Merger Documents
and all other agreements or instruments executed in connection therewith.
Β Β Β Β Β Β Β Β Β Β βReleaseβ shall mean any release, spill, emission, leaking, dumping, injection,
pouring, deposit, disposal, discharge, dispersal, leaching or migration into the environment
(including ambient air,
15
Β
surface water, groundwater, land surface or subsurface strata) or within
any building, structure, facility or fixture.
Β Β Β Β Β Β Β Β Β Β βRequired Lendersβ shall mean, at any time, Lenders holding more than 50% of the
aggregate outstanding Revolving Commitments at such time or if the Lenders have no Commitments
outstanding, then Lenders holding more than 50% of the Revolving Credit Exposure, provided,
however, that to the extent that any Lender is a Defaulting Lender, such Defaulting Lender
and all of its Commitments and Revolving Credit Exposure shall be excluded for purposes of
determining Required Lenders.
Β Β Β Β Β Β Β Β Β Β βRequirement of Lawβ for any Person shall mean the articles or certificate of
incorporation, bylaws, partnership certificate and agreement, or limited liability company
certificate of organization and agreement, as the case may be, and other organizational and
governing documents of such Person, and any law, treaty, rule or regulation, or determination of a
Governmental Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
Β Β Β Β Β Β Β Β Β Β βResponsible Officerβ shall mean any of the president, the chief executive officer,
the chief operating officer, the chief financial officer, the treasurer or a vice president of the
Borrower or such other representative of the Borrower as may be designated in writing by any one of
the foregoing with the consent of the Administrative Agent; provided, however, that with respect to
the financial covenants and Compliance Certificate, Responsible Officer shall mean only the chief
financial officer or the treasurer of the Borrower.
Β Β Β Β Β Β Β Β Β Β βRestricted Paymentβ shall have the meaning set forth in SectionΒ 7.5.
Β Β Β Β Β Β Β Β Β Β βRevolving Commitmentβ shall mean, with respect to each Lender, the commitment of such
Lender to make Revolving Loans to the Borrower and to acquire participations in Letters of Credit
and Swingline Loans in an aggregate principal amount not exceeding the amount set forth with
respect to such Lender on ScheduleΒ I, or in the case of a Person becoming a Lender after
the Closing Date, the amount of the assigned βRevolving Commitmentβ as provided in the Assignment
and Acceptance executed by such Person as an assignee, in each case as such commitment may
subsequently be increased or decreased pursuant to terms hereof.
Β Β Β Β Β Β Β Β Β Β βRevolving Commitment Termination Dateβ shall mean the earliest of (i) (A)Β AprilΒ 20,
2011 for Revolving Commitments and (B)Β AprilΒ 15, 2011 for the Swingline Commitments and the LC
Commitments, (ii)Β the date on which the Revolving Commitments are terminated pursuant to
SectionΒ 2.8, (iii)Β the date on which the Administrative Agent draws on the Support Letter
of Credit and (iv)Β the date on which all amounts outstanding under this Agreement have been
declared or have automatically become due and payable (whether by acceleration or otherwise).
Β Β Β Β Β Β Β Β Β Β βRevolving Credit Exposureβ shall mean, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lenderβs Revolving Loans, LC Exposure and Swingline
Exposure.
Β Β Β Β Β Β Β Β Β Β βRevolving Loanβ shall mean a loan made by a Lender (other than the Swingline Lender)
to the Borrower under its Revolving Commitment, which may either be a Base Rate Loan or a
Eurodollar Loan.
Β Β Β Β Β Β Β Β Β Β βS&Pβ shall mean Standard & Poorβs, a Division of the XxXxxx-Xxxx Companies.
16
Β
Β Β Β Β Β Β Β Β Β Β βSanctioned Countryβ shall mean a country subject to a sanctions program identified on
the list maintained by OFAC and available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxxxxxxxx/xxxxx.xxxx, or as otherwise published
from time to time.
Β Β Β Β Β Β Β Β Β Β βSanctioned Personβ shall mean (i)Β a Person named on the list of βSpecially
Designated Nationals and Blocked Personsβ maintained by OFAC available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/xxxxx.xxxx, or as otherwise published from
time to time, or (ii) (A)Β an agency of the government of a Sanctioned Country, (B)Β an organization
controlled by a Sanctioned Country, or (C)Β a person resident in a Sanctioned Country, to the extent
subject to a sanctions program administered by OFAC.
Β Β Β Β Β Β Β Β Β Β βSolventβ shall mean, with respect to any Person on a particular date, that on such
date (a)Β the fair value of the property of such Person is greater than the total amount of
liabilities, including subordinated and contingent liabilities, of such Person; (b)Β the present
fair saleable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts and liabilities, including subordinated
and contingent liabilities as they become absolute and matured; (c)Β such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such Personβs ability to pay
as such debts and liabilities mature; and (d)Β such Person is not engaged in a business or
transaction, and is not about to engage in a business or transaction, for which such Personβs
property would constitute an unreasonably small capital. The amount of contingent liabilities
(such as litigation, guaranties and pension plan liabilities) at any time shall be computed as the
amount that, in light of all the facts and circumstances existing at the time, represents the
amount that would reasonably be expected to become an actual or matured liability.
Β Β Β Β Β Β Β Β Β Β βSubsidiaryβ shall mean, with respect to any Person (the βparentβ), any
corporation, partnership, joint venture, limited liability company, association or other entity (i)
of which securities or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (ii)Β that is, as
of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent. Unless otherwise indicated, all references
to βSubsidiaryβ hereunder shall mean a Subsidiary of the Borrower, and each WMC Trust shall be
deemed to be a Subsidiary for purposes of SectionsΒ 6.3 and 6.4, and all defined
terms used therein.
Β Β Β Β Β Β Β Β Β Β βSubsidiary Guaranty Agreementβ shall mean the Subsidiary Guaranty Agreement, dated as
of the date hereof and substantially in the form of ExhibitΒ B, executed by certain
Subsidiaries of the Borrower in favor of the Administrative Agent for the benefit of the Lenders.
Β Β Β Β Β Β Β Β Β Β βSubsidiary Loan Partyβ shall mean any Subsidiary that executes or becomes a party to
the Subsidiary Guaranty Agreement.
Β Β Β Β Β Β Β Β Β Β βSupport Letter of Creditβ shall mean a letter of credit in the stated amount of
$15,675,000 naming the Administrative Agent for the benefit of the Lenders as the beneficiary,
expiring thirty (30)Β days after the date set forth in clause (i)Β of the definition of Revolving
Commitment
Termination Date or issued on an evergreen basis to automatically renew each year unless
written notice of the issuing bankβs decision to terminate such letter of credit is given to the
Administrative Agent at least 30Β days prior to the then effective expiry date of such letter of
credit, issued by a Support L/C Bank and otherwise in the form of ExhibitΒ C.
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Β
Β Β Β Β Β Β Β Β Β Β βSupport L/C Bankβ shall mean an issuing bank reasonably acceptable to the Required
Lenders and having a Credit Rating of not less than A3/A-.
Β Β Β Β Β Β Β Β Β Β βSwingline Commitmentβ shall mean the commitment of the Swingline Lender to make
Swingline Loans in an aggregate principal amount at any time outstanding not to exceed $5,000,000.
Β Β Β Β Β Β Β Β Β Β βSwingline Exposureβ shall mean, with respect to each Lender, the principal amount of
the Swingline Loans in which such Lender is legally obligated either to make a Base Rate Loan or to
purchase a participation in accordance with SectionΒ 2.4, which shall equal such Lenderβs
Pro Rata Share of all outstanding Swingline Loans.
Β Β Β Β Β Β Β Β Β Β βSwingline Lenderβ shall mean SunTrust Bank.
Β Β Β Β Β Β Β Β Β Β βSwingline Loanβ shall mean a loan made to the Borrower by the Swingline Lender under
the Swingline Commitment.
Β Β Β Β Β Β Β Β Β Β βSyndication Agentβ shall mean Regions Bank, as syndication agent hereunder.
Β Β Β Β Β Β Β Β Β Β βSynthetic Leaseβ shall mean a lease transaction under which the parties intend that
(i)Β the lease will be treated as an βoperating leaseβ by the lessee pursuant to Statement of
Financial Accounting Standards No.Β 13, as amended and (ii)Β the lessee will be entitled to various
tax and other benefits ordinarily available to owners (as opposed to lessees) of like property.
Β Β Β Β Β Β Β Β Β Β βSynthetic Lease Obligationsβ shall mean, with respect to any Person, the sum of (i)
all remaining rental obligations of such Person as lessee under Synthetic Leases which are
attributable to principal and, without duplication, (ii)Β all rental and purchase price payment
obligations of such Person under such Synthetic Leases assuming such Person exercises the option to
purchase the lease property at the end of the lease term.
Β Β Β Β Β Β Β Β Β Β βTaxesβ shall mean any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
Β Β Β Β Β Β Β Β Β Β βTax Sharing Agreementβ shall mean that certain Tax Separation Agreement, dated as of
AprilΒ 17, 2009, by and among Xxxxxx Industries, certain affiliates of Xxxxxx Industries, the
Borrower and certain of the Borrowerβs affiliates.
Β Β Β Β Β Β Β Β Β Β βTreasury Management Obligationsβ shall mean, collectively, all obligations and other
liabilities of any Loan Parties pursuant to any agreements governing the provision to such Loan
Parties of treasury or cash management services, including deposit accounts, funds transfer,
automated clearing house, zero balance accounts, returned check concentration, controlled
disbursement, lockbox, account reconciliation and reporting and trade finance services.
Β Β Β Β Β Β Β Β Β Β βTypeβ, when used in reference to a Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Base Rate.
Β Β Β Β Β Β Β Β Β Β βUnencumbered Assetsβ shall mean Accounts (excluding Delinquent Accounts) owned
beneficially and of record by the Loan Parties, free and clear of any Liens.
Β Β Β Β Β Β Β Β Β Β βXxxxxx Industriesβ shall mean Xxxxxx Industries, Inc., a Delaware corporation.
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Β
Β Β Β Β Β Β Β Β Β Β βXxxxxx Mortgageβ shall mean Xxxxxx Mortgage Company, LLC, a Delaware corporation.
Β Β Β Β Β Β Β Β Β Β βWithdrawal Liabilityβ shall mean liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in PartΒ I of
Subtitle E of Title IV of ERISA.
Β Β Β Β Β Β Β Β Β Β βWMC Trustsβ shall mean, collectively, Mid-State Trust II, Mid-State Trust IV,
Mid-State Trust VI, Mid-State Trust VII, Mid-State Trust VIII, Mid-State Trust X, Mid-State Trust
XI, Mid-State Capital Corporation 2004-1 Trust, Mid-State Capital Corporation 2005-1 Trust, and
Mid-State Capital Corporation 2006-1 Trust.
Β Β Β Β Β SectionΒ 1.2. Classifications of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g. a βRevolving Loanβ) or by Type (e.g. a
βEurodollar Loanβ or βBase Rate Loanβ) or by Class and Type (e.g. βRevolving Eurodollar Loanβ).
Borrowings also may be classified and referred to by Class (e.g. βRevolving Borrowingβ) or by Type
(e.g. βEurodollar Borrowingβ) or by Class and Type (e.g. βRevolving Eurodollar Borrowingβ).
Β Β Β Β Β SectionΒ 1.3. Accounting Terms and Determination. Unless otherwise defined or
specified herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied on a
basis consistent with the most recent audited consolidated financial statement of the Borrower
delivered pursuant to SectionΒ 5.1(a); provided, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in ArticleΒ VI to
eliminate the effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article
VI for such purpose), then the Borrowerβs compliance with such covenant shall be determined on
the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such covenant is amended in a manner satisfactory to the
Borrower and the Required Lenders.
Β Β Β Β Β SectionΒ 1.4. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words βincludeβ,
βincludesβ and βincludingβ shall be deemed to be followed by the phrase βwithout limitationβ. The
word βwillβ shall be construed to have the same meaning and effect as the word βshallβ. In the
computation of periods of time from a specified date to a later specified date, the word βfromβ
means βfrom and includingβ and the word βtoβ means βto but excludingβ. Unless the context requires
otherwise (i)Β any definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, restated, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or modifications set forth
herein), (ii)Β any reference herein to any Person shall be construed to include such Personβs
successors and permitted assigns, (iii)Β the words βhereofβ, βhereinβ and βhereunderβ and words of
similar import shall be
construed to refer to this Agreement as a whole and not to any particular provision hereof,
(iv)Β all references to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles, Sections, Exhibits and Schedules to this Agreement and (v)Β all references to a specific
time shall be construed to refer to the time in the city and state of the Administrative Agentβs
principal office, unless otherwise indicated.
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ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
Β Β Β Β Β SectionΒ 2.1. General Description of Facilities. Subject to and upon the terms and
conditions herein set forth, (i)Β the Lenders hereby establish in favor of the Borrower a revolving
credit facility pursuant to which each Lender severally agrees (to the extent of such Lenderβs
Revolving Commitment) to make Revolving Loans to the Borrower in accordance with Section
2.2, (ii)Β the Issuing Bank may issue Letters of Credit in accordance with Section
2.21, (iii)Β the Swingline Lender may make Swingline Loans in accordance with Section
2.4, and (iv)Β each Lender agrees to purchase a participation interest in the Letters of Credit
and the Swingline Loans pursuant to the terms and conditions hereof; provided, that in no
event shall the aggregate principal amount of all outstanding Revolving Loans, Swingline Loans and
outstanding LC Exposure exceed at any time the Aggregate Revolving Commitment Amount from time to
time in effect.
Β Β Β Β Β SectionΒ 2.2. Revolving Loans. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make Revolving Loans, ratably in proportion to its Pro Rata Share,
to the Borrower, from time to time during the Availability Period, in an aggregate principal amount
outstanding at any time that will not result in (a)Β such Lenderβs Revolving Credit Exposure
exceeding such Lenderβs Revolving Commitment or (b)Β the aggregate Revolving Credit Exposures of all
Lenders exceeding the Aggregate Revolving Commitment Amount. During the Availability Period, the
Borrower shall be entitled to borrow, prepay and reborrow Revolving Loans in accordance with the
terms and conditions of this Agreement; provided, that the Borrower may not borrow or
reborrow should there exist a Default or Event of Default.
Β Β Β Β Β SectionΒ 2.3. Procedure for Revolving Borrowings. The Borrower shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each
Revolving Borrowing substantially in the form of ExhibitΒ 2.3 (a βNotice of Revolving
Borrowingβ) (x)Β prior to 11:00Β a.m. one (1)Β Business Day prior to the requested date of each
Base Rate Borrowing and (y)Β prior to 11:00Β a.m. three (3)Β Business Days prior to the requested date
of each Eurodollar Borrowing. Each Notice of Revolving Borrowing shall be irrevocable and shall
specify: (i)Β the aggregate principal amount of such Borrowing, (ii)Β the date of such Borrowing
(which shall be a Business Day), (iii)Β the Type of such Revolving Loan comprising such Borrowing
and (iv)Β in the case of a Eurodollar Borrowing, the duration of the initial Interest Period
applicable thereto (subject to the provisions of the definition of Interest Period). Each
Revolving Borrowing shall consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower
may request. The aggregate principal amount of each Eurodollar Borrowing shall be not less than
$1,000,000 or a larger multiple of $500,000, and the aggregate principal amount of each Base Rate
Borrowing shall not be less than $500,000 or a larger multiple of $100,000; provided, that
Base Rate Loans made pursuant to SectionΒ 2.4 or SectionΒ 2.21(d) may be made in
lesser amounts as provided therein. At no time shall the total number of Eurodollar Borrowings
outstanding at any time exceed four. Promptly following the
receipt of a Notice of Revolving Borrowing in accordance herewith, the Administrative Agent
shall advise each Lender of the details thereof and the amount of such Lenderβs Revolving Loan to
be made as part of the requested Revolving Borrowing.
Β Β Β Β Β SectionΒ 2.4. Swingline Commitment.
Β Β Β Β Β Β Β Β Β Β (a)Β Subject to the terms and conditions set forth herein, the Swingline Lender will make
Swingline Loans to the Borrower, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time not to exceed the lesser of (i)Β the Swingline Commitment
then in effect and (ii)Β the difference between the Aggregate Revolving Commitment Amount and the
aggregate Revolving Credit Exposures of all Lenders; provided, that the Swingline Lender
shall not be required to
20
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make a Swingline Loan to refinance an outstanding Swingline Loan. The
Borrower shall be entitled to borrow, repay and reborrow Swingline Loans in accordance with the
terms and conditions of this Agreement.
Β Β Β Β Β Β Β Β Β Β (b)Β The Borrower shall give the Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Borrowing substantially in the form of Exhibit
2.4 attached hereto (βNotice of Swingline Borrowingβ) prior to 11:00Β a.m. on the
requested date of each Swingline Borrowing. Each Notice of Swingline Borrowing shall be
irrevocable and shall specify: (i)Β the principal amount of such Swingline Loan, (ii)Β the date of
such Swingline Loan (which shall be a Business Day) and (iii)Β the account of the Borrower to which
the proceeds of such Swingline Loan should be credited. The Administrative Agent will promptly
advise the Swingline Lender of each Notice of Swingline Borrowing. Each Swingline Loan shall
accrue interest at the Base Rate plus the Applicable Margin. The aggregate principal amount of
each Swingline Loan shall be not less than $100,000 or a larger multiple of $50,000, or such other
minimum amounts agreed to by the Swingline Lender and the Borrower. The Swingline Lender will make
the proceeds of each Swingline Loan available to the Borrower in Dollars in immediately available
funds at the account specified by the Borrower in the applicable Notice of Swingline Borrowing not
later than 2:00 p.m. on the requested date of such Swingline Loan.
Β Β Β Β Β Β Β Β Β Β (c)Β The Swingline Lender, at any time and from time to time in its sole discretion may, and in
no event no less frequently than once each calendar week shall, on behalf of the Borrower (which
hereby irrevocably authorizes and directs the Swingline Lender to act on its behalf), give a Notice
of Revolving Borrowing to the Administrative Agent requesting the Lenders (including the Swingline
Lender) to make Base Rate Loans in an amount equal to the unpaid principal amount of any Swingline
Loan. Each Lender will make the proceeds of its Base Rate Loan included in such Borrowing
available to the Administrative Agent for the account of the Swingline Lender in accordance with
SectionΒ 2.5, which will be used solely for the repayment of such Swingline Loan.
Β Β Β Β Β Β Β Β Β Β (d)Β If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion
of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Swingline Lender) shall purchase an undivided participating interest in
such Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that such Base
Rate Borrowing should have occurred. On the date of such required purchase, each Lender shall
promptly transfer, in immediately available funds, the amount of its participating interest to the
Administrative Agent for the account of the Swingline Lender.
Β Β Β Β Β Β Β Β Β Β (e)Β Each Lenderβs obligation to make a Base Rate Loan pursuant to Section
2.4(c) or to purchase the participating interests pursuant to Section
2.4(d) shall be absolute and unconditional and
shall not be affected by any circumstance, including without limitation (i)Β any setoff,
counterclaim, recoupment, defense or other right that such Lender or any other Person may have or
claim against the Swingline Lender, the Borrower or any other Person for any reason whatsoever,
(ii)Β the existence of a Default or an Event of Default or the termination of any Lenderβs Revolving
Commitment, (iii)Β the existence (or alleged existence) of any event or condition which has had or
could reasonably be expected to have a Material Adverse Effect, (iv)Β any breach of this Agreement
or any other Loan Document by the Borrower, the Administrative Agent or any Lender or (v)Β any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If
such amount is not in fact made available to the Swingline Lender by any Lender, the Swingline
Lender shall be entitled to recover such amount on demand from such Lender, together with accrued
interest thereon for each day from the date of demand thereof (i)Β at the Federal Funds Rate until
the second Business Day after such demand and (ii)Β at the Base Rate at all times thereafter. Until
such time as such Lender makes its required payment, the Swingline Lender shall be deemed to
continue to have outstanding Swingline Loans in the amount of the unpaid
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participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to have assigned any and
all payments made of principal and interest on its Loans and any other amounts due to it hereunder,
to the Swingline Lender to fund the amount of such Lenderβs participation interest in such
Swingline Loans that such Lender failed to fund pursuant to this SectionΒ 2.4, until such
amount has been purchased in full.
