EXHIBIT 99.2
EXECUTION COPY
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CREDIT AGREEMENT
dated as of
July 24, 2002
among
SERVICE CORPORATION INTERNATIONAL,
as Borrower,
The Lenders Party Hereto,
JPMORGAN CHASE BANK,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
and
CREDIT LYONNAIS,
XXXXXX COMMERCIAL PAPER INC.
and
XXXXXXX XXXXX CAPITAL CORPORATION,
as Co-Documentation Agents
----------
X.X. XXXXXX SECURITIES INC.,
and
BANC OF AMERICA SECURITIES LLC,
as Joint Bookrunners and Joint Lead Arrangers
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms ................................................. 1
SECTION 1.02. Classification of Loans and Borrowings ........................ 18
SECTION 1.03. Terms Generally ............................................... 18
SECTION 1.04. Accounting Terms; GAAP ........................................ 18
ARTICLE II
The Credits
SECTION 2.01. Commitments ................................................... 19
SECTION 2.02. Loans and Borrowings .......................................... 19
SECTION 2.03. Requests for Revolving Borrowings ............................. 19
SECTION 2.04. Swingline Loans ............................................... 20
SECTION 2.05. Letters of Credit ............................................. 21
SECTION 2.06. Funding of Borrowings ......................................... 25
SECTION 2.07. Interest Elections ............................................ 25
SECTION 2.08. Termination of Commitments; Reductions and Increases of
Commitments ................................................... 26
SECTION 2.09. Repayment of Loans; Evidence of Debt .......................... 27
SECTION 2.10. Prepayment of Loans ........................................... 28
SECTION 2.11. Fees .......................................................... 29
SECTION 2.12. Interest ...................................................... 30
SECTION 2.13. Alternate Rate of Interest .................................... 31
SECTION 2.14. Increased Costs ............................................... 31
SECTION 2.15. Break Funding Payments ........................................ 32
SECTION 2.16. Taxes ......................................................... 32
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs .... 33
SECTION 2.18. Mitigation Obligations; Replacement of Lenders ................ 34
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers .......................................... 35
SECTION 3.02. Authorization; Enforceability ................................. 35
SECTION 3.03. Governmental Approvals; No Conflicts .......................... 35
SECTION 3.04. Financial Statements; No Material Adverse Change .............. 36
SECTION 3.06. Litigation and Environmental Matters .......................... 36
SECTION 3.07. Compliance with Laws and Agreements ........................... 36
SECTION 3.08. Investment and Holding Company Status ......................... 36
SECTION 3.09. Taxes ......................................................... 37
SECTION 3.10. ERISA ......................................................... 37
SECTION 3.11. Disclosure .................................................... 37
SECTION 3.12. Subsidiaries. ................................................. 37
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SECTION 3.13. Security Interests. ........................................... 37
SECTION 3.14. Margin Stock .................................................. 37
ARTICLE IV
Conditions
SECTION 4.01. Effective Date ................................................ 38
SECTION 4.02. Each Credit Event ............................................. 39
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information .................... 40
SECTION 5.02. Notices of Material Events .................................... 41
SECTION 5.03. Existence; Conduct of Business ................................ 41
SECTION 5.04. Payment of Obligations ........................................ 42
SECTION 5.05. Maintenance of Properties ..................................... 42
SECTION 5.06. Books and Records; Inspection and Audit Rights ................ 42
SECTION 5.07. Compliance with Laws .......................................... 42
SECTION 5.08. Information Regarding Collateral .............................. 42
SECTION 5.09. Insurance ..................................................... 42
SECTION 5.10. Additional Subsidiaries. ...................................... 43
SECTION 5.11. Further Assurances ............................................ 43
SECTION 5.12. Use of Proceeds and Letters of Credit. ........................ 43
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness .................................................. 44
SECTION 6.02. Liens ......................................................... 45
SECTION 6.03. Sale and Leaseback Transactions. .............................. 45
SECTION 6.04. Fundamental Changes ........................................... 46
SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions ..... 46
SECTION 6.06. Asset Sales. .................................................. 48
SECTION 6.07. Swap Agreements ............................................... 48
SECTION 6.08. Restricted Payments ........................................... 48
SECTION 6.09. Transactions with Affiliates .................................. 50
SECTION 6.10. Restrictive Agreements ........................................ 50
SECTION 6.11. Fiscal Year ................................................... 50
SECTION 6.12. Interest Expense Coverage Ratio. .............................. 50
SECTION 6.13. Leverage Ratio ................................................ 51
SECTION 6.14. Capital Expenditures .......................................... 52
ARTICLE VII
Events of Default
3
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ....................................................... 56
SECTION 9.02. Waivers; Amendments ........................................... 57
SECTION 9.03. Expenses; Indemnity; Damage Waiver ............................ 58
SECTION 9.04. Successors and Assigns ........................................ 59
SECTION 9.05. Survival ...................................................... 62
SECTION 9.06. Counterparts; Integration; Effectiveness ...................... 62
SECTION 9.07. Severability .................................................. 62
SECTION 9.08. Right of Setoff ............................................... 62
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process .... 63
SECTION 9.10. WAIVER OF JURY TRIAL .......................................... 63
SECTION 9.11. Headings ...................................................... 63
SECTION 9.12. Confidentiality ............................................... 63
SECTION 9.13. Release of Guarantors and Collateral .......................... 64
SECTION 9.14. Interest Rate Limitation ...................................... 64
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SCHEDULES:
Schedule 1.01(a) -- Non-Cash Recurring Charges
Schedule 1.01(b) -- Designated Subsidiaries
Schedule 2.01 -- Commitments
Schedule 2.05 -- Existing Letters of Credit
Schedule 3.12 -- Subsidiaries
Schedule 5.10 -- Additional Subsidiary Guarantors
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.05 -- Existing Investments
Schedule 6.06 -- Planned Asset Dispositions
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B-1 -- Form of Opinion of Borrower's Outside Counsel
Exhibit B-1 -- Form of Opinion of Borrower's General Counsel
Exhibit C -- Guarantee and Collateral Agreement
CREDIT AGREEMENT dated as of July 24, 2002, among
SERVICE CORPORATION INTERNATIONAL; the LENDERS party
hereto; JPMORGAN CHASE BANK, as Administrative Agent;
BANK OF AMERICA, N.A., as Syndication Agent; and
CREDIT LYONNAIS, XXXXXX COMMERCIAL PAPER INC. and
XXXXXXX XXXXX CAPITAL CORPORATION, as
Co-Documentation Agents.
The Borrower has requested the Lenders to make Revolving Loans
at any time and from time to time prior to the Maturity Date in an aggregate
principal amount at any time outstanding not in excess of $185,000,000 (as such
amount may be increased pursuant to Section 2.08(d)). The Borrower has also
requested the Issuing Bank to issue Letters of Credit in an aggregate face
amount at any time outstanding not in excess of $125,000,000. The Borrower has
further requested the Swingline Lender to make Swingline Loans in an aggregate
principal amount outstanding not in excess of $25,000,000. The proceeds of the
Loans will be used to repay outstanding amounts under the Existing
Credit
Agreement and for general corporate purposes of the Borrower and the
Subsidiaries, including the repayment, redemption or repurchase of
non-publicly-traded Indebtedness, but excluding the repayment, redemption or
repurchase of publicly-traded Indebtedness; provided that the proceeds of
Repurchase Loans may only be used to repay, redeem or otherwise retire
Designated Indebtedness at any time prior to the Repurchase Loan Termination
Date. Letters of Credit will be used for general corporate purposes of the
Borrower and the Subsidiaries.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Accession Agreement" has the meaning set forth in Section
2.08(d).
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent and the Collateral
Agent.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Commitment Fee Rate" means, with respect to the
commitment fee payable pursuant to Section 2.11(a), a rate per annum equal to
(a) 0.75% for each day on which Usage is less than or equal to 33.0%, (b) 0.625%
for each day on which Usage is greater than 33.0% but less than 66.0% and (c)
0.50% for each day on which Usage is greater than or equal to 66.0%. For
purposes of the foregoing, "Usage" means, on any date, the percentage obtained
by dividing (i) the aggregate Revolving Credit Exposures on such date by (ii)
the aggregate Commitments on such date.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any ABR
Loan or Eurodollar Loan, as the case may be, the applicable rate per annum set
forth below under the caption "ABR Spread" or "Eurodollar Spread", as the case
may be, based upon the Leverage Ratio as of the end of the most recent fiscal
quarter of the Borrower for which financial statements shall have been delivered
pursuant to Section 5.01(a) or (b) (or, prior to the delivery of any such
financial statements, as of March 31, 2002):
ABR Eurodollar
Leverage Ratio Spread Spread
-------------- ------ ----------
Category 1
greater than or equal to
4.0 to 1.0 150.0 250.0
Category 2
< 4.0 to 1.0 and
greater than or equal to
3.25 to 1.0 125.0 225.0
Category 3
< 3.25 to 1.0 100.0 200.0
For purposes of the foregoing, each change in the Applicable Rate resulting from
a change in the Leverage Ratio shall be effective during the period commencing
on and including the date of delivery to the Administrative Agent of such
consolidated financial statements indicating such change and ending on the date
immediately preceding the effective date of the next such change; provided that
the Leverage Ratio shall be deemed to be in Category 1 (a) at any time that an
Event of Default has occurred and is continuing or (b) at the option of the
Administrative Agent or at the request of the Required Lenders if the Borrower
fails to deliver the consolidated financial statements required to be delivered
by it pursuant to Section 5.01(a) or (b), during the period from the expiration
of the time for delivery thereof until such consolidated financial statements
are delivered.
"Approved Fund" means (a) with respect to any Lender, a CLO
managed by such Lender or by an Affiliate of such Lender and (b) with respect to
any Lender that is a fund
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which invests in bank loans and similar extensions of credit, any other fund
that invests in bank loans and similar extensions of credit and is managed by
the same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Attributable Debt" means, with respect to any Sale and
Leaseback Transaction, the present value (computed in accordance with GAAP as if
the obligations incurred in connection with such Sale and Leaseback Transaction
were Capital Lease Obligations) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease has been
extended). In the case of any lease which is terminable by the lessee upon
payment of a penalty, the Attributable Debt shall be the lesser of (i) the
Attributable Debt determined assuming termination upon the first date such lease
may be terminated (in which case the Attributable Debt shall also include the
amount of the penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated) and (ii) the Attributable Debt determined assuming no such
termination. Any determination of any rate implicit in the terms of the lease
included in such Sale and Leaseback Transaction made in accordance with
generally accepted financial practices by the Borrower shall be binding and
conclusive absent manifest error.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means
Service Corporation International, a Texas
corporation.
"Borrowing" means (a) Revolving Loans of the same 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 (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a
Revolving Borrowing or a Repurchase Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in
New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditures" means, for any period, (a) the
additions to property, plant and equipment and other capital expenditures of the
Borrower and the Subsidiaries that are (or would be) set forth in a consolidated
statement of cash flows of the Borrower for such period prepared in accordance
with GAAP and (b) Capital Lease Obligations incurred by the Borrower and the
Subsidiaries during such period (other than any such Capital Lease Obligations
that shall relate to assets acquired in transactions reflected in Capital
Expenditures for any earlier period).
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) 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.
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"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934, as amended, and the
rules of the United States Securities and Exchange Commission thereunder as in
effect on the date hereof), of Equity Interests representing more than 25% of
the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of the Borrower; (b) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Borrower by Persons
who were neither (i) nominated by the board of directors of the Borrower nor
(ii) appointed by directors so nominated; (c) any event that gives holders of
preferred Equity Interests or other securities issued pursuant to any
shareholders' rights plan of the Borrower the right to purchase or to convert
such securities into Equity Interests of the Borrower; or (d) the acquisition of
direct or indirect Control of the Borrower by any Person or group.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
any Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of
such Lender or by such Lender's or such Issuing Bank's holding company, if any)
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.
"Class", 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.
"CLO" means any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of
such Lender.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Collateral Agent" means JPMorgan Chase Bank, in its capacity
as collateral agent for the Lenders under the Guarantee and Collateral Agreement
and the other Security Documents.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in Letters of Credit and Swingline Loans hereunder, expressed as an amount
representing the maximum permitted aggregate amount of such Lender's Revolving
Credit Exposure hereunder, as such commitment may be (a) reduced or increased
from time to time pursuant to Section 2.08 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04. The initial amount of each Lender's Commitment is set forth on Schedule
2.01, in the Accession Agreement pursuant to which such Increasing Lender shall
have extended or increased its Commitment or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Commitment, as applicable.
The initial aggregate amount of the Lenders' Commitments is $185,000,000.
"Consolidated Interest Expense" means, for any period, the
interest expense (including imputed interest expense in respect of Capital Lease
Obligations) of the Borrower and the Subsidiaries for such period, determined on
a consolidated basis in accordance with GAAP.
