CREDIT AGREEMENT dated as of June 9, 2006 among SELECT COMFORT CORPORATION, The Subsidiary Borrowers Party Hereto, The Lenders Party Hereto, JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent, and BANK OF AMERICA, N.A., as Syndication...
Exhibit
10.1
dated
as
of
June
9,
2006
among
SELECT
COMFORT CORPORATION,
The
Subsidiary Borrowers Party Hereto,
The
Lenders Party Hereto,
JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION,
as
Administrative Agent,
and
BANK
OF
AMERICA, N.A.,
as
Syndication Agent
__________________________
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.,
as
Sole
Bookrunner and Sole Lead Arranger
TABLE
OF
CONTENTS
Page
|
ARTICLE
I Definitions
SECTION
1.01. Defined Terms
SECTION
1.02. Classification of Loans and Borrowings
SECTION
1.03. Terms Generally
SECTION
1.04. Accounting Terms; GAAP
SECTION
1.05. Foreign Currency Calculations
SECTION
1.06. Redenomination of Certain Foreign Currencies
ARTICLE
II The
Credits
SECTION
2.01. Commitments
SECTION
2.02. Loans and Borrowings
SECTION
2.03. Requests for Revolving Borrowings
SECTION
2.04. Swingline Loans
SECTION
2.05. Letters of Credit
SECTION
2.06. Funding of Borrowings
SECTION
2.07. Interest Election
SECTION
2.08. Termination, Increase and Reduction of Commitments
SECTION
2.09. Repayment of Loans; Evidence of Debt
SECTION
2.10. Prepayment of Loans
SECTION
2.11. Fees
SECTION
2.12. Interest
SECTION
2.13. Alternate Rate of Interest
SECTION
2.14. Increased Costs
SECTION
2.15. Break Funding Payments
SECTION
2.16. Taxes
SECTION
2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs
SECTION
2.18. Mitigation Obligations; Replacement of Lenders
SECTION
2.19. Designation of Subsidiary Borrowers
SECTION
2.20. Additional Reserve Costs
ARTICLE
III Representations
and Warranties
SECTION
3.01. Organization; Powers
SECTION
3.02. Authorization; Enforceability
SECTION
3.03. Governmental Approvals; No Conflicts
SECTION
3.04. Financial Condition; No Material Adverse Change
SECTION
3.05. Properties
SECTION
3.06. Litigation and Environmental Matters
SECTION
3.07. Compliance with Laws and Agreements
SECTION
3.08. Investment and Holding Company Status
SECTION
3.09. Taxes
SECTION
3.10. ERISA
SECTION
3.11. Disclosure
SECTION
3.12. Subsidiaries
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SECTION
3.13. Regulation U
ARTICLE
IV Conditions
SECTION
4.01. Effective Date
SECTION
4.02. Each Credit Event
SECTION
4.03. Designation of a Subsidiary Borrower
ARTICLE
V Affirmative
Covenants
SECTION
5.01. Financial Statements; Ratings Change and Other
Information
SECTION
5.02. Notices of Material Events
SECTION
5.03. Existence; Conduct of Business
SECTION
5.04. Payment of Obligations
SECTION
5.05. Maintenance of Properties; Insurance
SECTION
5.06. Books and Records; Inspection Rights
SECTION
5.07. Compliance with Laws
SECTION
5.08. Use of Proceeds and Letters of Credit
SECTION
5.09. Additional Guarantors
ARTICLE
VI Negative
Covenants
SECTION
6.01. Indebtedness
SECTION
6.02. Liens
SECTION
6.03. Fundamental Changes
SECTION
6.04. Investments, Loans, Advances, Guarantees and
Acquisitions
SECTION
6.05. Swap Agreements
SECTION
6.06. Restricted Payments
SECTION
6.07. Transactions with Affiliates
SECTION
6.08. Restrictive Agreements
SECTION
6.09. Minimum Interest Coverage Ratio
SECTION
6.10. Maximum Leverage Ratio
SECTION
6.11. Fiscal Year
ARTICLE
VII Events
of Default
ARTICLE
VIII The
Administrative Agent
ARTICLE
IX Miscellaneous
SECTION
9.01. Notices
SECTION
9.02. Waivers; Amendments
SECTION
9.03. Expenses; Indemnity; Damage Waiver
SECTION
9.04. Successors and Assigns
SECTION
9.05. Survival
SECTION
9.06. Counterparts; Integration; Effectiveness
SECTION
9.07. Severability
SECTION
9.08. Right of Setoff
SECTION
9.09. Governing Law; Jurisdiction; Consent to Service of
Process
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SECTION
9.10. WAIVER OF JURY TRIAL
SECTION
9.11. Headings
SECTION
9.12. Confidentiality
SECTION
9.13. Interest Rate Limitation
SECTION
9.14. USA PATRIOT Act
SECTION
9.15. Conversion of Currencies
SECTION
9.16. Appointment
ARTICLE
X Guaranty
SECTION
10.01. Guaranty
SECTION
10.02. Waivers
SECTION
10.03. Guaranty Absolute
SECTION
10.04. Subrogation
SECTION
10.05. Limitation on Obligations.
SECTION
10.06. Acceleration
SECTION
10.07. Termination Date
SECTION
10.08. Foreign Currency
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SCHEDULES:
Schedule
1.01 -- Pricing Schedule
Schedule
2.01 -- Commitments
Schedule
3.06 -- Disclosed Matters
Schedule
3.12 -- Subsidiaries
Schedule
6.01 -- Existing Indebtedness
Schedule
6.02 -- Existing Liens
Schedule
6.08 -- Existing Restrictions
EXHIBITS:
Exhibit
A
-- Form of Assignment and Assumption
Exhibit
B
-- Form of Borrowing Subsidiary Agreement
Exhibit
C
-- Mandatory Cost Rate
Exhibit
D
-- Form of Borrowing Subsidiary Termination
iii
CREDIT
AGREEMENT dated as of June 9, 2006, among SELECT COMFORT CORPORATION, the
Subsidiary Borrowers party hereto, the LENDERS party hereto, JPMORGAN CHASE
BANK, NATIONAL ASSOCIATION, as Administrative Agent and BANK OF AMERICA, N.A.,
as Syndication Agent.
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.
“Acquired
Entity or Business”
means
either (a) the assets constituting a business, division, facility, product
line
or line of business of any Person not already a Subsidiary or (b) 80% or more
of
the capital stock of any such Person, which Person shall, as a result of such
acquisi-tion or merger, either (i) become a Wholly-Owned Subsidiary of the
Company (or shall be merged with and into the Company or a Subsidiary Guarantor,
with the Company or such Subsidiary Guarantor being the surviving Person) or
(ii) become a Controlled Subsidiary.
“Adjusted
LIBO Rate”
means,
with respect to any Eurocurrency Borrowing for any Interest Period, an interest
rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal
to
(a) if denominated in Dollars, (i) the LIBO Rate for such Interest Period
multiplied by (ii) the Statutory Reserve Rate, and (b) if denominated in a
Foreign Currency, the LIBO Rate for such Interest Period.
“Administrative
Agent”
means
JPMorgan, in its capacity as administrative agent for the Lenders
hereunder.
“Administrative
Questionnaire”
means
an Administrative Questionnaire in a form supplied by the Administrative
Agent.
“Advance”
means
any Loan or any Letter of Credit.
“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.
“Agreement”
means
this Credit Agreement, as amended, restated, modified or supplemented from
time
to time.
“Agreement
Currency”
shall
have the meaning assigned to such term in Section
9.15(b).
“Alternate
Base Rate”
means,
for any day, a rate per annum equal to the greatest of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus ½ 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
Borrower”
means,
with respect to any Loan, Letter of Credit or other amount owing hereunder
or
any matter pertaining to such Loan or other amount, whichever of the Borrowers
is the primary obligor on such Loan, Letter of Credit or other
amount.
“Applicable
Creditor”
shall
have the meaning assigned to such term in Section
9.15(b).
“Applicable
Lending Installation”
is
defined in Section
2.02(e).
“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 Eurocurrency Loan or with respect to the
facility fees payable hereunder, the applicable rate per annum set forth on
Schedule
1.01
under
the caption “Eurocurrency Spread” or “Facility Fee Rate”, as the case may be,
based upon the Leverage Ratio.
“Approved
Fund”
has
the
meaning assigned to such term in Section
9.04.
“Asset
Disposition”
means
any sale, transfer or other disposition of any asset of the Company or any
Subsidiary in a single transaction or in a series of related transactions (other
than (a) the sale of inventory or products in the ordinary course or the sale
of
obsolete or worn out property in the ordinary course, (b) the making of payments
for property and services used by the Company or any Subsidiary in the ordinary
course of business and (c) the sale of Permitted Investments in the ordinary
course of business).
“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.
“Availability
Period”
means
the period from and including the Effective Date to but excluding the earlier
of
the Maturity Date and the date of termination of the Commitments.
“Board”
means
the Board of Governors of the Federal Reserve System of the United States of
America.
“Borrowers”
means
the Company and each Subsidiary Borrower.
2
“Borrowing”
means
(a) Revolving Loans of the same Type, made, converted or continued on the same
date to the same Applicable Borrower and, in the case of Eurocurrency Loans,
as
to which a single Interest Period is in effect, or (b) a Swingline
Loan.
“Borrowing
Request”
means
a
request by the Company for a Revolving Borrowing in accordance with Section
2.03.
“Borrowing
Subsidiary Agreement”
means
a
Borrowing Subsidiary Agreement substantially in the form of Exhibit B.
“Borrowing
Subsidiary Termination”
means
a
Borrowing Subsidiary Termination substantially in the form of Exhibit C.
“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 Eurocurrency Loan, the term “Business
Day”
shall
also exclude any day on which banks are not open for dealings in deposits in
the
currency in which such Eurocurrency Loan is denominated in the London interbank
market or any other relevant jurisdiction.
“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.
“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 and the rules of the Securities and Exchange Commission thereunder
as in effect on the date hereof) of Equity Interests representing more than
30%
of the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of the Company; or (b) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Company by Persons
who were neither (i) nominated by the board of directors of the Company nor
(ii)
appointed by directors so nominated.
“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 the Issuing Bank
(or,
for purposes of Section
2.14(b),
by any
lending office of such Lender or by such Lender’s or the 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.
“Charges”
has
the
meaning set forth in Section
9.13.
“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.
3
“Code”
means
the Internal Revenue Code of 1986, as amended from time to time.
“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 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,
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 $100,000,000.
“Company”
means
Select Comfort Corporation, a Minnesota corporation.
“Control”
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto.
“Controlled
Subsidiary”
of
a
Person means (a) any subsidiary at least 80% of the outstanding voting
securities of which shall at the time be owned or Controlled, directly or
indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such
Person, or by such Person and one or more Wholly-Owned Subsidiaries of such
Person, or (b) any partnership, limited liability company, association, joint
venture or similar business organization at least 80% of the ownership interests
having ordinary voting power of which shall at the time be so owned or
Controlled.
“Credit
Card Program Agreement”
means
that certain Amended and Restated Private Label Consumer Credit Card Program
Agreement dated as of December 14, 2005 among GE Money Bank, the Company and
Select Comfort Retail Corporation (the “Current
GE Agreement”)
and
any amendment, supplement, extension or replacement thereof, the terms of which
relating to the financial obligations of the Company and its Subsidiaries are
substantially similar to those set forth in the Current GE
Agreement.
“Credit
Documents”
means
this Agreement, each promissory note, if any, delivered pursuant to Section
2.09(e),
each
Borrowing Subsidiary Agreement and the Subsidiary Guaranty.
“Credit
Party”
means
each Borrower and each Subsidiary Guarantor.
“Default”
means
any event or condition which constitutes an Event of Default or which upon
notice, lapse of time or both would, unless cured or waived, become an Event
of
Default..
“Disclosed
Matters”
means
the actions, suits and proceedings and the environmental matters disclosed
in
Schedule
3.06.
“Dollars”
or
“$”
refers
to lawful money of the United States of America.