Β Β Β Β Β SectionΒ 2.5. Funding of Borrowings.
Β Β Β Β Β Β Β Β Β Β (a)Β Each Lender will make available each Loan to be made by it hereunder on the proposed date
thereof by wire transfer in immediately available funds by 11:00Β a.m. to the Administrative Agent
at the Payment Office; provided, that the Swingline Loans will be made as set forth in
SectionΒ 2.4. The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts that it receives, in like funds by the close of business on such
proposed date, to an account maintained by the Borrower with the Administrative Agent or at the
Borrowerβs option, by effecting a wire transfer of such amounts to an account designated by the
Borrower to the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β (b)Β Unless the Administrative Agent shall have been notified by any Lender prior to 5:00 p.m.
one (1)Β Business Day prior to the date of a Borrowing in which such Lender is to participate that
such Lender will not make available to the Administrative Agent such Lenderβs share of such
Borrowing, the Administrative Agent may assume that such Lender has made such amount available to
the Administrative Agent on such date, and the Administrative Agent, in reliance on such
assumption, may make available to the Borrower on such date a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent by such Lender on
the date of such Borrowing, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the Federal Funds Rate
until the second Business Day after such demand and thereafter at the Base Rate. If such Lender
does not pay such corresponding amount forthwith upon the Administrative Agentβs demand therefor,
the Administrative Agent shall promptly notify the Borrower, and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent together with interest at the rate specified
for such Borrowing. Nothing in this subsection shall be deemed to relieve any Lender from its
obligation to fund its Pro Rata Share of any Borrowing hereunder or to prejudice any rights which
the Borrower may have against any Lender as a result of any default by such Lender hereunder.
Β Β Β Β Β Β Β Β Β Β (c)Β All Revolving Borrowings shall be made by the Lenders on the basis of their respective Pro
Rata Shares. No Lender shall be responsible for any default by any other Lender in its
obligations hereunder, and each Lender shall be obligated to make its Loans provided to be
made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder.
Β Β Β Β Β SectionΒ 2.6. Interest Elections.
Β Β Β Β Β Β Β Β Β Β (a)Β Each Borrowing initially shall be of the Type specified in the applicable Notice of
Borrowing, and in the case of a Eurodollar Borrowing, and shall have an initial Interest Period as
specified in such Notice of Borrowing. Thereafter, the Borrower may elect to convert such
Borrowing into a different Type or to continue such Borrowing, and in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this SectionΒ 2.6. The
Borrower may elect different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders holding Loans
comprising such Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall NOT apply to Swingline Borrowings, which may not be
converted or continued.
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Β
Β Β Β Β Β Β Β Β Β Β (b)Β To make an election pursuant to this SectionΒ 2.6, the Borrower shall give the
Administrative Agent prior written notice (or telephonic notice promptly confirmed in writing) of
each Borrowing substantially in the form of ExhibitΒ 2.6 attached hereto (a βNotice of
Conversion/Continuationβ) that is to be converted or continued, as the case may be, (x)Β prior
to 10:00Β a.m. one (1)Β Business Day prior to the requested date of a conversion into a Base Rate
Borrowing and (y)Β prior to 11:00Β a.m. three (3)Β Business Days prior to a continuation of or
conversion into a Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall be
irrevocable and shall specify (i)Β the Borrowing to which such Notice of Conversion/Continuation
applies and if different options are being elected with respect to different portions thereof, the
portions thereof that are to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii)Β and (iv)Β shall be specified for each
resulting Borrowing); (ii)Β the effective date of the election made pursuant to such Notice of
Conversion/Continuation, which shall be a Business Day, (iii)Β whether the resulting Borrowing is to
be a Base Rate Borrowing or a Eurodollar Borrowing; and (iv)Β if the resulting Borrowing is to be a
Eurodollar Borrowing, the Interest Period applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of βInterest Periodβ. If any such Notice of
Conversion/Continuation requests a Eurodollar Borrowing but does not specify an Interest Period,
the Borrower shall be deemed to have selected an Interest Period of one month. The principal
amount of any resulting Borrowing shall satisfy the minimum borrowing amount for Eurodollar
Borrowings and Base Rate Borrowings set forth in SectionΒ 2.3.
Β Β Β Β Β Β Β Β Β Β (c)Β If, on the expiration of any Interest Period in respect of any Eurodollar Borrowing, the
Borrower shall have failed to deliver a Notice of Conversion/ Continuation, then, unless such
Borrowing is repaid as provided herein, the Borrower shall be deemed to have elected to convert
such Borrowing to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists, unless the Administrative Agent
and each of the Lenders shall have otherwise consented in writing. No conversion of any
Eurodollar Loans shall be permitted except on the last day of the Interest Period in respect
thereof.
Β Β Β Β Β Β Β Β Β Β (d)Β Upon receipt of any Notice of Conversion/Continuation, the Administrative Agent shall
promptly notify each Lender of the details thereof and of such Lenderβs portion of each resulting
Borrowing.
Β Β Β Β Β SectionΒ 2.7. Reduction and Termination of Commitments.
Β Β Β Β Β Β Β Β Β Β (a)Β Unless previously terminated, all Commitments shall terminate on the Revolving Commitment
Termination Date.
Β Β Β Β Β Β Β Β Β Β (b)Β Upon at least three (3)Β Business Daysβ prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent (which notice shall be irrevocable), the Borrower
may reduce the Aggregate Revolving Commitments in part or terminate the Aggregate Revolving
Commitments in whole; provided, that (i)Β any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each Lender, (ii)Β any partial reduction
pursuant to this SectionΒ 2.7 shall be in an amount of at least $1,000,000 and any larger
multiple of $1,000,000, and (iii)Β no such reduction shall be permitted which would reduce the
Aggregate Revolving Commitment Amount to an amount less than the outstanding Revolving Credit
Exposures of all Lenders. Any such reduction in the Aggregate Revolving Commitment Amount below
the principal amount of the Swingline Commitment or the LC Commitment shall result in a
dollar-for-dollar reduction (rounded to the next lowest integral multiple of $100,000) in the
Swingline Commitment and the LC Commitment.
Β Β Β Β Β Β Β Β Β Β (c)Β With the written approval of the Administrative Agent, the Borrower may terminate (on a
non-ratable basis) the unused amount of the Revolving Commitment of a Defaulting
23
Β
Lender upon not
less than five (5)Β Business Daysβ prior notice to the Administrative Agent (which will promptly
notify the Lenders thereof), and in such event the provisions of SectionΒ 2.22 will apply to
all amounts thereafter paid by the Borrower for the account of any such Defaulting Lender under
this Agreement (whether on account of principal, interest, fees, indemnity or other amounts),
provided that such termination will not be deemed to be a waiver or release of any claim
the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any Lender may
have against such Defaulting Lender.
Β Β Β Β Β SectionΒ 2.8. Repayment of Loans. The outstanding principal amount of all Loans shall
be due and payable (together with accrued and unpaid interest thereon) on the Revolving Commitment
Termination Date.
Β Β Β Β Β SectionΒ 2.9. Evidence of Indebtedness. (a)Β Each Lender shall maintain in accordance
with its usual practice appropriate records evidencing the Indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender from time to time, including the amounts of
principal and interest payable thereon and paid to such Lender from time to time under this
Agreement. The Administrative Agent shall maintain appropriate records in which shall be recorded
(i)Β the Revolving Commitment of each Lender, (ii)Β the amount of each Loan made hereunder by each
Lender, the Class and Type thereof and the Interest Period applicable thereto, (iii)Β the date of
each continuation thereof pursuant to SectionΒ 2.6, (iv)Β the date of each conversion of all
or a portion thereof to another Type pursuant to SectionΒ 2.6, (v)Β the date and amount of
any principal or interest due and payable or to become due and payable from the Borrower to each
Lender hereunder in respect of such Loans and (vi)Β both the date and amount of any sum received by
the Administrative Agent hereunder from the Borrower in respect of the Loans and each Lenderβs Pro
Rata Share thereof. The entries made in such records shall be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded; provided, that
the failure or delay of any Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans (both principal and unpaid accrued interest) of such Lender in
accordance with the terms of this Agreement.
Β Β Β Β Β Β Β Β Β Β (b)Β This Agreement evidences the obligation of the Borrower to repay the Loans and is being
executed as a βnotelessβ credit agreement. However, at the request of any Lender (including the
Swingline Lender) at any time, the Borrower agrees that it will prepare, execute and deliver to
such
Lender a promissory note payable to the order of such Lender (or, if requested by such Lender,
to such Lender and its registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment permitted hereunder) be represented by one or more promissory notes in
such form payable to the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
Β Β Β Β Β SectionΒ 2.10. Optional Prepayments. The Borrower shall have the right at any time and
from time to time to prepay any Borrowing, in whole or in part, without premium or penalty, by
giving irrevocable written notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent no later than (i)Β in the case of prepayment of any Eurodollar Borrowing, 11:00
a.m. not less than three (3)Β Business Days prior to any such prepayment, (ii)Β in the case of any
prepayment of any Base Rate Borrowing, not less than one Business Day prior to the date of such
prepayment, and (iii)Β in the case of Swingline Borrowings, prior to 11:00Β a.m. on the date of such
prepayment. Each such notice shall be irrevocable and shall specify the proposed date of such
prepayment and the principal amount of each Borrowing or portion thereof to be prepaid. Upon
receipt of any such notice, the Administrative Agent shall promptly notify each affected Lender of
the contents thereof and of such Lenderβs Pro Rata Share of any such prepayment. If such notice is
given, the aggregate amount specified in such notice shall be due
24
Β
and payable on the date
designated in such notice, together with accrued interest to such date on the amount so prepaid in
accordance with SectionΒ 2.12(d); provided, that if a Eurodollar Borrowing is
prepaid on a date other than the last day of an Interest Period applicable thereto, the Borrower
shall also pay all amounts required pursuant to SectionΒ 2.18. Each partial prepayment of
any Loan (other than a Swingline Loan) shall be in an amount that would be permitted in the case of
an advance of a Revolving Borrowing of the same Type pursuant to SectionΒ 2.2 or in the case
of a Swingline Loan pursuant to SectionΒ 2.4. Each prepayment of a Borrowing shall be
applied ratably to the Loans comprising such Borrowing.
Β Β Β Β Β SectionΒ 2.11. Mandatory Prepayments. At any time the Revolving Credit Exposure of all
Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section
2.7 or otherwise, the Borrower shall immediately repay Swingline Loans and Revolving Loans in
an amount equal to such excess, together with all accrued and unpaid interest on such excess amount
and any amounts due under SectionΒ 2.18. Each prepayment shall be applied first to the
Swingline Loans to the full extent thereof, second to the Revolving Base Rate Loans to the full
extent thereof, and finally to Revolving Eurodollar Loans to the full extent thereof. If after
giving effect to prepayment of all Swingline Loans and Revolving Loans, the Revolving Credit
Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall Cash
Collateralize its reimbursement obligations with respect to the Letters of Credit by depositing
cash collateral in an amount equal to such excess plus any accrued and unpaid fees thereon. Such
account shall be administered in accordance with SectionΒ 2.21(g) hereof.
Β Β Β Β Β SectionΒ 2.12. Interest on Loans.
Β Β Β Β Β Β Β Β Β Β (a)Β The Borrower shall pay interest on (i)Β each Base Rate Loan at the Base Rate plus the
Applicable Margin in effect from time to time and (ii)Β each Eurodollar Loan at the Adjusted LIBO
Rate for the applicable Interest Period in effect for such Loan plus the Applicable Margin in
effect from time to time.
Β Β Β Β Β Β Β Β Β Β (b)Β The Borrower shall pay interest on each Swingline Loan at the Base Rate plus the
Applicable Margin in effect from time to time.
Β Β Β Β Β Β Β Β Β Β (c)Β Notwithstanding clauses (a)Β and (b)Β above, if an Event of Default has occurred and is
continuing, at the option of the Required Lenders, and after acceleration, the Borrower shall pay
interest (βDefault Interestβ) with respect to all Eurodollar Loans at the rate per annum
equal to 200 basis points above the otherwise applicable interest rate for such Eurodollar Loans
for the then-current Interest Period until the last day of such Interest Period, and thereafter,
and with respect to all Base Rate Loans and all other Obligations hereunder (other than Loans), at
the rate per annum equal to 200 basis points above the otherwise applicable interest rate for Base
Rate Loans.
Β Β Β Β Β Β Β Β Β Β (d)Β Interest on the principal amount of all Loans shall accrue from and including the date
such Loans are made to but excluding the date of any repayment thereof. Interest on all
outstanding Base Rate Loans and Swingline Loans shall be payable quarterly in arrears on the last
day of each March, June, September and December and on the Revolving Commitment Termination Date.
Interest on all outstanding Eurodollar Loans shall be payable on the last day of each Interest
Period applicable thereto, and, in the case of any Eurodollar Loans having an Interest Period in
excess of three months on each day which occurs every three months after the initial date of such
Interest Period, and on the Revolving Commitment Termination Date. Interest on any Loan which is
converted into a Loan of another Type or which is repaid or prepaid shall be payable on the date of
such conversion or on the date of any such repayment or prepayment (on the amount repaid or
prepaid) thereof. All Default Interest shall be payable on demand.
25
Β
Β Β Β Β Β Β Β Β Β Β (e)Β The Administrative Agent shall determine each interest rate applicable to the Loans
hereunder and shall promptly notify the Borrower and the Lenders of such rate in writing (or by
telephone, promptly confirmed in writing). Any such determination shall be conclusive and binding
for all purposes, absent manifest error.
Β Β Β Β Β SectionΒ 2.13. Fees.
Β Β Β Β Β Β Β Β Β Β (a)Β The Borrower shall pay to the Administrative Agent for its own account fees in the amounts
and at the times previously agreed upon in writing by the Borrower and the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β (b)Β The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee equal to 0.50% per annum on the daily amount of the unused Revolving Commitment of
such Lender during the Availability Period. For purposes of computing commitment fees with respect
to the Revolving Commitments, the Revolving Commitment of each Lender shall be deemed used to the
extent of the outstanding Revolving Loans and LC Exposure, but not Swingline Exposure other than in
the case described in SectionΒ 2.4(d), of such Lender.
Β Β Β Β Β Β Β Β Β Β (c)Β The Borrower agrees to pay (i)Β to the Administrative Agent, for the account of each
Lender, a letter of credit fee with respect to its participation in each Letter of Credit, which
shall accrue at a rate per annum equal to the Applicable Margin for Eurodollar Loans then in effect
on the average daily amount of such Lenderβs LC Exposure attributable to such Letter of Credit
during the period from and including the date of issuance of such Letter of Credit to but excluding
the date on which such Letter of Credit expires or is drawn in full (including without limitation
any LC Exposure that remains outstanding after the Revolving Commitment Termination Date) and (ii)
to the Issuing Bank for its own account a fronting fee at the rate per annum set forth in the
Closing Date Fee Letter on the average daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the Availability Period (or until the
date that such Letter of Credit is irrevocably cancelled, whichever is later), as well as the
Issuing Bankβs standard fees with respect to issuance, amendment, renewal or extension of any
Letter of Credit or processing of drawings thereunder.
Notwithstanding the foregoing, if the Required Lenders elect to increase the interest rate on
the Loans to the Default Interest pursuant to SectionΒ 2.12(c), the rate per annum used to
calculate the letter of credit fee pursuant to clause (i)Β above shall automatically be increased by
200 basis points.
Β Β Β Β Β Β Β Β Β Β (d)Β The Borrower shall pay to the Administrative Agent, for the ratable benefit of each
Lender, the upfront fee previously agreed upon by the Borrower and the Administrative Agent, which
shall be due and payable on the Closing Date.
Β Β Β Β Β Β Β Β Β Β (e)Β Accrued fees under paragraphs (b)Β and (c)Β above shall be payable quarterly in arrears on
the last day of each March, June, September and December, commencing on JuneΒ 30, 2009, and on the
Revolving Commitment Termination Date (and if later, the date the Loans and LC Exposure shall be
repaid in their entirety); provided further, that any such fees accruing after the
Revolving Commitment Termination Date shall be payable on demand.
Β Β Β Β Β Β Β Β Β Β (f)Β Anything herein to the contrary notwithstanding, during such period as a Lender is a
Defaulting Lender, such Defaulting Lender will not be entitled to any fees accruing during such
period pursuant to SectionsΒ 2.13(b) and (c) (without prejudice to the rights of the
Lenders other than Defaulting Lenders in respect of such fees), or any amendment fees hereafter
offered to any Lender, and the pro rata payment provisions of SectionΒ 2.20
will automatically be deemed adjusted to reflect the provisions of this Section.
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Β
Β Β Β Β Β SectionΒ 2.14. Computation of Interest and Fees. Interest hereunder based on the
Administrative Agentβs prime lending rate shall be computed on the basis of a year of 365Β days (or
366Β days in a leap year) and paid for the actual number of days elapsed (including the first day
but excluding the last day). All other interest and all fees shall be computed on the basis of a
year of 360Β days and paid for the actual number of days elapsed (including the first day but
excluding the last day). Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be made in good faith and, except for manifest error, shall be final, conclusive
and binding for all purposes.
Β Β Β Β Β SectionΒ 2.15. Inability to Determine Interest Rates. If prior to the commencement of
any Interest Period for any Eurodollar Borrowing,
Β Β Β Β Β (i) the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances affecting the
relevant interbank market, adequate means do not exist for ascertaining LIBOR for such
Interest Period, or
Β Β Β Β Β (ii) the Administrative Agent shall have received notice from the Required Lenders that
the Adjusted LIBO Rate does not adequately and fairly reflect the cost to such Lenders (or
Lender, as the case may be) of making, funding or maintaining their (or its, as the case may
be) Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice, promptly confirmed in
writing) to the Borrower and to the Lenders as soon as practicable thereafter. Until the
Administrative Agent shall notify the Borrower and the Lenders that the circumstances giving rise
to such notice no longer exist, (i)Β the obligations of the Lenders to make Eurodollar Loans or to
continue or convert outstanding Loans as or into Eurodollar Loans shall be suspended and (ii)Β all
such affected Loans shall be converted into Base Rate Loans on the last day of the then current
Interest Period applicable thereto unless the Borrower
prepays such Loans in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of any Eurodollar Borrowing for
which a Notice of Revolving Borrowing or Notice of Conversion/Continuation has previously been
given that it elects not to borrow on such date, then such Revolving Borrowing shall be made as a
Base Rate Borrowing.