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"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period plus (a) without duplication and to the extent deducted
in determining such Consolidated Net Income, the sum of (i) Consolidated
Interest Expense for such period, (ii) consolidated income tax expense for such
period, (iii) all amounts attributable to depreciation and amortization for such
period, (iv) all amounts paid with respect to the termination or expiration of
options issued in connection with outstanding Indebtedness of the Borrower at
the time of the repurchase or maturity of such Indebtedness to the extent such
amounts are paid with proceeds from a cash collateral account established by the
Borrower for such payments prior to the date of this Agreement, (v) any losses
attributable to the prepayment or repurchase of publicly traded Indebtedness of
the Borrower for such period, and (vi) any extraordinary or non-recurring
non-cash charges for such period, and any recurring non-cash charges of the sort
described in Schedule 1.01(a) for such period; provided, however, that cash
expenditures in respect of charges referred to in this clause (vi) shall be
deducted in determining Consolidated EBITDA for the period during which such
expenditures are made, and minus (b) without duplication and to the extent
included in determining such Consolidated Net Income, (i) any extraordinary or
non-recurring non-cash gains for such period and (ii) any gains attributable to
the prepayment or repurchase of publicly traded Indebtedness of the Borrower for
such period, all determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, the net
income or loss of the Borrower and the Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP.
"Consolidated Revenue" means, for any period, the consolidated
revenues of the Borrower and the Subsidiaries for such period, determined in
accordance with GAAP.
"Consolidated Total Assets" means, on any date, the
consolidated total assets of the Borrower and the Subsidiaries, as such amount
would appear on a consolidated balance sheet of the Borrower prepared as of such
date in accordance with GAAP.
"Consolidated Total Indebtedness" means, on any date, the sum
of all Indebtedness of the Borrower and the Subsidiaries as of such date.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative
thereto.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Designated Indebtedness" means publicly traded Indebtedness
of the Borrower outstanding on the date hereof that by its terms matures during
calendar year 2003 or 2004.
"Designated Subsidiary" means each Subsidiary that is not an
Excluded Subsidiary and each Subsidiary (including any Excluded Subsidiary) that
owns any Equity Interest in a Designated Subsidiary. The Designated Subsidiaries
on the date hereof are set forth on Schedule 1.01(b).
"dollars" or "$" refers to lawful money of the United States
of America.
"Domestic Assets" means, on any date, Consolidated Total
Assets on such date minus that portion of such Consolidated Total Assets
attributable to the Foreign Subsidiaries.
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"Domestic Revenues" means, for any period, Consolidated
Revenue for such period minus that portion of Consolidated Revenue attributable
to Foreign Subsidiaries. Domestic Revenues for the four-fiscal quarter periods
ending on March 31, 2002, June 30, 2002, and September 30, 2002, shall be deemed
for all purposes of this Agreement to equal Domestic Revenues for the periods of
one, two or three fiscal quarters, as the case may be, ended after December 31,
2001, multiplied by four, two and four thirds, respectively.
"Domestic Subsidiary" means any Subsidiary that is not a
Foreign Subsidiary.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the presence, the management, Release of any Hazardous Material or to
health and safety matters.
"Environmental Liability" means all liabilities, obligations,
damages, losses, claims, actions, suits, judgments, orders, fines, penalties,
fees, expenses and costs, (including administrative oversight costs, natural
resource damages and remediation costs), whether contingent or otherwise,
arising out of or relating to (a) compliance or non-compliance with any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release of any Hazardous Materials or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust (other than a Pre-Need Trust or a Perpetual Care Trust) or
other equity ownership interests in a Person, and any warrants, options or other
rights entitling the holder thereof to purchase or acquire any such equity
interest.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower or any Subsidiary, is treated as
a single employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to any
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) 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; (d) the incurrence by the Borrower, a Subsidiary or any
ERISA Affiliate of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower, a Subsidiary or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or to appoint a trustee to administer any
Plan; (f) the incurrence by the Borrower, any Subsidiary or any ERISA Affiliate
of any liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (g) the receipt by the Borrower, any Subsidiary
or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan
from the Borrower, any Subsidiary or any ERISA Affiliate of
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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.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Subsidiaries" means, at any time, (a) Foreign
Subsidiaries and (b) Domestic Subsidiaries the aggregate assets and revenues of
which (determined on a consolidated basis) do not exceed 15% of Domestic Assets,
or 10% of Domestic Revenues, as of the end of the most recent fiscal quarter for
which financial statements shall have been delivered pursuant to Section 5.01(a)
or (b) (or, prior to the delivery of any such financial statements, as of March
31, 2002) and for the period of four fiscal quarters then ended.
"Excluded Taxes" means, 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) 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, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.18(b)), any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 2.16(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.16(a).
"Existing Issuing Bank" means JPMorgan Chase Bank, in its
capacity as issuing bank in respect of an Existing Letter of Credit.
"Existing Letters of Credit" means the outstanding letters of
credit set forth on Schedule 2.05.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of
New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
8
"Foreign Subsidiary" means any Subsidiary organized under the
laws of a jurisdiction other than the United States or any of its territories or
possessions or any political subdivision thereof.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means 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.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation (other than
accounts payable of any Subsidiary incurred in the ordinary course of business)
of any other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) 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, (b) 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, (c)
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 (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
(i) endorsements for collection or deposit in the ordinary course of business or
(ii) any guaranty or other contingent liability, direct or indirect, with
respect to bonds, indemnity agreements and similar arrangements provided to
assure that the Borrower and the Subsidiaries will fully perform their
obligations in respect of prearranged funeral and cemetery services and goods
and/or construction of burial facilities.
"Guarantee and Collateral Agreement" means the Guarantee and
Collateral Agreement among the Borrower, the Designated Subsidiaries and the
Collateral Agent, substantially in the form of Exhibit C.
"Guarantee and Collateral Requirement" means, at any time, the
requirement that:
(a) the Administrative Agent shall have received from each
Loan Party either (i) a counterpart of the Guarantee and Collateral
Agreement duly executed and delivered on behalf of such Loan Party or
(ii) in the case of any Person that becomes a Loan Party after the
Effective Date, a supplement to the Guarantee and Collateral Agreement,
in the form specified therein, duly executed and delivered on behalf of
such Loan Party;
(b) all outstanding Equity Interests of any Designated
Subsidiary directly owned by any Loan Party at such time shall have
been pledged pursuant to the Guarantee and Collateral Agreement, and
the Collateral Agent shall have received certificates representing all
such Equity Interests (other than any uncertificated Equity Interests),
together with undated stock powers or other instruments of transfer
with respect thereto endorsed in blank;
(c) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or reasonably
requested by the Administrative
9
Agent to be filed, registered or recorded to create the Liens intended
to be created by the Guarantee and Collateral Agreement and perfect
such Liens to the extent required by, and with the priority required
by, the Guarantee and Collateral Agreement, shall have been filed,
registered or recorded or delivered to the Administrative Agent for
filing, registration or recording; and
(d) each Loan Party shall have obtained all consents and
approvals required to be obtained by it in connection with the
execution and delivery of all Security Documents to which it is a
party, the performance of its obligations thereunder and the granting
by it of the Liens thereunder.
"Hazardous Materials" means (a) petroleum products and
byproducts, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, radon gas, chlorofluorocarbons and all other ozone-depleting
substances; or (b) any chemical, material, substance, waste, pollutant or
contaminant that is prohibited, limited or regulated by or pursuant to any
Environmental Law.
"Increasing Lender" has the meaning set forth in Section
2.08(d).
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g)
all Capital Lease Obligations of such Person, (h) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty, (i) all obligations, contingent or otherwise, of such
Person in respect of bankers' acceptances, (j) all obligations, contingent or
otherwise, of such Person in respect of Securitization Transactions and (k) all
Synthetic Lease Obligations of such Person. The Indebtedness of any Person (i)
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor, but (ii) shall not
include any guaranty or other contingent liability, direct or indirect, with
respect to bonds, indemnity agreements and similar arrangements provided to
assure that the Borrower and the Subsidiaries will fully perform their
obligations in respect of prearranged funeral and cemetery services and goods
and/or construction of burial facilities.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indenture Basket Amount" means, on any date, an amount equal
to 10% of consolidated net worth (as such term is defined in the Indentures) on
such date minus the sum, without duplication, of (a) the aggregate amount of the
Loans outstanding on such date, (b) the aggregate LC Exposure on such date and
(c) the aggregate amount of all other indebtedness and other obligations (as
such terms are defined in the Indentures) of the Borrower and the Subsidiaries
secured by Liens on assets of the Borrower or any Subsidiary on such date
(excluding, in the case of the foregoing clauses (b) and (c), indebtedness and
other obligations permitted to be incurred under any carveout (other than any
10% consolidated net worth basket or 10% consolidated asset basket) set forth in
the "limitation on liens" covenant (or any similar covenant) in each of the
Indentures).
10
"Indentures" means each indenture (including any supplemental
indentures entered into pursuant to the terms thereof) to which the Borrower or
any Subsidiary is a party governing the terms of any outstanding Indebtedness of
the Borrower or any Subsidiary.
"Information Memorandum" means the Confidential Information
Memorandum dated May 2002 relating to the Borrower and the Transactions.
"Initial Designated Indebtedness Repurchase Date" means the
date on which the Borrower and the Subsidiaries have repurchased, redeemed or
otherwise retired with the Net Proceeds of asset dispositions publicly traded
Indebtedness of the Borrower outstanding on the date hereof that matures during
calendar year 2003, 2004 or 2005 in an aggregate principal amount equal to
$100,000,000 minus the aggregate principal amount of such Indebtedness
repurchased, redeemed or otherwise retired with such Net Proceeds after May 13,
2002.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing or a Repurchase Borrowing in
accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter (or seven or fourteen days thereafter if deposits of such
maturity are available to all the Lenders), as the Borrower may elect; provided
that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day
and (ii) any Interest Period pertaining to a Eurodollar Borrowing that commences
on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
"Issuing Bank Agreement" means an agreement in form
satisfactory to the Borrower and the Administrative Agent pursuant to which a
Lender agrees to act as an Issuing Bank.
"Issuing Banks" means JPMorgan Chase Bank and each other
Lender that has entered into an Issuing Bank Agreement, each in its capacity as
the issuer of Letters of Credit hereunder, and its successors in such capacity
as provided in Section 2.05(i). The term "Issuing Banks" shall also mean the
Existing Issuing Bank solely as such term is used in reference to the Existing
Letters of Credit. Each Issuing Bank may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which
case the term "Issuing Bank" shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by any Issuing Bank
pursuant to a Letter of Credit.
11
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means the Existing Letters of Credit and
any letter of credit issued pursuant to this Agreement.
"Leverage Ratio" means, on any date, the ratio of (a)
Consolidated Total Indebtedness as of such date (net of all unencumbered cash
and cash equivalents set forth on the consolidated balance sheet of the Borrower
and the Subsidiaries as of such date in excess of $25,000,000) to (b)
Consolidated EBITDA for the period of four consecutive fiscal quarters of the
Borrower ended on such date; provided, however, that, solely for purposes of
this definition, "Consolidated Total Indebtedness" shall not include
Indebtedness of the Borrower or any Subsidiary in an amount not to exceed
$50,000,000 that is required to be paid as of such date in connection with the
earn-out provisions set forth in the Los Parques S.A. Stock Purchase and
Transfer Agreement dated as of December 21, 1998.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason with respect to any
Eurodollar Borrowing, then the "LIBO Rate" with respect to such Eurodollar
Borrowing for such Interest Period shall be the rate (rounded upwards, if
necessary, to the next 1/100 of 1%) at which dollar deposits of $5,000,000 and
for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, any letter of credit
applications referred to in Section 2.05(a) or (b), any promissory notes
delivered pursuant to Section 2.09(e) and the Security Documents.
"Loan Parties" means the Borrower and the Designated
Subsidiaries.
"Loans" means the Revolving Loans and Swingline Loans made by
the Lenders to the Borrower pursuant to this Agreement.
12
"Margin Stock" means "margin stock" as defined in Regulation U
of the Board.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, properties, prospects or condition,
financial or otherwise, of the Borrower and the Subsidiaries, taken as a whole,
(b) the ability of any Loan Parties, taken as a whole, to perform their material
obligations under this Agreement and the other Loan Documents or (c) the rights
of or benefits available to the Lenders under this Agreement or any other Loan
Document.
"Material Indebtedness" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Swap
Agreements, of any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $10,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect of any Swap Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Swap Agreement were
terminated at such time.
"Material Subsidiary" means, at any time, each Subsidiary
other than Subsidiaries that do not represent more than 1% for any such
individual Subsidiary, or more than 10% in the aggregate for all such
Subsidiaries, of either (a) Consolidated Total Assets or (b) Consolidated
Revenue for the period of four fiscal quarters most recently ended.