4
“Dollar
Equivalent”
means,
on any date of determination (a) with respect to any amount in Dollars, such
amount, and (b) with respect to any amount in any Foreign Currency, the
equivalent in Dollars of such amount, determined by the Administrative Agent
pursuant to Section
1.05
using
the Exchange Rate with respect to such Foreign Currency at the time in effect
under the provisions of such Section.
“Domestic
Subsidiary”
means
each Subsidiary that is incorporated under the laws of the United States, any
State thereof or the District of Columbia.
“EBITDA”
means,
for any applicable computation period, the Company’s and Subsidiaries’ Net
Income on a consolidated basis from continuing operations, plus,
to the
extent included in the determination of Net Income, (a) income and franchise
taxes paid or accrued during such period, (b) Total Interest Expense for such
period, amortization and depreciation deducted in determining Net Income for
such period and (c) non-cash equity compensation expense deducted in determining
Net Income in such period. For purposes of the computation of the Leverage
Ratio
for any period during which an Acquired Entity or Business was acquired, EBITDA
shall be calculated on a pro forma basis as if such Acquired Entity or Business
had been acquired (and any related Indebtedness incurred) on the first day
of
such computation period.
“EBITDAR”
means,
for any applicable computation period, EBITDA for such period, plus,
to the
extent included in the determination of Net Income, Rentals for such period.
For
purposes of the computation of the Interest Coverage Ratio for any period during
which an Acquired Entity or Business was acquired, EBITDAR shall be calculated
on a pro forma basis as if such Acquired Entity or Business had been acquired
(and any related Indebtedness incurred) on the first day of such computation
period.
“Effective
Date”
means
the date on which the conditions specified in Section
4.01
are
satisfied (or waived in accordance with Section
9.02).
“EMU
Legislation”
means
the legislative measures of the European Union for the introduction of,
changeover to or operation of the euro in one or more member states of the
European Union.
“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 management, release or
threatened release of any Hazardous Material or to health and safety
matters.
“Environmental
Liability”
means
any liability, contingent or otherwise (including any liability for damages,
costs of environmental remediation, fines, penalties or indemnities), of the
Company or any Subsidiary directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials,
(c)
exposure to any Hazardous Materials, (d) the release or threatened release
of
any Hazardous Materials into the environment or (e) any contract, agreement
or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
5
“Equity
Interests”
means
shares of capital stock, partnership interests, membership interests in a
limited liability company, beneficial interests in a 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
Company, 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 a 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 Company or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (e) the receipt
by the Company or any ERISA Affiliate from the PBGC or a plan administrator
of
any notice relating to an intention to terminate any Plan or Plans or to appoint
a trustee to administer any Plan; (f) the incurrence by the Company or any
of
its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Company or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
“Euro”
or
“€”
means
the single currency of the European Union as constituted by the treaty
establishing the European Community being the Treaty of Rome, as amended from
time to time and as referred to in the EMU Legislation.
“Eurocurrency”,
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.
“Evergreen
LC”
means a
Letter of Credit which includes a provision which automatically extends the
expiry date thereof for a specified period unless, within some period of time
in
advance of the then applicable expiry date thereof, the Administrative Agent
gives notice to the beneficiary to the effect that such Letter of Credit will
not be so extended.
6
“Exchange
Rate”
means
on any day, for purposes of determining the Dollar Equivalent of any currency
other than Dollars, the rate at which such currency may be exchanged into
Dollars at the time of determination on such day on the Reuters Currency pages,
if available, for such currency. In the event that such rate does not appear
on
any Reuters Currency pages, the Exchange Rate shall be determined by reference
to such other publicly available service for displaying exchange rates as may
be
agreed upon by the Administrative Agent and the Borrowers, or, in the absence
of
such an agreement, such Exchange Rate shall instead be the arithmetic average
of
the spot rates of exchange of the Administrative Agent in the market where
its
foreign currency exchange operations in respect of such currency are then being
conducted, at or about such time as the Administrative Agent shall elect after
determining that such rates shall be the basis for determining the Exchange
Rate, on such date for the purchase of Dollars for delivery two Business Days
later; provided
that if
at the time of any such determination, for any reason, no such spot rate is
being quoted, the Administrative Agent may use any reasonable method it deems
appropriate to determine such rate, and such determination shall be conclusive
absent manifest error.
“Exchange
Rate Date”
means,
if on such date any outstanding Loan is (or any Loan that has been requested
at
such time would be) denominated in a currency other than Dollars, each of:
(a)
the
last Business Day of each calendar month,
(b)
if an
Event of Default has occurred and is continuing, any Business Day designated
as
an Exchange Rate Date by the Administrative Agent in its sole discretion, and
(c)
each
date (with such date to be reasonably determined by the Administrative Agent)
that is on or about the date of (i) a Borrowing Request or an Interest Election
Request with respect to any Revolving Borrowing or (ii) each request for the
issuance, amendment, renewal or extension of any Letter of Credit or Swingline
Loan.
“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 Borrowers hereunder, (a) franchise taxes or income 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 in which any of the Borrowers is organized or in which its
principal office is located and (c) in the case of a Foreign Lender (other
than
an assignee pursuant to a request by the Company 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 Borrowers with respect to such withholding tax
pursuant to Section
2.16(a).
7
“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, vice
president-finance or controller of the Company.
“Foreign
Currency”
means
with respect to any Revolving Loan, Euros, Sterling and any other currency
acceptable to the Administrative Agent and each of the Lenders that is freely
available, freely transferable and freely convertible into Dollars and in which
dealings in deposits are carried on in the London interbank market.
“Foreign
Lender”
means
any Lender that is organized under the laws of a jurisdiction other than that
in
which the Company is organized. 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.
“Foreign
Subsidiary”
means
any Subsidiary that is incorporated or organized under the laws of any
jurisdiction other than the United States of America, any State thereof or
the
District of Columbia.
“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 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
8
Guarantee
shall not include endorsements for collection or deposit in the ordinary course
of business. The amount of any Guarantee made by any guarantor shall be deemed
to be the lower of (a) an amount equal to the stated or determinable amount
of
the primary obligation in respect of which such Guarantee is made and (b) the
maximum amount for which such guarantor may be liable pursuant to the terms
of
the instrument embodying such Guarantee, unless (in the case of a primary
obligation that is not Indebtedness) such primary obligation and the maximum
amount for which such guarantor may be liable are not stated or determinable,
in
which case the amount of such Guarantee shall be such guarantor’s maximum
reasonably anticipated liability in respect thereof as determined by the Company
in good faith.
“Hazardous
Materials”
means
all explosive or radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances
or
wastes of any nature regulated pursuant to any Environmental Law.
“Indebtedness”
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 upon which interest charges
are
customarily paid, (d) all obligations of such Person under conditional sale
or
other title retention agreements relating to property acquired by such Person,
(e) 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), (f) 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, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters
of
guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances and (k) all Off-Balance Sheet Liabilities. The
Indebtedness of any Person (x) 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,
and
(y) shall exclude any liability or obligations arising from a breach of a
representation, warranty or other contractual obligation (other than a
Guarantee) arising under the Credit Card Program Agreement.
“Indemnified
Taxes”
means
Taxes other than Excluded Taxes.
“Information
Memorandum”
means
the Confidential Information Memorandum dated April 21, 2006 relating to the
Company and the Transactions.
“Interest
Coverage Ratio”
means
as of the end of any fiscal quarter of the Company, the ratio of (a) EBITDAR
to
(b) the sum of Total Interest Expense plus Rentals, in each case for the period
of four fiscal quarters then ended, computed on a consolidated basis for the
Company and its Subsidiaries.
9
“Interest
Election Request”
means
a
request by the Company to convert or continue a Revolving 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 Eurocurrency
Borrowing, the last day of the Interest Period applicable to the Borrowing
of
which such Loan is a part and, in the case of a Eurocurrency 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 Eurocurrency 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 (or, with the consent of each
Lender, nine or twelve months) thereafter, as the Company 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 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 thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
“Issuing
Bank”
means
JPMorgan, 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
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.
“JPMorgan”
means
JPMorgan Chase Bank, National Association, a national banking association,
and
its successors.
“LC
Disbursement”
means
a
payment made by the Issuing Bank pursuant to a Letter of Credit.
“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 Company
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 Section
2.08(d)
or an
Assignment and
10
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
any letter of credit issued pursuant to this Agreement.
“Leverage
Ratio”
means,
at any time, the ratio of Total Debt at such time to EBITDA for the most
recently completed four fiscal quarters of the Company, computed on a
consolidated basis for the Company and its Subsidiaries.
“LIBO
Rate”
means,
with respect to any Eurocurrency Borrowing for any Interest Period, the rate
per
annum determined by the Administrative Agent at approximately 11:00 a.m., London
time, on the Quotation Day for such Interest Period by reference to the British
Bankers’ Association Interest Settlement Rates for deposits in the currency of
such Borrowing (as reflected on the applicable Telerate screen page), for a
period equal to such Interest Period; provided that, to the extent that an
interest rate is not ascertainable pursuant to the foregoing provisions of
this
definition, the “LIBO Rate” shall be the average (rounded upward, if necessary,
to the next 1/100 of 1%) determined by the Administrative Agent of the
respective interest rates per annum reported to the Administrative Agent by
JPMorgan and each other Lender selected by the Administrative Agent (JPMorgan
and each such other Lender, the “Reference Lenders”) as the rate at which each
Reference Lender offers to place deposits in the currency of such Borrowing
for
such Interest Period to first-class banks in the London interbank market at
approximately 11:00 a.m., London time, on the Quotation Day for 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.
“Loans”
means
the loans made by the Lenders to the Borrowers pursuant to this
Agreement.
“Local
Time”
means
(a) with respect to a Loan or Borrowing denominated in Dollars, New York City
time and (b) with respect to a Loan or Borrowing denominated in any Foreign
Currency, London time.
“Material
Adverse Effect”
means
a
material adverse effect on (a) the business, assets, operations, prospects
or
condition, financial or otherwise, of the Company and the Subsidiaries taken
as
a whole, (b) the ability of any Credit Party to perform any of its obligations
under the Credit Documents or (c) the rights of or benefits available to the
Lenders under the Credit Documents.
“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 Company and
its Subsidiaries in an aggregate principal amount exceeding $10,000,000. For
purposes of determining Material Indebtedness, the “principal amount” of the
obligations of the Company or any Subsidiary in respect of any Swap Agreement
at
any time shall be the
11
maximum
aggregate amount (giving effect to any netting agreements) that the Company
or
such Subsidiary would be required to pay if such Swap Agreement were terminated
at such time.
“Material
Subsidiary”
means
a
Domestic Subsidiary held directly by the Company or any Subsidiary Guarantor
that is a Domestic Subsidiary which (a) as of the date hereof, has assets having
a book value in excess of $15,000,000 or which generated in excess of $5,000,000
of net income over the four fiscal quarter period most recently ended prior
to
the date hereof, or (b) thereafter, has or acquires assets having a book value
in excess of $15,000,000 or which generated in excess of $5,000,000 of net
income over the four fiscal quarter period most recently ended prior to the
time
of computation.
“Maturity
Date”
means
June 9, 2011.
“Maximum
Rate”
has
the
meaning set forth in Section
9.15.
“Moody’s”
means
▇▇▇▇▇’▇ Investors Service, Inc.
“Multiemployer
Plan”
means
a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net
Income”
means,
for any computation period, with respect to the Company on a consolidated basis
with its Subsidiaries (other than any Subsidiary which is restricted from
declaring or paying dividends or otherwise advancing funds to its parent whether
by contract or otherwise), cumulative net income earned during such period
(determined before the deduction of minority interests) as determined in
accordance with GAAP.
“Non-Extension
Date”
means,
with respect to any Evergreen LC, the date by which the Issuing Bank must give
notice to the beneficiary thereof of the non-renewal of such Evergreen LC in
order to avoid the automatic extension of the expiry date thereof.
“Off-Balance
Sheet Liability”
of
a
Person means (a) any repurchase obligation or liability of such Person with
respect to accounts or notes receivable sold by such Person, (b) any liability
under any so-called “synthetic lease” arrangement or transaction entered into by
such Person, or (c) any obligation arising with respect to any other transaction
which is the functional equivalent of or takes the place of borrowing but which
does not constitute a liability on the balance sheets of such
Person.