Β Β Β Β Β SectionΒ 2.16. Illegality. If any Change in Law shall make it unlawful or impossible
for any Lender to make, maintain or fund any Eurodollar Loan and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall promptly give notice thereof to the Borrower
and the other Lenders, whereupon until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Eurodollar Loans, or to continue or convert outstanding Loans as or into
Eurodollar Loans, shall be suspended. In the case of the making of a Eurodollar Borrowing, such
Lenderβs Revolving Loan shall be made as a Base Rate Loan as part of the same Revolving Borrowing
for the same Interest Period and if the affected Eurodollar Loan is then outstanding, such Loan
shall be converted to a Base Rate Loan either (i)Β on the last day of the then current Interest
Period applicable to such Eurodollar Loan if such Lender may lawfully continue to maintain such
Loan to such date or (ii)Β immediately if such Lender shall determine that it may not lawfully
continue to maintain such Eurodollar Loan to such date. Notwithstanding the foregoing, the
affected Lender shall, prior to giving such notice to the Administrative Agent, designate a
different Applicable Lending Office if such designation would avoid the need for giving such notice
and if such designation would not otherwise be disadvantageous to such Lender in the good faith
exercise of its discretion.
27
Β
Β Β Β Β Β SectionΒ 2.17. Increased Costs.
Β Β Β Β Β Β Β Β Β Β (a)Β If any Change in Law shall:
Β Β Β Β Β (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement that is not otherwise included in the determination of the Adjusted LIBO Rate
hereunder against assets of, deposits with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
Β Β Β Β Β (ii) impose on any Lender or on the Issuing Bank or the eurodollar interbank market any
other condition affecting this Agreement or any Eurodollar Loans made by such Lender or any
Letter of Credit or any participation therein;
and the result of either of the foregoing is to increase the cost to such Lender of making,
converting into, continuing or maintaining a Eurodollar Loan or to increase the cost to such Lender
or the Issuing Bank of participating in or issuing any Letter of Credit or to reduce the amount
received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest
or any other amount), then the Borrower shall promptly pay, upon written notice from and demand by
such Lender on the Borrower (with a copy of such notice and demand to the Administrative Agent), to
the Administrative Agent for the account of such Lender, within five (5)Β Business Days after the
date of such notice and demand, additional amount or amounts sufficient to compensate such Lender
or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.
Β Β Β Β Β Β Β Β Β Β (b)Β If any Lender or the Issuing Bank shall have determined that on or after the date of this
Agreement any Change in Law regarding capital requirements has or would have the effect of reducing
the rate of return on such Lenderβs or the Issuing Bankβs capital (or on the capital of the Parent
Company of such Lender or Issuing Bank) as a consequence of its obligations hereunder or under or
in
respect of any Letter of Credit to a level below that which such Lender, the Issuing Bank or
the Parent Company of such Lender or Issuing Bank could have achieved but for such Change in Law
(taking into consideration such Lenderβs or the Issuing Bankβs policies or the policies of the
Parent Company of such Lender or Issuing Bank with respect to capital adequacy) then, from time to
time, within five (5)Β Business Days after receipt by the Borrower of written demand by such Lender
(with a copy thereof to the Administrative Agent), the Borrower shall pay to such Lender such
additional amounts as will compensate such Lender, the Issuing Bank or the Parent Company of such
Lender or the Issuing Bank for any such reduction suffered.
Β Β Β Β Β Β Β Β Β Β (c)Β A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender, the Issuing Bank or the Parent Company of such Lender or the
Issuing Bank, as the case may be, specified in paragraph (a)Β or (b)Β of this SectionΒ 2.17
shall be delivered to the Borrower (with a copy to the Administrative Agent) and shall be
conclusive, absent manifest error. The Borrower shall pay any such Lender or the Issuing Bank, as
the case may be, such amount or amounts within five (5)Β Business Days after receipt thereof.
Β Β Β Β Β Β Β Β Β Β (d)Β Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this SectionΒ 2.17 shall not constitute a waiver of such Lenderβs or the Issuing
Bankβs right to demand such compensation.
Β Β Β Β Β SectionΒ 2.18. Funding Indemnity. In the event of (a)Β the payment of any principal of
a Eurodollar Loan other than on the last day of the Interest Period applicable thereto (including
as a result
28
Β
of an Event of Default), (b)Β the conversion or continuation of a Eurodollar Loan other
than on the last day of the Interest Period applicable thereto, or (c)Β the failure by the Borrower
to borrow, prepay, convert or continue any Eurodollar Loan on the date specified in any applicable
notice (regardless of whether such notice is withdrawn or revoked), then, in any such event, the
Borrower shall compensate each Lender, within five (5)Β Business Days after written demand from such
Lender, for any loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined by such Lender to
be the excess, if any, of (A)Β the amount of interest that would have accrued on the principal
amount of such Eurodollar Loan if such event had not occurred at the Adjusted LIBO Rate applicable
to such Eurodollar Loan for the period from the date of such event to the last day of the then
current Interest Period therefor (or in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Eurodollar Loan) over (B)Β the amount
of interest that would accrue on the principal amount of such Eurodollar Loan for the same period
if the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or the
date on which the Borrower failed to borrow, convert or continue such Eurodollar Loan. A
certificate as to any additional amount payable under this SectionΒ 2.18 submitted to the
Borrower by any Lender (with a copy to the Administrative Agent) shall be conclusive, absent
manifest error.
Β Β Β Β Β SectionΒ 2.19. Taxes.
Β Β Β Β Β Β Β Β Β Β (a)Β Any and all payments by or on account of any obligation of the Borrower hereunder shall be
made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided, that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i)Β the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to Indemnified Taxes and Other
Taxes) the Administrative Agent, any Lender or the Issuing Bank (as the case may be) shall receive
an amount equal to the sum it would have received had no such deductions been made, (ii)Β the
Borrower shall make such
deductions and (iii)Β the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
Β Β Β Β Β Β Β Β Β Β (b)Β In addition, the Borrower shall pay any Other Taxes (to the extent not duplicative of
amounts paid in SectionΒ 2.19(a)) to the relevant Governmental Authority in accordance with
applicable law.
Β Β Β Β Β Β Β Β Β Β (c)Β The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within five (5)Β Business Days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case
may be, on or with respect to any payment by or on account of any obligation of the Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this SectionΒ 2.19) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or
the Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
Β Β Β Β Β Β Β Β Β Β (d)Β As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall, to the extent available to the Borrower,
deliver to the Administrative Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the Administrative Agent.
29
Β
Β Β Β Β Β Β Β Β Β Β (e)Β Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the Code or any treaty to which the United States is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will permit such payments
to be made without withholding or at a reduced rate. Without limiting the generality of the
foregoing, each Foreign Lender agrees that it will deliver to the Administrative Agent and the
Borrower (or in the case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2)Β duly completed copies of (i)Β Internal Revenue Service
Form W-8 ECI, or any successor form thereto, certifying that the payments received from the
Borrower hereunder are effectively connected with such Foreign Lenderβs conduct of a trade or
business in the United States; or (ii)Β Internal Revenue Service Form W-8 BEN, or any successor form
thereto, certifying that such Foreign Lender is entitled to benefits under an income tax treaty to
which the United States is a party which eliminates or reduces the rate of withholding tax on
payments of interest; or (iii)Β Internal Revenue Service Form W-8 BEN, or any successor form
prescribed by the Internal Revenue Service, together with a certificate (A)Β establishing that the
payment to the Foreign Lender qualifies as βportfolio interestβ exempt from U.S. withholding tax
under Code section 871(h) or 881(c), and (B)Β stating that (1)Β the Foreign Lender is not a bank for
purposes of Code section 881(c)(3)(A), or the obligation of the Borrower hereunder is not,
with respect to such Foreign Lender, a loan agreement entered into in the ordinary course of its
trade or business, within the meaning of that section; (2)Β the Foreign Lender is not a 10%
shareholder of the Borrower within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3)
the Foreign Lender is not a controlled foreign corporation that is related to the Borrower within
the meaning of Code section 881(c)(3)(C); or (iv)Β such other Internal Revenue Service forms as may
be applicable to the Foreign Lender, including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender
shall deliver to the Borrower and the Administrative Agent such forms on or before the date that it
becomes a party to this Agreement (or in the case of a Participant, on or before the date such
Participant purchases the related participation).
In addition, each such Foreign Lender shall deliver such forms promptly upon the obsolescence
or invalidity of any form previously delivered by such Foreign Lender. Each such Foreign Lender
shall promptly notify the Borrower and the Administrative Agent at any time that it determines that
it is no longer in a position to provide any previously delivered certificate to the Borrower (or
any other form of certification adopted by the Internal Revenue Service for such purpose).
Β Β Β Β Β Β Β Β Β Β (f)Β If the Administrative Agent, the Issuing Bank or any Lender determines, in its sole
discretion, that it has received any credit or refund of any Indemnified Tax or Other Tax as to
which it has been indemnified by the Borrower, it shall pay over such refund or credit to Borrower
(but only to the extent of indemnity payments made, or additional amounts paid, by Borrower under
this Section, with respect to Indemnified Taxes or Other Taxes giving rise to such refund), net of
all out-of-pocket expenses of the Administrative Agent, the Issuing Bank or such Lender (as
applicable) and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that Borrower, upon request of the Administrative
Agent, the Issuing Bank or any Lender, agrees to repay the amount paid over the Borrower (plus any
penalties, interest or other charges imposed by the Governmental Authority) to the Administrative
Agent, the Issuing Bank or such Lender in the event the Administrative Agent, the Issuing Bank or
such Lender, as applicable, is requested to repay such refund to the Governmental Authority.
Β Β Β Β Β SectionΒ 2.20. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
Β Β Β Β Β Β Β Β Β Β (a)Β The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under
SectionsΒ 2.17, 2.18 or 2.19, or otherwise) prior to 12:00 noon on the date
when due, in immediately available funds, free and clear of any defenses, rights of set-off,
counterclaim, or withholding or
30
Β
deduction of taxes. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All such payments shall
be made to the Administrative Agent at the Payment Office, except payments to be made directly to
the Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant
to SectionsΒ 2.17, 2.18 and 2.19 and 10.3 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall distribute any such payments received
by it for the account of any other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be made payable for the period of such extension. All
payments hereunder shall be made in Dollars.
Β Β Β Β Β Β Β Β Β Β (b)Β If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied: first, to Administrative Agentβs fees and reimbursable
expenses then due and payable pursuant to any of the Loan Documents; second, to all
reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank
then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing
Bank based on their respective pro rata shares of such fees and expenses; third, to
interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective
pro rata shares of such interest and fees; and fourth, to the payment of principal of the
Loans and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to
such parties.
Β Β Β Β Β Β Β Β Β Β (c)Β If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans or participations in
LC Disbursements or Swingline Loans that would result in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Credit Exposure and accrued interest and fees
thereon than the proportion received by any other Lender with respect to its Revolving Credit
Exposure, then the Lender receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Credit Exposure of other Lenders to the extent necessary so that
the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Revolving Credit
Exposure; provided, that (i)Β if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest, and (ii)Β the
provisions of this paragraph shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any of its Revolving
Credit Exposure to any assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so under applicable law,
that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such participation as fully
as if such Lender were a direct creditor of the Borrower in the amount of such participation.
Β Β Β Β Β Β Β Β Β Β (d)Β Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or the
Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be,
the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then
each of
31
Β
the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
Β Β Β Β Β SectionΒ 2.21. Letters of Credit.
Β Β Β Β Β Β Β Β Β Β (a)Β During the Availability Period, the Issuing Bank, in reliance upon the agreements of the
other Lenders pursuant to SectionΒ 2.21(d), will issue, at the request of the Borrower,
Letters of Credit for the account of the Borrower on the terms and conditions hereinafter set
forth; provided, that (i)Β each Letter of Credit shall expire on the earlier of (A)Β the date
one year after the date of issuance of such Letter of Credit (or in the case of any renewal or
extension thereof, one year after such renewal or extension) and (B)Β the date that is five (5)
Business Days prior to the Revolving Commitment Termination Date; (ii)Β each Letter of Credit shall
be in a stated amount of at least $25,000; and (iii)Β the Borrower may not request any Letter of
Credit, if, after giving effect to such issuance (A)Β the aggregate LC Exposure would exceed the LC
Commitment or (B)Β the aggregate Revolving Credit Exposure of all Lenders would exceed the Aggregate
Revolving Commitment Amount. Each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank without recourse a participation in each
Letter of Credit equal to such Lenderβs Pro Rata Share of the aggregate amount available to be
drawn under such Letter of Credit on the date of issuance with respect to all other Letters of
Credit. Each issuance of a Letter of Credit shall be deemed to utilize the Revolving Commitment of
each Lender by an amount equal to the amount of such participation.
Β Β Β Β Β Β Β Β Β Β (b)Β To request the issuance of a Letter of Credit (or any amendment, renewal or extension of
an outstanding Letter of Credit), the Borrower shall give the Issuing Bank and the Administrative
Agent irrevocable written notice at least three (3)Β Business Days prior to the requested date of
such issuance specifying the date (which shall be a Business Day) such Letter of Credit is to be
issued (or amended, extended or renewed, as the case may be), the expiration date of such Letter of
Credit, the amount of such Letter of Credit, the name and address of the beneficiary thereof and
such other information as shall be necessary to prepare, amend, renew or extend such Letter of
Credit. In addition to the satisfaction of the conditions in ArticleΒ III, the issuance of
such Letter of Credit (or any amendment which increases the amount of such Letter of Credit) will
be subject to the further conditions that such Letter of Credit shall be in such form and contain
such terms as the Issuing Bank shall approve and that the Borrower shall have executed and
delivered any additional applications, agreements and instruments relating to such Letter of Credit
as the Issuing Bank shall reasonably require; provided, that in the event of any conflict
between such applications, agreements or instruments and this Agreement, the terms of this
Agreement shall control.
Β Β Β Β Β Β Β Β Β Β (c)Β At least two Business Days prior to the issuance of any Letter of Credit, the Issuing Bank
will confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received such notice and if not, the Issuing Bank will provide the Administrative Agent
with a copy thereof. Unless the Issuing Bank has received notice from the Administrative Agent on
or before the Business Day immediately preceding the date the Issuing Bank is to issue the
requested Letter of Credit (1)Β directing the Issuing Bank not to issue the Letter of Credit because
such issuance is not then permitted hereunder because of the limitations set forth in Section
2.21(a) or that one or more conditions specified in ArticleΒ III are not then satisfied,
then, subject to the terms and conditions hereof, the Issuing Bank shall, on the requested date,
issue such Letter of Credit in accordance with the Issuing Bankβs usual and customary business
practices.
32
Β
Β Β Β Β Β Β Β Β Β Β (d)Β The Issuing Bank shall examine all documents purporting to represent a demand for payment
under a Letter of Credit promptly following its receipt thereof. The Issuing Bank shall notify the
Borrower and the Administrative Agent of such demand for payment and whether the Issuing Bank has
made or will make a LC Disbursement thereunder; provided, that any failure to give or delay
in giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing
Bank and the Lenders with respect to such LC Disbursement. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the Issuing Bank for any LC Disbursements paid by the
Issuing Bank in respect of such drawing, without presentment, demand or other formalities of any
kind. Unless the Borrower shall have notified the Issuing Bank and the Administrative Agent prior
to 11:00Β a.m. on the Business Day immediately prior to the date on which such drawing is honored
that the Borrower intends to reimburse the Issuing Bank for the amount of such drawing in funds
other than from the proceeds of Revolving Loans, the Borrower shall be deemed to have timely given
a Notice of Revolving Borrowing to the Administrative Agent requesting the Lenders to make a Base
Rate Borrowing on the date on which such drawing is honored in an exact amount due to the Issuing
Bank; provided, that for purposes solely of such Borrowing, the conditions precedent set
forth in SectionΒ 3.2 hereof shall not be applicable. The Administrative Agent shall notify
the Lenders of such Borrowing in accordance with SectionΒ 2.3, and each Lender shall make
the proceeds of its Base Rate Loan included in such Borrowing available to the Administrative Agent
for the account of the Issuing Bank in accordance with SectionΒ 2.5. The proceeds of such
Borrowing shall be applied directly by the Administrative Agent to reimburse the Issuing Bank for
such LC Disbursement.
Β Β Β Β Β Β Β Β Β Β (e)Β If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion
of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Issuing Bank) shall be obligated to fund the participation that such
Lender purchased pursuant to subsection (a)Β in an amount equal to its Pro Rata Share of such LC
Disbursement
on and as of the date which such Base Rate Borrowing should have occurred. Each Lenderβs
obligation to fund its participation shall be absolute and unconditional and shall not be affected
by any circumstance, including without limitation (i)Β any setoff, counterclaim, recoupment, defense
or other right that such Lender or any other Person may have against the Issuing Bank or any other
Person for any reason whatsoever, (ii)Β the existence of a Default or an Event of Default or the
termination of the Aggregate Revolving Commitments, (iii)Β any adverse change in the condition
(financial or otherwise) of the Borrower or any of its Subsidiaries, (iv)Β any breach of this
Agreement by the Borrower or any other Lender, (v)Β any amendment, renewal or extension of any
Letter of Credit or (vi)Β any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing. On the date that such participation is required to be funded,
each Lender shall promptly transfer, in immediately available funds, the amount of its
participation to the Administrative Agent for the account of the Issuing Bank. Whenever, at any
time after the Issuing Bank has received from any such Lender the funds for its participation in a
LC Disbursement, the Issuing Bank (or the Administrative Agent on its behalf) receives any payment
on account thereof, the Administrative Agent or the Issuing Bank, as the case may be, will
distribute to such Lender its Pro Rata Share of such payment; provided, that if such
payment is required to be returned for any reason to the Borrower or to a trustee, receiver,
liquidator, custodian or similar official in any bankruptcy proceeding, such Lender will return to
the Administrative Agent or the Issuing Bank any portion thereof previously distributed by the
Administrative Agent or the Issuing Bank to it.
Β Β Β Β Β Β Β Β Β Β (f)Β To the extent that any Lender shall fail to pay any amount required to be paid pursuant to
paragraphs (d)Β or (e)Β of this Section on the due date therefor, such Lender shall pay interest to
the Issuing Bank (through the Administrative Agent) on such amount from such due date to the date
such payment is made at a rate per annum equal to the Federal Funds Rate; provided, that if
such Lender shall fail to make such payment to the Issuing Bank within three (3)Β Business Days of
such due date, then, retroactively to the due date, such Lender shall be obligated to pay interest
on such amount at the rate set forth in SectionΒ 2.12(d).
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Β
Β Β Β Β Β Β Β Β Β Β (g)Β If any Event of Default shall occur and be continuing, on the Business Day that the
Borrower receives notice from the Administrative Agent or the Required Lenders demanding that its
reimbursement obligations with respect to the Letters of Credit be Cash Collateralized pursuant to
this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon;
provided, that such obligation to Cash Collateralize the reimbursement obligations of the
Borrower with respect to the Letters of Credit shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or notice of any kind, upon the occurrence
of any Event of Default with respect to the Borrower described in clause (g)Β or (h)Β of Section
8.1. Such deposit shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of withdrawal, over such
account. Borrower agrees to execute any documents and/or certificates to effectuate the intent of
this paragraph. Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the Administrative Agent and at the
Borrowerβs risk and expense, such deposits shall not bear interest. Interest and profits, if any,
on such investments shall accumulate in such account. Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it had not
been reimbursed and to the extent so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated, with the consent of the Required Lenders, be applied to satisfy
other obligations of the Borrower under this Agreement and the other Loan Documents. If the
Borrower is required to Cash Collateralize its reimbursement obligations with respect to the
Letters of Credit as a result of the occurrence of an Event of
Default, such cash collateral so posted (to the extent not so applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of Default have been cured or
waived.