"Maturity Date" means July 24, 2005.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash
proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds, and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the sum
of (i) all reasonable fees and out-of-pocket expenses paid by the Borrower and
the Subsidiaries to Persons other than Affiliates in connection with such event,
(ii) in the case of a sale, transfer or other disposition of an asset (including
pursuant to a Sale and Leaseback Transaction or a casualty or a condemnation or
similar proceeding), the amount of all payments required to be made by the
Borrower and the Subsidiaries as a result of such event to repay Indebtedness
(other than Loans) and other obligations secured by such asset or otherwise
subject to mandatory prepayment as a result of such event and (iii) the amount
of all taxes paid (or reasonably estimated to be payable) by the Borrower and
the Subsidiaries, and the amount of any reserves established by the Borrower and
the Subsidiaries to fund contingent liabilities reasonably estimated to be
payable, in each case in respect of the year that such event occurred and that
are directly attributable to such event (as determined in good faith by a
Financial Officer). Notwithstanding the foregoing, any amounts referred to in
subclauses (ii) and (iii) of clause (a) of the preceding sentence will be deemed
to constitute Net Proceeds received by the Borrower or a Subsidiary only if such
amounts shall not have been applied within 180 days to repair or replace the
assets in respect of which such amounts shall have been paid or for related
purposes.
"Obligations" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Other Taxes" means any and all present or future stamp,
documentary, excise, recording, transfer, sales, property or similar taxes,
charges or levies arising from any payment made under any Loan Document or from
the execution, delivery or enforcement of, or otherwise with respect to, any
Loan Document.
13
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of
Exhibit II to the Guarantee and Collateral Agreement or any other form approved
by the Collateral Agent.
"Permitted Acquisition" means any acquisition (by merger or
otherwise) by the Borrower or a Designated Subsidiary of all or substantially
all the assets of, or all the Equity Interests in, a Person or division or line
of business of a Person, if (a) immediately after giving effect thereto, no
Default has occurred and is continuing or would result therefrom, (b) the
business of such acquired Person, or such acquired business, is reasonably
related to the business of the Borrower on the date hereof and is predominantly
in the United States of America or Canada (except that acquisitions outside the
United States and Canada may constitute Permitted Acquisitions to the extent
that the aggregate consideration paid by the Borrower and the Subsidiaries in
all such acquisitions does not exceed $10,000,000), (c) the Guarantee and
Collateral Requirement shall be satisfied within 30 days (or such longer period
as may be acceptable to the Administrative Agent) after such acquisition with
respect to each such Designated Subsidiary (with the Designated Subsidiaries
being determined giving pro forma effect to such acquisition), (d) the Borrower
and the Subsidiaries are in compliance, on a pro forma basis after giving effect
to such acquisition, with Sections 6.12, 6.13 and 6.14, to the extent then
applicable, as if such acquisition had occurred on the first day of the relevant
period for testing compliance with such Section, (e) such acquisition has been
approved by all necessary corporate and other action by the Person so acquired
or the Person selling the assets or other property so acquired by the Borrower
or such Designated Subsidiary and (f) in the case of any acquisition in which
the aggregate consideration paid by the Borrower and the Subsidiaries exceeds
$10,000,000, the Borrower has delivered to the Administrative Agent an officer's
certificate to the effect set forth in clauses (a), (b), (c), (d) and (e) above,
together with all financial information requested by the Administrative Agent
relating to the Person or assets acquired and reasonably detailed calculations
demonstrating satisfaction of the requirement set forth in clause (d) above.
"Permitted Asset Disposition" means any sale, transfer or
other disposition (including any loss, destruction or condemnation) of any
property or asset of the Borrower, other than dispositions permitted under
paragraphs (a), (b), (c) and (d) of Section 6.06.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) 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;
14
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII; and
(f) 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
interfere with the ordinary conduct of business of the Borrower or any
Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America or Canada (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United
States of America or Canada), in each case maturing within one year
from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, one of the two highest credit ratings obtainable from S&P,
from Xxxxx'x or The Dominion Bond Rating Service;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, (i) any domestic office
of any commercial bank organized under the laws of the United States of
America or Canada or any State or Province thereof which has a combined
capital and surplus and undivided profits of not less than
$500,000,000, (ii) any international office of Credit Lyonnais or
Societe Generale, to the extent such institution has a combined capital
and surplus and undivided profits of not less than $500,000,000 or
(iii) Southwest Bank of Texas;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above;
(e) money market funds that (i) comply with the criteria set
forth in Securities and Exchange Commission Rule 2a-7 under the
Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by
Xxxxx'x and (iii) have portfolio assets of at least $5,000,000,000; and
(f) other investments in an amount not to exceed $10,000,000
in the aggregate at any one time by Foreign Subsidiaries in
certificates of deposit, banker's acceptances and time deposits (or
other substantially similar investments) maturing within 180 days from
the date of acquisition thereof issued or guaranteed by or placed with,
and money market deposit accounts (or other substantially similar
deposit accounts) issued or offered by, any foreign commercial bank
that does not meet the capital, surplus and profit requirements set
forth in clause (c)(i) of this definition.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
15
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV or Section 302 of
ERISA or Section 412 of the Code, and in respect of which the Borrower, any
Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Pre-Need Trust" means a trust established to hold funds
related to the purchase of funeral or cemetery goods or services on a pre-need
basis.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank (or any successor
Administrative Agent appointed or chosen pursuant to Article VIII hereof) as its
prime rate in effect at its principal office in
New York City. Each change in
the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
"Perpetual Care Trust" means a trust established to provide
perpetual care or maintenance for any cemetery, mausoleum or columbarium.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching
or migration into or through the environment or within or upon any building,
structure, facility or fixture.
"Repurchase Availability Amount" means, at any time,
$75,000,000 minus the aggregate principal amount of Repurchase Loans
outstanding.
"Repurchase Availability Period" means the period from and
including the Initial Designated Indebtedness Repurchase Date to but excluding
the earlier of (a) the Repurchase Loan Termination Date and (b) the date of
termination of the Commitments.
"Repurchase Borrowing" means a Borrowing consisting of
Repurchase Loans.
"Repurchase Loan" means a Revolving Loan designated as such in
the related Borrowing Request delivered pursuant to Section 2.03.
"Repurchase Loan Termination Date" means the earlier of (a)
the date upon which all Designated Indebtedness has been repurchased, redeemed
or otherwise retired and (b) December 31, 2004.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing more than 50% of
the sum of the total Revolving Credit Exposures and unused Commitments at such
time.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any such Equity Interests or any option, warrant or other right
to acquire any such Equity Interests.
16
"Reverse Repurchase Transaction" means any transaction in
which a financial institution loans direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the United
States of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof, to the
Borrower or a Subsidiary, and the Borrower or such Subsidiary acquiring such
obligations agrees to return the aggregate principal amount of the obligations
so borrowed to the lending institution at a later date on customary terms and
conditions; provided, that the obligation of the Borrower or such Subsidiary to
return such aggregate principal amount may be secured, but only by the cash and
cash equivalents received by the Borrower or such Subsidiary upon the sale or
other disposition of the obligations so borrowed, and then only to the extent
set forth in Section 6.02(f).
"Revolving Availability Period" means the period from and
including the Effective Date to but excluding the earlier of (a) the Maturity
Date and (b) the date of termination of the Commitments.
"Revolving Borrowing" means a Borrowing consisting of
Revolving Loans.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans plus its LC Exposure and Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.01.
"Sale and Leaseback Transaction" means any arrangement whereby
the Borrower or a Subsidiary 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 from the buyer or transferee of the sold
or transferred property that it intends to use for substantially the same
purpose or purposes as the property sold or transferred; provided that any such
sale of any fixed or capital assets that is made for cash consideration in an
amount not less than the cost of such fixed or capital asset and is consummated
within 90 days after the acquisition or completion of the fixed or capital asset
shall not be deemed to be a Sale and Leaseback Transaction.
"Secured Parties" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Securitization Transaction" means any transfer by the
Borrower or any Subsidiary of accounts receivable or interests therein (a) to a
trust, partnership, corporation or other entity, which transfer is funded in
whole or in part, directly or indirectly, by the incurrence or issuance by the
transferee or any successor transferee of Indebtedness or securities that are to
receive payments from, or that represent interests in, the cash flow derived
from such accounts receivable or interests, or (b) directly to one or more
investors or other purchasers. The amount of any Securitization Transaction
shall be deemed at any time to be the aggregate principal or stated amount of
the Indebtedness or securities referred to in the preceding sentence or, if
there shall be no such principal or stated amount, the uncollected amount of the
accounts receivable transferred pursuant to such Securitization Transaction net
of any such accounts receivable that have been written off as uncollectible.
"Security Documents" means the Guarantee and Collateral
Agreement and each other instrument or document delivered pursuant to Section
5.08, 5.10 or 5.11 to secure any of the Obligations.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or
17
supplemental reserves) expressed as a decimal established by the Board to which
the Administrative Agent is subject, with respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation 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 such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) 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 (b) 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.
"Subsidiary" means any subsidiary of the Borrower; provided
that no Pre-Need Trust or Perpetual Care Trust shall be deemed to be a
Subsidiary.
"Swap Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates or prices for one or
more currencies, commodities, equity or debt instruments or securities, or
economic, financial or pricing indices or measures of economic, financial or
pricing risk or value or any similar transaction or any combination of these
transactions; provided that no phantom stock or similar plan providing for
payments only on account of services provided by current or former directors,
officers, employees or consultants of the Borrower or the Subsidiaries shall be
a Swap Agreement.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"Swingline Lender" means JPMorgan Chase Bank, in its capacity
as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Syndication Agent" means Bank of America, N.A., in its
capacity as syndication agent hereunder.
"Synthetic Lease" means any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing
product where the transaction is considered indebtedness for borrowed money for
Federal income tax reporting purposes but is classified as an operating lease in
accordance with GAAP for financial reporting purposes.
"Synthetic Lease Obligations" means, with respect to any
Synthetic Lease, at any time, an amount equal to the present value (computed in
accordance with GAAP as if such Synthetic Lease Obligations were Capital Lease
Obligations) of the sum of (a) all remaining rental or other payment obligations
of the lessee or party obtaining financing under such Synthetic Lease and,
without duplication, (b) all rental and purchase price payment obligations
18
under such Synthetic Lease assuming the lessee or party obtaining financing
exercises the option to purchase the leased property at the end of the lease
term.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means the execution, delivery and performance
by the Borrower of this Agreement and the other Loan Documents, the borrowing of
the Loans and the use of the proceeds thereof, the obtaining and use of the
Letters of Credit, the creation of the Liens provided for in the Security
Documents and the other transactions contemplated hereby.
"Type", when used in reference to any 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
Alternate Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. 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 "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) 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 from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
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ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions set forth in paragraph (b) of this Section and elsewhere herein, each
Lender agrees to make Revolving Loans to the Borrower from time to time during
the Revolving Availability Period in an aggregate principal amount that will not
result in (i) such Lender's Revolving Credit Exposure exceeding such Lender's
Commitment or (ii) the Indenture Basket Amount being less than zero. Within the
foregoing limits, the Borrower may borrow, prepay and reborrow Revolving Loans.
(b) Notwithstanding any other provision of this Agreement,
Repurchase Loans will be made only during the Repurchase Availability Period and
only in an aggregate principal amount that will not result in the aggregate
principal amount of the outstanding Repurchase Loans exceeding the Repurchase
Availability Amount.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than
a Swingline Loan) shall be made as part of a Borrowing consisting of Loans made
by the Lenders ratably in accordance with their respective Commitments. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing and each
Repurchase Borrowing shall be comprised entirely of ABR Loans or Eurodollar
Loans as the Borrower may request in accordance herewith; provided that all
Borrowings made on the Effective Date must be made as ABR Borrowings. Each
Swingline Loan shall be an ABR Loan. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $10,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $5,000,000.
Each Swingline Loan shall be in an amount that is an integral multiple of
$500,000. Notwithstanding the foregoing, an ABR Revolving Borrowing or a
Swingline Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the total Commitments and, if in an amount not less than the
applicable minimum amount specified above, may be in the amount that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e), notwithstanding that such amount is not an integral multiple of
$1,000,000. Borrowings of more than one Type and Class may be outstanding at the
same time; provided that there shall not at any time be more than a total of 10
Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m.,
New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m.,
New York City time, one Business Day before the date of
20
the proposed Borrowing; provided that any such notice of an ABR Revolving
Borrowing to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.05(e) may be given not later than 10:00 a.m.,
New York City time, on
the date of the proposed Borrowing. Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request in a form approved by
the Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether or not such Borrowing is to be a Repurchase
Borrowing;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no election as to the Class of Borrowing
is specified, then the requested Borrowing shall be a Revolving Borrowing. If no
Interest Period is specified with respect to any requested Eurodollar Borrowing,
then the Borrower shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from time to time during the Revolving Availability Period, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$25,000,000, (ii) the aggregate amount of the Lenders' Revolving Credit
Exposures exceeding the aggregate Commitments or (iii) the Indenture Basket
Amount being less than zero; provided that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon,
New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
21
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m.,
New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear; provided that any such
payment so remitted shall be repaid to the Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in form reasonably acceptable to the
Administrative Agent and the applicable Issuing Banks, at any time and from time
to time during the Revolving Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, any Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control. The Existing Letters of Credit will, for all purposes
of this Agreement, be deemed to have been issued hereunder on the Effective Date
and will, for all purposes of this Agreement, constitute Letters of Credit. On
the Effective Date, (i) any fronting fees provided for in the agreements under
which the Existing Letters of Credit were issued shall cease to accrue and shall
be replaced by the fronting fee provided for in Section 2.11(b) (it being
understood that any other fees referred to in Section 2.11(b) that shall have
been agreed upon by the Borrower or a Subsidiary and the Existing Issuing Bank
shall continue to apply, but that no new issuance fee will be charged in
connection with the deemed issuance of any Existing Letter of Credit on the
Effective Date), and (ii) any collateral that prior to the Effective Date shall
have secured the obligations of the Borrower in connection with any Existing
Letter of Credit (but not any Collateral securing such obligations under the
Security Documents) shall be automatically released.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by
22
electronic communication, if arrangements for doing so have been approved by the
Issuing Banks) to the Issuing Banks and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), 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. If requested
by any Issuing Bank, the Borrower also shall submit a letter of credit
application on such Issuing Bank's standard form in connection with any request
for a Letter of Credit; provided that any provisions in any such letter of
credit application that create Liens securing the obligations of the Borrower
thereunder or that are inconsistent with the provisions of this Agreement shall
be of no force or effect. A Letter of Credit shall be issued, amended, renewed
or extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $125,000,000, (ii) the aggregate amount of the
Lenders' Revolving Credit Exposures shall not exceed the aggregate Commitments
and (iii) the Indenture Basket Amount shall not be less than zero.