“Other
Taxes”
means
any and all present or future stamp or documentary taxes or any other excise
or
property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement.
“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.
12
“Permitted
Acquisition”
means
the acquisition by the Company or a Wholly-Owned Subsidiary thereof of an
Acquired Entity or Business (including by way of merger of such Acquired Entity
or Business with and into the Company (so long as the Company is the surviving
corporation) or a Wholly-Owned Subsidiary thereof (so long as the Wholly-Owned
Subsidiary is the surviving corporation); provided
that, in
each case, (a) the consideration paid or to be paid by the Company or such
Wholly-Owned Subsidiary consists solely of cash (including proceeds of Revolving
Loans or Swingline Loans), the issuance or incurrence of Indebtedness otherwise
permitted by Section
6.01,
the
issuance of common stock of the Company to the extent no Default or Event of
Default exists pursuant to clause (m) of Article
VII
or would
result therefrom and the assumption/acquisition of any Indebtedness (calculated
at face value) which is permitted to remain outstanding in accordance with
the
requirements of Section
6.01;
(b) in
the case of the acquisition of 80% or more of the capital stock of any Person
(including by way of merger), such Person shall own no capital stock of any
other Person (excluding de
minimis
amounts)
unless either (i) such Person owns 100% of the capital stock of such other
Person or (ii) (x) such Person and its Wholly-Owned Subsidiaries own at least
80% of the consolidated assets of such other Person and its Subsidiaries and
(y)
any non-Wholly-Owned Subsidiary of such Person was a non-Wholly-Owned Subsidiary
prior to the date of such Permitted Acquisition of such Person; (c) the Acquired
Entity or Business acquired pursuant to the respective Permitted Acquisition
is
in a business permitted by Section
6.03(c);
(d) in
the case of an acquisition of stock, such acquisition shall have been approved
by the board of directors of the Acquired Entity or Business; and (e) all
applicable requirements of Sections
6.03
and
6.04(f)
applicable to Permitted Acquisitions are satisfied.
“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;
(e) judgment
Liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article
VII;
(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
13
monetary
obligations and do not materially detract from the value of the affected
property or interfere with the ordinary conduct of business of the Company
or
any Subsidiary; and
(g) Liens
arising by virtue of any statutory or common law provision relating to banker's
liens, rights of set-off or similar rights and remedies as to deposit accounts
or other funds maintained with a creditor depository institution; provided,
that
(i) such deposit account is not a dedicated cash collateral account and is
not
subject to restrictions against access by the Company in excess of those set
forth by regulations promulgated by the Board and (ii) such deposit account
is
not intended by the Company or any of its Subsidiaries to provide collateral
to
the depository institution;
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, in each case
maturing within 36 months from the date of acquisition thereof;
(b) obligations
issued by any Federal agency of the United States of America, in each case
maturing within 36 months from the date of acquisition thereof;
(c)
municipal
investments and direct obligations of any State of the United States of America,
in each case with a rating of A or higher by S&P and/or A2 or higher by
Moody's and a maximum maturity of 36 months (for securities where the interest
rate is adjusted periodically (e.g. floating rate securities), the reset date
will be used to determine the maturity date);
(d) investments
in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, a rating of A-2 from S&P or
P-2 from Moody’s;
(e) investments
in certificates of deposit, banker’s acceptances and time deposits maturing
within 36 months from the date of acquisition thereof issued or guaranteed
by or
placed with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the United
States of America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;
(f) 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 (e) above;
(g) 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 or Aaa by Moody’s and (iii) have portfolio assets of at
least $5,000,000,000;
14
(h) investments
in auction rate securities with a rating of A or higher by S&P and/or
Moody's and a maximum maturity of one year, for which the reset date will be
used to determine the maturity date;
(i) investments
in variable rate demand notes with a rating of A or higher by S&P and/or A2
or higher by Moody's and a maximum maturity of one year, for which the reset
date will be used to determine the maturity date;
(j) investments
in corporate and bank debt including, but not limited to, corporate bonds and
loan participations. The minimum rating for such investments must be rated
“A-2”
and/or “P-2” or have a long term rating of BBB by S&P and/or Baa2 by Moody’s
respectively; and
(k) other
investments made in accordance with the Company's investment policy as in effect
on the Effective Date in the form previously provided to the Administrative
Agent and the Lenders and other immaterial changes thereto.
“Permitted
Securitization”
means
any receivables financing program providing for the sale of accounts
receivables, payment intangibles, accounts or notes receivable and related
rights by the Company or its Subsidiaries to an SPC for cash and other nominal
consideration reasonably satisfactory to the Administrative Agent in
transactions purporting to be sales (and treated as sales for GAAP purposes),
which SPC shall finance the purchase of such assets by the sale, transfer,
conveyance, lien or pledge of such assets to one or more limited purpose
financing companies, special purpose entities and/or other financial
institutions, in each case pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent.
“Person”
means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
“Plan”
means
any employee pension benefit plan (other than a Multiemployer Plan) subject
to
the provisions of Title IV of ERISA or Section 412 of the Code or Section 302
of
ERISA, and in respect of which the Company 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.
“Prime
Rate”
means
the rate of interest per annum publicly announced from time to time by JPMorgan
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.
“Quotation
Day”
means,
with respect to any Eurocurrency Borrowing and any Interest Period, the day
on
which it is market practice in the relevant interbank market for prime banks
to
give quotations for deposits in the currency of such Borrowing for delivery
on
the first day of such Interest Period. If such quotations would normally be
given by prime banks on more than one day, the Quotation Day will be the last
of
such days.
15
“Receivables
Transaction Attributed Indebtedness”
means
the amount of obligations outstanding under the legal documents entered into
as
part of any Permitted Securitization on any date of determination that would
be
characterized as principal if such Permitted Securitization were structured
as a
secured lending transaction rather than as a purchase.
“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.
“Rentals”
of
a
Person means, with respect to any period, the aggregate amount of rental expense
deducted in computing Net Income of such Person. For purposes of the computation
of the Interest Coverage Ratio for any period during which an Acquired Entity
or
Business was acquired, Rentals shall be calculated on a pro forma basis as
if
such Acquired Entity or Business had been acquired (and any related Indebtedness
incurred) on the first day of such computation period.
“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; provided,
that if
there are only two or three Lenders, the Required Lenders shall mean at least
two Lenders having Revolving Credit Exposures and unused Guarantees representing
at least 66⅔% 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 Company or any Subsidiary,
or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such Equity
Interests in the Company or any option, warrant or other right to acquire any
such Equity Interests in the Company.
“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 and its LC Exposure and Swingline
Exposure at such time.
“Revolving
Loan”
means
a
Loan made pursuant to Section
2.01.
“S&P”
means
Standard & Poor’s Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc.
“SPC”
means
a
special purpose, bankruptcy-remote Person formed for the sole and exclusive
purpose of engaging in activities in connection with the purchase, sale and
financing of accounts receivable, payment intangibles, accounts or notes
receivable and related rights in connection with and pursuant to a Permitted
Securitization.
16
“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 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. Eurocurrency 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.
“Sterling”
or
“£”
means
the lawful currency of the United Kingdom of Great Britain and Northern
Ireland.
“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 Company.
“Subsidiary
Borrower”
means
a
wholly-owned Subsidiary designated as such by the Company pursuant to
Section
2.19.
“Subsidiary
Guarantor”
means
each Subsidiary of the Company which is a party to the Subsidiary
Guaranty.
“Subsidiary
Guaranty”
means
the Subsidiary Guaranty dated as of the date hereof made by the Subsidiaries
party thereto in favor of the Administrative Agent and the Lenders, as the
same
may be amended, restated, modified or supplemented from time to time. The
Subsidiary Guarantors initially party to the Subsidiary Guaranty are so
designated on Schedule
3.12
hereto.
“Substantial
Portion”
means,
with respect to the property of the Company and its Subsidiaries, property
which
(a) represents more than 10% of the consolidated assets of the Company and
its
Subsidiaries as would be shown in the consolidated financial statements of
the
Company and its Subsidiaries as at the beginning of the twelve-month period
ending with the last day of the month preceding the month in which such
determination is made, or (b) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the
17
Company
and its Subsidiaries as reflected in the financial statements referred to in
clause (a) above.
“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, 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 Company 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, in its capacity as lender of Swingline Loans hereunder.
“Swingline
Loan”
means
a
Loan made pursuant to Section
2.04.
“Swingline
Rate”
means
ABR or such other rate per annum upon which the Applicable Borrower and the
Swingline Lender may agree with respect to such Loan.
“Taxes”
means
any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
“Total
Debt”
means,
all Indebtedness of the Company and its Subsidiaries, on a consolidated basis,
calculated in accordance with GAAP plus,
without
duplication, (a) all Off-Balance Sheet Liabilities, (b) the face amount of
all
outstanding letters of credit in respect of which the Company or any Subsidiary
has any actual or contingent reimbursement obligation and (c) the principal
amount of all Guarantees of the Company and its Subsidiaries.
“Total
Interest Expense”
means,
for any period, total cash interest expense deducted in the computation of
Net
Income for such period (including that attributable to Capital Lease Obligations
and interest paid under synthetic leases) of the Company and its Subsidiaries
for such period with respect to all outstanding Indebtedness of the Company
and
its Subsidiaries (including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers’ acceptance financing
and net costs of rate hedging in respect of interest rates to the extent such
net costs are allocable to such period in accordance with GAAP).
“Transactions”
means
the execution, delivery and performance by the Borrowers of this Agreement
and
any Borrowing Subsidiary Agreements, the borrowing of Loans, the use of the
proceeds thereof and the issuance of Letters of Credit hereunder.
“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.
18
“Wholly-Owned
Subsidiary”
of
a
Person means (a) any subsidiary all of the outstanding voting securities of
which shall at the time be owned or controlled, directly or indirectly, by
such
Person or one or more Wholly-Owned Subsidiaries of such Person, or by such
Person and one or more Wholly-Owned subsidiaries of such Person, or (b) any
partnership, limited liability company, association, joint venture or similar
business organization 100% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled (other than in the
case of Foreign Subsidiaries, director’s qualifying shares and/or other nominal
amounts of shares required to be held by Persons other than the Company and
its
Subsidiaries under applicable law).
“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
“Eurocurrency Loan”) or by Class and Type (e.g.,
a
“Eurocurrency Revolving Loan”). Borrowings also may be classified and referred
to by Class (e.g.,
a
“Revolving Borrowing”) or by Type (e.g.,
a
“Eurocurrency Borrowing”) or by Class and Type (e.g.,
a
“Eurocurrency 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 Company notifies the Administrative Agent that the Company 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 Company
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
19
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.
SECTION
1.05. Foreign
Currency Calculations.
(a)
For
purposes of determining the Dollar Equivalent of any Advance denominated in
a
Foreign Currency or any related amount, the Administrative Agent shall determine
the Exchange Rate as of the applicable Exchange Rate Date with respect to each
Foreign Currency in which any requested or outstanding Advance is denominated
and shall apply such Exchange Rates to determine such amount (in each case
after
giving effect to any Advance to be made or repaid on or prior to the applicable
date for such calculation).
(b) For
purposes of any determination under Section
6.01,
6.02,
6.04
or
6.09
or under
Article
VII,
all
amounts incurred, outstanding or proposed to be incurred or outstanding in
currencies other than Dollars shall be translated into Dollars at the currency
exchange rates in effect on the date of such determination; provided
that no
Default shall arise as a result of any limitation set forth in Dollars in
Section
6.01
or
6.02
being
exceeded solely as a result of changes in currency exchange rates from those
rates applicable at the time or times Indebtedness or Liens were initially
consummated in reliance on the exceptions under such Sections. For purposes
of
any determination under Section
6.04
or
6.09,
the
amount of each investment, asset disposition or other applicable transaction
denominated in a currency other than Dollars shall be translated into Dollars
at
the currency exchange rate in effect on the date such investment, disposition
or
other transaction is consummated. Such currency exchange rates shall be
determined in good faith by the Borrowers.