Β Β Β Β Β Β Β Β Β Β (h)Β Upon the request of any Lender, but no more frequently than quarterly, the Issuing Bank
shall deliver (through the Administrative Agent) to each Lender and the Borrower a report
describing the aggregate Letters of Credit then outstanding. Upon the request of any Lender from
time to time, the Issuing Bank shall deliver to such Lender any other information reasonably
requested by such Lender with respect to each Letter of Credit then outstanding.
Β Β Β Β Β Β Β Β Β Β (i)Β The Borrowerβs obligation to reimburse LC Disbursements hereunder shall be absolute,
unconditional and irrevocable and shall be performed strictly in accordance with the terms of this
Agreement under all circumstances whatsoever and irrespective of any of the following
circumstances:
Β Β Β Β Β Β Β Β Β Β (i) Any lack of validity or enforceability of any Letter of Credit or this
Agreement;
Β Β Β Β Β Β Β Β Β Β (ii) The existence of any claim, set-off, defense or other right which the Borrower
or any Subsidiary or Affiliate of the Borrower may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any Persons or entities for
whom any such beneficiary or transferee may be acting), any Lender (including the
Issuing Bank) or any other Person, whether in connection with this Agreement or the
Letter of Credit or any document related hereto or thereto or any unrelated transaction;
Β Β Β Β Β Β Β Β Β Β (iii) Any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect;
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Β
Β Β Β Β Β Β Β Β Β Β (iv) Payment by the Issuing Bank under a Letter of Credit against presentation of a
draft or other document to the Issuing Bank that does not comply with the terms of such
Letter of Credit;
Β Β Β Β Β Β Β Β Β Β (v) Any other event or circumstance whatsoever, whether or not similar to any of
the foregoing, that might, but for the provisions of this SectionΒ 2.21,
constitute a legal or equitable discharge of, or provide a right of setoff against, the
Borrowerβs obligations hereunder; or
Β Β Β Β Β Β Β Β Β Β (vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related Party of any of the
foregoing shall have any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to above), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence arising from causes
beyond the control of the Issuing Bank; provided, that the foregoing shall not be construed
to excuse the Issuing Bank from liability to the Borrower to the extent of any actual direct
damages (as opposed to special, indirect (including claims for lost profits or other consequential
damages), or punitive damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by the
Issuing Bankβs failure to exercise due care when determining whether drafts or other documents
presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly
agree, that in the absence of gross negligence or willful misconduct on the part of the Issuing
Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed
to have exercised due care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to documents presented that
appear on their face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such documents if such documents are not in
strict compliance with the terms of such Letter of Credit.
Β Β Β Β Β Β Β Β Β Β (j)Β Unless otherwise expressly agreed by the Issuing Bank and the Borrower when a Letter of
Credit is issued and subject to applicable laws, (i)Β each standby Letter of Credit shall be
governed by the βInternational Standby Practices 1998β (ISP98) (or such later revision as may be
published by the Institute of International Banking Law & Practice on any date any Letter of Credit
may be issued), (ii)Β each documentary Letter of Credit shall be governed by the Uniform Customs and
Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication
No.Β 600 (or such later revision as may be published by the International Chamber of Commerce on any
date any Letter of Credit may be issued) and (iii)Β the Borrower shall specify the foregoing in each
letter of credit application submitted for the issuance of a Letter of Credit.
Β Β Β Β Β SectionΒ 2.22. Cash Collateralization of Defaulting Lender Commitment. If a Lender
becomes, and during the period it remains, a Defaulting Lender, the following provisions shall
apply with respect to any outstanding LC Exposure and any outstanding Swingline Exposure of such
Defaulting Lender:
Β Β Β Β Β Β Β Β Β Β (a)Β each of the Issuing Bank and the Swingline Lender is hereby authorized by the Borrower
(which authorization is irrevocable and coupled with an interest) to give, in its discretion,
through the Administrative Agent, Notices of Borrowing pursuant to SectionΒ 2.3 in such
amounts and in
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Β
such times as may be required to (i)Β reimburse an outstanding LC Disbursement, and
(ii)Β repay an outstanding Swingline Loan, as applicable;
Β Β Β Β Β Β Β Β Β Β (b)Β the Borrower will, not later than three (3)Β Business Days after demand by the
Administrative Agent (at the direction of the Issuing Bank and/or the Swingline Lender, as the case
may be), (a)Β Cash Collateralize a portion of the obligations of the Borrower to the Issuing Bank
and the Swingline Lender equal to such Defaulting Lenderβs LC Exposure or Swingline Exposure, as
the case may be, (b)Β in the case of such Swingline Exposure, prepay all Swingline Loans, or (c)
make other arrangements satisfactory to the Administrative Agent, and to the Issuing Bank and the
Swingline Lender, as the case may be, in their sole discretion to protect them against the risk of
non-payment by such Defaulting Lender; provided that no such Cash Collateralization will
constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing
Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender, or cause
such Defaulting Lender to be a Non-Defaulting Lender;
Β Β Β Β Β Β Β Β Β Β (c)Β any amount paid by the Borrower for the account of a Defaulting Lender under this
Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts)
will not be paid or distributed to such Defaulting Lender, but will instead be retained by the
Administrative Agent in a segregated non-interest bearing account until the termination of the
Commitments at which time the funds in such account will be applied by the Administrative Agent, to
the
fullest extent permitted by law, in the following order of priority: first to the
payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this
Agreement, second to the payment of any amounts owing by such Defaulting Lender to the
Issuing Bank or the Swingline Lender (pro rata as to the respective amounts owing
to each of them) under this Agreement, third to the payment of post-default interest and
then current interest due and payable to the Lenders hereunder other than Defaulting Lenders,
ratably among them in accordance with the amounts of such interest then due and payable to them,
fourth to the payment of fees then due and payable to the Non-Defaulting Lenders hereunder,
ratably among them in accordance with the amounts of such fees then due and payable to them,
fifth to pay principal and unreimbursed LC Disbursements then due and payable to the
Non-Defaulting Lenders hereunder ratably in accordance with the amounts thereof then due and
payable to them, sixth to the ratable payment of other amounts then due and payable to the
Non-Defaulting Lenders, and seventh to pay amounts owing under this Agreement to such
Defaulting Lender or as a court of competent jurisdiction may otherwise direct.
Β Β Β Β Β SectionΒ 2.23. Mitigation of Obligations. If any Lender requests compensation under
SectionΒ 2.17, or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to SectionΒ 2.19, then
such Lender shall use reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the sole judgment of such Lender, such designation or
assignment (i)Β would eliminate or reduce amounts payable under SectionΒ 2.17 or Section
2.19, as the case may be, in the future and (ii)Β would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all costs and expenses incurred by any Lender in connection with such
designation or assignment.
Β Β Β Β Β SectionΒ 2.24. Replacement of Lenders. If any Lender requests compensation under
SectionΒ 2.17, or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority of the account of any Lender pursuant to SectionΒ 2.19, or if any
Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions set forth in SectionΒ 10.4(b)
all its interests, rights and obligations under this Agreement to
36
Β
an assignee that shall assume
such obligations (which assignee may be another Lender); provided, that (i)Β the Borrower
shall have received the prior written consent of the Administrative Agent, which consent shall not
be unreasonably withheld, (ii)Β such Lender shall have received payment of an amount equal to the
outstanding principal amount of all Loans owed to it, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (in the case of such outstanding
principal and accrued interest) and from the Borrower (in the case of all other amounts) and (iii)
in the case of a claim for compensation under SectionΒ 2.17 or payments required to be made
pursuant to SectionΒ 2.19, such assignment will result in a reduction in such compensation
or payments. A Lender shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
Β Β Β Β Β SectionΒ 2.25. Support Letter of Credit. The repayment of the Obligations shall be
supported at all times by a Support Letter of Credit. If an Event of Default has occurred and is
continuing, the Administrative Agent may, and at the request of the Required Lenders shall, draw on
the Support Letter of Credit for an amount equal to the lesser of (i)Β sum of (A)Β aggregate
outstanding Revolving Loans and Swingline Loans, plus (B)Β 100% of the LC Exposure at such time,
plus (C)Β all accrued and unpaid interest, fees and other Obligations (excluding
contingent indemnification obligations), plus (D)Β all fees that will accrue after the date of
such draw with respect to all LC Exposure and (ii) $15,675,000. The Administrative Agent shall
apply all proceeds received from such draw on the Support Letter of Credit to repay in full all
outstanding Loans, and accrued interest, fees and other Obligations (other than contingent
Obligations) and to Cash Collateralize all contingent Obligations.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
Β Β Β Β Β SectionΒ 3.1. Conditions To Effectiveness. The obligations of the Lenders (including
the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of
Credit hereunder shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with SectionΒ 10.2).
Β Β Β Β Β Β Β Β Β Β (a)Β The Administrative Agent shall have received payment of all fees, expenses and other
amounts due and payable on or prior to the Closing Date, including without limitation reimbursement
or payment of all out-of-pocket expenses of the Administrative Agent, the Syndication Agent and
their Affiliates (including reasonable fees, charges and disbursements of counsel to the
Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, an upfront fee
to each lender equal to 0.50% of such Lenderβs Revolving Commitment on the date hereof and the
other fees set forth in the fee letter agreements among Xxxxxx Mortgage and any of the Lenders
party hereto on the Closing Date and their Affiliates.
Β Β Β Β Β Β Β Β Β Β (b)Β The Administrative Agent (or its counsel) shall have received the following, each to be in
form and substance satisfactory to the Lenders:
Β Β Β Β Β Β Β Β Β Β (i) a counterpart of this Agreement signed by or on behalf of each party hereto or
written evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement;
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Β
Β Β Β Β Β Β Β Β Β Β (ii) the Subsidiary Guaranty Agreement duly executed by each Subsidiary other than
Xxxxxx Investment Reinsurance Co., Ltd., Mid-State Capital, LLC and Hanover SPC-A, Inc.;
Β Β Β Β Β Β Β Β Β Β (iii) the Closing Date Fee Letter, duly executed by the Borrower;
Β Β Β Β Β Β Β Β Β Β (iv) the Support Letter of Credit, duly executed by the Support L/C Bank thereof;
Β Β Β Β Β Β Β Β Β Β (v) a certificate of the Secretary or Assistant Secretary of each Loan Party in the
form of ExhibitΒ 3.1(b)(v), attaching and certifying copies of its bylaws and of the
resolutions of its board of directors, or partnership agreement or limited liability company
agreement, or comparable organizational documents and authorizations, authorizing the
execution, delivery and
performance of the Loan Documents to which it is a party and certifying the name, title
and true signature of each officer of such Loan Party executing the Loan Documents to which
it is a party;
Β Β Β Β Β Β Β Β Β Β (vi) certified copies of the articles or certificate of incorporation, certificate of
organization or limited partnership, or other registered organizational documents of each
Loan Party, together with certificates of good standing or existence, as may be available
from the Secretary of State of the jurisdiction of organization of such Loan Party;
Β Β Β Β Β Β Β Β Β Β (vii) a favorable written opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the
Loan Parties, addressed to the Administrative Agent, the Issuing Bank and each of the
Lenders, and covering such matters relating to the Loan Parties, the Loan Documents and the
transactions contemplated therein as the Administrative Agent or the Required Lenders shall
reasonably request, together with a reliance letter on the opinion delivered in connection
with the Related Transactions regarding the status of the Borrower as a REIT;
Β Β Β Β Β Β Β Β Β Β (viii) a certificate dated the Closing Date and signed by a Responsible Officer,
certifying that after giving effect to the funding any initial Revolving Borrowing, (x)Β no
Default or Event of Default exists, (y)Β all representations and warranties of each Loan
Party set forth in the Loan Documents are true and correct and (z)Β since DecemberΒ 31, 2008,
there shall have been no change which has had or could reasonably be expected to have a
material adverse change in, or a material adverse effect upon, the operations, business,
assets, properties, liabilities (actual or contingent), condition (financial or otherwise)
or prospects of the Borrower and its Subsidiaries taken as a whole or the mortgage finance
business of Xxxxxx Industries and its Subsidiaries taken as a whole;
Β Β Β Β Β Β Β Β Β Β (ix) [reserved];
Β Β Β Β Β Β Β Β Β Β (x) copies of duly executed payoff letters executed by any lender with respect to
Indebtedness to the Borrower or any of its Subsidiaries not permitted hereunder, together
with evidence that any Liens on the assets of the Borrower or any of its Subsidiaries not
permitted hereunder have been terminated;
Β Β Β Β Β Β Β Β Β Β (xi) certified copies of all consents, approvals, authorizations, registrations and
filings and orders required or advisable to be made or obtained under any Requirement of
Law, or by any Contractual Obligation of each Loan Party, in connection with the execution,
delivery, performance, validity and enforceability of the Related Transaction Documents or
any of the Related Transactions, and such consents, approvals, authorizations,
registrations, filings
38
Β
and orders shall be in full force and effect and all applicable
waiting periods shall have expired, and no investigation or inquiry by any governmental
authority regarding the Commitments or any transaction being financed with the proceeds
thereof shall be ongoing;
Β Β Β Β Β Β Β Β Β Β (xii) copies of (A)Β the audited consolidated and consolidating financial statements for
Xxxxxx Industries and its Subsidiaries for the Fiscal Year ending DecemberΒ 31, 2008 and for
Hanover Capital Mortgage Holdings, Inc. and its Subsidiaries for the Fiscal Year ending
DecemberΒ 31, 2008 and (B)Β financial projections for the Borrower and its Subsidiaries; and
Β Β Β Β Β Β Β Β Β Β (xiii) certified copies of the Merger Documents, together with (A)Β evidence that the
Administrative Agent, the Syndication Agent, the Issuing Bank, the Swingline Lender and the
Lenders are permitted to rely on all legal opinions delivered in connection with the
consummation of the Related Transactions, (B)Β a certification that the conditions set
forth in ArticleΒ 8 of the Merger Agreement have been satisfied and the Merger has been
consummated and (C)Β if available, a file-stamped copy of the certificates of merger filed
with respect to the Merger.
Β Β Β Β Β Β Β Β Β Β (c)Β The Lenders shall have completed their business and legal due diligence of the Related
Transactions, with results reasonably satisfactory to such Lenders.
Β Β Β Β Β Β Β Β Β Β (d)Β Each of the conditions precedent set forth in ArticleΒ 8 of the Merger Agreement have been
satisfied, the Borrower shall have submitted the certificates of merger to the applicable states
for filing or recording, and the Asset Transfer and the Merger shall have been consummated in
accordance with the terms of the Related Transaction Documents.
Β Β Β Β Β Β Β Β Β Β Without limiting the generality of the provisions of SectionΒ 3.1, for purposes of
determining compliance with the conditions specified in this SectionΒ 3.1, each Lender that
has signed this Credit Agreement shall be deemed to have consented to, approved or accepted or to
be satisfied with, each document or other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Β Β Β Β Β SectionΒ 3.2. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit is subject to the satisfaction of the following conditions:
Β Β Β Β Β Β Β Β Β Β (a)Β at the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of
Default shall exist;
Β Β Β Β Β Β Β Β Β Β (b)Β at the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, all representations and
warranties of each Loan Party set forth in the Loan Documents shall be true and correct on and as
of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such
Letter of Credit, in each case before and after giving effect thereto except to the extent that
such representations and warranties specifically relate to an earlier date, in which case such
representations and warranties specifically refer to such earlier date;
39
Β
Β Β Β Β Β Β Β Β Β Β (c)Β since the date of the financial statements of the Borrower described in Section
4.4, there shall have been no change which has had or could reasonably be expected to have a
Material Adverse Effect;
Β Β Β Β Β Β Β Β Β Β (d)Β the Borrower shall have delivered the required Notice of Borrowing;
Β Β Β Β Β Β Β Β Β Β (e)Β the Administrative Agent shall have received such other documents, certificates,
information or legal opinions as the Administrative Agent or the Required Lenders may reasonably
request, all in form and substance reasonably satisfactory to the Administrative Agent or the
Required Lenders.
In addition to the other conditions precedent herein set forth, if any Lender is a Defaulting
Lender at the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or
extension of such Letter of Credit, as applicable, the Issuing Bank will not be required to issue
any Letter of Credit or to extend, renewe or amend any outstanding Letter of Credit and the
Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Bank or the
Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is
fully covered or eliminated by the Borrower Cash Collateralizing the obligations of the Borrower in
respect of such Letter of Credit or Swingline Loan in an amount at least equal to the aggregate
amount of the obligations (contingent or otherwise) of such Defaulting Lender in respect of such
Letter of Credit or Swingline Loan, or makes other arrangements satisfactory to the Administrative
Agent, the Issuing Bank and the Swingline Lender in their sole discretion to protect them against
the risk of non-payment by such Defaulting Lender; provided that no such Cash
Collateralization will constitute a waiver or release of any claim the Borrower, the Administrative
Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting
Lender, or cause such Defaulting Lender to be a Non-Defaulting Lender.
Each Borrowing and each issuance, amendment, extension or renewal of any Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a), (b)Β and (c)Β of this SectionΒ 3.2.
Β Β Β Β Β SectionΒ 3.3. Delivery of Documents. All of the Loan Documents, certificates, legal
opinions and other documents and papers referred to in this ArticleΒ III, unless otherwise
specified, shall be delivered to the Administrative Agent for the account of each of the Lenders.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Β Β Β Β Β Β Β Β Β Β The Borrower represents and warrants to the Administrative Agent and each Lender as follows:
Β Β Β Β Β SectionΒ 4.1. Existence; Power. The Borrower and each of its Subsidiaries (i)Β is duly
organized, validly existing and in good standing as a corporation, partnership or limited liability
company under the laws of the jurisdiction of its organization, (ii)Β has all requisite power and
authority to carry on its business as now conducted, and (iii)Β is duly qualified to do business,
and is in good standing, in each jurisdiction where such qualification is required, except where a
failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect.
Β Β Β Β Β SectionΒ 4.2. Organizational Power; Authorization. The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party are within such Loan
Partyβs organizational powers and have been duly authorized by all necessary organizational, and if
40
Β
required, shareholder, partner or member, action. This Agreement has been duly executed and
delivered by the Borrower, and constitutes, and each other Loan Document to which any Loan Party is
a party, when executed and delivered by such Loan Party, will constitute, valid and binding
obligations of the Borrower or such Loan Party (as the case may be), enforceable against it in
accordance with their respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditorsβ
rights generally and by general principles of equity.
Β Β Β Β Β SectionΒ 4.3. Governmental Approvals; No Conflicts. The execution, delivery and
performance by the Borrower of this Agreement, and by each Loan Party of the other Loan Documents
to which it is a party and the consummation of the Related Transactions (a)Β do not require any
consent or approval of, registration or filing with, or any action by, any Governmental Authority,
except those as have been obtained or made and are in full force and effect, (b)Β will not violate
any Requirements of Law applicable to the Borrower or any of its Subsidiaries or any judgment,
order or ruling of any Governmental Authority, (c)Β will not violate or result in a default under
any indenture, agreement or other instrument binding on the Borrower or any of its Subsidiaries or
any of its assets or give rise to a right thereunder to require any payment to be made by the
Borrower or any of its Subsidiaries and (d)Β will not result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries.