Notwithstanding anything to the contrary contained herein, no Existing Letter of
Credit may be amended, renewed or extended.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the Issuing Bank or the Lenders, each Issuing
Bank hereby grants to each Lender, and each Lender hereby acquires from such
Issuing Bank, a participation in such Letter of Credit equal to such Lender's
Applicable Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of each Issuing Bank, such Lender's Applicable Percentage
of each LC Disbursement made by such Issuing Bank and not reimbursed by the
Borrower on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any reason.
Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If any Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon,
New York City time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
if such LC Disbursement is not less than the applicable minimum borrowing
amount, the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section
23
2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, the
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails
to make such payment when due, the Administrative Agent shall notify each Lender
of the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lender's Applicable Percentage thereof. Promptly
following receipt of such notice, each Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrower, in
the same manner as provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the applicable Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from the
Borrower pursuant to this paragraph, the Administrative Agent shall distribute
such payment to such Issuing Bank or, to the extent that Lenders have made
payments pursuant to this paragraph to reimburse such Issuing Bank, then to such
Lenders and such Issuing Bank as their interests may appear. Any payment made by
a Lender pursuant to this paragraph to reimburse any Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans, ABR Repurchase
Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and
shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) 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, (iii) payment by any Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. None of
the Administrative Agent, the Lenders or the Issuing Banks, or any of their
Related Parties, 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 in the preceding sentence), 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 Banks; provided that the foregoing shall not be construed to excuse the
Issuing Banks from liability to the Borrower to the extent of any direct damages
(as opposed to consequential 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 any Issuing Bank's failure to exercise care when
determining whether drafts and 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 wilful misconduct on the part of an
Issuing Bank (as finally determined by a court of competent jurisdiction), each
Issuing Bank shall be deemed to have exercised 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 which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, each
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.
24
(g) Disbursement Procedures. Each Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Each Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether such Issuing Bank has made or
will make an 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 such Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If any Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.12(d) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of such
Issuing Bank, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (e) of this Section to reimburse such Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. Each Issuing Bank may be
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of such
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.11(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of such Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of any Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the earlier of (i) the third Business Day after the
Borrower shall receive notice from the Administrative Agent or the Required
Lenders demanding the deposit of cash collateral pursuant to this paragraph and
(ii) the date on which the maturity of the Loans shall be accelerated, the
Borrower shall deposit in an account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon; provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence
of any Event of Default with respect to the Borrower described in clause (h) or
(i) of Article VII. 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. Other
than any interest earned on the investment of such deposits, which investment
shall be in Permitted Investments and shall be made in the discretion of the
Administrative Agent and at the Borrower's risk and expense, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse each Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower
for
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the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Lenders with LC Exposures
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral under this paragraph, then (i)
if the maturity of the Loans has not been accelerated and the LC Exposure shall
be reduced to an amount below the amount so deposited, the Administrative Agent
will return to the Borrower any excess of the amount so deposited over the LC
Exposure and (ii) such amount (to the extent not applied as provided above in
this paragraph) shall be returned to the Borrower within three Business Days
after all Events of Default have been cured or waived.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.04. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent
and designated by the Borrower in the applicable Borrowing Request; provided
that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.05(e) shall be remitted by the Administrative Agent to
the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing. It is agreed that no payment by the Borrower under
this paragraph will be subject to any break-funding payment under Section 2.15.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the Borrower may
elect to convert such Borrowing to 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 Section. 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 the
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.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Borrowing of the Type resulting from such election to be made
on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by
26
hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
the Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.08. Termination of Commitments; Reductions and
Increases of Commitments. (a) Unless previously terminated, the Commitments
shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of $1,000,000 and
not less than $10,000,000 and (ii) the Borrower shall not terminate or reduce
the Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.10, the total Revolving Credit Exposures (net
of any cash collateral provided in accordance with Section 9.13(b)) would exceed
the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall
27
advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
(d) The Borrower may on no more than two occasions during the
period beginning on the date hereof to and including the date that is six months
prior to the Maturity Date, by written notice to the Administrative Agent
executed by the Borrower and one or more financial institutions (any such
financial institution referred to in this Section being called an "Increasing
Lender"), which may include any Lender, cause Commitments to be extended by the
Increasing Lenders (or cause the Commitments of the Increasing Lenders to be
increased, as the case may be) in an amount for each Increasing Lender set forth
in such notice; provided, that (i) each extension of new Commitments or increase
in existing Commitments pursuant to this paragraph shall result in the aggregate
Commitments being increased by no less than $10,000,000, (ii) no extension of
new Commitments or increase in existing Commitments pursuant to this paragraph
may result in the aggregate Commitments exceeding $250,000,000, (iii) each
Increasing Lender, if not already a Lender hereunder, shall be subject to the
approval of the Administrative Agent (which approval shall not be unreasonably
withheld) and (iv) each Increasing Lender, if not already a Lender hereunder,
shall become a party to this Agreement by completing and delivering to the
Administrative Agent a duly executed accession agreement in a form satisfactory
to the Administrative Agent and the Borrower (an "Accession Agreement"). New
Commitments and increases in Commitments shall become effective on the date
specified in the applicable notices delivered pursuant to this paragraph. Upon
the effectiveness of any Accession Agreement to which any Increasing Lender is a
party, (i) such Increasing Lender shall thereafter be deemed to be a party to
this Agreement and shall be entitled to all rights, benefits and privileges
accorded a Lender hereunder and subject to all obligations of a Lender hereunder
and (ii) Schedule 2.01 shall be deemed to have been amended to reflect the
Commitment of such Increasing Lender as provided in such Accession Agreement.
Upon the effectiveness of any increase pursuant to this Section in the
Commitment of a Lender already a party hereto, Schedule 2.01 shall be deemed to
have been amended to reflect the increased Commitment of such Lender.
Notwithstanding the foregoing, no increase in the aggregate Commitments (or in
the Commitment of any Lender) shall become effective under this Section unless,
on the date of such increase, the Administrative Agent shall have received a
certificate, dated as of the effective date of such increase and executed by a
Financial Officer of the Borrower, to the effect that the conditions set forth
in paragraphs (a), (b) (c) and (d) of Section 4.02 shall be satisfied (with all
references in such paragraphs to a Borrowing being deemed to be references to
such increase). Following any extension of a new Commitment or increase of a
Lender's Commitment pursuant to this paragraph, any Loans outstanding prior to
the effectiveness of such increase or extension shall continue to be outstanding
until the ends of the respective Interests Periods applicable thereto, and shall
then be repaid and, if the Borrower shall so elect, refinanced with new Loans
made pursuant to Section 2.01(a) ratably in accordance with the Commitments in
effect following such extension or increase.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
on the Maturity Date and (ii) to the Swingline Lender the then unpaid principal
amount of each Swingline Loan on the earlier of the Maturity Date and the first
date after such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least three Business Days after such Swingline Loan is
made; provided that on each date that a Revolving Borrowing (other than a
Repurchase Borrowing) is made, the Borrower shall repay all Swingline Loans then
outstanding.
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(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein (including any failure to record the making or repayment of
any Loan) shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement or prevent the
Borrower's obligations in respect of Loans from being discharged to the extent
of amounts actually paid in respect thereof.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall 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 pursuant to Section 9.04) 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).
SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to prior notice in accordance with paragraph (c) of this
Section. All prepayments made pursuant to this paragraph (a) shall be applied to
prepay Revolving Loans that are not Repurchase Loans until no such Loans are
outstanding; provided that any such prepayment may, at the election of the
Borrower, be applied to prepay Repurchase Loans if (i) the outstanding amount of
Revolving Loans that are not Repurchase Loans shall be less than $50,000,000 and
(ii) the Borrower shall certify to the Administrative Agent that, after giving
effect to such prepayment, the Borrower believes that it will have cash and cash
equivalents that, taking into account anticipated cash receipts (other than from
Borrowings under this Agreement) and expenditures, will be sufficient to meet
the working capital needs of the Borrower and the Subsidiaries for a period of
at least two weeks following such prepayment.
(b) In the event and on each occasion that any Net Proceeds
are received by or on behalf of the Borrower or any Subsidiary in respect of any
Permitted Asset Disposition, the Borrower shall, within three Business Days
after such Net Proceeds are received, prepay Repurchase Borrowings in an
aggregate amount equal to the lesser of the amount of such Net Proceeds and the
aggregate principal amount of the Repurchase Loans outstanding; provided,
however, that the Net Proceeds of any Permitted Asset Disposition that generates
less than $250,000 of such Net Proceeds shall not be required to be used to
prepay Repurchase Borrowings pursuant to this Section 2.10(b); and provided
further, that Permitted Asset Dispositions that generate Net Proceeds of less
than $10,000,000 will be aggregated over each fiscal quarter of the Borrower and
the aggregate amount of such Net Proceeds shall be used to prepay Repurchase
Borrowings at the end of such fiscal quarter; and provided further that, if the
amount of Net Proceeds so aggregated at any time exceeds $10,000,000, the
Borrower shall immediately prepay Repurchase Borrowings in an amount equal to
such aggregate Net Proceeds.
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(c) The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York
City time, one Business Day before the date of prepayment or (iii) in the case
of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment. Each such notice shall be irrevocable, shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid and shall state whether or not each such Borrowing
is a Repurchase Borrowing; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.08, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.08. Promptly
following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Revolving Borrowing of the same Type
as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.12.
(d) Amounts to be applied pursuant to paragraph (b) above to
the prepayment of Repurchase Borrowings shall be applied first to reduce
outstanding ABR Repurchase Borrowings and then to prepay Eurodollar Repurchase
Borrowings. In the event the amount of any prepayment of Repurchase Borrowings
required under such paragraph (b) shall exceed the sum of (i) the aggregate
principal amount of the ABR Repurchase Borrowings outstanding and (ii) the
aggregate principal amount of the Eurodollar Repurchase Borrowings outstanding
with Interest Periods ending on the date on which prepayment would be required
under such paragraph (b) (the amount of any such excess being called the "Excess
Amount"), the Borrower shall have the right, in lieu of making such prepayment
in full, to hold the Excess Amount and to apply such amount to the prepayment of
Eurodollar Borrowings at the ends of the Interest Periods applicable thereto;
provided that (A) the entire amount of such required prepayment will in any
event be made within 30 days after the date on which it would have been required
to be made but for the provisions of this paragraph and (B) amounts held pending
prepayment in accordance with this paragraph will not be deemed to have prepaid
Repurchase Borrowings for purposes of any provision of this Agreement.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Commitment Fee Rate on the daily unused amount of
the Commitment of such Lender during the period from and including the date
hereof to but excluding the date on which such Commitment terminates. Accrued
commitment fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof. All
commitment fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate used to determine the interest rate applicable to Eurodollar Loans on the
average daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender's Commitment terminates and the date on which such Lender ceases to
have any LC Exposure, and (ii) to each Issuing Bank a fronting fee, which shall
accrue at the rate of 0.125% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to
30
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC Exposure, as well as
such Issuing Bank's standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including
the last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such
accrued fees shall be payable on the date on which the Commitments terminate and
any such fees accruing after the date on which the Commitments terminate shall
be payable on demand. Any other fees payable to the Issuing Banks pursuant to
this paragraph shall be payable within 10 days after demand. All participation
fees and fronting fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the Issuing
Banks, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Rate in effect from time to time.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate in effect from time to time.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Loans as provided in paragraph (a) of this
Section.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Commitments; provided that (i) interest accrued pursuant
to paragraph (c) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Revolving Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate
or
31
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing,
such Borrowing shall be made as an ABR Borrowing.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement 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 any Issuing
Bank; or
(ii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or such
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or any Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or such Issuing Bank's capital or
on the capital of such Lender's or such Issuing Bank's holding company, if any,
as a consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by such
Issuing Bank, to a level below that which such Lender or such Issuing Bank or
such Lender's or such Issuing Bank's holding company could have achieved but for
such Change in Law (taking into consideration such Lender's or such Issuing
Bank's policies and the policies of such Lender's or such Issuing Bank's holding
company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing Bank
or such Lender's or such Issuing Bank's holding company for any such reduction
suffered.