SECTION
1.06. Redenomination
of Certain Foreign Currencies.
(a)
Each
obligation of any party to this Agreement to make a payment denominated in
the
national currency unit of any member state of the European Union that adopts
the
Euro as its lawful currency after the Effective Date shall be redenominated
into
Euro at the time of such adoption (in accordance with the EMU Legislation).
If,
in relation to the currency of any such member state, the basis of accrual
of
interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London Interbank Market
for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date
on
which such member state adopts the Euro as its lawful currency; provided that
if
any Borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with respect to such
Borrowing, at the end of the then current Interest Period.
(b) Without
prejudice and in addition to any method of conversion or rounding prescribed
by
any EMU Legislation and (i) without limiting the liability of any Borrower
for
any amount due under this Agreement and (ii) without increasing any Commitment
of any Lender, all references in this Agreement to minimum amounts (or integral
multiples thereof) denominated in the national currency unit of any member
state
of the European Union that adopts the Euro as its lawful currency after the
Effective Date shall, immediately upon such adoption, be replaced by references
to such minimum amounts (or integral multiples thereof) as shall be specified
herein with respect to Borrowings denominated in Euros.
20
(c) Each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevant market conventions or practices relating to
the
Euro or any other Foreign Currency.
ARTICLE II
The
Credits
SECTION
2.01. Commitments.
Subject
to the terms and conditions set forth herein, each Lender agrees to make
Revolving Loans denominated in Dollars and Foreign Currencies to one or more
of
the Borrowers from time to time during the Availability Period in an aggregate
principal amount that will not result in (a) such Lender’s Revolving Credit
Exposure exceeding such Lender’s Commitment, (b) the sum of the total Revolving
Credit Exposures exceeding the total Commitments, (c) the Dollar Equivalent
of
the aggregate amount of all Revolving Loans denominated in Foreign Currency
exceeding $50,000,000, or (d) the Dollar Equivalent of the aggregate amount
of
all Revolving Loans to Subsidiary Borrowers which are Foreign Subsidiaries
exceeding $50,000,000. Within the foregoing limits and subject to the terms
and
conditions set forth herein, the Borrowers may borrow, prepay and reborrow
Revolving Loans.
SECTION
2.02. Loans
and Borrowings.
(a)
Each
Revolving Loan shall be made as part of a Borrowing consisting of Revolving
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
2.14,
(i)
each Revolving Borrowing denominated in Dollars shall be comprised entirely
of
ABR Loans or Eurocurrency Loans as the Company may request in accordance
herewith and (ii) each Revolving Borrowing denominated in a Foreign Currency
shall be comprised entirely of Eurocurrency Loans. Each Swingline Loan shall
be
an ABR Loan. Each Lender at its option may make any Eurocurrency 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 Applicable
Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) At
the
commencement of each Interest Period for any Eurocurrency Revolving Borrowing,
such Borrowing shall be in an aggregate amount that is an integral multiple
of
$1,000,000 and not less than $5,000,000 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 $1,000,000; provided
that an
ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section
2.05(e).
Each
Swingline Loan shall be in an amount that is an integral multiple of $500,000
and not less than $500,000. 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 Eurocurrency
21
Revolving
Borrowings outstanding. Notwithstanding the foregoing, Loans which are not
denominated in Dollars may be made in amounts and increments in the applicable
Foreign Currency satisfactory to the Administrative Agent.
(d) Notwithstanding
any other provision of this Agreement, the Company 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.
(e) Notwithstanding
any other provision of this Agreement, each Lender at its option may make any
ABR Loan or Eurocurrency Loan by causing any domestic or foreign office, branch
or Affiliate of such Lender (an “Applicable
Lending Installation”)
to
make such Loan that has been designated by such Lender to the Administrative
Agent. All terms of this Agreement shall apply to any such Applicable Lending
Installation of such Lender and the Loans and any Notes issued hereunder shall
be deemed held by each Lender for the benefit of any such Applicable Lending
Installation. Each Lender may, by written notice to the Administrative Agent
and
the Company, designate replacement or additional Applicable Lending
Installations through which Loans will be made by it and for whose account
Loan
payments are to be made.
SECTION
2.03. Requests
for Revolving Borrowings.
To
request a Revolving Borrowing, the Company shall notify the Administrative
Agent
of such request by telephone (a) in the case of a Eurocurrency Borrowing, not
later than 12:00 noon, New York City time, (i) if the Applicable Borrower is
a
Foreign Subsidiary or the Borrowing is to be denominated in a Foreign Currency,
four Business Days before the date of the proposed Borrowing, or (ii) otherwise,
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, (i) if
the
Applicable Borrower is a Foreign Subsidiary, one Business Day before the date
of
the proposed Borrowing or (ii) otherwise, 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 Company. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section
2.02:
(i) the
identity of the Applicable Borrower;
(ii) the
aggregate amount of the requested Borrowing;
(iii) the
currency (which may be Dollars or a Foreign Currency) in which such Borrowing
is
to be denominated;
(iv) the
date
of such Borrowing, which shall be a Business Day;
(v) in
the
case of a Borrowing denominated in Dollars, whether such Borrowing is to be
an
ABR Borrowing or a Eurocurrency Borrowing;
(vi) in
the
case of a Eurocurrency Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by clause (a) of the definition
of
the term “Interest Period”; and
22
(vii) the
location and number of the Applicable Borrower’s account to which funds are to
be disbursed, which shall comply with the requirements of Section
2.07.
If
no
election as to the Type of Revolving Borrowing is specified, then the requested
Revolving Borrowing shall be an ABR Borrowing, unless such Revolving Borrowing
is denominated in a Foreign Currency, in which case such Revolving Borrowing
shall be a Eurocurrency Borrowing. If no Interest Period is specified with
respect to any requested Eurocurrency Revolving Borrowing, then the Company
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 in Dollars to any Borrower which is not a Foreign
Subsidiary from time to time during the 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 $15,000,000,
or (ii) the sum of the total Revolving Credit Exposures exceeding the total
Commitments; 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 Company may borrow, prepay and reborrow
Swingline Loans.
(b) To
request a Swingline Loan, the Company 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 in the case of
Swingline Loans denominated in Dollars and not later than 10:00 a.m., Local
Time
on the day of any other proposed Swingline Loan. Each such notice shall be
irrevocable and shall specify (i) the requested date (which shall be a Business
Day), (ii) the amount of the requested Swingline Loan and (iii) the identity
of
the Applicable Borrower. The Administrative Agent will promptly advise the
Swingline Lender of any such notice received from the Company. The Swingline
Lender shall make each Swingline Loan available to the Company by means of
a
credit to the general deposit account of the Company 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.
(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
23
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 Company 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
Company (or other party on behalf of the Company) 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 Company for any reason.
The purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve the Company of any default in the payment thereof.
SECTION
2.05. Letters
of Credit.
(a) General.
Subject
to the terms and conditions set forth herein, any Borrower may request the
issuance of Letters of Credit denominated in Dollars for its own account, in
a
form reasonably acceptable to the Administrative Agent and the Issuing Bank,
at
any time and from time to time during the 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 such Borrower to, or entered into by such Borrower with,
the Issuing Bank relating to any Letter of Credit, the terms and conditions
of
this Agreement shall control.
(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 Applicable Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension, but in any case notice given
not
later than 11:00 a.m., New York City time, three Business Days prior to such
date shall be deemed to be sufficient) 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 the Issuing Bank, the Applicable Borrower
also
shall submit a letter of credit application on the Issuing Bank’s standard form
in connection with any request for a Letter of Credit. 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 Applicable Borrower shall
be
deemed to represent and
24
warrant
that), after giving effect to such issuance, amendment, renewal or extension
(i)
the LC Exposure shall not exceed $25,000,000 and (ii) the sum of the total
Revolving Credit Exposures shall not exceed the total Commitments.
(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; provided
that
with the prior consent of the Administrative Agent and the Issuing Bank, such
Issuing Bank may issue or extend Evergreen Letters of Credit with a later
expiration date so long as on the Maturity Date, whether or not an Event of
Default exists, the Applicable 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 undrawn amount of all
outstanding Evergreen Letters of Credit with an expiration date later than
five
Business Days prior to the Maturity Date. If the Applicable Borrower is required
to provide an amount of cash collateral hereunder as a result of an approaching
Maturity Date, such amount (to the extent not applied as aforesaid) shall be
returned to such Borrower within three (3) Business Days after all Letters
of
Credit have expired and all related reimbursement obligations satisfied in
full.
(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, the Issuing Bank hereby grants to each Lender, and each
Lender hereby acquires from the 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 the Issuing Bank,
such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing
Bank and not reimbursed by any Borrower on the date due as provided in paragraph
(e) of this Section, or of any reimbursement payment required to be refunded
to
any 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 the
Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit,
the Applicable 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 such 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 such 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 such 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 such Borrower receives such notice, if such notice is not received
prior to such time on the day of receipt; provided
that (i)
if such LC Disbursement is not less than $1,000,000, the Applicable
25
Borrower
may, subject to the conditions to borrowing set forth herein, request in
accordance with Section
2.03
that
such payment be financed with an ABR Revolving Borrowing and (ii) if such LC
Disbursement is not less than $500,000, the Applicable Borrower (if not a
Foreign Subsidiary) may, subject to the conditions to borrowing set forth
herein, request in accordance with Section
2.04
that
such payment be financed with a Swingline Loan, in each case, in an equivalent
amount and, to the extent so financed, such Borrower’s obligation to make such
payment shall be discharged and replaced by the resulting ABR Revolving
Borrowing or Swingline Loan, as applicable. If the Applicable Borrower fails
to
make such payment when due, such amount shall bear interest at the Alternate
Base Rate and the Administrative Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from such 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 Applicable 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 Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from any Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans or a Swingline Loan as
contemplated above) shall not constitute a Loan and shall not relieve any
Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations
Absolute.
Each
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
the 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, such
Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders
nor the Issuing Bank, nor 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 Bank; provided
that the
foregoing shall not be construed to excuse the Issuing Bank from liability
to
any Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by each Borrower to the
extent permitted by applicable
26
law)
suffered by such Borrower that are caused by the 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 willful misconduct
on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised 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, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are
not
in strict compliance with the terms of such Letter of Credit.
(g) Disbursement
Procedures.
The
Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of Credit.
The Issuing Bank shall promptly notify the Administrative Agent and the
Applicable Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether the 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 any Borrower
of
its obligation to reimburse the Issuing Bank and the Lenders with respect to
any
such LC Disbursement.
(h) Interim
Interest.
If the
Issuing Bank shall make any LC Disbursement, then, unless the Applicable
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 such Borrower reimburses such LC Disbursement, at the rate per
annum then applicable to ABR Revolving Loans; provided
that, if
such Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section
2.12(c)
shall
apply. Interest accrued pursuant to this paragraph shall be for the account
of
the 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 the Issuing
Bank shall be for the account of such Lender to the extent of such
payment.
(i) Replacement
of the Issuing Bank.
The
Issuing Bank may be replaced at any time by written agreement among the Company,
the Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank. The Administrative Agent shall notify the Lenders of any such replacement
of the Issuing Bank. At the time any such replacement shall become effective,
the Borrowers 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 the 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 an 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.
27
(j) Cash
Collateralization.
If any
Event of Default shall occur and be continuing, on the Business Day that any
Borrower receives notice from the Administrative Agent or the Required Lenders
demanding the deposit of cash collateral pursuant to this paragraph, such
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 such 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 Borrowers 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 investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrowers’
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 the 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 Borrowers for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated, be applied to satisfy other
obligations of the Borrowers under this Agreement. If the Borrowers are required
to provide an amount of cash collateral hereunder as a result of the occurrence
of an Event of Default, such amount (to the extent not applied as aforesaid)
shall be returned to the Borrowers within three Business Days after all Events
of Default have been cured or waived.
(k) Evergreen
Letters of Credit.