Β Β Β Β Β SectionΒ 4.4. Financial Statements. The Borrower has furnished to each Lender (i)Β the
audited consolidated balance sheet of Xxxxxx Industries and its Subsidiaries as of DecemberΒ 31,
2008 and the related consolidated statements of income, shareholdersβ equity and cash flows for the
Fiscal Year then ended prepared by Ernst & Young and (ii)Β the audited consolidated balance sheet of
Hanover Capital Mortgage Holdings, Inc. and its Subsidiaries as of DecemberΒ 31, 2008 and the
related consolidated statements of income, shareholdersβ equity and cash flows for the Fiscal Year
then ended prepared by an independent certified public accounting firm of nationally recognized
standing or other independent public accounting firm acceptable to the Required Lenders. Such
financial statements fairly present the consolidated financial condition of Xxxxxx Industries and
its Subsidiaries or Hanover Capital Mortgage Holdings, Inc. and its Subsidiaries, as the case may
be, as of such dates and the consolidated results of operations for such periods in conformity with
GAAP consistently applied, subject to year end audit adjustments and the absence of footnotes in
the case of the statements referred to in clause (ii). Since DecemberΒ 31, 2008, there have been
no changes with respect to Xxxxxx Industries and its Subsidiaries or Hanover Capital Mortgage
Holdings, Inc. and its Subsidiaries which have had or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
Β Β Β Β Β SectionΒ 4.5. Litigation and Environmental Matters.
Β Β Β Β Β Β Β Β Β Β (a)Β Except for the matters set forth on ScheduleΒ 4.5(a), no litigation, investigation
or proceeding of or before any arbitrators or Governmental Authorities is pending against or, to
the knowledge of the Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i)Β that if adversely determined could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect or (ii)Β which in any manner draws into
question the validity or enforceability of this Agreement or any other Related Transaction
Document.
Β Β Β Β Β Β Β Β Β Β (b)Β Except for the matters set forth on ScheduleΒ 4.5(b), neither the Borrower nor any
of its Subsidiaries (i)Β has failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any Environmental Law, (ii)Β has
become subject to any Environmental Liability, (iii)Β has received notice of any claim with respect
to any Environmental Liability or (iv)Β knows of any basis for any Environmental Liability, in each
case that could reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect
41
Β
Β Β Β Β Β SectionΒ 4.6. Compliance with Laws and Agreements. The Borrower and each Subsidiary is
in compliance with (a)Β all Requirements of Law and all judgments, decrees and orders of any
Governmental Authority and (b)Β all indentures, agreements or other instruments binding upon it or
its properties, except where non-
compliance, either singly or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect.
Β Β Β Β Β SectionΒ 4.7. Investment Company Act, Etc. Neither the Borrower nor any of its
Subsidiaries is (a)Β an βinvestment companyβ or is βcontrolledβ by an βinvestment companyβ, as such
terms are defined in, or subject to regulation under, the Investment Company Act of 1940, as
amended, or (b)Β otherwise subject to any other regulatory scheme limiting its ability to incur debt
or requiring any approval or consent from or registration or filing with, any Governmental
Authority in connection therewith.
Β Β Β Β Β SectionΒ 4.8. Taxes. The Borrower and its Subsidiaries have timely filed or caused to
be filed all Federal income tax returns and all other material tax returns that are required to be
filed by them, and have paid all Federal income taxes and other material taxes shown to be due and
payable on such returns or on any assessments made against it or its property and all other
material taxes, fees or other charges imposed on it or any of its property by any Governmental
Authority, except where the same are currently being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as the case may be, has set aside on its
books adequate reserves in accordance with GAAP. Except as set forth on ScheduleΒ 4.8,
there is no proposed tax assessment against the Borrower or any Subsidiary that could reasonably be
expected to result in or have a Material Adverse Effect.
Β Β Β Β Β SectionΒ 4.9. Margin Regulations. None of the proceeds of any of the Loans or Letters
of Credit will be used, directly or indirectly, for βpurchasingβ or βcarryingβ any βmargin stockβ
with the respective meanings of each of such terms under RegulationΒ U or for any purpose that
violates the provisions of the RegulationΒ T, U or X. Neither the Borrower nor its Subsidiaries is
engaged principally, or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying βmargin stock.β
Β Β Β Β Β SectionΒ 4.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Standards No.Β 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed the fair market value of the assets of such
Plan, and the present value of all accumulated benefit obligations of all underfunded Plans (based
on the assumptions used for purposes of Statement of Financial Standards No.Β 87) did not, as of the
date of the most recent financial statements reflecting such amounts, exceed the fair market value
of the assets of all such underfunded Plans.
Β Β Β Β Β SectionΒ 4.11. Ownership of Property.
Β Β Β Β Β Β Β Β Β Β (a)Β Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests
in, all of its real and personal property material to the operation of its business, including all
such properties material to the operation of the mortgage finance business operated by Xxxxxx
Mortgage Company and its Subsidiaries prior to the Merger (except as sold or otherwise disposed of
in the ordinary course of business), in each case free and clear of Liens prohibited by this
Agreement. All leases that individually or in the aggregate are material to the business or
operations of the Borrower and its Subsidiaries are valid and subsisting and are in full force.
42
Β
Β Β Β Β Β Β Β Β Β Β (b)Β Each of the Borrower and its Subsidiaries owns, or is licensed, or otherwise has the
right, to use, all patents, trademarks, service marks, trade names, copyrights and other
intellectual property related to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe in any material respect on the rights of any other Person, except
where a failure to own, license or use such intellectual property or such infringment could not
reasonably be expected to have a Material Adverse Effect.
Β Β Β Β Β Β Β Β Β Β (c)Β The properties of the Borrower and its Subsidiaries are insured with financially sound and
reputable insurance companies which are not Affiliates of the Borrower, in such amounts with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or any applicable
Subsidiary operates, except that all REO properties may be insured with an Affiliate of the
Borrower.
Β Β Β Β Β SectionΒ 4.12. Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments, and corporate or other restrictions to which the Borrower or any of its Subsidiaries
is subject, and all other matters known to any of them, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. None of the reports
(including without limitation all reports that Xxxxxx Industries, any of its Subsidiaries or the
Borrower has or is required to file with the Securities and Exchange Commission in connection with
the Related Transactions or this Credit Agreement), financial statements, certificates or other
information furnished by or on behalf of the Borrower or any of its Subsidiaries (including with
respect to the mortgage finance business of Xxxxxx Industries and its Subsidiaries prior to giving
effect to the Merger) to the Administrative Agent or any Lender in connection with the negotiation
or syndication of this Agreement or any other Loan Document or delivered hereunder or thereunder
(as modified or supplemented by any other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein,
taken as a whole, in light of the circumstances under which they were made, not misleading
provided that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time;
Β Β Β Β Β SectionΒ 4.13. Labor Relations. There are no strikes, lockouts or other material labor
disputes or grievances against the Borrower or any of its Subsidiaries, or, to the Borrowerβs
knowledge, threatened against or affecting the Borrower or any of its Subsidiaries, and no
significant unfair labor practice, charges or grievances are pending against the Borrower or any of
its Subsidiaries, or to the Borrowerβs knowledge, threatened against any of them before any
Governmental Authority which could, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. As of the Closing Date, all payments due from the Borrower or any
of its Subsidiaries pursuant to the provisions of any collective bargaining agreement have been
paid or accrued as a liability on the books of the Borrower or any such Subsidiary, except where
the failure to do so could not reasonably be expected to have a Material Adverse Effect.
Β Β Β Β Β SectionΒ 4.14. Subsidiaries. ScheduleΒ 4.14 sets forth the name of, the
ownership interest of the Borrower in, the jurisdiction of incorporation or organization of, and
the type of, each Subsidiary as of the Closing Date. Xxxxxx Investment Reinsurance Co., Inc. is
organized under the laws of a jurisdiction other than one of the fifth states of the United States
or the District of Columbia.
Β Β Β Β Β SectionΒ 4.15. Solvency. After giving effect to the execution and delivery of the
Related Transaction Documents, the consummation of the Related Transactions and the making of any
initial Loan or issuance of any initial Letter of Credit under this
Agreement, and based upon the contribution rights set forth in the Subsidiary Guaranty
Agreement, the Borrower and its Subsidiaries taken as a whole are Solvent.
43
Β
Β Β Β Β Β SectionΒ 4.16. OFAC. None of the Borrower, any Subsidiary of the Borrower or any
Affiliate of the Borrower or any Subsidiary Loan Party (i)Β is a Sanctioned Person, (ii)Β has more
than 15% of its assets in Sanctioned Countries, or (iii)Β derives more than 15% of its operating
income from investments in, or transactions with Sanctioned Persons or Sanctioned Countries. No
part of the proceeds of any Loans hereunder will be used directly or indirectly to fund any
operations in, finance any investments or activities in or make any payments to, a Sanctioned
Person or a Sanctioned Country or for any payments to any governmental official or employee,
political party, official of a political party, candidate for political office, or anyone else
acting in an official capacity, in order to obtain, retain or direct business or obtain any
improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.
Β Β Β Β Β SectionΒ 4.17. Patriot Act. Neither any Loan Party nor any of its Subsidiaries is an
βenemyβ or an βally of the enemyβ within the meaning of SectionΒ 2 of the Trading with the Enemy Act
of the United States of America (50 U.S.C. App. §§ 1 et seq.), as amended or any enabling
legislation or executive order relating thereto. Neither any Loan Party nor any or its
Subsidiaries is in violation of (a)Β the Trading with the Enemy Act, as amended, (b)Β any of the
foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B,
ChapterΒ V, as amended) or any enabling legislation or executive order relating thereto or (c)Β the
Patriot Act. None of the Loan Parties (i)Β is a blocked person described in section 1 of the
Anti-Terrorism Order or (ii)Β to the best of its knowledge, engages in any dealings or transactions,
or is otherwise associated, with any such blocked person.
ARTICLE V
AFFIRMATIVE COVENANTS
Β Β Β Β Β Β Β Β Β Β The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or any
Obligation remains unpaid or outstanding:
Β Β Β Β Β SectionΒ 5.1. Financial Statements and Other Information. The Borrower will deliver to
the Administrative Agent and each Lender:
Β Β Β Β Β Β Β Β Β Β (a)Β as soon as available and in any event within 90Β days after the end of each Fiscal Year of
Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its
Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such Fiscal Year and the related consolidated statements of income, stockholdersβ equity
and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such
Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal
Year, all in reasonable detail and reported on by an independent public accountant of nationally
recognized standing or other independent public accountant reasonably acceptable to the Required
Lenders (without a βgoing concernβ or like qualification, exception or explanation and without any
qualification or exception as to scope of such audit) to the effect that such financial statements
present fairly in all material respects the financial condition and the results of operations of
the Borrower and its Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in
accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
Β Β Β Β Β Β Β Β Β Β (b)Β as soon as available and in any event within 45Β days after the end of each Fiscal Quarter
of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and
consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such
Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in
comparative form
44
Β
the figures for the corresponding quarter and the corresponding portion of
Borrowerβs previous Fiscal Year;
Β Β Β Β Β Β Β Β Β Β (c)Β concurrently with the delivery of the financial statements referred to in clauses (a)Β and
(b)Β above, a Compliance Certificate signed by a Responsible Officer of the Borrower (i)Β certifying
as to whether there exists a Default or Event of Default on the date of such certificate, and if a
Default or an Event of Default then exists, specifying the details thereof and the action which the
Borrower has taken or proposes to take with respect thereto, (ii)Β setting forth in reasonable
detail calculations demonstrating compliance with the financial covenants set forth in Article
VI and, (iii)Β specifying any change in the identity of the Subsidiaries as of the end of such
Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date
or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be;
Β Β Β Β Β Β Β Β Β Β (d)Β concurrently with the delivery of the financial statements referred to in clauseΒ (a)
above, a certificate of the accounting firm that reported on such financial statements stating
whether they obtained any knowledge during the course of their examination of such financial
statements of any Default or Event of Default (which certificate may be limited to the extent
required by accounting rules, practices or guidelines);
Β Β Β Β Β Β Β Β Β Β (e)Β promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all functions of said Commission, or with any
national securities exchange, or distributed by the Borrower to its shareholders generally, as the
case may be; and
Β Β Β Β Β Β Β Β Β Β (f)Β no later than 15Β days after the delivery of the financial statements referred to in
subsection (a)Β above, projections for the succeeding Fiscal Year, containing an income statement,
balance sheet and statement of cash flow;
Β Β Β Β Β Β Β Β Β Β (g)Β concurrently with the delivery of the financial statements referred to in subsections (a)
and (b)Β above, a report setting forth the historical performance of Delinquent Accounts together
with a forecast of Delinquent Accounts, all in form and substance reasonably satisfactory to the
Lenders; and
Β Β Β Β Β Β Β Β Β Β (h)Β no later than 15Β days after the Closing Date, certified copies of the recorded
certificates of merger filed in Delaware and Maryland; and
Β Β Β Β Β Β Β Β Β Β (i)Β promptly following any request therefor, such other information regarding the results of
operations, business affairs and financial condition of the Borrower or any Subsidiary as the
Administrative Agent or any Lender may reasonably request.
Β Β Β Β Β SectionΒ 5.2. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
Β Β Β Β Β Β Β Β Β Β (a)Β the occurrence of any Default or Event of Default;
Β Β Β Β Β Β Β Β Β Β (b)Β the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or, to the knowledge of the Borrower, affecting the Borrower or
any Subsidiary which, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
45
Β
Β Β Β Β Β Β Β Β Β Β (c)Β the occurrence of any event or any other development by which the Borrower or any of its
Subsidiaries (i)Β fails to comply with any Environmental Law or to obtain, maintain or comply with
any permit, license or other approval required under any Environmental Law, (ii)Β becomes subject to
any Environmental Liability, (iii)Β receives notice of any claim with respect to any Environmental
Liability, or (iv)Β becomes aware of any basis for any Environmental Liability and in each of the
preceding clauses, which individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect;
Β Β Β Β Β Β Β Β Β Β (d)Β the occurrence of any ERISA Event that alone, or together with any other ERISA Events that
have occurred, could reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $3,500,000;
Β Β Β Β Β Β Β Β Β Β (e)Β the occurrence of any default or event of default, or the receipt by Borrower or any of
its Subsidiaries of any written notice of an alleged default or event of default, with respect to
any Material Indebtedness of the Borrower or any of its Subsidiaries;
Β Β Β Β Β Β Β Β Β Β (f)Β any other development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.
Each notice delivered under this SectionΒ 5.2 shall be accompanied by a written statement of
a Responsible Officer setting forth the details of the event or development requiring such notice
and any action taken or proposed to be taken with respect thereto.
Β Β Β Β Β SectionΒ 5.3. Existence; Conduct of Business. The Borrower will, and will cause each
of its Subsidiaries to, preserve, renew and maintain in full force and effect its legal existence;
provided, that nothing in this SectionΒ 5.3 shall prohibit any merger,
consolidation, liquidation or dissolution permitted under SectionΒ 7.3. The Borrower will,
and will cause each of its Subsidiaries to, preserve, renew and maintain in full force and effect
its respective rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks
and trade names material to the conduct of its business, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
Β Β Β Β Β SectionΒ 5.4. Compliance with Laws, Etc. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and requirements of any Governmental
Authority applicable to its business and properties, including without limitation, all
Environmental Laws, ERISA and OSHA, except where the failure to do so, either individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Β Β Β Β Β SectionΒ 5.5. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay and discharge as the same shall become due and payable, all of its obligations
and liabilities (including without limitation all taxes, assessments and other governmental
charges, levies and all other claims that could result in a statutory Lien) before the same shall
become delinquent or in default, except where (a) (i)Β the validity or amount thereof is being
contested in good faith by appropriate proceedings, and (ii)Β the Borrower or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance with GAAP or (b)Β the
failure to make payment pending such contest could not reasonably be expected to result in a
Material Adverse Effect.
Β Β Β Β Β SectionΒ 5.6. Books and Records. The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true and correct entries
shall be made of all financial transactions in relation to its business and activities to the
extent necessary to prepare the consolidated financial statements of Borrower in conformity with
GAAP.
46
Β
Β Β Β Β Β SectionΒ 5.7. Visitation, Inspection, Etc. The Borrower will, and will cause each of
its Subsidiaries to, permit any representative of the Administrative Agent or any Lender, to visit
and inspect its properties, to examine its books and records and to make copies and take extracts
therefrom, and to discuss its affairs, finances and accounts with any of its officers and with its
independent certified public accountants, all at such reasonable times and as often as the
Administrative Agent or any Lender may reasonably request after reasonable prior notice to the
Borrower; provided, however, if an Event of Default has occurred and is continuing, no prior notice
shall be required.
Β Β Β Β Β SectionΒ 5.8. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (a)Β keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted, except where the
failure to do so could not reasonably be expected to result in a Material Adverse Effect, and (b)
maintain with financially sound and reputable insurance companies, insurance with respect to its
properties and business, and the properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by companies in the same or similar businesses
operating in the same or similar locations.
Β Β Β Β Β SectionΒ 5.9. Use of Proceeds and Letters of Credit. The Borrower will use the
proceeds of all Loans to finance working capital needs, letters of credit and for other general
corporate purposes of the Borrower and its Subsidiaries. No part of the proceeds of any Loan will
be used, whether directly or indirectly, for any purpose that would violate any rule or regulation
of the Board of Governors of the Federal Reserve System, including Regulations T, U or X. All
Letters of Credit will be used for general corporate purposes.
Β Β Β Β Β SectionΒ 5.10. Maintenance of Support Letter of Credit. The Borrower will cause a
Support Letter of Credit issued by a Support L/C Bank with a Credit Rating of at least A3/A- and
otherwise in the form of ExhibitΒ C, to remain in place at all times.
Β Β Β Β Β SectionΒ 5.11. Additional Subsidiaries. If any Subsidiary is acquired or formed after
the Closing Date, the Borrower will promptly notify the Administrative Agent and the Lenders
thereof and, within fifteen (15)Β Business Days after any
such Subsidiary is acquired or formed, will cause such Subsidiary to become a Subsidiary Loan
Party (except where contractually or legally prohibited with respect to a Subsidiary that is not
wholly owned by the Borrower). A Subsidiary shall become an additional Subsidiary Loan Party by
executing and delivering to the Administrative Agent a supplement to the Subsidiary Guaranty
Agreement in form and substance reasonably satisfactory to the Administrative Agent, accompanied by
(i)Β all other Loan Documents related thereto, (ii)Β certified copies of certificates or articles of
incorporation or organization, by-laws, membership operating agreements, and other organizational
documents, appropriate authorizing resolutions of the board of directors of such Subsidiaries, and
opinions of counsel comparable to those delivered pursuant to SectionΒ 3.1(b), and (iii)
such other documents as the Administrative Agent may reasonably request. No Subsidiary that
becomes a Subsidiary Loan Party shall thereafter cease to be a Subsidiary Loan Party or be entitled
to be released or discharged from its obligations under the Subsidiary Guaranty Agreement.
ARTICLE VI
FINANCIAL COVENANTS
Β Β Β Β Β Β Β Β Β Β The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or any
Obligation remains unpaid or outstanding:
Β Β Β Β Β SectionΒ 6.1. Minimum Unencumbered Assets. The Borrower will maintain Unencumbered
Assets with an unpaid principal balance of at least $75,000,000 at all times.
47
Β
Β Β Β Β Β SectionΒ 6.2. Minimum Interest Coverage Ratio. The Borrower will maintain, as of the
end of each Fiscal Quarter, commencing with the Fiscal Quarter ending SeptemberΒ 30, 2009, an
Interest Coverage Ratio of not less than 1.25:1.00.
Β Β Β Β Β SectionΒ 6.3. Maximum Portfolio Loss Ratio. The Borrower will maintain, as of the end
of each Fiscal Quarter, commencing with the Fiscal Quarter ending JuneΒ 30, 2009, a Portfolio Loss
Ratio of no greater than 1.50%.
Β Β Β Β Β SectionΒ 6.4. Maximum Portfolio Delinquency Rate. The Borrower will maintain, as of
the end of each Fiscal Quarter, commencing with the Fiscal Quarter ending JuneΒ 30, 2009, a
Portfolio Delinquency Rate of no greater than 8.0%.