32
(c) A certificate of a Lender or a Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or such Issuing Bank
or its holding company, as the case may be, as specified in paragraph (a) or (b)
of this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or such Issuing Bank,
as the case may be, the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or such Issuing Bank's right to demand such
compensation; provided that the Borrower shall not be required to compensate a
Lender or an Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender or
such Issuing Bank, as the case may be, notifies the Borrower of the Change in
Law giving rise to such increased costs or reductions and of such Lender's or
such Issuing Bank's intention to claim compensation therefor; provided further
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of Default
or mandatory prepayment), (b) the conversion of any Eurodollar Loan other than
on the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurodollar Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.10(b) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such 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 Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder or under any other Loan Document
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) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
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(c) The Borrower shall indemnify the Administrative Agent,
each Lender and each Issuing Bank, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or such 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 Section) 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 an Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or an Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction 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; provided that such Foreign Lender
has received written notice from the Borrower advising it of the availability of
such exemption or reduction and supplying all applicable documentation.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing
of Setoffs. (a) 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 Section 2.14, 2.15 or 2.16, or
otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without setoff, counterclaim or other deduction.
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 its offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, except payments to be made directly to an Issuing Bank or a
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.14, 2.15, 2.16 and 9.03 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 in appropriate ratable shares
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 payable for the period of
such extension. All payments hereunder shall be made in dollars.
(b) 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 (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal 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.
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(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans 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 Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) 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) 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 Loans or
participations in LC Disbursements 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 setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) 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 Banks
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 Banks, as the case may be, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders or each of
the Issuing Banks, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or such 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
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.17(d),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.14, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) 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 reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
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(b) If any Lender requests compensation under Section 2.14, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Revolving Loans
and participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.14 or payments required to be made pursuant to Section 2.16, 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.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of
the Designated Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business, and is in good standing, in every jurisdiction where such
qualification is required. Except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, each of the Excluded Subsidiaries is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, has
all requisite power and authority to carry on its business as now conducted and
is qualified to do business, and is in good standing, in every jurisdiction
where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions
to be entered into by each Loan Party are within such Loan Party's powers and
have been duly authorized. This Agreement has been duly executed and delivered
by the Borrower and constitutes, and each other Loan Document to which any Loan
Party is to be a party, when executed and delivered by such Loan Party, will
constitute, a legal, valid and binding obligation of the Borrower or such Loan
Party, as the case may be, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
36
organizational documents of the Borrower or any of the Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon the Borrower or any of
the Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Borrower or any of the Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of the Subsidiaries, except Liens created under the Loan
Documents.
SECTION 3.04. Financial Statements; No Material Adverse
Change. (a) The Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders equity and
cash flows (i) as of and for the fiscal year ended December 31, 2001, reported
on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of
and for the fiscal quarter and the portion of the fiscal year ended March 31,
2002, certified by its chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and the Subsidiaries as of such dates
and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) above. Such financial statements contain all references to and
descriptions of contingent liabilities required under GAAP.
(b) Since December 31, 2001, there has been no material
adverse change in the business, assets, operations, prospects or condition,
financial or otherwise, of the Borrower and the Subsidiaries, taken as a whole.
SECTION 3.05. Properties. Each of the Borrower and the
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for (a) minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes
and (b) Liens permitted by Section 6.02.
SECTION 3.06. Litigation and Environmental Matters. (a) Except
as set forth in the Information Memorandum, there are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending or, to
the knowledge of the Borrower, threatened against or affecting the Borrower or
any of the Subsidiaries (i) that could reasonably be expected, individually or
in the aggregate, to result in a Material Adverse Effect or (ii) that involve
the Loan Documents or the Transactions.
(b) Except with respect to matters that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of the Subsidiaries (i) 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) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Borrower and the Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
the Borrower nor any of the Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
37
SECTION 3.09. Taxes. The Borrower and each of the Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other ERISA
Events that have occurred or are 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 Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than $10,000,000 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 Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$10,000,000 the fair market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. None of the reports, financial
statements, certificates or other information furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with this
Agreement or the Transactions or delivered hereunder contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth the name
of, and the ownership interest of the Borrower and each other Person in, each
Subsidiary of the Borrower and identifies each Subsidiary that is a Designated
Subsidiary, in each case as of the date hereof. The shares of capital stock or
other ownership interests of each Subsidiary are owned by the Borrower, directly
or indirectly, free and clear of all Liens, except for the Liens created under
the Security Documents.
SECTION 3.13. Security Interests. When executed and delivered,
the Guarantee and Collateral Agreement will be effective to create in favor of
the Collateral Agent for the ratable benefit of the Secured Parties a valid and
enforceable security interest in the Collateral and (a) when the Collateral
constituting certificated securities (as defined in the Uniform Commercial Code)
is delivered to the Collateral Agent thereunder together with instruments of
transfer duly endorsed in blank, the Guarantee and Collateral Agreement will
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the pledgors thereunder in such Collateral, prior and superior
in right to any other Person, and (b) when financing statements in appropriate
form are filed in the offices specified in the Perfection Certificate, the
Guarantee and Collateral Agreement will constitute a fully perfected Lien on and
security interest in all right, title and interest of the Loan Parties in the
remaining Collateral to the extent perfection can be obtained by filing Uniform
Commercial Code financing statements, prior and superior to the rights of any
other Person, other than rights secured by Liens expressly permitted by Section
6.02.
SECTION 3.14. Margin Stock. Neither the Borrower nor any
Subsidiary is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of buying or carrying Margin Stock.
The proceeds of the Loans and the Letters of Credit will not be used, directly
or indirectly, immediately, incidentally or ultimately, for the purpose of
purchasing or carrying any Margin Stock or for the purpose of reducing or
retiring
38
any Indebtedness which was originally incurred to purchase or carry Margin Stock
or for any other purpose which might constitute any of the Loans or the Letters
of Credit under this Agreement "purpose credit" within the meaning of Regulation
U or Regulation X of the Board.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans and of the Issuing Banks to issue Letters of Credit hereunder
shall not become effective until each of the following conditions shall have
been satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) 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.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of (i) Xxxxx Xxxxxxx & Xxxx LLP, outside
counsel for the Borrower, substantially in the form of Exhibit B-1 and
(ii) Xxxxx X. Shelger, senior vice president, general counsel and
secretary of the Borrower, substantially in the form of Exhibit B-2,
and covering such other matters relating to the Loan Parties, the Loan
Documents or the Transactions as the Administrative Agent or the
Required Lenders shall reasonably request. The Borrower hereby requests
such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of each Loan Party, the authorization of the Transactions and
any other legal matters relating to the Borrower, the Loan Parties, the
Loan Documents or the Transactions, all in form and substance
reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer, setting forth computations in
reasonable detail of the Indenture Basket Amount as of the Effective
Date (and after giving effect to the Borrowings to be made and the
Letters of Credit to be issued on the Effective Date) and of Domestic
Assets and Domestic Revenues as of March 31, 2002, and confirming
compliance with the conditions set forth in paragraphs (a), (b) and (c)
of Section 4.02 and paragraph (e) of this Section.
(e) The Guarantee and Collateral Requirement shall have been
satisfied.
(f) The Administrative Agent shall have received a completed
Perfection Certificate dated the Effective Date and signed by a
Financial Officer, together with all attachments contemplated thereby,
including the results of a search of the Uniform Commercial Code (or
equivalent) filings made with respect to the Loan Parties in the
jurisdictions contemplated by the Perfection Certificate and copies of
the financing statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the Administrative Agent
that the Liens indicated by such financing statements (or similar
documents) are permitted by Section 6.02 or have been released.
39
(g) All consents and approvals required to be obtained from
any Governmental Authority or other Person in connection with the
Transactions shall have been obtained.
(h) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Banks to issue Letters of Credit hereunder shall not become effective unless
each of the foregoing conditions shall have been satisfied (or waived pursuant
to Section 9.02) at or prior to 5:00 p.m., New York City time, on July 31, 2002
(and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing, and of each Issuing Bank to
issue, amend, renew or extend any Letter of Credit, shall be subject to the
satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set
forth in this Agreement shall be true and correct on and as of the date
of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, except to the extent
such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties shall be true
and correct as of such earlier date and except that, for purposes of
this Section 4.02(a), the representations and warranties set forth in
Section 3.04(a) shall be deemed to refer to the financial statements
furnished to the Lenders pursuant to Section 5.01(a) and (b).
(b) 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 shall have occurred and be
continuing.
(c) 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 Indenture Basket Amount shall not
be less than zero.
(d) At the time of such Borrowing or the issuance, amendment,
renewal or extension of such Letter of Credit, as applicable, the
Guarantee and Collateral Requirement shall be satisfied.
Each Borrowing and each issuance, amendment, renewal or extension of a 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),
(c) and (d) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments shall have expired or been terminated
and the principal of and interest on each Loan and all fees payable hereunder
shall have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:
40
SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 95 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by
PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 50 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) as promptly as practicable and in any event not later than
(i) 25 days after any delivery of financial statements under clause (a)
above and (ii) 10 days after any delivery of financial statements under
clause (b) above, a certificate of a Financial Officer (i) certifying
as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) setting forth reasonably detailed
calculations (A) showing the aggregate amounts of Domestic Assets and
Domestic Revenues, the portion of the aggregate amounts of Domestic
Assets and Domestic Revenues attributable to each Designated Subsidiary
and the Indenture Basket Amount as of the date of the balance sheet
included in such financial statements and for the period of four fiscal
quarters then ended and (B) demonstrating compliance with Sections
6.12, 6.13 and 6.14, (iii) setting forth any changes required to be
made to Schedule 1.01(b) in order for the information set forth therein
to be complete and correct as of the date of the balance sheet included
in such financial statements (or stating that no such changes are
required) and any other information required pursuant to Section
4.03(c) of the Guarantee and Collateral Agreement and (iv) stating
whether any change in GAAP or in the application thereof has occurred
since the date of the most recent audited financial statements
delivered under clause (a) above (or, prior to the delivery of any such
financial statements, since December 31, 2001) and, if any such change
has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with any delivery of a certificate of a
Financial Officer under clause (c)(i) above, a certificate of the
accounting firm that reported on such financial statements stating
that, in connection with its audit, nothing has come to its attention
that caused it to believe that the Borrower failed to comply with the
terms, covenants, provisions or conditions of Article V, VI or VII of
this Agreement (which certificate may be limited to the extent required
by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any
41
Subsidiary with the United States Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange,
or distributed by the Borrower to its shareholders generally, as the
case may be;
(f) upon the earlier of (i) 10 business days following
approval of such information by the Board of Directors of the Borrower
and (ii) March 31 of each fiscal year of the Borrower, an annual budget
of the Borrower and the Subsidiaries for such fiscal year; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
Information required to be delivered pursuant to this Section 5.01 shall be
deemed to have been delivered if such information, or one or more annual or
quarterly reports containing such information, shall have been posted by the
Administrative Agent on an IntraLinks or similar site to which the Lenders have
been granted access or shall be available on the website of the Securities and
Exchange Commission at xxxx://xxx.xxx.xxx (and a confirming electronic
correspondence is delivered or caused to be delivered providing notice of such
posting or availability); provided that the Borrower shall deliver paper copies
of such information to any Lender that requests such delivery. Information
required to be delivered pursuant to this Section 5.01 may also be delivered by
electronic communications pursuant to procedures approved by the Administrative
Agent.
SECTION 5.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that could
reasonably be expected to result in a Material Adverse Effect;
(c) 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 the Subsidiaries in
an aggregate amount exceeding $5,000,000; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower
will, and will cause each of the Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business except to the extent that failures to keep in
effect such rights, licenses, permits, privileges and franchises could not
reasonably be expected, individually or in the aggregate for all such failures,
to result in a Material Adverse Effect; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.03.
42
SECTION 5.04. Payment of Obligations. The Borrower will, and
will cause each of the Subsidiaries to, pay its Indebtedness and other
obligations, including Tax liabilities, before the same shall become delinquent
or in default, except where (a) the validity or amount thereof is being
contested in good faith by appropriate proceedings, (b) the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties. The Borrower will,
and will cause each of the Subsidiaries to, keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted.
SECTION 5.06. Books and Records; Inspection and Audit Rights.
The Borrower will, and will cause each of the Subsidiaries to, keep proper books
of record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of the Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower will, and
will cause each of the Subsidiaries to, comply with all material laws, including
Environmental Laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property.
SECTION 5.08. Information Regarding Collateral. (a) The
Borrower will furnish to the Administrative Agent prompt written notice of any
change (i) in any Loan Party's corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (ii) in any Loan Party's identity, corporate structure or
jurisdiction of incorporation or formation or (iii) in any Loan Party's Federal
Taxpayer Identification Number or other organizational identification number.