The
Lenders agree that, while an Evergreen LC is outstanding and prior to the
Maturity Date, at the option of the Applicable Borrower and upon the written
request of such Borrower received by the Issuing Bank (with a copy to the
Administrative Agent) no more than fifty (50) days and at least twenty (20)
days
(or such shorter time as the Issuing Bank may agree in a particular instance)
prior to the effective Non-Extension Date thereof, the Issuing Bank shall be
entitled to authorize or permit the automatic extension of such Evergreen LC.
Each such request from a Borrower for extension of an Evergreen LC shall be
in
writing and shall specify: (i) the Evergreen LC to be extended; (ii) the
proposed effective date of extension of the Evergreen LC (which shall be a
Business Day except to the extent it is the expiry date of the applicable
Evergreen LC and no action of the Issuing Bank is required on such date); (iii)
the revised expiry date of the Evergreen LC (which, subject to Section
2.05(c),
shall
not be later than the earlier of (A) the date one year after the then effective
expiry date of such Evergreen LC and (B) the date that is five Business Days
prior to the Maturity Date); and (iv) such other matters as the Issuing Bank
may
reasonably require. The Issuing Bank shall be under no obligation to so extend
or permit the extension of any Evergreen LC if the Issuing Bank would have
no
obligation as of the proposed effective date of extension to issue or amend
such
Evergreen LC in its extended form under the terms of this Agreement (including
Section
4.02).
If as
of the date twenty (20) days prior to the Non-Extension Date of any Evergreen
LC
the Issuing Bank would be entitled to authorize the extension of such Evergreen
LC in accordance with this Section
2.05(k)
upon the
request of a Borrower but the Issuing Bank shall not have received a request
from such Borrower to cause or permit such extension or a written direction
from
such Borrower to not cause or permit such extension, such Borrower shall be
deemed to
28
have
delivered a request to cause the extension of such Letter of Credit. In
addition, upon the direction of a Borrower for any Evergreen LC, the Issuing
Bank shall give such notice as is necessary to prevent an automatic extension
of
the expiry date of such Evergreen LC; provided,
however,
that in
no event shall the Issuing Bank have liability to any party thereto for its
failure to give such notice if written direction to give such notice is received
by the Issuing Bank less than twenty (20) days prior to the Non-Extension Date
for such Evergreen LC. The Issuing Bank will provide to the Administrative
Agent
and the Applicable Borrower a copy of any notice of non-extension given to
an
Evergreen LC beneficiary pursuant to this Section.
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, Local
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 Applicable Borrower
by promptly crediting the amounts so received, in like funds, to an account
of
the Applicable Borrower maintained with the Administrative Agent in New York
City (or, in the case of Subsidiary Borrowers or Loans denominated in a Foreign
Currency, in such other location as may be designated by the Administrative
Agent) and designated by the Company 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 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 Applicable 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 Applicable 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 Applicable
Borrower to but excluding the date of payment to the Administrative Agent,
at
(i) in the case of such Lender, (x) 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 (in the case of a Borrowing
denominated in Dollars) or (y) the rate reasonably determined by the
Administrative Agent to be the cost to it of funding such amount (in the case
of
a Borrowing denominated in a Foreign Currency) or (ii) in the case of the
Applicable Borrower, the interest rate applicable to such Borrowing;
provided,
that
any payment made by such Borrower shall be made without prejudice to any claim
such Borrower may have against the Lender failing to make such payment to the
Administrative Agent. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.
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 Eurocurrency Revolving Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Company may elect to convert such Borrowing to a different
Type,
in
29
the
case
of Borrowings denominated in Dollars, or to continue such Borrowing and, in
the
case of a Eurocurrency Revolving Borrowing, may elect Interest Periods therefor,
all as provided in this Section. The Company 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 Company 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
Company were requesting a Revolving Borrowing of the Type and denominated in
the
Foreign Currency 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 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 Company.
(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 Eurocurrency Borrowing;
and
(iv) if
the
resulting Borrowing is a Eurocurrency 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 Eurocurrency Borrowing but does not
specify an Interest Period, then the Company 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
Company fails to deliver a timely Interest Election Request with respect to
a
Eurocurrency Revolving 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 (unless such Borrowing is denominated in a
30
Foreign
Currency, in which case such Borrowing shall be continued as a Eurocurrency
Borrowing with an Interest Period of one month’s duration commencing on the last
day of such Interest Period). 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 Company, then, so long
as an Event of Default is continuing (i) no outstanding Revolving Borrowing
may
be converted to or continued as a Eurocurrency Borrowing, (ii) unless repaid,
each Eurocurrency Revolving Borrowing denominated in Dollars shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto, and
(iii) unless repaid, each Eurocurrency Revolving Borrowing denominated in a
Foreign Currency shall be continued as a Eurocurrency Revolving Borrowing with
an Interest Period of one month’s duration.
SECTION
2.08. Termination,
Increase and Reduction of Commitments.
(a)
Unless
previously terminated, the Commitments shall terminate on the Maturity
Date.
(b) The
Company 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 $1,000,000 and (ii) the Company shall
not terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section
2.09,
the sum
of the Revolving Credit Exposures would exceed the total
Commitments.
(c) The
Company 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 advise the Lenders of
the
contents thereof. Each notice delivered by the Company pursuant to this Section
shall be irrevocable; provided
that a
notice of termination of the Commitments delivered by the Company may state
that
such notice is conditioned upon the effectiveness of other credit facilities,
in
which case such notice may be revoked by the Company (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) On
up to
four occasions, the Company may, from time to time, at its option, seek to
increase the total Commitments by up to an aggregate amount of $75,000,000
(resulting in maximum total Commitments of $175,000,000) upon at least three
(3)
Business Days’ prior written notice (or at least ten (10) Business Days' prior
written notice if there are any outstanding Loans denominated in a Foreign
Currency) to the Administrative Agent, which notice shall specify the amount
of
any such increase and shall be delivered at a time when no Default has occurred
and is continuing. After delivery of such notice, the Administrative Agent
or
the Company, in consultation with the Administrative Agent, may offer the
increase (which may be declined by any Lender in its sole discretion) in the
total Commitments on either a ratable basis to the Lenders or on a non pro-rata
basis to one or more Lenders and/or to other Lenders or entities reasonably
acceptable to the Administrative Agent and the Company. No increase in the
total
Commitments shall become effective until the existing or new Lenders extending
such incremental Commitment amount and the Company shall have delivered to
the
Administrative
31
Agent
a
document in form reasonably satisfactory to the Administrative Agent pursuant
to
which any such existing Lender states the amount of its Commitment increase,
any
such new Lender states its Commitment amount and agrees to assume and accept
the
obligations and rights of a Lender hereunder and the Company accepts such
incremental Commitments. The Lenders (new or existing) shall accept an
assignment from the existing Lenders, and the existing Lenders shall make an
assignment to the new or existing Lender accepting a new or increased
Commitment, of a direct or participation interest in each then outstanding
Loan
and Letter of Credit such that, after giving effect thereto, all Revolving
Credit Exposure hereunder is held ratably by the Lenders in proportion to their
respective Commitments. Assignments pursuant to the preceding sentence shall
be
made in exchange for the principal amount assigned plus accrued and unpaid
interest and facility and letter of credit fees. The Company shall make any
payments under Section
2.15
resulting from such assignments. Any such increase of the total Commitments
shall be subject to receipt by the Administrative Agent from the Company of
such
supplemental opinions, resolutions, certificates and other documents as the
Administrative Agent may reasonably request.
SECTION
2.09. Repayment
of Loans; Evidence of Debt.
(a)
Each
Applicable Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each of its Revolving Loans on the Maturity Date, and (ii) to the
Swingline Lender the then unpaid principal amount of each of its Swingline
Loans
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 two
Business Days after such Swingline Loan is made; provided that on each date
that
a Revolving Borrowing is made, the Company shall repay all Swingline Loans
then
outstanding.
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrowers 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 Borrowers 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 shall not in any manner affect the obligation of the Borrowers
to repay the Loans in accordance with the terms of this Agreement.
(e) Any
Lender may request that Loans made by it be evidenced by a promissory note.
In
such event, the Applicable 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.
32
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).
(f) If
at any
time the aggregate Revolving Credit Exposure of the Lenders exceeds the
aggregate Commitments of the Lenders, the Company shall immediately prepay
the
Loans or the Company shall cause each Applicable Borrower to immediately prepay
the Loans as to which it is the obligor in the amount of such excess. To the
extent that, after the prepayment of all Loans an excess of the Revolving Credit
Exposure over the aggregate Commitments still exists, the Company shall promptly
cash collateralize or cause the Applicable Borrower to promptly cash
collateralize the Letters of Credit in the manner described in Section
2.06(j)
in an
amount sufficient to eliminate such excess.
(g)
The
Administrative Agent will determine the aggregate LC Exposure and the Dollar
Equivalent of each Loan on each Exchange Rate Date. If at any time the sum
of
such amounts exceeds the aggregate Commitments of the Lenders, the Company
shall
immediately prepay the Loans or the Company shall cause each Applicable Borrower
to immediately prepay the Loans as to which it is the obligor in the amount
of
such excess. To the extent that, after the prepayment of all Loans an excess
of
the sum of such amounts over the aggregate Commitments still exists, the Company
shall promptly cash collateralize or cause the Applicable Borrower to promptly
cash collateralize the Letters of Credit in the manner described in Section
2.06(j)
in an
amount sufficient to eliminate such excess.
SECTION
2.10. Prepayment
of Loans.
(a)
The
Borrowers 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 (b) of this Section.
(b) The
Company 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 Eurocurrency
Revolving Borrowing denominated in a Foreign Currency, not later than 12:00
noon, New York City time, four Business Days before the date of prepayment,
(ii)
in the case of prepayment of a Eurocurrency Revolving Borrowing denominated
in
Dollars, not later than 12:00 noon, New York City time, three Business Days
before the date of prepayment, (iii) in the case of prepayment of an ABR
Revolving Borrowing by a Borrower which is a Foreign Subsidiary, not later
than
11:00 a.m., New York City time, one Business Day before the date of prepayment
or (iv) in the case of prepayment of an ABR Revolving Borrowing by a Borrower
which is not a Foreign Subsidiary or 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 and shall specify the prepayment date and the principal amount
of
each Borrowing or portion thereof to be prepaid; provided
that, if
a notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section
2.09,
then
such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section
2.09.
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
33
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
2.13.
SECTION
2.11. Fees.
(a)
The
Company agrees to pay to the Administrative Agent for the account of each Lender
a facility fee, which shall accrue at the Applicable Rate on the daily amount
of
the Commitment of such Lender (whether used or unused) during the period from
and including the Effective Date to but excluding the date on which such
Commitment terminates; provided
that, if
such Lender continues to have any Revolving Credit Exposure after its Commitment
terminates, then such facility fee shall continue to accrue on the daily amount
of such Lender’s Revolving Credit Exposure from and including the date on which
its Commitment terminates to but excluding the date on which such Lender ceases
to have any Revolving Credit Exposure. Accrued facility 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; provided
that any
facility fees accruing after the date on which the Commitments terminate shall
be payable on demand. All facility 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) Each
Applicable 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 as to which such Applicable Borrower is the obligor, which
shall accrue at the same Applicable Rate used to determine the interest rate
applicable to Eurocurrency Revolving 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 the
Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Company and the Issuing Bank on the average
daily amount of the 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 of termination of the
Commitments and the date on which there ceases to be any LC Exposure, as well
as
the 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 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 Bank 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).
34
(c) The
Company agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the
Company 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 Bank, in the case of
fees
payable to it) for distribution, in the case of facility 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.
(b) The
Loans
comprising each Eurocurrency Borrowing shall bear interest at the Adjusted
LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate.