ARTICLE VII
NEGATIVE COVENANTS
Β Β Β Β Β Β Β Β Β Β The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or any
Obligation remains outstanding:
Β Β Β Β Β SectionΒ 7.1. Indebtedness and Preferred Equity. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:
Β Β Β Β Β Β Β Β Β Β (a)Β Indebtedness created pursuant to the Loan Documents;
Β Β Β Β Β Β Β Β Β Β (b)Β Indebtedness of the Borrower and its Subsidiaries existing on the date hereof and set
forth on ScheduleΒ 7.1 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof (immediately prior to giving effect
to such extension, renewal or replacement) or shorten the maturity or the weighted average life
thereof;
Β Β Β Β Β Β Β Β Β Β (c)Β Indebtedness of the Borrower owing to any Subsidiary and of any Subsidiary owing to the
Borrower or any other Subsidiary; provided, that any such Indebtedness that is owed by a
Subsidiary that is not a Subsidiary Loan Party shall be subject to SectionΒ 7.4;
Β Β Β Β Β Β Β Β Β Β (d)Β Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Borrower or any other Subsidiary; provided, that Guarantees by any Loan
Party of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party shall be subject to
SectionΒ 7.4;
Β Β Β Β Β Β Β Β Β Β (e)Β Non-Recourse Indebtedness of the Borrower or any Subsidiary;
Β Β Β Β Β Β Β Β Β Β (f)Β the endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business;
Β Β Β Β Β Β Β Β Β Β (g)Β Hedging Obligations permitted by SectionΒ 7.10; and
Β Β Β Β Β Β Β Β Β Β (h)Β Indebtedness from Xxxxxx Industries in an aggregate amount not to exceed $10,000,000; and
48
Β
Β Β Β Β Β Β Β Β Β Β (i)Β secured Indebtedness of the Borrower and its Subsidiaries so long as after giving effect
thereto, the Borrower would be in pro forma compliance with SectionsΒ 6.1 and 6.2
(calculating SectionΒ 6.2 as if such Indebtedness was incurred on the first day of the
period being tested).
Borrower will not, and will not permit any Subsidiary to, issue any preferred stock or other
preferred equity interests that (i)Β matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii)Β is or may become redeemable or repurchaseable by Borrower or such
Subsidiary at the option of the holder thereof, in whole or in part or (iii)Β is convertible or
exchangeable at the option of the holder thereof for Indebtedness or preferred stock or any other
preferred equity interests described in this paragraph, on or prior to, in the case of clause (i),
(ii)Β or (iii), the first anniversary of the Revolving Commitment Termination Date.
Β Β Β Β Β SectionΒ 7.2. Negative Pledge. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien on any of its assets or property
now owned or hereafter acquired, except:
Β Β Β Β Β Β Β Β Β Β (a)Β Permitted Encumbrances;
Β Β Β Β Β Β Β Β Β Β (b)Β any Liens on any property or asset of the Borrower or any Subsidiary existing on the
Closing Date set forth on ScheduleΒ 7.2; provided, that such Lien shall not apply to
any other property or asset of the Borrower or any Subsidiary;
Β Β Β Β Β Β Β Β Β Β (c)Β Liens on Accounts owned by the Borrower or any Subsidiary that secure Non-Recourse
Indebtedness;
Β Β Β Β Β Β Β Β Β Β (d)Β Liens on property owned by the Borrower or any Subsidiary that secure Indebtedness
permitted under SectionΒ 7.1(e), (h) and (i);
Β Β Β Β Β Β Β Β Β Β (e)Β Liens on REO properties of the Borrower and its Subsidiaries; and
Β Β Β Β Β Β Β Β Β Β (f)Β extensions, renewals, or replacements of any Lien referred to in paragraphs (a)Β through
(c)Β of this SectionΒ 7.2; provided, that the principal amount of the Indebtedness
secured thereby is not increased and that any such extension, renewal or replacement is limited to
the assets originally encumbered thereby.
Β Β Β Β Β SectionΒ 7.3. Fundamental Changes.
Β Β Β Β Β Β Β Β Β Β (a)Β The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate
into any other Person, or permit any other Person to merge into or consolidate with it, or sell,
lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all
or substantially all of its assets (in each case, whether now owned or hereafter acquired) or
liquidate or dissolve; provided, that if at the time thereof and immediately after giving
effect thereto, no Default or Event of Default shall have occurred and be continuing (i)Β the
Borrower or any Subsidiary may merge with a Person if the Borrower (or such Subsidiary if the
Borrower is not a party to such merger) is the surviving Person, (ii)Β any Subsidiary may merge into
another Subsidiary; provided, that if any party to such merger is a Subsidiary Loan Party,
the Subsidiary Loan Party shall be the surviving Person, (iii)Β any Subsidiary may sell, transfer,
lease or otherwise dispose of all or substantially all of its assets to the Borrower or to a
Subsidiary Loan Party and (iv)Β any Subsidiary (other than a Subsidiary Loan Party) may liquidate or
dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and is not materially disadvantageous to the Lenders;
provided, that any
49
Β
such merger involving a Person that is not a wholly-owned Subsidiary
immediately prior to such merger shall not be permitted unless also permitted by
SectionΒ 7.4.
Β Β Β Β Β Β Β Β Β Β (b)Β The Borrower will not, and will not permit any of its Subsidiaries to, engage in any
business other than businesses of the type conducted by the Borrower and its Subsidiaries on the
date hereof and businesses reasonably related thereto.
Β Β Β Β Β SectionΒ 7.4. Investments, Loans, Etc. The Borrower will not, and will not permit any
of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly-owned Subsidiary prior to such merger), any common stock, evidence of
indebtedness or other securities (including any option, warrant, or other right to acquire any of
the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of,
or make or permit to exist any investment or any other interest in, any other Person (all of the
foregoing being collectively called βInvestmentsβ), or purchase or otherwise acquire (in
one transaction or a series of transactions) any assets of any other Person that constitute a
business unit, or create or form any Subsidiary, except:
Β Β Β Β Β Β Β Β Β Β (a)Β Investments (other than Permitted Investments) existing on the date hereof and set forth
on ScheduleΒ 7.4 (including Investments in Subsidiaries);
Β Β Β Β Β Β Β Β Β Β (b)Β Permitted Investments;
Β Β Β Β Β Β Β Β Β Β (c)Β Guarantees by Borrower and its Subsidiaries constituting Indebtedness permitted by
SectionΒ 7.1;
Β Β Β Β Β Β Β Β Β Β (d)Β Investments made by the Borrower in or to any Subsidiary and by any Subsidiary to the
Borrower or in or to another Subsidiary; provided, that the aggregate amount of Investments
by Loan Parties in or to, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that is
not a Subsidiary Loan Party (including all such Investments and Guarantees existing on the Closing
Date) shall not exceed $10,000,000 at any time outstanding;
Β Β Β Β Β Β Β Β Β Β (e)Β Hedging Transactions permitted by SectionΒ 7.10; and
Β Β Β Β Β Β Β Β Β Β (f)Β other Investments in an aggregate amount not to exceed $15,000,000.
Β Β Β Β Β SectionΒ 7.5. Restricted Payments. The Borrower will not, and will not permit its
Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any dividend or
distribution on any class of its Capital Stock, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption, retirement, defeasance
or other acquisition of, any shares of Capital Stock or Indebtedness (other than Non-Recourse
Indebtedness of the Borrower and its Subsidiaries) subordinated to the Obligations of the Borrower
or any Guarantee thereof or any options, warrants, or other rights to purchase such Capital Stock
or such Indebtedness, whether now or hereafter outstanding (each, a βRestricted Paymentβ),
except for (i)Β dividends payable by the Borrower solely in shares of any class of its common stock,
(ii)Β Restricted Payments made by any Subsidiary to the Borrower or to another Subsidiary, on at
least a pro rata basis with any other shareholders if such Subsidiary is not wholly owned by the
Borrower and other wholly owned Subsidiaries, (iii)Β to the extent that the Borrower is a REIT, cash
dividends and distributions paid on the common stock of the Borrower to the extent necessary for
Borrower to maintain its status as a REIT and to avoid incurring any corporate level income taxes
and any excise taxes including those under Sections 857(b) and 4981 of the Code; (iv)Β to the extent
that the Borrower is a REIT, cash distributions paid on the common stock of the Borrower of capital
gains resulting from gains from certain asset sales to the extent necessary to avoid payment of
taxes on such asset sales imposed under SectionsΒ 857(b)(3) and 4981 of the Code; and (v)Β other cash
50
Β
dividends and distributions paid on the common stock of the Borrower so long as after giving pro
forma effect to such dividends and distributions, together with the cash dividends and
distributions paid pursuant to clauses (iii)Β and (iv)Β above, no Default or Event of Default has
occurred and is continuing.
Β Β Β Β Β SectionΒ 7.6. Sale of Assets. The Borrower will not, and will not permit any of its
Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of, any of its assets,
business or property, whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiaryβs Capital Stock to any Person other than the Borrower
or a Subsidiary Loan Party (or to qualify directors if required by applicable law), except:
Β Β Β Β Β Β Β Β Β Β (a)Β the sale or other disposition for fair market value of obsolete or worn out property or
other property not necessary for operations disposed of in the ordinary course of business;
Β Β Β Β Β Β Β Β Β Β (b)Β the sale of Permitted Investments in the ordinary course of business;
Β Β Β Β Β Β Β Β Β Β (c)Β the sale of Accounts securing Non-Recourse Indebtedness;
Β Β Β Β Β Β Β Β Β Β (d)Β the sale of repossessed properties in the ordinary course of business; and
Β Β Β Β Β Β Β Β Β Β (e)Β the sale of any Unencumbered Assets so long as after giving effect thereto the Borrower is
in pro forma compliance with SectionΒ 6.1.
Β Β Β Β Β SectionΒ 7.7. Transactions with Affiliates. The Borrower will not, and will not permit
any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a)Β in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an armβs-length basis from unrelated third parties, (b)Β transactions between or among
the Borrower and any Subsidiary Loan Party not involving any other Affiliates, (c)Β payments made
pursuant to the Tax Sharing Agreement, and (d)Β any Restricted Payment permitted by
SectionΒ 7.5.
Β Β Β Β Β SectionΒ 7.8. Restrictive Agreements. The Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement that
prohibits, restricts or imposes any condition upon (a)Β the ability of the Borrower or any
Subsidiary to create, incur or permit any Lien upon any of its assets or properties, whether now
owned or hereafter acquired, or (b)Β the ability of any Subsidiary toΒ pay dividends or other
distributions with respect to its Capital Stock, to make or repay loans or advances to the Borrower
or any other Subsidiary, to Guarantee Indebtedness of the Borrower or any other Subsidiary or to
transfer any of its property or assets to the Borrower or any Subsidiary of the Borrower;
provided, that (i)Β the foregoing shall not apply to restrictions or conditions imposed by
law or byΒ this Agreement or any other Loan Document, (ii)Β the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary
pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is
sold and such sale is permitted hereunder, (iii)Β clause (a)Β shall not apply to restrictions or
conditions imposed by any agreement relating to secured Non-Recourse Indebtedness permitted by this
Agreement if such restrictions and conditions apply only to the property or assets securing such
Non-Recourse Indebtedness, (iv)Β clause (a)Β shall not apply to restrictions or conditions imposed by
any agreement governing Indebtedness permitted under SectionsΒ 7.1(h) or (i) so long as such
restrictions or conditions do not limit or restrict the ability of the Borrower or any of its
Subsidiaries to grant Liens to secure the Obligations on Unencumbered Assets with an unpaid
principal balance of at least $75,000,000, and (v)Β clause (a)Β shall not apply to customary
provisions in leases restricting the assignment thereof.
51
Β
Β Β Β Β Β SectionΒ 7.9. Sale and Leaseback Transactions. The Borrower will not, and will not
permit any of the Subsidiaries to, enter into any arrangement, directly or indirectly, whereby it
shall sell or transfer any property, real or personal, used or useful in its business, whether now
owned or hereinafter acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property sold or transferred.
Β Β Β Β Β SectionΒ 7.10. Hedging Transactions. The Borrower will not, and will not permit any of
the Subsidiaries to, enter into any Hedging Transaction, other than Hedging Transactions entered
into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities. Solely for the avoidance of doubt, the Borrower
acknowledges that a Hedging Transaction entered into for speculative purposes or of a speculative
nature (which shall be deemed to include any Hedging Transaction under which the Borrower or any of
the Subsidiaries is or may become obliged to make any payment (i)Β in connection with the purchase
by any third party of any Capital Stock or any Indebtedness or (ii)Β as a result of changes in the
market value of any Capital Stock or any Indebtedness) is not a Hedging Transaction entered into in
the ordinary course of business to hedge or mitigate risks.
Β Β Β Β Β SectionΒ 7.11. Amendment to Material Documents. The Borrower will not, and will not
permit any of its Subsidiaries to, amend, modify or waive any of its rights in a manner materially
adverse to the Lenders or the Borrower under (a)Β its certificate of incorporation, bylaws or other
organizational documents or (b)Β the Merger Documents.
Β Β Β Β Β SectionΒ 7.12. Accounting Changes. The Borrower will not, and will not permit any of
its Subsidiaries to, make any significant change in accounting treatment or reporting practices,
except as required by GAAP, or change the fiscal year of the Borrower or of any of its
Subsidiaries, except to change the fiscal year of a Subsidiary to conform its fiscal year to that
of the Borrower.
Β Β Β Β Β SectionΒ 7.13. Government Regulation. Neither the Borrower nor any of its Subsidiaries
is (a)Β be or become subject at any time to any law, regulation, or list of any Government Authority
of the United States (including, without limitation, the U.S. Office of Foreign Asset Control list)
that prohibits or limits Lenders or the Administrative Agent from making any advance or extension
of credit to Borrower or from otherwise conducting business with the Loan Parties, or (b)Β fail to
provide documentary and other evidence of the identity of the Loan Parties as may be requested by
Lenders or the Administrative Agent at any time to enable Lenders or the Administrative Agent to
verify the identity of the Loan Parties or to comply with any applicable law or regulation,
including, without limitation, SectionΒ 326 of the USA Patriot Act of 1 U.S.C. SectionΒ 5318.
ARTICLE VIII
EVENTS OF DEFAULT
Β Β Β Β Β SectionΒ 8.1. Events of Default. If any of the following events (each an βEvent of
Defaultβ) shall occur:
Β Β Β Β Β Β Β Β Β Β (a)Β the Borrower shall fail to pay any principal of any Loan or of any reimbursement
obligation in respect of any LC Disbursement any payment under SectionΒ 2.21(a) or shall
fail to make when and as the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment or otherwise; or
52
Β
Β Β Β Β Β Β Β Β Β Β (b)Β the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount payable under clause (a)Β of this SectionΒ 8.1) payable under this
Agreement or any other Loan Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of three (3)Β Business Days; or
Β Β Β Β Β Β Β Β Β Β (c)Β any representation or warranty made or deemed made by or on behalf of the Borrower or any
Subsidiary in or in connection with this Agreement or any other Loan Document (including the
Schedules attached thereto) and any amendments or modifications hereof or waivers hereunder, or in
any certificate, report, financial statement or other document submitted to the Administrative
Agent or the Lenders by any Loan Party or any representative of any Loan Party pursuant to or in
connection with this Agreement or any other Loan Document shall prove to be incorrect in any
material respect when made or deemed made or submitted; or
Β Β Β Β Β Β Β Β Β Β (d)Β the Borrower shall fail to observe or perform any covenant or agreement contained in
SectionsΒ 5.2(a), 5.3 (with respect to the Borrowerβs existence) or
5.10, or Articles VI or VII; or the Borrower shall fail to observe or
perform any covenant or agreement contained in SectionsΒ 5.1 or 5.2 (excluding
5.2(a)) and such failure shall remain unremedied for 15Β days after the earlier of (i)Β any
officer of the Borrower becomes aware of such failure, or (ii)Β notice thereof shall have been given
to the Borrower by the Administrative Agent or any Lender; or
Β Β Β Β Β Β Β Β Β Β (e)Β any Loan Party shall fail to observe or perform any covenant or agreement contained in
this Agreement (other than those referred to in clauses (a), (b)Β and (d)Β above) or any other Loan
Document, and such failure shall remain unremedied for 30Β days after the earlier of (i)Β any officer
of the Borrower becomes aware of such failure, or (ii)Β notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender; or
Β Β Β Β Β Β Β Β Β Β (f)Β the Borrower or any Subsidiary (whether as primary obligor or as guarantor or other
surety) shall fail to pay any principal of, or premium or interest on, any Material Indebtedness
that is outstanding, when and as the same shall become due and payable (whether at scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or instrument evidencing or
governing such Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to such Indebtedness and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the effect of such event or condition
is to accelerate, or permit the acceleration of, the maturity of such Indebtedness; or any such
Indebtedness shall be declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or defeased, or any
offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in
each case prior to the stated maturity thereof; or
Β Β Β Β Β Β Β Β Β Β (g)Β the Borrower or any Subsidiary shall (i)Β commence a voluntary case or other proceeding or
file any petition seeking liquidation, reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar official of it or any
substantial part of its property, (ii)Β consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in clause (h)Β of this
SectionΒ 8.1, (iii)Β apply for or consent to the appointment of a custodian, trustee,
receiver, liquidator or other similar official for the Borrower or any such Subsidiary or for a
substantial part of its assets, (iv)Β file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v)Β make a general assignment for the benefit of
creditors, or (vi)Β take any action for the purpose of effecting any of the foregoing; or
53
Β
Β Β Β Β Β Β Β Β Β Β (h)Β an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i)Β liquidation, reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or any substantial part of its assets, under any federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in effect or (ii)Β the appointment of a
custodian, trustee, receiver, liquidator or other similar official for the Borrower or any
Subsidiary or for a substantial part of its assets,
and in any such case, such proceeding or petition shall remain undismissed for a period of 60
days or an order or decree approving or ordering any of the foregoing shall be entered; or
Β Β Β Β Β Β Β Β Β Β (i)Β the Borrower or any Subsidiary shall become unable to pay, shall admit in writing its
inability to pay, or shall fail to pay, its debts as they become due; or
Β Β Β Β Β Β Β Β Β Β (j)Β an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with other ERISA Events that have occurred, could reasonably be expected to result
in liability to the Borrower and the Subsidiaries in an aggregate amount exceeding $3,500,000; or
Β Β Β Β Β Β Β Β Β Β (k)Β any judgment or order for the payment of money in excess of $3,500,000 in the aggregate
shall be rendered against the Borrower or any Subsidiary, and either (i)Β enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or (ii)Β there shall be a
period of 30Β 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; or
Β Β Β Β Β Β Β Β Β Β (l)Β any non-monetary judgment or order shall be rendered against the Borrower or any
Subsidiary that could reasonably be expected to have a Material Adverse Effect, and there shall be
a 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; or
Β Β Β Β Β Β Β Β Β Β (m)Β a Change in Control shall occur or exist; or
Β Β Β Β Β Β Β Β Β Β (n)Β any provision of any Subsidiary Guaranty Agreement shall for any reason cease to be valid
and binding on, or enforceable against, any Subsidiary Loan Party, or any Subsidiary Loan Party
shall so state in writing, or any Subsidiary Loan Party shall seek to terminate its Subsidiary
Guaranty Agreement; or
Β Β Β Β Β Β Β Β Β Β (o)Β any provision of the Support Letter of Credit shall for any reason cease to be valid and
binding on, or enforceable against, the Support L/C Bank, or the Support L/C Bank shall so state in
writing, or the Support L/C Bank shall seek to terminate the Support Letter of Credit or shall give
any notice that it intends not to renew the Support Letter of Credit;
then, and in every such event (other than an event with respect to the Borrower described in clause
(g)Β or (h)Β of this SectionΒ 8.1) and at any time thereafter during the continuance of such
event, the Administrative Agent may, and upon the written request of the Required Lenders shall, by
notice to the Borrower, take any or all of the following actions, at the same or different times:
(i)Β terminate the Commitments, whereupon the Commitment of each Lender shall terminate immediately,
(ii)Β declare the principal of and any accrued interest on the Loans, and all other Obligations
owing hereunder, to be, whereupon the same shall become, due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrower, (iii)Β draw on the Support Letter of Credit, (iv)Β exercise all remedies contained in any
other Loan Document, and (v)Β exercise any other remedies available at law or in equity; and that,
if an Event of Default specified in either clause (g)Β or (h)Β shall occur, the Commitments shall
automatically terminate and the principal of the Loans then outstanding, together with accrued
interest thereon, and all fees, and all other Obligations shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower.