The Borrower agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform
Commercial Code or otherwise that are required in order for the Collateral Agent
to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral. The Borrower also agrees
promptly to notify the Administrative Agent if any material portion of the
Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.01, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer and a legal officer of the Borrower (i)
setting forth the information required pursuant to Sections 1 and 2 of the
Perfection Certificate or confirming that there has been no change in such
information since the date of the Perfection Certificate delivered on the
Effective Date or the date of the most recent certificate delivered pursuant to
this Section and (ii) certifying that the Guarantee and Collateral Requirement
is satisfied.
SECTION 5.09. Insurance. The Borrower will, and will cause
each of the Subsidiaries to, maintain, with financially sound and reputable
insurance companies, insurance in such amounts (with no greater risk retention)
and against such risks as are customary among companies of established
reputation engaged in the same or similar businesses and operating in the same
or similar locations. The Borrower will furnish to the Lenders, upon request of
the Administrative Agent, information in reasonable detail as to the insurance
so maintained.
43
SECTION 5.10. Additional Subsidiaries. (a) The Borrower shall
cause the Subsidiaries set forth on Schedule 5.10 to take all steps necessary to
perfect all Liens granted pursuant to the Guarantee and Collateral Agreement
within 60 days after the date hereof.
(b) If any Designated Subsidiary is formed or acquired, or if
any Subsidiary shall become a Designated Subsidiary, after the Effective Date,
the Borrower will, within five Business Days, notify the Administrative Agent
and the Lenders thereof and, if necessary for the Borrower to maintain
compliance with the Guarantee and Collateral Requirement, promptly cause the
Guarantee and Collateral Requirement to be satisfied with respect to such
Designated Subsidiary and with respect to any Equity Interest in such Designated
Subsidiary owned by or on behalf of any Loan Party.
SECTION 5.11. Further Assurances. (a) The Borrower will, and
will cause each other Loan Party to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions, which may be required under any applicable law, or which the
Administrative Agent may reasonably request, to cause the Guarantee and
Collateral Requirement to be and remain satisfied, all at the expense of the
Loan Parties. The Borrower also agrees to provide to the Administrative Agent,
from time to time upon request, all such information as the Administrative Agent
shall reasonably request as necessary to confirm the perfection and priority of
the Liens created or intended to be created by the Security Documents.
(b) If any material assets of the sort included in the
definition of Collateral in the Guarantee and Collateral Agreement are acquired
by the Borrower or any other Loan Party after the date hereof (other than assets
that without further action become subject to the Lien of the Security Documents
upon acquisition thereof), the Borrower will notify the Administrative Agent
thereof, and, if requested by the Administrative Agent, will cause such assets
to be subjected to a Lien securing the Obligations and will take, and cause the
other Loan Parties to take, such actions as shall be necessary or reasonably
requested by the Administrative Agent to grant and perfect such Liens, including
actions described in paragraph (a) of this Section, all at the expense of the
Loan Parties.
SECTION 5.12. Use of Proceeds and Letters of Credit. The
proceeds of the Loans will be used only for the purposes referred to in the
preamble to this Agreement. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations T, U and X. Letters of
Credit will be issued only to support obligations incurred by the Borrower and
the Subsidiaries in the ordinary course of business.
ARTICLE VI
Negative Covenants
Until the Commitments shall have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters
44
of Credit shall have expired or terminated and all LC Disbursements shall have
been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) The
Borrower will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the date hereof and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount or
change the parties directly or indirectly responsible for the payment
thereof; provided that any such refinancing Indebtedness (A) shall not
be secured by any collateral that did not secure the Indebtedness
refinanced and (B) shall not mature before the earlier of (x) the
maturity date of the Indebtedness refinanced and (y) the date six
months following the Maturity Date;
(iii) Indebtedness of the Borrower to any Subsidiary and of
any Subsidiary to the Borrower or any other Subsidiary; provided that
Indebtedness of any Subsidiary that is not a Loan Party to the Borrower
or any other Loan Party shall be subject to Section 6.05;
(iv) 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 the Borrower or any other
Loan Party of Indebtedness of any Subsidiary that is not a Loan Party
shall be subject to Section 6.05;
(v) (A) Indebtedness of the Borrower or any Subsidiary
incurred after the date hereof to finance the acquisition, construction
or improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets, or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the
outstanding principal amount or change the parties directly or
indirectly responsible for the payment thereof, (B) Attributable Debt
of the Borrower or any Subsidiary incurred after the date hereof
pursuant to Sale and Leaseback Transactions permitted by Section 6.03
and (C) Indebtedness represented by seller notes of the Borrower or any
Subsidiary incurred after the date hereof in connection with Permitted
Acquisitions; provided that (i) the Indebtedness in clause (A) hereof
is incurred prior to or within 120 days (or such longer period if
necessary solely to obtain any permits or licenses required in
connection with such acquisition, construction or improvement) after
such acquisition or the completion of such construction or improvement
and (ii) the aggregate principal amount of the Indebtedness permitted
by this clause (v) shall not exceed $75,000,000 at any time
outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary
after the date hereof; provided that (i) such Indebtedness exists at
the time such Person becomes a Subsidiary and is not created in
contemplation of or in connection with such Person becoming a
Subsidiary and (ii) the aggregate principal amount of Indebtedness
permitted by this clause (vi) shall not exceed $50,000,000 at any time
outstanding;
(vii) Indebtedness not permitted by any other clause of this
Section 6.01; provided that the aggregate principal amount of such
Indebtedness incurred, created or assumed pursuant to this clause (vii)
and outstanding at any time shall not exceed $25,000,000.
45
(b) The Borrower will not, nor will it permit any Subsidiary
to, issue any preferred stock or other preferred Equity Interests, other than
(i) preferred Equity Interests of the Borrower issued pursuant to any
shareholders' rights plan of the Borrower and (ii) preferred Equity Interests
issued by any Subsidiary to the extent, and only to the extent, that such
preferred Equity Interests are owned by the Borrower or another Subsidiary.
SECTION 6.02. Liens. The Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02;
provided that (i) such Lien shall not apply to any other property or
asset of the Borrower or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount or change the parties directly or
indirectly responsible for the payment thereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as
the case may be, and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount or change the parties
directly or indirectly responsible for the payment thereof;
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (i) such
Liens secure Indebtedness permitted by clause (v) of Section 6.01(a),
(ii) such Liens and the Indebtedness secured thereby are incurred prior
to or within 120 days (or such longer period if necessary solely to
obtain any permits or licenses required in connection with such
acquisition, construction or improvement) after such acquisition or the
completion of such construction or improvement, (iii) the Indebtedness
secured thereby does not exceed the cost of acquiring, constructing or
improving such fixed or capital assets and (iv) such Liens shall not
apply to any other property or assets of the Borrower or any
Subsidiary;
(f) Liens on cash and cash equivalents received in connection
with Reverse Repurchase Transactions in an amount not to exceed
$200,000,000 at any one time; and
(g) Liens that are not permitted by any other clause of this
Section 6.02; provided that the aggregate book value of the assets
subject to Liens permitted under this clause (g), together with the
aggregate principal amount of Attributable Debt incurred in connection
with Sale and Leaseback Transactions permitted pursuant to Section
6.03, shall at no time exceed $75,000,000.
SECTION 6.03. Sale and Leaseback Transactions. The Borrower
will not, and will not permit any of the Subsidiaries to, enter into any Sale
and Leaseback Transaction;
46
provided that the Borrower may, and may permit any Subsidiary to, enter into
Sale and Leaseback Transactions if the sum, without duplication, of (i) the
aggregate outstanding Attributable Debt in respect of Sale and Leaseback
Transactions permitted by this proviso and (ii) the aggregate book value of the
assets subject to Liens permitted by Section 6.02(g) shall at no time exceed
$75,000,000; and provided further that all Attributable Debt associated with any
such Sale and Leaseback Transaction shall be treated as Indebtedness of the
Borrower or the applicable Subsidiary, as the case may be, incurred pursuant to
Section 6.01(a)(v).
SECTION 6.04. Fundamental Changes. (a) The Borrower will not,
and will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) assets (including capital stock of Subsidiaries) constituting
all or substantially all the assets of the Borrower and the Subsidiaries on a
consolidated basis (whether now owned or hereafter acquired), or, in the case of
the Borrower or any Material Subsidiary, liquidate or dissolve, except that, if
at the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing (i) any Subsidiary may merge into the Borrower
in a transaction in which the Borrower is the surviving corporation, (ii) any
Subsidiary may merge into any other Subsidiary in a transaction in which the
surviving entity is a Subsidiary; provided, however, that no Designated
Subsidiary may merge into a Foreign Subsidiary, (iii) any Permitted Asset
Disposition made in accordance with Section 6.06 and involving the sale of a
Subsidiary may be effected by a merger of such Subsidiary, (iv) any Subsidiary
may sell, transfer, lease or otherwise dispose of its assets to the Borrower or
to another Subsidiary; provided, however, that no Designated Subsidiary may
sell, transfer, lease or otherwise dispose of its assets to any Foreign
Subsidiary, and (v) any Subsidiary 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 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 Section 6.05.
(b) The Borrower will not, and will not permit any of the
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and the Subsidiaries on the
date of execution of this Agreement and businesses reasonably related thereto.
SECTION 6.05. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of the 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 capital stock,
evidences of Indebtedness or 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, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments existing on the date hereof and set forth on
Schedule 6.05;
(c) investments by the Borrower and the Subsidiaries in Equity
Interests in their respective Subsidiaries; provided that (i) any such
Equity Interests in Loan Parties shall be pledged pursuant to the
Guarantee and Collateral Agreement if necessary for the Borrower to
maintain satisfaction of the Guarantee and Collateral Requirement and
(ii) the aggregate amount of investments made by Loan Parties to
Subsidiaries that are not Loan Parties pursuant to this clause (c),
together with all loans and advances and Guarantees made by Loan
Parties to Subsidiaries that are not Loan Parties pursuant to
47
Section 6.05(d) and (f) (excluding all such investments, loans,
advances and Guarantees existing on the date hereof), shall not exceed
$15,000,000 at any time outstanding;
(d) loans or advances made by the Borrower to any Subsidiary
or made by any Subsidiary to the Borrower or any other Subsidiary;
provided that the amount of such loans and advances made by Loan
Parties to Subsidiaries that are not Loan Parties pursuant to this
clause (d), together with investments and Guarantees made by Loan
Parties to Subsidiaries that are not Loan Parties pursuant to Section
6.05(c) and (f), shall not exceed $15,000,000 at any time outstanding;
(e) obligations of the Borrower to any Subsidiary, or of any
Subsidiary to the Borrower or any other Subsidiary, arising from the
management and investment of cash on a pooled basis in the ordinary
course of business;
(f) Guarantees constituting Indebtedness permitted by Section
6.01; provided that (i) a Subsidiary shall not Guarantee any
Indebtedness of the Borrower unless (A) such Subsidiary also has
Guaranteed the Obligations pursuant to the Guarantee and Collateral
Agreement and (B) such Guarantee of such Indebtedness provides for the
release and termination thereof, without action by any party, upon any
release or termination of such Guarantee of the Obligations, and (ii)
the aggregate principal amount of Indebtedness of Subsidiaries that are
not Loan Parties that is Guaranteed by any Loan Party pursuant to this
clause (f), together with investments and loans and advances made by
Loan Parties to Subsidiaries that are not Loan Parties pursuant to
Section 6.05(c) and (d), shall not exceed $15,000,000 at any time
outstanding;
(g) Guarantees by the Borrower of accounts payable of
Subsidiaries in the ordinary course of business;
(h) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(i) Permitted Acquisitions for consideration consisting of
common stock of the Borrower, and other Permitted Acquisitions to the
extent the amount or fair market value of the consideration paid by the
Borrower and the Subsidiaries therefor (including Indebtedness assumed
pursuant to Section 6.01(a)(vi)) does not exceed (A) $15,000,000 in the
fiscal year ending December 31, 2002, (B) $35,000,000 in the fiscal
year ending December 31, 2003, (C) $50,000,000 in the fiscal year
ending December 31, 2004, or (D) $50,000,000 in the fiscal year ending
December 31, 2005; provided, however, that the amount set forth for any
fiscal year in clause (A), (B), (C) or (D) above shall be doubled at
any time during such fiscal year when the Leverage Ratio at the end of
the most recent fiscal quarter for which financial statements shall
have been delivered under Section 5.01(a) or (b) shall be less than
3.50 to 1.00);
(j) Equity Interests and debt obligations owned by the
Borrower or any Subsidiary following a Permitted Asset Disposition;
provided that if any Permitted Asset Disposition is made for aggregate
consideration in excess of $20,000,000, then the Equity Interests and
debt obligations acquired in connection therewith may not exceed 20% of
the aggregate consideration;
(k) Equity Interests in Persons owned by the Borrower or any
Subsidiary following the sale of Equity Interests in Subsidiaries in
transactions constituting Permitted Asset Dispositions and other
investments in joint ventures engaged in businesses reasonably related
to the business of the Borrower as of the date of this Agreement;
provided that no investment shall be permitted pursuant to this
clause (k)
48
that, together with all other investments permitted under this clause
(k), would exceed $125,000,000 in the aggregate;
(l) investments in Reverse Repurchase Transactions; and
(m) investments not permitted by any other clause of this
Section; provided that no investment shall be made pursuant to this
clause (m) that, together with all other investments made pursuant to
this clause (m) after the date hereof, would exceed $10,000,000 in the
aggregate.