(c) Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other
amount payable by any of the Borrowers 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 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 Loan prior to the end of the 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 Eurocurrency 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 (i) interest on Borrowings denominated in Sterling shall be computed on
the
basis of a year of 365 days, (ii) interest on Borrowings denominated in any
other Foreign Currency for which it is required by applicable law or customary
to compute interest on the basis of a year of 365 days or, if required by
applicable law or customary, 366 days in a leap year, shall be computed on
such
basis, and (iii) 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 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 Eurocurrency Borrowing
denominated in any currency:
35
(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 Company and the Lenders
by
telephone or telecopy as promptly as practicable thereafter and, until the
Administrative Agent notifies the Company 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 Eurocurrency Borrowing denominated in such
currency shall be ineffective and (ii) such Borrowing shall be converted to
or
continued as on the last day of the Interest Period applicable thereto (A)
if
such Borrowing is denominated in Dollars, an ABR Borrowing or (B) if such
Borrowing is denominated in a Foreign Currency, as a Borrowing bearing interest
at such rate as the Administrative Agent determines adequately reflects the
costs to the Lenders of making or maintaining such Borrowing, and (ii) if any
Borrowing Request requests a Eurocurrency Borrowing in such currency, such
Borrowing shall be made as an ABR Borrowing (if such Borrowing is requested
to
be made in Dollars) or shall be made as a Borrowing bearing interest at such
rate as the Administrative Agent determines adequately reflects the costs to
the
Lenders of making or maintaining such Borrowing. The Administrative Agent shall
promptly advise the Company of any such alternative interest rate.
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 the Issuing Bank; or
(ii) impose
on
any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurocurrency 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 Eurocurrency Loan (or of maintaining its obligation
to
make any such Loan) or to increase the cost to such Lender or the 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 the Issuing
Bank
hereunder (whether of principal, interest or otherwise), then the Company will
pay to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Bank, as the
case may be, for such additional costs incurred or reduction
suffered.
(b) If
any
Lender or the 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
36
Lender’s
or the Issuing Bank’s capital or on the capital of such Lender’s or the 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 the Issuing Bank, to a level below that which such
Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding
company could have achieved but for such Change in Law (taking into
consideration such Lender’s or the Issuing Bank’s policies and the policies of
such Lender’s or the Issuing Bank’s holding company with respect to capital
adequacy), then from time to time the Company will pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender’s or the Issuing
Bank’s holding company for any such reduction suffered.
(c) A
certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the 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 Company and shall be conclusive absent manifest error.
The
Borrowers shall jointly and severally pay such Lender or the 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 the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the
Issuing Bank’s right to demand such compensation; provided
that the
Borrowers shall not be required to compensate a Lender or the 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 the Issuing Bank, as the
case may be, notifies the Company of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the 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 Eurocurrency Loan other than
on
the last day of an Interest Period applicable thereto (including as a result
of
an Event of Default), (b) the conversion of any Eurocurrency Loan other than
on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency 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 Eurocurrency
Loan
other than on the last day of the Interest Period applicable thereto as a result
of a request by the Company pursuant to Section
2.18,
then,
in any such event, the Applicable Borrower shall compensate each Lender for
the
loss, cost and expense attributable to such event. In the case of a Eurocurrency
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
37
of
such
period, for dollar deposits of a comparable amount and period from other banks
in the eurocurrency 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 Company and shall be conclusive absent manifest error.
The Applicable 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 any of the Borrowers
hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided
that if
any of the Borrowers 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
Applicable Borrower shall make such deductions and (iii) the Applicable Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In
addition, the Applicable Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The
Applicable Borrower shall indemnify the Administrative Agent, each Lender and
the 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 the Issuing Bank, as the case may be, on or with respect to
any
payment by or on account of any obligation of such Applicable 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 Company by a Lender or the Issuing
Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender
or the Issuing Bank, shall be conclusive absent manifest error.
(d) As
soon
as practicable after any payment of Indemnified Taxes or Other Taxes by the
Applicable Borrower to a Governmental Authority, the Applicable 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 Applicable Borrower is
located, or any treaty to which such jurisdiction is a party, with respect
to
payments under this Agreement shall deliver to the Company (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 Company as will permit such payments to be made
without withholding or at a reduced rate.
38
(f) If
the
Administrative Agent or a Lender determines, in its sole discretion, that it
has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by one of the Borrowers or with respect to which one of the
Borrowers has paid additional amounts pursuant to this Section
2.16,
it
shall pay over such refund to the Applicable Borrower (but only to the extent
of
indemnity payments made, or additional amounts paid, by the Applicable Borrower
under this Section
2.16
with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the Applicable Borrower, upon
the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Applicable Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section
shall
not be construed to require the Administrative Agent or any Lender to make
available its tax returns (or any other information relating to its taxes which
it deems confidential) to any of the Borrowers or any other Person.
SECTION
2.17. Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.
(a)
Each of
the Borrowers 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 2:00 p.m., New York City time, on the date when due, in
immediately available funds, without set off or counterclaim. 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the Issuing Bank or
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
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 of (i) principal or interest in respect
of any Loan shall be made in the currency in which such Loan is denominated,
(ii) reimbursement obligations shall be made in the currency in which the Letter
of Credit in respect of which such reimbursement obligation exists is
denominated or (iii) any other amount due hereunder or under another Loan
Document shall be made in Dollars. Any payment required to be made by the
Administrative Agent hereunder shall be deemed to have been made by the time
required if the Administrative Agent shall at or before such time, have taken
the necessary steps to make such payment in accordance with the regulations
or
operating procedures of the clearing or settlement system used by the
Administrative Agent to make such payment.
(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
39
with
the
amounts of principal and unreimbursed LC Disbursements then due to such
parties.
(c) If
any
Lender shall, by exercising any right of set off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its
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 any of the Borrowers 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 Company or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). Each of the Borrowers consents
to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Applicable Borrower rights
of
set-off and counterclaim with respect to such participation as fully as if
such
Lender were a direct creditor of the Applicable Borrower in the amount of such
participation.
(d) Unless
the Administrative Agent shall have received notice from the Applicable Borrower
prior to the date on which any payment is due to the Administrative Agent for
the account of the Lenders or the Issuing Bank hereunder that the Applicable
Borrower will not make such payment, the Administrative Agent may assume that
the Applicable Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
or
the Issuing Bank, as the case may be, the amount due. In such event, if the
Applicable Borrower has not in fact made such payment, then each of the Lenders
or the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, (i) 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 (in the case of an amount
denominated in Dollars) and (ii) the rate reasonably determined by the
Administrative Agent to be the cost to it of funding such amount (in the case
of
an amount denominated in a Foreign Currency).
40
(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),
2.17(d)
or
9.03(c),
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
any of the Borrowers 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
2.20,
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,
2.16
or
2.20,
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. Each Lender also agrees to use its commercially reasonable efforts
to
make such designation or assignment prior to the occurrence of any circumstance
described in Section
2.14,
2.16
or
2.20
in the
event it has knowledge of such circumstance prior to its occurrence or as soon
thereafter as it becomes aware thereof. Each Borrower hereby agrees to pay
all
reasonable costs and expenses incurred by any Lender in connection with any
such
designation or assignment.
(b) If
any
Lender requests compensation under Section
2.14,
or if
any of the Borrowers 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
2.20,
or if
any Lender defaults in its obligation to fund Loans hereunder, then the Company
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 Company shall have received the prior written consent of the Administrative
Agent (and if a Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its 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 Company
(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
or
2.20,
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 Company to require such assignment and delegation cease to
apply.
SECTION
2.19. Designation
of Subsidiary Borrowers.
The
Company may at any time and from time to time designate any Subsidiary as a
Subsidiary Borrower by delivery to the Administrative Agent of a Borrowing
Subsidiary Agreement executed by such Subsidiary and the Company and the
satisfaction of the other conditions precedent set forth in Section
4.03,
and
41
upon
such
delivery and satisfaction such Subsidiary shall for all purposes of this
Agreement be a Subsidiary Borrower and a party to this Agreement until the
Company shall have executed and delivered to the Administrative Agent a
Borrowing Subsidiary Termination with respect to such Subsidiary, whereupon
such
Subsidiary shall cease to be a Subsidiary Borrower and a party to this
Agreement; provided,
that no
Foreign Subsidiary may act as a Subsidiary Borrower unless approved by the
Administrative Agent. Notwithstanding the preceding sentence, no Borrowing
Subsidiary Termination will become effective as to any Subsidiary Borrower
at a
time when any principal of or interest on any Loan to such Borrower shall be
outstanding hereunder, provided
that
such Borrowing Subsidiary Termination shall be effective to terminate the right
of such Subsidiary Borrower to make further Borrowings under this Agreement.
As
soon as practicable upon receipt of a Borrowing Subsidiary Agreement, the
Administrative Agent shall furnish a copy thereof to each Lender.
SECTION
2.20. Additional
Reserve Costs.
(a) For
so long as any Lender is required to make special deposits with the Bank of
England or comply with reserve assets, liquidity, cash margin or other
requirements of the Bank of England, to maintain reserve asset ratios or to
pay
fees, in each case in respect of such Lender’s Eurocurrency Loans or Swingline
Foreign Currency Loans, such Lender shall be entitled to require the Applicable
Borrower to pay, contemporaneously with each payment of interest on each of
such
Loans, additional interest on such Loan at a rate per annum equal to the
Mandatory Costs Rate calculated in accordance with the formula and in the manner
set forth in Exhibit
C
hereto.
(b)
For
so long as any Lender is required to comply with reserve assets, liquidity,
cash
margin or other requirements of any monetary or other authority (including
any
such requirement imposed by the European Central Bank or the European System
of
Central Banks, but excluding requirements reflected in the Statutory Reserve
Rate or the Mandatory Costs Rate) in respect of any of such Lender’s
Eurocurrency Loans and Swingline Foreign Currency Loans, such Lender shall
be
entitled to require the Applicable Borrower to pay, contemporaneously with
each
payment of interest on each of such Lender’s Loans subject to such requirements,
additional interest on such Loan at a rate per annum specified by such Lender
to
be the cost to such Lender of complying with such requirements in relation
to
such Loan.
(c)
Any
additional interest owed pursuant to paragraph (a) or (b) above shall be
determined by the applicable Lender, which determination shall be conclusive
absent manifest error, and notified to the Applicable Borrower (with a copy
to
the Administrative Agent) as soon as reasonably practical, but in no event
later
than five Business Days before each date on which interest is payable for the
applicable Loan, and such additional interest so notified to the Applicable
Borrower by such Lender shall be payable to the Administrative Agent for the
account of such Lender on each date on which interest is payable for such
Loan.
ARTICLE
III
Representations
and Warranties
The
Company represents and warrants to the Administrative Agent and the Lenders
that:
42
SECTION
3.01. Organization;
Powers.
Each of
the Company and each of its 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 in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION
3.02. Authorization;
Enforceability.
The
Transactions are within the Borrowers’ corporate powers and have been duly
authorized by all necessary corporate and, if required, stockholder action.
This
Agreement has been duly executed and delivered by the Borrowers and constitutes
a legal, valid and binding obligation of the Borrowers, 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
organizational documents of the Company or any of its 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 Company or any
of
its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Company or any of its Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the Company
or any of its Subsidiaries.
SECTION
3.04. Financial
Condition; No Material Adverse Change.
(a)
The
Company 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, 2005, reported on by KPMG LLP, independent
public accountants, and (ii) as of and for the fiscal quarter and the portion
of
the fiscal year ended March 31, 2006, 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 Company
and
its consolidated 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.
(b) Since
December 31, 2005, there has been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of the
Company and its Subsidiaries, taken as a whole.
SECTION
3.05. Properties.
(a)
Each of
the Company and its Subsidiaries has good title to, or valid leasehold interests
in, all its real and personal property material to its business, except for
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.
43
(b) Each
of
the Company and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to
its
business, and the use thereof by the Company and its Subsidiaries does not
infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION
3.06. Litigation
and Environmental Matters.
(a)
There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except
for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result
in
a Material Adverse Effect, neither the Company nor any of its 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.
(c) Since
the
date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or could
reasonably be expected to result in, a Material Adverse Effect.
SECTION
3.07. Compliance
with Laws and Agreements.
Each of
the Company and each of its 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 Company nor any of its 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 2005.
SECTION
3.09. Taxes.
Each of
the Company and each of its 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
Company 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 such ERISA Events for which liability
44
is
reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date
of
the most recent financial statements reflecting such amounts, exceed by more
than $5,000,000 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.