54
Β
ARTICLE IX
THE ADMINISTRATIVE AGENT
Β Β Β Β Β SectionΒ 9.1. Appointment of Administrative Agent.
Β Β Β Β Β Β Β Β Β Β (a)Β Each Lender irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes
it to take such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent under this Agreement and the other Loan Documents, together with all such
actions and powers that are reasonably incidental thereto. The Administrative Agent may perform
any of its duties hereunder or under the other Loan Documents by or through any one or more
sub-agents or attorneys-in-fact appointed by the Administrative Agent. The Administrative Agent
and any such sub-agent or attorney-in-fact may perform any and all of its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory provisions set forth
in this Article shall apply to any such sub-agent or attorney-in-fact and the Related Parties of
the Administrative Agent, any such sub-agent and any such attorney-in-fact and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.
Β Β Β Β Β Β Β Β Β Β (b)Β The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders to act for the Issuing Bank
with respect thereto; provided, that the Issuing Bank shall have all the benefits and immunities
(i)Β provided to the Administrative Agent in this Article with respect to any acts taken or
omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or
proposed to be issued by it and the application and agreements for letters of credit pertaining to
the Letters of Credit as fully as if the term βAdministrative Agentβ as used in this Article
included the Issuing Bank with respect to such acts or omissions and (ii)Β as additionally provided
in this Agreement with respect to the Issuing Bank.
Β Β Β Β Β SectionΒ 9.2. Nature of Duties of Administrative Agent. The Administrative Agent shall
not have any duties or obligations except those expressly set forth in this Agreement and the other
Loan Documents. Without limiting the generality of the foregoing, (a)Β the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or
an Event of Default has occurred and is continuing, (b)Β the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except those
discretionary rights and powers expressly contemplated by the Loan Documents that the
Administrative Agent is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
SectionΒ 10.2), and (c)Β except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it, its
sub-agents or attorneys-in-fact with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the circumstances as provided
in SectionΒ 10.2) or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent shall not be
deemed to have knowledge of any Default or Event of Default unless and until written notice
thereof (which notice shall include an express reference to such event being a βDefaultβ or
βEvent of Defaultβ hereunder) is given to the Administrative Agent by
55
Β
the Borrower or any Lender,
and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i)Β any statement, warranty or representation made in or in connection with any Loan Document,
(ii)Β the contents of any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii)Β the performance or observance of any of the covenants,
agreements, or other terms and conditions set forth in any Loan Document, (iv)Β the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v)Β the satisfaction of any condition set forth in ArticleΒ III
or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent. The Administrative Agent may consult with legal counsel
(including counsel for the Borrower) concerning all matters pertaining to such duties.
Β Β Β Β Β SectionΒ 9.3. Lack of Reliance on the Administrative Agent. Each of the Lenders, the
Swingline Lender and the Issuing Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent, any Issuing Bank or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each of the Lenders, the Swingline Lender and the Issuing Bank also acknowledges
that it will, independently and without reliance upon the Administrative Agent, any Issuing Bank or
any other Lender and based on such documents and information as it has deemed appropriate, continue
to make its own decisions in taking or not taking of any action under or based on this Agreement,
any related agreement or any document furnished hereunder or thereunder.
Β Β Β Β Β SectionΒ 9.4. Certain Rights of the Administrative Agent. If the Administrative Agent
shall request instructions from the Required Lenders with respect to any action or actions
(including the failure to act) in connection with this Agreement, the Administrative Agent shall be
entitled to refrain from such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Lender shall have any right
of action whatsoever against the Administrative Agent as a result of the Administrative Agent
acting or refraining from acting hereunder in accordance with the instructions of the Required
Lenders where required by the terms of this Agreement.
Β Β Β Β Β SectionΒ 9.5. Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any electronic
message, posting or other distribution) believed by it to be genuine and to have been signed, sent
or made by the proper Person. The Administrative Agent may also rely upon any statement made to it
orally or by telephone and believed by it to be made by the proper Person and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or not taken by it in accordance with the advice of such
counsel, accountants or experts.
Β Β Β Β Β SectionΒ 9.6. The Administrative Agent in its Individual Capacity. The bank serving as
the Administrative Agent shall have the same rights and powers under this Agreement and any other
Loan Document in its capacity as a Lender as any other Lender and may exercise or refrain from
exercising the same as though it were not the Administrative Agent; and the terms βLendersβ,
βRequired Lendersβ or
any similar terms shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The bank acting as the Administrative Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or Affiliate of the Borrower as if it were not the
Administrative Agent hereunder.
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Β
Β Β Β Β Β SectionΒ 9.7. Successor Administrative Agent.
Β Β Β Β Β Β Β Β Β Β (a)Β The Administrative Agent may resign at any time by giving notice thereof to the Lenders
and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent, subject to the approval by the Borrower provided that no Default
or Event of Default shall exist at such time. If no successor Administrative Agent shall have been
so appointed, and shall have accepted such appointment within 30Β days after the retiring
Administrative Agent gives notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent, which shall
be a commercial bank organized under the laws of the United States of America or any state thereof
or a bank which maintains an office in the United States, having a combined capital and surplus of
at least $500,000,000.
Β Β Β Β Β Β Β Β Β Β (b)Β Upon the acceptance of its appointment as the Administrative Agent hereunder by a
successor, such successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and obligations under this
Agreement and the other Loan Documents. If within 45Β days after written notice is given of the
retiring Administrative Agentβs resignation under this SectionΒ 9.7 no successor
Administrative Agent shall have been appointed and shall have accepted such appointment, then on
such 45th day (i)Β the retiring Administrative Agentβs resignation shall become
effective, (ii)Β the retiring Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii)Β the Required Lenders shall thereafter perform all
duties of the retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above. After any retiring
Administrative Agentβs resignation hereunder, the provisions of this Article shall continue in
effect for the benefit of such retiring Administrative Agent and its representatives and agents in
respect of any actions taken or not taken by any of them while it was serving as the Administrative
Agent.
Β Β Β Β Β Β Β Β Β Β (c)Β In addition to the foregoing, if a Lender becomes, and during the period it remains, a
Defaulting Lender, the Issuing Bank and/or the Swingline Lender may, upon prior written notice to
the Borrower and the Administrative Agent, resign as Issuing Bank or Swingline Lender,
respectively, effective at the close of business New York time on a date specified in such notice
(which date may not be less than five Business Days after the date of such notice);
provided that such resignation by the Issuing Bank will have no effect on the validity or
enforceability of any Letter of Credit then outstanding or on the obligations of the Borrower or
any Lender under this Agreement with respect to any such outstanding Letter of Credit or otherwise
to the Issuing Bank; and provided, further, that such resignation by the Swingline Lender
will have no effect on its rights in respect of any outstanding Swingline Loans or on the
obligations of the Borrower or any Lender under this Agreement with respect to any such outstanding
Swingline Loan.
Β Β Β Β Β SectionΒ 9.8 Withholding Tax. To the extent required by any applicable law, the Administrative Agent
may withhold from any interest payment to any Lender an amount equivalent to any applicable
withholding tax. If the Internal Revenue Service or any authority of the United States or other
jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or because such Lender failed to
notify the Administrative Agent of a change in circumstances that rendered the exemption from, or
reduction of, withholding tax ineffective, or for any other reason), such Lender shall indemnify
the Administrative Agent (to the extent that the Administrative Agent has not already been
reimbursed by the Borrower and without limiting the obligation of the Borrower to do so) fully for
all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise,
including penalties and interest, together with all expenses incurred, including legal expenses,
allocated staff costs and any out of pocket expenses.
57
Β
Β Β Β Β Β SectionΒ 9.9. Administrative Agent May File Proofs of Claim.
Β Β Β Β Β Β Β Β Β Β (a)Β In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or any
Revolving Credit Exposure shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Administrative Agent shall have made any demand on the
Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
Β Β Β Β Β Β Β Β Β Β (i) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans or Revolving Credit Exposure and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary or advisable
in order to have the claims of the Lenders, Issuing Bank and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, Issuing Bank and the Administrative Agent and its agents and counsel and all
other amounts due the Lenders, Issuing Bank and the Administrative Agent under Section
10.3) allowed in such judicial proceeding; and
Β Β Β Β Β Β Β Β Β Β (ii) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same; and
Β Β Β Β Β Β Β Β Β Β (b)Β Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Lender and the Issuing Bank
to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to
the making of such payments directly to the Lenders and the Issuing Bank, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under SectionΒ 10.3.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the Issuing Bank any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of
any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
Β Β Β Β Β Β Β Β Β Β SectionΒ 9.10. Authorization to Execute other Loan Documents. Each Lender hereby
authorizes the Administrative Agent to execute on behalf of all Lenders all Loan Documents other
than this Agreement.
Β Β Β Β Β Β Β Β Β Β SectionΒ 9.11. Syndication Agent. Each Lender hereby designates Regions Bank as
Syndication Agent and agrees that the Syndication Agent shall have no duties or obligations under
any Loan Documents to any Lender or any Loan Party.
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Β
ARTICLE X
MISCELLANEOUS
Β Β Β Β Β SectionΒ 10.1. Notices.
Β Β Β Β Β Β Β Β Β Β (a) Written Notices.
Β Β Β Β Β Β Β Β Β Β (i) Except in the case of notices and other communications expressly permitted to be
given by telephone, all notices and other communications to any party herein to be effective
shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:
Β | Β | Β | Β | Β |
Β
|
Β | To the Borrower: | Β | Xxxxxx Investment Management Corp. |
Β
|
Β | Β | Β | 0000 X. Xxx Xxxxx Xxxx. |
Β
|
Β | Β | Β | Xxxxx, Xxxxxxx 00000 |
Β
|
Β | Β | Β | Attention: Xxxxxxxx X. Xxxxx |
Β
|
Β | Β | Β | Β Β Β Β Β Vice President, Corporate Finance Operations |
Β
|
Β | Β | Β | Telecopy Number: (000)Β 000-0000 |
Β |
Β | Β | Β | Β |
Β
|
Β | To the Administrative Agent or Swingline Lender: |
Β | SunTrust Bank |
Β
|
Β | Β | Β | 000 Xxxxxxxxx Xxxxxx, X. X. |
Β
|
Β | Β | Β | Xxxxxxx, Xxxxxxx 00000 |
Β
|
Β | Β | Β | Attention: Xxxxx Xxxxx |
Β
|
Β | Β | Β | Telecopy Number: (000)Β 000-0000 |
Β |
Β | Β | Β | Β |
Β
|
Β | With a copy to: | Β | SunTrust Bank |
Β
|
Β | Β | Β | Agency Services |
Β
|
Β | Β | Β | 000 Xxxxxxxxx Xxxxxx, X. E./ 25th Floor |
Β
|
Β | Β | Β | Atlanta, Georgia 30308 |
Β
|
Β | Β | Β | Attention: Xx.Β Xxxx Xxxxx |
Β
|
Β | Β | Β | Telecopy Number: (000)Β 000-0000 |
Β |
Β | Β | Β | Β |
Β
|
Β | Β | Β | and |
Β |
Β | Β | Β | Β |
Β
|
Β | Β | Β | King & Spalding LLP |
Β
|
Β | Β | Β | 0000 Xxxxxxxxx Xxxxxx, X.X. |
Β
|
Β | Β | Β | Xxxxxxx, Xxxxxxx 00000 |
Β
|
Β | Β | Β | Attention: Xxxxxxx X. Xxxxxx |
Β
|
Β | Β | Β | Telecopy Number: (000)Β 000-0000 |
Β |
Β | Β | Β | Β |
Β
|
Β | To the Issuing Bank: | Β | SunTrust Bank |
Β
|
Β | Β | Β | 00 Xxxx Xxxxx, X. E./Mail Code 0000 |
Β
|
Β | Β | Β | 00xx Xxxxx |
Β
|
Β | Β | Β | Xxxxxxx, Xxxxxxx 00000 |
Β
|
Β | Β | Β | Attention: Standby Letter of Credit Dept. |
Β
|
Β | Β | Β | Telecopy Number: (000)Β 000-0000 |
Β |
Β | Β | Β | Β |
Β
|
Β | To the Swingline Lender: | Β | SunTrust Bank |
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Β
Β | Β | Β | Β | Β |
Β
|
Β | Β | Β | Agency Services |
Β
|
Β | Β | Β | 000 Xxxxxxxxx Xxxxxx, X.X./00xx Xxxxx |
Β
|
Β | Β | Β | Xxxxxxx, Xxxxxxx 00000 |
Β
|
Β | Β | Β | Attention: Xx.Β Xxxx Xxxxx |
Β
|
Β | Β | Β | Telecopy Number: (000)Β 000-0000 |
Β |
Β | Β | Β | Β |
Β
|
Β | Β Β To any other Lender: | Β | the address set forth in the Administrative Questionnaire or the Assignment and Acceptance Agreement executed by such Lender |
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices and
other communications shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine, respectively, or if mailed, upon the third Business Day after
the date deposited into the mail or if delivered, upon delivery; provided, that notices
delivered to the Administrative Agent, the Issuing Bank or the Swingline Lender shall
not be effective until actually received by such Person at its address specified in this
SectionΒ 10.1.
Β Β Β Β Β Β Β Β Β Β (ii) Any agreement of the Administrative Agent, the Issuing Bank and the Lenders herein
to receive certain notices by telephone, facsimile or other electronic transmission is
solely for the convenience and at the request of the Borrower. The Administrative Agent,
the Issuing Bank and the Lenders shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Borrower to give such notice and the
Administrative Agent, the Issuing Bank and the Lenders shall not have any liability to the
Borrower or other Person on account of any action taken or not taken by the Administrative
Agent, the Issuing Bank and the Lenders in reliance upon such telephonic or facsimile
notice. The obligation of the Borrower to repay the Loans and all other Obligations
hereunder shall not be affected in any way or to any
extent by any failure of the Administrative Agent, the Issuing Bank and the Lenders to
receive written confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent, the Issuing Bank and the Lenders of a confirmation which is at
variance with the terms understood by the Administrative Agent, the Issuing Bank and the
Lenders to be contained in any such telephonic or facsimile notice.
Β Β Β Β Β Β Β Β Β Β (b) Electronic Communications.
Β Β Β Β Β Β Β Β Β Β (i) Notices and other communications to the Lenders and the Issuing Bank hereunder may
be delivered or furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by Administrative Agent, provided
that the foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant to
ArticleΒ 2 unless such Lender, the Issuing Bank, as applicable, and Administrative
Agent have agreed to receive notices under such Section by electronic communication and have
agreed to the procedures governing such communications. Administrative Agent or Borrower
may, in its discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.
Β Β Β Β Β Β Β Β Β Β (ii) Unless Administrative Agent otherwise prescribes, (i)Β notices and other
communications sent to an e-mail address shall be deemed received upon the senderβs receipt
of an acknowledgement from the intended recipient (such as by the βreturn receipt requestedβ
function, as available, return e-mail or other written acknowledgement); provided
that if such
60
Β
notice or other communication is not sent during the normal business hours of
the recipient, such notice or communication shall be deemed to have been sent at the opening
of business on the next Business Day for the recipient, and (ii)Β notices or communications
posted to an Internet or intranet website shall be deemed received upon the deemed receipt
by the intended recipient at its e-mail address as described in the foregoing clause (i)Β of
notification that such notice or communication is available and identifying the website
address therefor.
Β Β Β Β Β (c) Documents required to be delivered pursuant to SectionΒ 5.1(a) or
(b) or SectionΒ 5.2(e) (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered electronically and if so delivered,
shall be deemed to have been delivered on the date (i)Β on which the Borrower posts such
documents, or provides a link thereto on the Borrowerβs website on the Internet at the
website address listed on ScheduleΒ 10.1; or (ii)Β on which such documents are posted
on the Borrowerβs behalf on an Internet or intranet website, if any, to which each Lender
and the Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (i)Β the Borrower shall
deliver paper copies of such documents to the Administrative Agent or any Lender that
requests the Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and (ii)Β the
Borrower shall notify (which may be by facsimile or electronic mail) the Administrative
Agent and each Lender of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Borrower shall be required
to provide paper copies of the Compliance Certificates required by SectionΒ 5.1(c) to
the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be solely responsible
for requesting delivery to it or maintaining its copies of such documents.
Β Β Β Β Β (d) The Borrower hereby acknowledges that (i)Β the Administrative Agent and/or the
Arrangers will make available to the Lenders and the Issuing Bank materials and/or
information provided by or on behalf of the Borrower hereunder (collectively, βBorrower
Materialsβ) by posting the Borrower Materials on Syntrak, Intralinks or another similar
electronic system (the βPlatformβ) and (ii)Β certain of the Lenders may be
βpublic-sideβ Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to the Borrower or its securities) (each, a βPublic
Lenderβ). The Borrower hereby agrees that, so long as the Borrower is the issuer of any
outstanding debt or equity securities that are registered or issued pursuant to a private
offering or is actively contemplating issuing any such securities, (1)Β all Borrower
Materials that are to be made available to Public Lenders shall be clearly and conspicuously
marked βPUBLICβ which, at a minimum, shall mean that the word βPUBLICβ shall appear
prominently on the first page thereof; (2)Β by marking Borrower Materials βPUBLICβ, the
Borrower shall be deemed to have authorized the Administrative Agent, the Issuing Bank and
the Lenders to treat such Borrower Materials as not containing any material non-public
information with respect to the Borrower or its securities for purposes of United States
Federal and state securities laws; (3)Β all Borrower Materials marked βPUBLICβ are permitted
to be made available through a portion of the Platform designated βPublic Investorβ; and (4)
the Administrative Agent shall be entitled to treat any Borrower Materials that are not
marked βPUBLICβ as being suitable only for posting on a portion of the Platform not
designated βPublic Investorβ. Notwithstanding the foregoing, the Borrower shall be under no
obligation to xxxx any Borrower Materials βPUBLIC.β
Β Β Β Β Β SectionΒ 10.2. Waiver; Amendments.
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Β
Β Β Β Β Β Β Β Β Β Β (a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or any other Loan Document, and no course of dealing
between the Borrower and the Administrative Agent or any Lender, shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The rights and
remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by
law. No waiver of any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b)Β of this SectionΒ 10.2, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not
be construed as a waiver of any Default or Event of Default, regardless of whether the
Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default or Event of Default at the time.