SECTION 6.06. Asset Sales. The Borrower will not, and will not
permit any of the Subsidiaries to, sell, transfer, lease or otherwise dispose of
any asset, including any Equity Interest, owned by it, nor will the Borrower
permit any of the Subsidiaries to issue any additional Equity Interest in such
Subsidiary, except:
(a) sales of inventory (including parcels in developed
cemetery properties), used or surplus equipment and Permitted
Investments in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a
Subsidiary; provided that any such sales, transfers or dispositions
involving a Subsidiary that is not a Loan Party shall be made in
compliance with Section 6.09;
(c) sales of excess undeveloped land with an aggregate book
value for all such sales not greater than $20,000,000;
(d) sales of investments in connection with Reverse Repurchase
Transactions;
(e) sales, transfers, leases and other dispositions of assets
set forth on Schedule 6.06; and
(f) sales, transfers, leases and other dispositions of assets
(other than accounts receivable or inventory) that are not permitted by
any other clause of this Section 6.06; provided that (i) the aggregate
book value of all assets sold, transferred or otherwise disposed of in
reliance upon this clause (f) shall not exceed $200,000,000 in the
aggregate, (ii) all sales, transfers, leases and other dispositions
permitted pursuant to this clause (e) shall be made for fair value and
(iii) if any such sale, transfer, lease or other disposition is made
for aggregate consideration in excess of $20,000,000, such sale,
transfer, lease or other disposition shall be made for at least 80%
cash consideration.
SECTION 6.07. Swap Agreements. The Borrower will not, and will
not permit any of the Subsidiaries to, enter into any Swap Agreement, except (a)
Swap Agreements entered into to hedge or mitigate risks (including foreign
exchange risks) to which the Borrower or any Subsidiary has actual exposure
(other than in respect of Equity Interests or Indebtedness of the Borrower or
any of its Subsidiaries), and (b) Swap Agreements entered into in order to
effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with
respect to any interest-bearing liability or investment of the Borrower or any
Subsidiary.
SECTION 6.08. Restricted Payments. (a) The Borrower will not,
and will not permit any of the Subsidiaries to, declare or make, or agree to pay
or make, directly or indirectly, any Restricted Payment, except that (i) the
Borrower may declare and pay dividends with respect to its Equity Interests
payable solely in additional shares of its common stock, (ii) Subsidiaries may
declare and pay dividends ratably with respect to their Equity Interests, (iii)
the Borrower may make Restricted Payments pursuant to and in accordance with
stock option plans or other benefit plans for management or employees of the
Borrower and the Subsidiaries; provided that
49
the aggregate amount of all Restricted Payments made pursuant to this clause
(iii) shall not exceed $13,000,000 in the aggregate and (iv) the Borrower may
make Restricted Payments that are not permitted by any other clause of this
Section 6.08; provided that the aggregate amount of all Restricted Payments made
pursuant to this clause (iv) shall not exceed $10,000,000 in the aggregate.
(b) The Borrower will not, nor will it permit any of the
Subsidiaries to, make or agree to make, directly or indirectly, any payment or
other distribution (whether in cash, securities or other property) in respect of
principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, defeasance, acquisition, cancelation or termination of any
Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) regularly scheduled and other mandatory interest and
principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01, including the payment of customary fees, costs and
expenses in connection therewith;
(iv) the payment of secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
(v) the payment of Indebtedness of any Person acquired by the
Borrower or any Subsidiary that exists on the date of such acquisition;
provided that such Person becomes a Subsidiary as a result of such
acquisition;
(vi) (A) prepayments and redemptions of publicly traded
Indebtedness of the Borrower outstanding on the date hereof that by its
terms matures during calendar year 2003 or 2004 and (B) prepayments and
redemptions of publicly traded Indebtedness of the Borrower outstanding
on the date hereof that by its terms matures in calendar year 2005 in
an aggregate principal amount of $100,000,000; provided, however, that
the Borrower may prepay and redeem an unlimited aggregate principal
amount of Indebtedness pursuant to clause (B) above on and after the
date on which the Borrower receives aggregate Net Proceeds of
$200,000,000 (all of which is used to prepay or repurchase publicly
traded Indebtedness pursuant to the terms of this Agreement) in
connection with (1) sales, transfers, leases or other dispositions of
assets of the Borrower or any Subsidiary pursuant to Section 6.06(e)
and (f), (2) issuances of Equity Interests in the Borrower or any
Subsidiary and (3) refinancings of publicly traded Indebtedness of the
Borrower outstanding on the date hereof that matures in calendar year
2005;
(vii) prepayments and redemptions of Indebtedness of the
Borrower or any Subsidiary with proceeds of any issuance and sale of
common stock of the Borrower;
(viii) exchanges of common stock of the Borrower for
Indebtedness of the Borrower or any Subsidiary; and
(ix) other prepayments and redemptions of Indebtedness of the
Borrower or any Subsidiary not permitted by any other clause of this
Section; provided that the aggregate principal amount of Indebtedness
prepaid or redeemed pursuant to this clause (ix) may not exceed
$75,000,000 in the aggregate until the date on which the Borrower
receives aggregate Net Proceeds of $200,000,000 (all of which is used
to prepay or repurchase publicly traded Indebtedness pursuant to the
terms of this Agreement) in connection with (1) sales, transfers,
leases or other dispositions of assets of the Borrower or any
50
Subsidiary, pursuant to Section 6.06(e) and (f), (2) issuances of
Equity Interests in the Borrower or any Subsidiary and (3) refinancings
of publicly traded Indebtedness of the Borrower outstanding on the date
hereof that matures in calendar year 2005, after which date the
aggregate principal amount of Indebtedness prepaid or redeemed pursuant
to this clause (ix) may not exceed $100,000,000 in the aggregate.
SECTION 6.09. Transactions with Affiliates. The Borrower will
not, and will not permit any Subsidiary 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) transactions 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 arm's-length basis from unrelated third
parties, (b) transactions between or among the Borrower and one or more
Subsidiaries that are Loan Parties not involving any other Affiliate, (c) any
investment, loan or advance involving a Subsidiary that is permitted by Section
6.05, (d) any Restricted Payment permitted by Section 6.08 and (e) issuances of
Equity Interests of the Borrower in satisfaction of obligations under retirement
plans.
SECTION 6.10. Restrictive Agreements. The Borrower will not,
and will not permit any of the Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon the ability of any Subsidiary
to pay dividends or other distributions with respect to any shares of its
capital stock or to make or repay loans or advances to the Borrower or any other
Subsidiary; provided that (a) the foregoing shall not apply to restrictions and
conditions imposed by law or by any Loan Document, (b) the foregoing shall not
apply to restrictions and conditions existing on the date hereof identified on
Schedule 6.10 and (c) 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 to be sold and such sale is permitted hereunder.
SECTION 6.11. Fiscal Year. The Borrower will not change its
fiscal year end to a date other than December 31.
SECTION 6.12. Interest Expense Coverage Ratio. The Borrower
will not permit the ratio of (a) Consolidated EBITDA to (b) Consolidated
Interest Expense, in each case for any period of four consecutive fiscal
quarters ending on any date set forth below to exceed the ratio set forth
opposite such date:
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Fiscal Quarter Ending Minimum Ratio
--------------------- -------------
September 30, 2002 2.25 to 1.00
December 31, 2002 2.25 to 1.00
March 31, 2003 2.25 to 1.00
June 30, 2003 2.50 to 1.00
September 30, 2003 2.50 to 1.00
December 31, 2003 2.50 to 1.00
March 31, 2004 3.00 to 1.00
June 30, 2004 3.00 to 1.00
September 30, 2004 3.00 to 1.00
December 31, 2004 3.25 to 1.00
March 31, 2005 3.25 to 1.00
June 30, 2005 3.25 to 1.00
SECTION 6.13. Leverage Ratio. The Borrower will not permit the
Leverage Ratio at the end of any fiscal quarter to exceed the amount set forth
below opposite such fiscal quarter:
Fiscal Quarter Ending Maximum Ratio
--------------------- -------------
September 30, 2002 5.25 to 1.00
December 31, 2002 5.25 to 1.00
March 31, 2003 5.00 to 1.00
June 30, 2003 5.00 to 1.00
September 30, 2003 5.00 to 1.00
December 31, 2003 4.75 to 1.00
March 31, 2004 4.50 to 1.00
June 30, 2004 4.50 to 1.00
September 30, 2004 4.25 to 1.00
December 31, 2004 4.00 to 1.00
March 31, 2005 3.50 to 1.00
June 30, 2005 3.50 to 1.00
52
SECTION 6.14. Capital Expenditures. The Borrower and the
Subsidiaries will not make Capital Expenditures in any fiscal year in an amount
exceeding the amount set forth below opposite such fiscal year:
Fiscal Year Ending Maximum Capital Expenditures
------------------ ----------------------------
December 31, 2002 $140,000,000
December 31, 2003 and thereafter $130,000,000
; provided, however, that the amount of Capital Expenditures in any fiscal year
shall be increased by an amount equal to 50% of the Capital Expenditures
permitted pursuant to the table above for the fiscal year immediately preceding
such fiscal year but not made in such preceding fiscal year, provided that the
amount of Capital Expenditures permitted by the table above for any fiscal year
shall be fully utilized prior to utilization of any such carryforward amount and
no unused amount of Capital Expenditures permitted by the table above in respect
of any fiscal year may be carried forward beyond the next following fiscal year.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) 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 five Business Days;
(c) any representation, warranty or other statement made or
deemed made by or on behalf of the Borrower or any Subsidiary in or in
connection with any Loan Document or any amendment or modification
thereof or waiver thereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with
any Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any material respect
when made or deemed made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03 (with
respect to the Borrower's existence), 5.10(a) or 5.12 or in Article VI;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other
than those specified in clause (a), (b) or (d) of this Article), and
such failure shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent to the Borrower (which
notice will be given at the request of any Lender);
53
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become
due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits the holder or holders of any Material Indebtedness
or any trustee or agent on its or their behalf, without the lapse of
any grace period (other than grace periods that have already expired),
to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption, defeasance or termination thereof,
prior to its scheduled maturity; provided that this clause (g) shall
not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness in accordance with the terms and conditions of this
Agreement;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Material Subsidiary or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material
Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) the Borrower or any Material Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) the Borrower or any Material Subsidiary shall become
unable, admit in writing its inability or fail generally to pay its
debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered against the
Borrower, any Material Subsidiary or any combination thereof and the
same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon
any assets of the Borrower or any Material Subsidiary to enforce any
such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all 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
(i) $10,000,000 in any year or (ii) $25,000,000 for all periods;
(m) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan Party not
to be, a valid and perfected Lien on any
54
Collateral, with the priority required by the applicable Security
Document, except (i) as a result of the sale or other disposition of
the applicable Collateral in a transaction permitted under the Loan
Documents or (ii) as a result of the Administrative Agent's failure to
maintain possession of any stock certificates or other instruments
delivered to it;
(n) the Borrower or any Subsidiary shall have received a
notice, order or judgment from or of a Governmental Authority that
temporarily or permanently suspends a material part of the operations
of the business of the Borrower or a Subsidiary (due to a violation of
applicable law or otherwise), which suspension could reasonably be
expected to result in a Material Adverse Effect, or the Borrower or any
Subsidiary shall otherwise, other than in the ordinary course of
business (as determined by past practices), suspend all or any part of
its operations material to the conduct of the business of the Borrower
and the Subsidiaries, taken as a whole, for a period of more than 30
days;
(o) there shall occur any loss of any permits, licenses,
authorizations, certifications or approvals from any Federal, state or
local Governmental Authority that, either individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect;
(p) the Borrower or any Subsidiary, or any of its assets,
properties or businesses, shall have become the subject of an
investigation or proceeding commenced by a Governmental Authority which
investigation or proceeding could reasonably be expected to result in a
Material Adverse Effect; or
(q) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, 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, and (iii) demand cash
collateral with respect to any Letters of Credit pursuant to Section 2.05(j);
and in case of any event with respect to the Borrower described in clause (h) or
(i) of this Article, the Commitments shall automatically terminate, the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, and the Borrower's obligation to provide
cash collateral for Letters of Credit shall become effective, in each case
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
ARTICLE VIII
The Agents
Each of the Lenders hereby irrevocably appoints the Agents as
its agents and authorizes the Agents to take such actions on its behalf and to
exercise such powers as are
55
delegated to the Agents by the terms hereof and of the other Loan Documents,
together with such actions and powers as are reasonably incidental thereto.
The bank or banks serving as the Agents hereunder shall have
the same rights and powers in their capacity as Lenders as any other Lender and
may exercise the same as though they were not Agents, and such bank or banks and
their Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if they were not Agents hereunder.