The
Company has disclosed to the Lenders all agreements, instruments and corporate
or other restrictions to which it or any of its Subsidiaries is subject, and
all
other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. Neither the
Information Memorandum nor any of the other reports, financial statements,
certificates or other information furnished by or on behalf of the Company
to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits
to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided
that,
with respect to projected financial information, the Company represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
SECTION
3.12. Subsidiaries.
As of
the Effective Date, the Company has no Subsidiaries other than those
Subsidiaries listed on Schedule
3.12.
Schedule
3.12
correctly sets forth, as of the Effective Date, (i) the percentage ownership
(direct or indirect) of the Company in each class of capital stock or other
equity of its Subsidiaries and also identifies the direct owner thereof, and
(ii) the jurisdiction of organization of each such Subsidiary. Schedule
3.12
correctly identifies those Subsidiaries which constitute Material Subsidiaries
as of the Effective Date.
SECTION
3.13. Regulation
U.
Margin
stock (as defined in Regulation U of the Board of Governors of the Federal
Reserve System) constitutes less than 25% of the value of those assets of the
Company and its Subsidiaries which are subject to any limitation on sale,
pledge, or other restriction hereunder. Neither the making of any Loan or
issuance of any Letters of Credit hereunder, the use of the proceeds thereof,
nor any other aspect of the financing of the Acquisition, will violate or be
inconsistent with the provisions of Regulation T, Regulation U or Regulation
X
of the Board of Governors of the Federal Reserve System.
ARTICLE IV
Conditions
SECTION
4.01. Effective
Date.
The
obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder shall not become effective until the date on which
each of the following conditions is satisfied (or waived in accordance with
Section
9.02):
45
(a) The
Administrative Agent (or its counsel) shall have received from each party to
any
Credit Document either (i) a counterpart of each Credit Document to which it
is
a party 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 such Credit Document) that such party has signed a counterpart
of.
(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
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Borrowers and the
Subsidiary Guarantors, covering such matters relating to the Borrowers, the
Subsidiary Guarantors, the Credit Documents or the Transactions as the Required
Lenders shall reasonably request. The Borrowers hereby request 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 the Borrowers and the Subsidiary
Guarantors, the authorization of the Transactions and any other legal matters
relating to the Borrowers, the Subsidiary Guarantors, the Credit Documents
or
the Transactions, all in form and substance 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 of the
Company, confirming compliance with the conditions set forth in paragraphs
(a)
and (b) of Section
4.02.
(e) 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 Company hereunder.
(f) The
Administrative Agent shall have received, if applicable, a Borrowing Subsidiary
Agreement for any Subsidiary Borrower being designated as such as of the
Effective Date.
(g) The
total
commitments under the Company’s May 23, 2003 Credit Agreement with Bank
of
America, N.A.
shall
have been terminated, all loans thereunder shall have been repaid in full,
together with interest thereon, all letters of credit, if any, issued thereunder
shall have been terminated and all other amounts owing pursuant to thereto
and
all agreements related thereto shall have been repaid in full, all such
agreements shall have been terminated on terms and conditions satisfactory
to
the Administrative Agent and be of no further force or effect, and the
Administrative Agent shall have received a payoff letter in form and substance
acceptable to the Administrative Agent from Bank of America, N.A. to such
effect.
The
Administrative Agent shall notify the Company 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
Bank
to issue Letters of Credit hereunder shall not become effective unless each
of
the foregoing conditions is satisfied (or waived pursuant to
46
Section
9.02)
at or
prior to 3:00 p.m., New York City time, on June 30, 2006 (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 (other
than any Borrowing the proceeds of which are used exclusively to repay a
Borrowing of the same amount), and of the Issuing Bank to issue, amend, renew
or
extend any Letter of Credit, is subject to the satisfaction of the following
conditions:
(a) The
representations and warranties of the Company 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 any such representation or warranty that expressly relates
to
or is made expressly as of a specific earlier date, in which case such
representation or warranty shall be true and correct with respect to or as
of
such specific earlier date).
(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.
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
Company on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
SECTION
4.03. Designation
of a Subsidiary Borrower.
The
designation of a Subsidiary Borrower pursuant to Section
2.19
is
subject to the condition precedent that the Company or such proposed Subsidiary
Borrower shall have furnished or caused to be furnished to the Administrative
Agent:
(a) Copies,
certified by the Secretary or Assistant Secretary of such Subsidiary, of its
Board of Directors’ resolutions (and resolutions of other bodies, if any are
deemed necessary by counsel for the Administrative Agent) approving the
Borrowing Subsidiary Agreement and any other Credit Documents to which such
Subsidiary is becoming a party;
(b) An
incumbency certificate, executed by the Secretary or Assistant Secretary of
such
Subsidiary, which shall identify by name and title and bear the signature of
the
officers of such Subsidiary authorized to request Borrowings hereunder and
sign
the Borrowing Subsidiary Agreement and the other Credit Documents to which
such
Subsidiary is becoming a party, upon which certificate the Administrative Agent
and the Lenders shall be entitled to rely until informed of any change in
writing by the Company or such Subsidiary;
(c) Opinions
of counsel to such Subsidiary, in form and substance reasonably satisfactory
to
the Administrative Agent and its counsel, with respect to the laws of its
jurisdiction of organization and such other matters as are reasonably requested
by counsel to the Administrative Agent and addressed to the Administrative
Agent
and the Lenders; and
47
(d) Any
promissory notes requested by any Lender, and any other instruments and
documents reasonably requested by the Administrative Agent, each in such form
as
the Administrative Agent may reasonably require.
ARTICLE
V
Affirmative
Covenants
Until
the
Commitments 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 Company covenants and agrees with the Lenders
that:
SECTION
5.01. Financial
Statements; Ratings Change and Other Information.
The
Company will furnish to the Administrative Agent for distribution to each
Lender:
(a) within
90
days after the end of each fiscal year of the Company, 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
KPMG 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 Company and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within
45
days after the end of each of the first three fiscal quarters of each fiscal
year of the Company, 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 Company 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) concurrently
with any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Company (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 demonstrating compliance with
Sections
6.10 and 6.11
and
(iii) stating whether any change in GAAP or in the application thereof has
occurred since the date of the audited financial statements referred to in
Section
3.04
and, if
any such
48
change
has occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently
with any delivery of financial statements under clause (a) above, a certificate
of the accounting firm that reported on such financial statements stating
whether they obtained knowledge during the course of their examination of such
financial statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
(e) promptly
after ▇▇▇▇▇’▇ or S&P shall have announced the issuance of a corporate credit
rating for the Company or a change in the Company’s corporate credit rating,
written notice of such rating issuance or change; and
(f) promptly
following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Company or any Subsidiary,
or
compliance with the terms of this Agreement, as the Administrative Agent or
any
Lender may reasonably request.
SECTION
5.02. Notices
of Material Events.
The
Company will furnish to the Administrative Agent for distribution to each Lender
written notice of the following promptly after learning thereof:
(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 Company or any
Affiliate thereof that, if adversely determined, 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 Company and its 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 Company 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
Company will, and will cause each of its 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; provided
that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section
6.03.
49
SECTION
5.04. Payment
of Obligations.
The
Company will, and will cause each of its Subsidiaries to, pay its obligations,
including Tax liabilities, that, if not paid, could result in a Material Adverse
Effect 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 Company 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; Insurance.
The
Company will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property material to the conduct of its business in good working order
and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION
5.06. Books
and Records; Inspection Rights.
The
Company will, and will cause each of its 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
Company will, and will cause each of its 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
Company will, and will cause each of its Subsidiaries to, comply with all laws,
rules, regulations and orders of any Governmental Authority applicable to 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.
SECTION
5.08. Use
of
Proceeds and Letters of Credit.
The
proceeds of the Loans will be used only for general corporate purposes of the
Company and its Subsidiaries. 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 general corporate purposes of the Company
and its Subsidiaries.
SECTION
5.09. Additional
Guarantors; Release of Guarantors.
(a)
Effective
upon any Domestic Subsidiary which is not, as of the date hereof, a Material
Subsidiary becoming a Material Subsidiary, the Company shall cause such Domestic
Subsidiary to, within ten (10) Business Days execute and deliver to the
Administrative Agent for the benefit of the Lenders a joinder to the Subsidiary
Guaranty. The Company shall promptly notify the Administrative Agent at any
time
at which any such Domestic Subsidiary becomes a Material Subsidiary.
(b)
If, as
of the date on which any financial statements are delivered pursuant to
Section
5.01(b),
the
aggregate assets of all Domestic Subsidiaries of the Company that are not
Subsidiary Guarantors (any such Subsidiary, a “Non-Subject
Subsidiary”)
are
determined to
50
exceed
ten percent (10%) of the consolidated total assets of the Company and its
Subsidiaries as of the date of such financial statements, then the Company
shall
cause one or more of such Non-Subject Subsidiaries to promptly execute a
Subsidiary Guaranty so that either (i) the aggregate assets of all Non-Subject
Subsidiaries do not exceed ten percent (10%) of the consolidated total assets
of
the Company and its Subsidiaries or (ii) all Domestic Subsidiaries have executed
a Subsidiary Guaranty.
(c) If
any
Domestic Subsidiary acting as a Subsidiary Guarantor ceases to be a Material
Subsidiary and/or is no longer required to act as a Subsidiary Guarantor
pursuant to paragraph (b) above (as demonstrated in each case to the reasonable
satisfaction of the Administrative Agent), then such Subsidiary shall be
released from the Subsidiary Guarantee promptly following the request of the
Company.
ARTICLE VI
Negative
Covenants
Until
the
Commitments have expired or terminated and the principal of and interest on
each
Loan and all fees payable hereunder have been paid in full and all Letters
of
Credit have expired or terminated and all LC Disbursements shall have been
reimbursed, the Company covenants and agrees with the Lenders that:
SECTION
6.01. Indebtedness.
The
Company will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Indebtedness, except:
(a) Indebtedness
created hereunder and under the other Credit Documents;
(b) 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 thereof;
(c) Indebtedness
of the Company to any Subsidiary and of any Subsidiary to the Company or any
other Subsidiary;
(d) Guarantees
by the Company of Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Company or any other Subsidiary;
(e) (i)
Indebtedness of the Company or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations, so long as such Indebtedness is incurred
prior to or within 90 days after such acquisition or the completion of such
construction or improvement and (ii) 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 (including, in each case, the acquisition of such
assets through the purchase of the capital stock or other equity interests
of a
Person holding such assets), and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal amount thereof;
51
provided,
that
the aggregate principal amount of all such Indebtedness incurred pursuant to
clauses (i) and (ii), together
with any outstanding Indebtedness incurred pursuant to clause (f),
shall
not exceed $75,000,000 at any time outstanding;
(f) 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 (f), together with any outstanding Indebtedness incurred pursuant
to
clause (e), shall not exceed $75,000,000 at any time outstanding;
(g) Indebtedness
of the Company or any Subsidiary as an account party in respect of trade letters
of credit;
(h) Indebtedness
of SPCs incurred in connection with Permitted Securitizations; provided
that the
aggregate outstanding amount of such Receivables Transaction Attributed
Indebtedness shall at no time exceed $75,000,000; and
(i) other
unsecured Indebtedness; provided
that (i)
such incurrence would not cause a breach of Section
6.09 or 6.10,
as
determined on a pro forma basis after giving effect thereto, and (ii) the
aggregate principal amount of Indebtedness of the Company’s Subsidiaries
permitted by this clause (i) shall not exceed $10,000,000 at any time
outstanding.