Β Β Β Β Β Β Β Β Β Β (b) No amendment or waiver of any provision of this Agreement or the other Loan Documents
(other than the Closing Date Fee Letter), nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed by the Borrower and
the Required Lenders or the Borrower and the Administrative Agent with the consent of the Required
Lenders and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, that no such amendment or waiver shall: (i)
increase the Commitment of any Lender without the written consent of such Lender, (ii)Β reduce the
principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected thereby,
(iii)Β postpone the date fixed for
any payment of any principal of, or interest on, any Loan or LC Disbursement or interest
thereon or any fees hereunder or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date for the termination or reduction of any Commitment, without the written
consent of each Lender affected thereby, (iv)Β change any of the provisions of this Section
10.2 or the definition of βRequired Lendersβ or any other provision hereof specifying the
number or percentage of Lenders which are required to waive, amend or modify any rights hereunder
or make any determination or grant any consent hereunder, without the consent of each Lender; (v)
release any guarantor or limit the liability of any such guarantor under any guaranty agreement,
without the written consent of each Lender; or (vi)Β release or cancel the Support Letter of Credit,
without the written consent of each Lender; provided further, that no such agreement shall
amend, modify or otherwise affect the rights, duties or obligations of the Administrative Agent,
the Swingline Lender or the Issuing Bank without the prior written consent of such Person.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender. Notwithstanding
anything contained herein to the contrary, this Agreement may be amended and restated without the
consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon
giving effect to such amendment and restatement, such Lender shall no longer be a party to this
Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but
such Lender shall continue to be entitled to the benefits of SectionsΒ 2.17, 2.18,
2.19 and 10.3), such Lender shall have no other commitment or other obligation
hereunder and shall have been paid in full all principal, interest and other amounts owing to it or
accrued for its account under this Agreement.
Β Β Β Β Β Β Β Β Β Β Β Β SectionΒ 10.3. Expenses; Indemnification.
Β Β Β Β Β Β Β Β Β Β (a) The Borrower shall pay (i)Β all reasonable, out-of-pocket costs and expenses of the
Administrative Agent, the Syndication Agent and their Affiliates, in connection with the
syndication
62
Β
of the credit facilities provided for herein, the preparation and administration of the
Loan Documents and any amendments, modifications or waivers thereof (whether or not the
transactions contemplated in this Agreement or any other Loan Document shall be consummated),
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent
and its Affiliates, (ii)Β all reasonable out-of-pocket expenses incurred by the Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii)Β all out-of-pocket costs and expenses (including, without
limitation, the reasonable fees, charges and disbursements of outside counsel) incurred by the
Administrative Agent, the Issuing Bank or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights under this
SectionΒ 10.3, or in connection with the Loans made or any Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
Β Β Β Β Β Β Β Β Β Β (b) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), the
Syndication Agent, the Joint Lead Arrangers, the Issuing Bank, the Swingline Lender, each Lender
and each Related Party of any of the foregoing Persons (each such Person being called an
βIndemniteeβ) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the fees, charges and disbursements of any
counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees
and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred
by any Indemnitee or asserted against any Indemnitee by any third party, by Xxxxxx Industries or
any of its Subsidiaries or by the Borrower or its Subsidiaries arising out of, in connection with,
or as a result of (i)Β the execution or delivery of this Agreement, any other Related Transaction
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations
hereunder or thereunder or the consummation of the Related Transactions or any other
transactions contemplated hereby or thereby, or the issuance of the Support Letter of Credit by any
bank that is also a Lender under this Agreement, (ii)Β any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii)Β any actual or alleged presence
or Release of Hazardous Materials on or from any property owned or operated by the Borrower or any
of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of
its Subsidiaries, or (iv)Β any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by others of any information or other
materials obtained through Syntrak or any other Internet or intranet website, except as a result of
such Indemniteeβs gross negligence or willful misconduct as determined by a court of competent
jurisdiction in a final and nonappealable judgment.
Β Β Β Β Β Β Β Β Β Β (c) To the extent that the Borrower fails to pay any amount required to be paid to the
Administrative Agent, the Issuing Bank or the Swingline Lender under clauses (a), (b)Β or (c)
hereof, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lenderβs Pro Rata Share (determined as of the time that
the unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided,
that the unreimbursed expense or indemnified payment, claim, damage, liability or related expense,
as the case may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank
or the Swingline Lender in its capacity as such.
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Β Β Β Β Β Β Β Β Β Β (d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct damages) arising out of, in
connection with or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated therein, any Loan or any Letter of Credit or the use of
proceeds thereof.
Β Β Β Β Β Β Β Β Β Β (e) All amounts due under this SectionΒ 10.3 shall be payable promptly after written
demand therefor.
Β Β Β Β Β Β Β Β Β Β (f) For the avoidance of doubt, this SectionΒ 10.3 shall not apply to any Taxes.
Β Β Β Β Β Β Β Β Β Β SectionΒ 10.4. Successors and Assigns.
Β Β Β Β Β Β Β Β Β Β (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i)Β to an assignee in
accordance with the provisions of paragraph (b)Β of this Section, (ii)Β by way of participation in
accordance with the provisions of paragraph (d)Β of this Section or (iii)Β by way of pledge or
assignment of a security interest subject to the restrictions of paragraph (f)Β of this Section (and
any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in paragraph (d)Β of this Section and,
to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.
Β Β Β Β Β Β Β Β Β Β (b) Any Lender may at any time assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its Commitments, Loans, and
other Revolving Credit Exposure at the time owing to it); provided that any such assignment
shall be subject to the following conditions:
Β Β Β Β Β (i) Minimum Amounts.
Β Β Β Β Β (A) in the case of an assignment of the entire remaining amount of the
assigning Lenderβs Commitments, Loans and other Revolving Credit Exposure at the
time owing to it or in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund, no minimum amount need be assigned; and
Β Β Β Β Β (B) in any case not described in paragraph (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans and
Revolving Credit Exposure outstanding thereunder) or, if the applicable Commitment
is not then in effect, the principal outstanding balance of the Loans and Revolving
Credit Exposure of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent or, if βTrade Dateβ is specified in the
Assignment and Acceptance, as of the Trade Date) shall not be less than $2,000,000
and in minimum increments of $1,000,000, unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or delayed).
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Β
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lenderβs rights and obligations
under this Agreement with respect to the Loans, other Revolving Credit Exposure or the
Commitments assigned.
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by paragraph (b)(i)(B) of this Section and, in addition:
Β Β Β Β Β Β Β Β Β Β (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (x)Β an Event of Default has occurred and is
continuing at the time of such assignment or (y)Β such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;
Β Β Β Β Β Β Β Β Β Β (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments to a Person that
is not a Lender with a Commitment; and
Β Β Β Β Β Β Β Β Β Β (C) the consent of the Issuing Bank (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters of
Credit (whether or not then outstanding), and the consent of the Swingline Lender
(such consent not to be
unreasonably withheld or delayed) shall be required for any assignment in
respect of the Revolving Commitments.
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (iv) Assignment and Acceptance. The parties to each assignment shall deliver
to the Administrative Agent (A)Β a duly executed Assignment and Acceptance, (B)Β a processing
and recordation fee of $3,500, (C)Β an Administrative Questionnaire unless the assignee is
already a Lender and (D)Β the documents required under SectionΒ 2.19 if such assignee
is a Foreign Lender.
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrowerβs Affiliates or Subsidiaries.
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c)
of this SectionΒ 10.4, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning Lenderβs rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of SectionsΒ 2.17, 2.18, 2.19 and
10.3 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance with paragraph (d)
of this SectionΒ 10.4. If the consent of the Borrower to an assignment is required
hereunder (including a consent to an assignment which does not meet the minimum assignment
thresholds specified above), the Borrower shall be deemed to have given its consent five Business
Days after the date notice thereof has actually been
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Β
delivered by the assigning Lender (through the
Administrative Agent) to the Borrower, unless such consent is expressly refused by the Borrower
prior to such fifth Business Day.
Β Β Β Β Β Β Β Β Β Β (c)Β The Administrative Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at one of its offices in Atlanta, Georgia a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amount of the Loans and Revolving Credit Exposure owing to, each
Lender pursuant to the terms hereof from time to time (the βRegisterβ). Information
contained in the Register with respect to any Lender shall be available for inspection by such
Lender at any reasonable time and from time to time upon reasonable prior notice; information
contained in the Register shall also be available for inspection by the Borrower at any reasonable
time and from time to time upon reasonable prior notice. In establishing and maintaining the
Register, Administrative Agent shall serve as Borrowerβs agent solely for tax purposes and solely
with respect to the actions described in this Section, and the Borrower hereby agrees that,
to the extent SunTrust Bank serves in such capacity, SunTrust Bank and its officers, directors,
employees, agents, sub-agents and affiliates shall constitute βIndemnitees.β
Β Β Β Β Β Β Β Β Β Β (d)Β Any Lender may at any time, without the consent of, or notice to, the Borrower, the
Administrative Agent, the Swingline Lender or the Issuing Bank sell participations to any Person
(other than a natural person, the Borrower or any of the Borrowerβs Affiliates or Subsidiaries)
(each, a βParticipantβ) in all or a portion of such Lenderβs rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i)Β such Lenderβs obligations under this Agreement shall remain unchanged,
(ii)Β such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (iii)Β the
Borrower, the Administrative Agent, the Lenders, the Issuing Bank and the Swingline Lender shall
continue to deal solely and directly with such Lender in connection with such Lenderβs rights and
obligations under this Agreement.
Β Β Β Β Β Β Β Β Β Β (e)Β Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver with respect to the following to the
extent affecting such Participant: (i)Β increase the Commitment of any Lender without the written
consent of such Lender, (ii)Β reduce the principal amount of any Loan or LC Disbursement or reduce
the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of
each Lender affected thereby, (iii)Β postpone the date fixed for any payment of any principal of, or
interest on, any Loan or LC Disbursement or interest thereon or any fees hereunder or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of each Lender affected thereby, (iv)
change SectionΒ 2.20(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v)Β change any of the
provisions of this SectionΒ 10.4 or the definition of βRequired Lendersβ or any other
provision hereof specifying the number or percentage of Lenders which are required to waive, amend
or modify any rights hereunder or make any determination or grant any consent hereunder, without
the consent of each Lender; (vi)Β release any guarantor or limit the liability of any such guarantor
under any guaranty agreement without the written consent of each Lender except to the extent such
release is expressly provided under the terms of such guaranty agreement; or (vii)Β release all or
substantially all collateral (if any) securing any of the Obligations. Subject to paragraph (e)Β of
this SectionΒ 10.4, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.17, 2.18, and 2.19 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to paragraph (b)Β of this Section
10.4. To the extent permitted by law, each Participant also shall be entitled to the benefits
of SectionΒ 10.7
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Β
as though it were a Lender, provided such Participant agrees to be subject
to SectionΒ 2.20 as though it were a Lender.
Β Β Β Β Β Β Β Β Β Β (f)Β A Participant shall not be entitled to receive any greater payment under Section
2.17 and SectionΒ 2.19 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrowerβs prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of SectionΒ 2.19
unless the Borrower is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with SectionΒ 2.19(e) as though it were a
Lender.
Β Β Β Β Β Β Β Β Β Β (g)Β Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
Β Β Β Β Β SectionΒ 10.5. Governing Law; Jurisdiction; Consent to Service of Process.
Β Β Β Β Β Β Β Β Β Β (a)Β This Agreement and the other Loan Documents shall be construed in accordance with and be
governed by the law of the State of New York.
Β Β Β Β Β Β Β Β Β Β (b)Β The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the exclusive jurisdiction of the United States District Court of the Southern District of New
York, and of Supreme Court of the State of New York sitting in New York county and any appellate
court from any thereof, in any action or proceeding arising out of or relating to this Agreement or
any other Loan Document or the transactions contemplated hereby or thereby, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in
such New York state court or, to the extent permitted by applicable law, such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any
right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document against the Borrower or
its properties in the courts of any jurisdiction.
Β Β Β Β Β Β Β Β Β Β (c)Β The Borrower irrevocably and unconditionally waives any objection which it mayΒ now or
hereafter have to the laying of venue of any such suit, action or proceeding described in paragraph
(b)Β of this SectionΒ 10.5 and brought in any court referred to in paragraph (b)Β of this
SectionΒ 10.5. Each of the parties hereto irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
Β Β Β Β Β Β Β Β Β Β (d)Β Each party to this Agreement irrevocably consents to the service of process in the manner
provided for notices in SectionΒ 10.1. Nothing in this Agreement or in any other Loan
Document will affect the right of any party hereto to serve process in any other manner permitted
by law.
Β Β Β Β Β SectionΒ 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
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CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A)Β CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)Β ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Β Β Β Β Β SectionΒ 10.7. Right of Setoff. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, each Lender and the Issuing
Bank shall have the right, at any time or from time to time upon the occurrence and during the
continuance of an Event of Default, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law, to set off and apply
against all deposits (general or special, time or demand, provisional or final) of the Borrower at
any time held or other obligations at any time owing by such Lender and the Issuing Bank to or for
the credit or the account of the Borrower against any and all Obligations held by such Lender or
the Issuing Bank, as the case may be, irrespective of whether such Lender or the Issuing Bank shall
have made demand hereunder and although such Obligations may be unmatured. Each Lender and the
Issuing Bank agree promptly to notify the Administrative Agent and the Borrower after any such
set-off and any application made by such Lender and the Issuing Bank, as the case may be;
provided, that the failure to
give such notice shall not affect the validity of such set-off and application. Each Lender
and the Issuing Bank agrees to apply all amounts collected from any such set-off to the Obligations
before applying such amounts to any other Indebtedness or other obligations owed by the Borrower
and any of its Subsidiaries to such Lender or Issuing Bank.
Β Β Β Β Β SectionΒ 10.8. Counterparts; Integration. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to constitute one and the
same instrument. This Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent, the Syndication Agent and their
Affiliates constitute the entire agreement among the parties hereto and thereto and their
affiliates regarding the subject matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters. Delivery of an executed
counterpart to this Agreement or any other Loan Document by facsimile transmission or by electronic
mail in pdf form shall be as effective as delivery of a manually executed counterpart hereof.
Β Β Β Β Β SectionΒ 10.9. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of SectionsΒ 2.17, 2.18,
2.19, and 10.3 and ArticleΒ IX shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the Commitments or the
termination of this Agreement or any provision hereof. All representations and warranties made
herein, in the certificates, reports, notices, and other documents delivered pursuant to this
Agreement shall survive the
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Β
execution and delivery of this Agreement and the other Loan Documents,
and the making of the Loans and the issuance of the Letters of Credit.
Β Β Β Β Β SectionΒ 10.10. Severability. Any provision of this Agreement or any other Loan
Document held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability
without affecting the legality, validity or enforceability of the remaining provisions hereof or
thereof; and the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.
Β Β Β Β Β SectionΒ 10.11. Confidentiality. Each of the Administrative Agent, the Issuing Bank
and the Lenders agrees to take normal and reasonable precautions to maintain the confidentiality of
any information relating to the Borrower or any of its Subsidiaries or any of their respective
businesses, to the extent designated in writing as confidential and provided to it by the Borrower
or any Subsidiary, other than any such information that is available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the Borrower or
any of its Subsidiaries, except that such information may be disclosed (i)Β to any Related Party of
the Administrative Agent, the Issuing Bank or any such Lender including without limitation
accountants, legal counsel and other advisors, (ii)Β to the extent required by applicable laws or
regulations
or by any subpoena or similar legal process, (iii)Β to the extent requested by any regulatory
agency or authority purporting to have jurisdiction over it (including any self-regulatory
authority such as the National Association of Insurance Commissioners), (iv)Β to the extent that
such information becomes publicly available other than as a result of a breach of this Section
10.11, or which becomes available to the Administrative Agent, the Issuing Bank, any Lender or
any Related Party of any of the foregoing on a non-confidential basis from a source other than the
Borrower, (v)Β in connection with the exercise of any remedy hereunder or under any other Loan
Documents or any suit, action or proceeding relating to this Agreement or any other Loan Documents
or the enforcement of rights hereunder or thereunder, (vii)Β subject to an agreement containing
provisions substantially the same as those of this SectionΒ 10.11, to (A)Β any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, or (B)Β any actual or prospective party (or its Related Parties) to any swap
or derivative or similar transaction under which payments are to be made by reference to the
Borrower and its obligations, this Agreement or payments hereunder, (viii)Β any rating agency, (ix)
the CUSIP Service Bureau or any similar organization, or (x)Β with the consent of the Borrower. Any
Person required to maintain the confidentiality of any information as provided for in this
SectionΒ 10.11 shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such information as
such Person would accord its own confidential information.
Β Β Β Β Β SectionΒ 10.12. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which may be treated as interest on such Loan under applicable law (collectively,
the βChargesβ), shall exceed the maximum lawful rate of interest (the βMaximum
Rateβ) which may be contracted for, charged, taken, received or reserved by a Lender holding
such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan
hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum
Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of
such Loan but were not payable as a result of the operation of this SectionΒ 10.12 shall be
cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Rate to the date of repayment (to the extent permitted
by applicable law), shall have been received by such Lender.
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Β
Β Β Β Β Β SectionΒ 10.13. Waiver of Effect of Corporate Seal. The Borrower represents and
warrants that neither it nor any other Loan Party is required to affix its corporate seal to this
Agreement or any other Loan Document pursuant to any requirement of law or regulation, agrees that
this Agreement is delivered by Borrower under seal and waives any shortening of the statute of
limitations that may result from not affixing the corporate seal to this Agreement or such other
Loan Documents.
Β Β Β Β Β SectionΒ 10.14. Patriot Act. The Administrative Agent and each Lender hereby notifies
the Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law OctoberΒ 26, 2001)) (the βPatriot Actβ), it is required to obtain, verify
and record information that identifies each Loan Party, which information includes the name and
address of such Loan Party and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify such Loan Party in accordance with the Patriot Act.
Β Β Β Β Β SectionΒ 10.15. Location of Closing. Each Lender acknowledges and agrees that it has
delivered, with the intent to be bound, its executed
counterparts of this Agreement to the Administrative Agent, c/o King & Spalding LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Borrower acknowledges and agrees that it has
delivered, with the intent to be bound, its executed counterparts of this Agreement and each other
Loan Document, together with all other documents, instruments, opinions, certificates and other
items required under SectionΒ 3.1, to the Administrative Agent, c/o King & Spalding LLP,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. All parties agree that closing of the
transactions contemplated by this Agreement has occurred in New York.
(remainder of page left intentionally blank)
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Β
Β Β Β Β Β IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
Β | Β | Β | Β | Β |
Β | XXXXXX INVESTMENT MANAGEMENT CORP. Β |
Β | ||
Β | ByΒ Β | /s/ Xxxxxxx XxxxxxxΒ Β | Β | |
Β | Β | Name:Β Β | Xxxxxxx XxxxxxxΒ | Β |
Β | Β | Title:Β Β | President and Chief Operating OfficerΒ | Β |
Β | ||||
Β | SUNTRUST BANK as Administrative Agent, as Issuing Bank, as Swingline Lender and as a Lender Β |
Β | ||
Β | ByΒ Β | /s/ Xxxxxx X. XxxxxΒ Β | Β | |
Β | Β | Name:Β Β | Xxxxxx X. XxxxxΒ | Β |
Β | Β | Title:Β Β | Managing DirectorΒ | Β |
Β | ||||
Β | REGIONS BANK Β |
Β | ||
Β | ByΒ Β | /s/ Xxxxx XxxxxxxxΒ Β | Β | |
Β | Β | Name:Β Β | Xxxxx XxxxxxxxΒ | Β |
Β | Β | Title:Β Β | Vice PresidentΒ | Β |
Β |