The Agents shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing (a) the Agents shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) the
Agents shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Agents are required to exercise in writing by the
Required Lenders, and (c) except as expressly set forth herein, the Agents shall
not have any duty to disclose, and shall not be liable for the failure to
disclose, any information communicated to the Agents by or relating to the
Borrower or any Subsidiary. The Agents shall not be liable for any action taken
or not taken by them with the consent or at the request of the Required Lenders
or the Lenders, as the case may be, or in the absence of their own gross
negligence or wilful misconduct. In addition, the Agents shall be deemed not to
have knowledge of any Default unless and until written notice thereof is given
to the Agents by the Borrower or a Lender, and the Agents shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement, (ii)
the contents of any certificate, report or other document delivered hereunder or
in connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article III or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Agents.
The Agents 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 believed by them to be genuine
and to have been signed or sent by the proper Person. The Agents also may rely
upon any statement made to them orally or by telephone and believed by them to
be made by the proper Person, and shall not incur any liability for relying
thereon. The Agents may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by them with
reasonable care, and shall not be liable for any action taken or not taken by
them in accordance with the advice of any such counsel, accountants or experts.
The Agents may perform any and all their duties and exercise
their rights and powers by or through any one or more sub-agents appointed by
the Agents. The Agents and any such sub-agent may perform any and all their
duties and exercise their rights and powers through their respective Affiliates.
The exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Affiliates of the Agents and any such sub-agent.
Subject to the appointment and acceptance of a successor Agent
as provided below, either Agent may resign at any time by notifying the Lenders
and the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor with the Borrower's written consent (which shall
not be unreasonably withheld or delayed and shall not be required from the
Borrower if an Event of Default has occurred and is continuing). If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders, with the
Borrower's written consent (which shall
56
not be unreasonably withheld or delayed and shall not be required if an Event of
Default has occurred and is continuing), appoint a successor Agent which shall
be a bank or an Affiliate thereof, in each case with a net worth of at least
$1,000,000,000 and an office in New York, New York. Upon the acceptance of its
appointment as Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After an Agent's resignation hereunder, the provisions of
this Article and Section 9.03 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Agents 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 Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
Notwithstanding any other provision contained herein, the
Syndication Agent shall, in its capacity as such, have no responsibilities under
this Agreement or the other Loan Documents.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and
other communications expressly permitted to be given by telephone (and subject
to paragraph (b) below), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy or e-mail,
as follows:
(i) if to the Borrower, to it at 0000 Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxx 00000, Attention of Treasurer (Telecopy No. 000-000-0000; E-Mail
Address xxxxx.xxxxxxx@xxx-xx.xxx);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank,
Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx Xxxxxxx (Telecopy No.
(000) 000-0000; E-Mail Address xxxxxxx.xxxxxxx@xxxxxxxx.xxx);
(iii) if to the Issuing Bank, to it at JPMorgan Chase Bank,
Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx Xxxxxxx (Telecopy No.
(000) 000-0000; E-Mail Address xxxxxxx.xxxxxxx@xxxxxxxx.xxx) and a copy
to JPMorgan Chase Bank, 000 Xxxx Xxxxxx, 0-XXXX-00, Xxxxxxx, XX 00000,
Attention of Xxxxx Xxxxxxx (Telecopy No. 000- 000-0000; E-Mail Address
xxxxx.xxxxxxx@xxxxxxxx.xxx) and Attention of Xxxxx Xxxx (Telecopy No.
000-000-0000; E-Mail Address xxxxx.x.xxxx@xxxxxxxx.xxx).
(iv) if to the Swingline Lender, to it at JPMorgan Chase Bank,
Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx Xxxxxxx (Telecopy No.
(000) 000-0000; E-Mail Address xxxxxxx.xxxxxxx@xxxxxxxx.xxx) and a copy
to JPMorgan Chase Bank, 000 Xxxx Xxxxxx, 0-XXXX-00, Xxxxxxx, XX 00000,
Attention of Xxxxx Xxxxxxx (Telecopy No. 713-
57
216-6004; E-Mail Address xxxxx.xxxxxxx@xxxxxxxx.xxx) and Attention of
Xxxxx Xxxx (Telecopy No. 000-000-0000; E-Mail Address
xxxxx.x.xxxx@xxxxxxxx.xxx); and
(v) if to any other Lender, to it at its address (or telecopy
number or e-mail address) set forth in its Administrative
Questionnaire.
(b) Notices and other communications to the Lenders hereunder
may be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agent; provided that the foregoing
shall not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address, telecopy number
or e-mail address for notices and other communications hereunder by notice to
the other parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be deemed
to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent, the Issuing Bank or any Lender in exercising any right
or power hereunder 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 a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Bank and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
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 issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or by the Borrower
and the Administrative Agent with the consent of the Required Lenders; provided
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) 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) postpone the date of any mandatory prepayment or any scheduled payment of
the principal amount of any Loan or LC Disbursement, or any interest thereon, or
any fees payable hereunder (including by way of any change in the manner of
computation in any financial ratio (including any change in any applicable
defined term) that would result in the reduction of any interest or fee rate),
or reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.17(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) release any Loan Party from its Guarantee
under the Guarantee and Collateral Agreement (except as expressly provided in
Section 9.13 and the Guarantee and Collateral Agreement), or limit its liability
in respect of such Guarantee, without the written consent of each Lender, (vi)
release all or any substantial part of the Collateral from the Liens of the
Security Documents (except as expressly provided in Section 9.13 and the
applicable Security Document), without the written consent of each Lender or
(vii)
58
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, or waive any condition set forth
in Section 4.01 hereof without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent, the Issuing Bank or the Swingline
Lender hereunder without the prior written consent of the Administrative Agent,
the Issuing Bank or the Swingline Lender, as the case may be. Notwithstanding
the foregoing, any provision of this Agreement may be amended by an agreement in
writing entered into by the Borrower, the Required Lenders and the
Administrative Agent if (i) by the terms of such agreement the Commitment of
each Lender not consenting to the amendment provided for therein shall terminate
upon the effectiveness of such amendment and (ii) at the time such amendment
becomes effective, each Lender not consenting thereto receives payment in full
of the principal of and interest accrued on each Loan made by it and all other
amounts owing to it or accrued for its account under this Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Agents, the Syndication Agent and their Affiliates, including the reasonable
fees, charges and disbursements of counsel for the Agents and the Syndication
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Agents, the Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the Agents, 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
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Borrower shall indemnify the Agents, the Syndication
Agent, the Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds thereof (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) any actual or alleged presence or release of Hazardous
Materials on or from any property currently or formerly owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory 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 wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to either Agent, the Issuing Bank or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to such Agent, the Issuing Bank or the Swingline
59
Lender, as the case may be, such Lender's Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against such Agent, the Issuing Bank or the
Swingline Lender in its capacity as such.
(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 direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 9.04. Successors and Assigns. (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 (including
any Affiliate of the Issuing Bank that issues any Letter of Credit), except that
(i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. 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 (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b)(i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may 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 and the Loans at the time owing to it); with the prior
written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower; provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund (as defined below) or, if an Event of Default
has occurred and is continuing, any other assignee; and
(B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment to an assignee
that is a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender, the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $3,000,000 or, if
smaller, the entire remaining amount of the assigning Lender's
Commitment unless each of the Borrower and the Administrative Agent
shall otherwise consent, provided (i) that no such consent of the
Borrower shall be required if an Event of Default has occurred and is
continuing and (ii) in the event of concurrent assignments to two or
more assignees that are Affiliates of one another, or to two or more
Approved Funds managed by the same investment advisor or by affiliated
investment advisors, all such concurrent assignments shall be
aggregated in determining compliance with this subsection;
60
(B) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and
obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500; provided that in the event
of concurrent assignments to two or more assignees that are Affiliates
of one another, or to two or more Approved Funds managed by the same
investment advisor or by affiliated investment advisors, only one such
fee shall be payable;
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire; and
(E) in the case of an assignment by a Lender to a CLO (as
defined below) managed by such Lender or by an Affiliate of such
Lender, unless such assignment (or an assignment to a CLO managed by
the same manager or an Affiliate of such manager) shall have been
approved by the Borrower (the Borrower hereby agreeing that such
approval, if requested, will not be unreasonably withheld or delayed),
the assigning Lender shall retain the sole right to approve any
amendment, modification or waiver of any provision of this Agreement,
except that the Assignment and Assumption between such Lender and such
CLO may provide that such Lender will not, without the consent of such
CLO, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such CLO.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 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 (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans and LC Disbursements owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent, the Issuing
Bank and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the
Register. No assignment shall
61
be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(vi) By executing and delivering an Assignment and Assumption,
the assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment and the outstanding balances of its Loans, in each case without
giving effect to assignments thereof that have not become effective, are as set
forth in such Assignment and Assumption; (ii) except as set forth in clause (i)
above, such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any of the foregoing, or the financial condition of the Loan Parties or the
performance or observance by the Loan Parties of any of their obligations under
this Agreement or under any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; (iii) each of the assignee and
the assignor represents and warrants that it is legally authorized to enter into
such Assignment and Assumption; (iv) such assignee confirms that it has received
a copy of this Agreement, together with copies of any amendments or consents
entered into prior to the date of such Assignment and Assumption and copies of
the most recent financial statements delivered pursuant to Section 5.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Assumption; (v)
such assignee will independently and without reliance upon the Agents, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (vi) such
assignee appoints and authorizes the Agents to take such action as agents on its
behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to them by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all the obligations
that by the terms of this Agreement are required to be performed by it as a
Lender.
(c)(i) Any Lender may, without the consent of the Borrower,
the Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.17(c) as though it were a Lender.
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(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.14 or 2.16 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.16
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.16(e) as though it were a Lender.
(d) 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 any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05. 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 Sections 2.14, 2.15, 2.16 and 9.03 and
Article VIII 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.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations
at
63
any time owing by such Lender or Affiliate to or for the credit or the account
of the Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or 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 or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement 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 against the Borrower or its properties in
the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) 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) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Agents, the Issuing
Bank and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that
64
Information may be disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, "Information" means all information
received from the Borrower relating to the Borrower or its business, 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. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 9.13. Release of Guarantors and Collateral. (a)
Notwithstanding any contrary provision herein or in any other Loan Document, if
the Borrower shall request the release under the Guarantee and Collateral
Agreement or any other Security Document of any Subsidiary or any Collateral to
be sold or otherwise disposed of (including through the sale or disposition of
any Subsidiary owning any such Subsidiary or Collateral) to a Person other than
the Borrower or a Subsidiary in a transaction permitted under the terms of this
Agreement and shall deliver to the Collateral Agent a certificate to the effect
that such sale or other disposition and the application of the proceeds thereof
will comply with the terms of this Agreement, the Collateral Agent, if satisfied
that the applicable certificate is correct, shall, without the consent of any
Lender, and at the expense of the Borrower, execute and deliver all such
instruments, releases, financing statements or other agreements, and take all
such further actions, as shall be necessary to effectuate the release of such
Subsidiary or such Collateral substantially simultaneously with or at any time
after the completion of such sale or other disposition. Any such release shall
be without recourse to, or representation or warranty by, the Collateral Agent
and shall not require the consent of any Lender.
(b) At such time as the Commitments have expired or
terminated, the principal of and interest on each Loan and all fees payable
hereunder have been paid in full, all Letters of Credit have expired or
terminated (or shall have been cash collateralized on terms approved in writing
by the applicable Issuing Banks) and all LC Disbursements shall have been
reimbursed in full, the Liens created by the Security Documents shall be
automatically released and the Collateral Agent shall, without the consent of
any Lender, and at the expense of the Borrower, execute and deliver all such
instruments, and take all such other actions, as shall be necessary to
effectuate the release of the Collateral subject to such Liens.
(c) Without limiting the provisions of Section 9.03, the
Borrower shall reimburse the Collateral Agent for all costs and expenses,
including attorneys' fees and disbursements, reasonably incurred by it in
connection with any action contemplated by this Section.
SECTION 9.14. 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 are treated as
interest on such Loan under applicable law (collectively,
65
the "Charges"), shall exceed the maximum lawful rate (the "Maximum Rate") which
may be contracted for, charged, taken, received or reserved by the 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 Section 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
Alternate Base Rate to the date of repayment, shall have been received by such
Lender.
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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.
SERVICE CORPORATION
INTERNATIONAL,
by /s/ XXXXX X. XXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President Treasurer
JPMORGAN CHASE BANK, individually and
as Administrative Agent,
by /s/ XXXXX XXXXXXX
------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A., individually
and as Syndication Agent,
by /s/ XXXXXXX X. XXXXXXX, XX.
------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Managing Director
CREDIT LYONNAIS, individually and as
Co-Documentation Agent,
by /s/ XXXXXX XXX
------------------------------
Name: Xxxxxx Xxx
Title: Senior Vice President
XXXXXX COMMERCIAL PAPER INC.,
individually and as Co-Documentation
Agent,
by /s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
67
XXXXXXX XXXXX CAPITAL
CORPORATION, individually and as Co-
Documentation Agent,
by /s/ XXXXXXX X. X'XXXXX
----------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Vice President
SIGNATURE PAGE TO
THE
SERVICE CORPORATION
INTERNATIONAL CREDIT AGREEMENT
DATED AS OF JULY 24, 2002
Name of Institution: Southwest Bank of Texas, N.A.
-----------------------------
by /s/ XXXXXXX XXXXX
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President