SECTION
6.02. Liens.
The
Company 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) Permitted
Encumbrances;
(b) any
Lien
on any property or asset of the Company 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 Company 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 thereof;
(c) any
Lien
existing on any property or asset prior to the acquisition thereof by the
Company 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 Company 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 thereof;
52
(d) Liens
on
fixed or capital assets acquired, constructed or improved by the Company or
any
Subsidiary; provided
that (i)
such security interests secure Indebtedness permitted by Section
6.01(e),
(ii)
such security interests and the Indebtedness secured thereby are incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does not
exceed 90% of the cost of acquiring, constructing or improving such fixed or
capital assets and (iv) such security interests shall not apply to any other
property or assets of the Company or any Subsidiary;
(e) Liens
upon assets of an SPC granted in connection with a Permitted Securitization
and
customary backup Liens granted by the transferor in accounts receivable and
related rights transferred to an SPC in accordance with a Permitted
Securitization;
(f) Liens
securing Indebtedness owed by any Foreign Subsidiary to the Company or any
Subsidiary Guarantor;
(g) rights
of
holders of notes or debentures issued by the Company or any Subsidiary in
deposits placed in trust to legally or “in substance” defese such notes or
debentures;
(h) Liens
consisting of pledges of cash collateral or government securities to secure,
on
a ▇▇▇▇-to-market basis, obligations under Swap Agreements, so long as the
aggregate value of such collateral does not exceed $5,000,000 at any one time
outstanding; and
(i) other
Liens securing Indebtedness at no time exceeding $10,000,000 in aggregate
principal amount.
SECTION
6.03. Fundamental
Changes.
(a)
The
Company 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 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 Company in
a
transaction in which the Company is the surviving corporation, (ii) any Person
may merge into any Subsidiary in a transaction in which the surviving entity
is
a Subsidiary (and, if either such Subsidiary is a Subsidiary Guarantor, then
the
surviving entity shall also be a Subsidiary Guarantor) and (iii) any Subsidiary
may liquidate or dissolve if the Company determines in good faith that such
liquidation or dissolution is in the best interests of the Company 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
6.04.
(b) The
Company will not, nor will it permit any Subsidiary to, make any Asset
Disposition except for (i) Asset Dispositions among the Borrowers and one or
more Domestic Subsidiaries or Subsidiary Guarantors or among any Domestic
Subsidiaries or Subsidiary Guarantors, (ii) Asset Dispositions by Foreign
Subsidiaries (other than a Subsidiary Borrower)
53
that
are
not Subsidiary Guarantors to the Company or any Subsidiary, (iii) Asset
Dispositions expressly permitted by Sections
6.02, 6.04, 6.06 or 6.07,
(iv)
transfers of accounts receivable (and rights ancillary thereto) pursuant to,
and
in accordance with the terms of, a Permitted Securitization; provided
that the
Receivables Transaction Attributed Indebtedness pursuant to Permitted
Securitizations may at no time exceed $75,000,000 and (v) other Asset
Dispositions of property that, together with all other property of the Company
and its Subsidiaries previously leased, sold or disposed of in Asset
Dispositions made pursuant to this Section
6.03(b)(v)
during
the twelve-month period ending with the month in which any such lease, sale
or
other disposition occurs, do not constitute a Substantial Portion of the
property of the Company and its Subsidiaries.
(c) The
Company will not, and will not permit any of its Subsidiaries to, engage to
any
material extent in any business other than businesses of the type conducted
by
the Company and its Subsidiaries on the date of execution of this Agreement
and
businesses reasonably related thereto.
SECTION
6.04. Investments,
Loans, Advances, Guarantees and Acquisitions.
The
Company will not, and will not permit any of its Subsidiaries to, purchase,
hold
or acquire (including pursuant to any merger with any Person that was not a
Wholly-Owned Subsidiary prior to such merger) any capital stock, evidences
of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, 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
by the Company in the capital stock of its Subsidiaries;
(c) loans
or
advances made by the Company to any Subsidiary and made by any Subsidiary to
the
Company or any other Subsidiary;
(d) Guarantees
constituting Indebtedness permitted by Section
6.01;
(e) the
Subsidiary Guarantee;
(f) subject
to the provisions of this Section
6.04(f)
and the
requirements contained in the definition of Permitted Acquisition, the Company
and its Wholly-Owned Subsidiaries may from time to time effect Permitted
Acquisitions, so long as: (i) no Default shall have occurred and be continuing
at the time of the consummation of the proposed Permitted Acquisition or
immediately after giving effect thereto (determined on a pro forma basis in
respect of Sections
6.09 and 6.10);
(ii)
if the proposed Permitted Acquisition is for aggregate consideration of
$25,000,000 or more, the Company shall have given to the Administrative Agent
for distribution to each Lender written notice of such proposed Permitted
Acquisition on the earlier of (x) the date on which the Permitted Acquisition
is
publicly announced and (y) ten (10) Business Days prior to consummation of
such
Permitted Acquisition (or such shorter period of time as may be reasonably
acceptable to the Administrative Agent), which notice shall be executed by
its
chief financial officer or vice president-finance and shall describe in
reasonable
54
detail
the principal terms and conditions of such Permitted Acquisition; and (iii)
at
the time of any such Permitted Acquisition involving the creation or acquisition
of a Subsidiary, or the acquisition of capital stock or other Equity Interest
of
any Person, the Company and its Subsidiaries shall have complied with
Section
5.09;
(g) investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in good faith settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;
(h) loans
and
advancements to officers and employees of the Company and its Subsidiaries
for
moving, relocation and travel expenses and other similar expenditures, in each
case in the ordinary course of business, in an aggregate amount not to exceed
$2,500,000 at any time (determined without regard to any write-downs or
write-offs of such loans and advances);
(i) loans
by
the Company to officers, directors and employees of the Company and its
Subsidiaries in connection with their purchase of capital stock of the Company,
so long as no cash is paid by the Company to any thereof in connection with
such
purchase;
(j) investments
evidenced by Swap Agreements entered into pursuant to Section
6.05;
(k) investments
by an SPC in connection with a Permitted Securitization;
(l) investments
in joint ventures so long as (i) such joint venture is engaged in a business
satisfying the requirements of Section
6.03(c)
and (ii)
the amount of all investments contributed to such joint venture and all other
joint ventures by the Company and its Subsidiaries does not exceed $75,000,000
in the aggregate;
(m)
investments consisting of credit sale contracts generated by retail customers
of
the Borrower or any of its Subsidiaries in the ordinary course of business;
and
(n)
so long
as no Default exists or would occur after giving effect thereto, other
investments not otherwise permitted by clauses (a) through (l) above in an
amount not to exceed $25,000,000 in the aggregate.
SECTION
6.05. Swap
Agreements.
The
Company will not, and will not permit any of its Subsidiaries to, enter into
any
Swap Agreement, except (a) Swap Agreements entered into to hedge or mitigate
risks to which the Company or any Subsidiary has actual exposure (other than
those in respect of Equity Interests of the Company 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 Company or any Subsidiary.
SECTION
6.06. Restricted
Payments.
The
Company will not, and will not permit any of its Subsidiaries to, declare,
pay
or make, or agree to declare, pay or make, directly or indirectly, any
Restricted Payment, except (a) the Company may declare and pay dividends with
respect to its Equity Interests payable solely in additional shares of its
common stock, (b)
55
Subsidiaries
may declare and pay dividends ratably with respect to their Equity Interests,
(c) the Company may make Restricted Payments pursuant to and in accordance
with
stock plans or other benefit plans for management or employees of the Company
and its Subsidiaries and (d) the Company may make other Restricted Payments
so
long as (i) the aggregate of all such other Restricted Payments made after
the
date hereof does not exceed the sum of $150,000,000 plus 50% of the aggregate
of
all positive Net Income of the Company for each fiscal quarter completed after
the date hereof and (ii) no Default has occurred and is continuing or would
occur after giving effect thereto.
SECTION
6.07. Transactions
with Affiliates.
The
Company will not, and will not permit any of its Subsidiaries to, sell, lease
or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course
of
business at prices and on terms and conditions not less favorable to the Company
or such Subsidiary than could be obtained on an arm’s-length basis from
unrelated third parties, (b) transactions between or among the Company and
its
Wholly-Owned Subsidiaries not involving any other Affiliate, (c) transactions
permitted under Sections
6.01(c),
6.02(f)
and
6.04(g)
and
(h)
and (d)
the making of any Restricted Payment permitted by Section
6.06.
SECTION
6.08. Restrictive
Agreements.
The
Company will not, and will not permit any of its 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 (a) the
ability of the Company or any Subsidiary to create, incur or permit to exist
any
Lien upon any of its property or assets, or (b) 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 Company or any other
Subsidiary or to Guarantee Indebtedness of the Company or any other Subsidiary;
provided
that (i)
the foregoing shall not apply to restrictions and conditions imposed by law
or
by this Agreement, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule
6.08
(but
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition), (iii) the foregoing
shall not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided that such
restrictions and conditions apply only to the Subsidiary that is to be sold
and
such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (v) the
foregoing shall not apply to restrictions or conditions upon any SPC imposed
in
connection with a Permitted Securitization, and (vi) clause (a) of the foregoing
shall not apply to (A) customary provisions in leases and other contracts
restricting the assignment thereof or limiting Liens securing indebtedness
incurred for purposes of financing the acquired assets to which such Liens
attach or (B) negative pledge provisions contained in documentation evidencing
the issuance by the Company of debt securities with an aggregate principal
amount not to exceed $50,000,000 at any one time outstanding, so long as such
documentation provides for the granting of Liens if such debt securities are
equally and ratably secured.
56
SECTION
6.09. Minimum
Interest Coverage Ratio.
The
Company will not permit the Interest Coverage Ratio as of the end of any fiscal
quarter of the Company to be less than or equal to 2.75 to 1.00.
SECTION
6.10. Maximum
Leverage Ratio.
The
Company will cause the Leverage Ratio to be less than 3.00 to 1.00 at all
times.
SECTION
6.11. Fiscal
Year.
The
Company shall not, nor shall it permit any Subsidiary to, change its fiscal
year
to end on any date other than the Saturday closest to December 31 of each
year.
ARTICLE VII
Events
of Default
If
any of
the following events (“Events
of Default”)
shall
occur:
(a) any
of
the Borrowers shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement or any cash collateral amount
due
pursuant to Section
2.05(j)
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) any
of
the Borrowers 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, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of five days;
(c) any
representation or warranty made or deemed made by or on behalf of the Company
or
any Subsidiary in or in connection with this Agreement or any amendment or
modification hereof or waiver hereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection
with this Agreement or any amendment or modification hereof or waiver hereunder,
shall prove to have been incorrect in any material respect when made or deemed
made;
(d) the
Company shall fail to observe or perform any covenant, condition or agreement
contained in Section
5.02,
5.03
(with
respect to the Company’s existence) or 5.08 or in Article VI;
(e) the
Company shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (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 Company (which
notice will be given at the request of any Lender);
(f) the
Company or any Subsidiary shall fail to make any payment (whether of principal
or interest or otherwise and regardless of amount) in respect of any
Material
57
Indebtedness,
when and as the same shall become due and payable (after accounting for any
period of grace available before an event of default would occur
thereunder);
(g) any
event
or condition occurs that results in any Material Indebtedness becoming due
prior
to its scheduled maturity or that enables or permits (with or without the giving
of notice, the lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance 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;
(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
Company or any 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
Company or any 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
Company or any 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 Company or any 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
Company or any 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
$5,000,000 shall be rendered against the Company, any 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 Company or any 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 Company and its Subsidiaries in an
58
aggregate
amount exceeding (i) $5,000,000 in any year or (ii) $15,000,000 for all
periods;
(m) a
Change
in Control shall occur; or
(n) except
as
otherwise provided in Section
6.03(a),
the
Subsidiary Guaranty or any provisions thereof shall cease to be in full force
or
effect as to any Subsidiary Guarantor, or any Subsidiary Guarantor or any Person
acting for or on behalf of any Subsidiary Guarantor shall deny or disaffirm
such
Subsidiary Guarantor’s obligations under the Subsidiary Guaranty;
then,
and
in every such event (other than an event with respect to any of the Borrowers
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 Company, 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, and
(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 Borrowers 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 Borrowers; and in case of any
event with respect to any of the Borrowers described in clause (h) or (i) of
this Article, the Commitments shall automatically terminate and the principal
of
the Loans then outstanding, together with accrued interest thereon and all
fees
and other obligations of the Borrowers accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or other notice
of
any kind, all of which are hereby waived by the Borrowers.
ARTICLE
VIII
The
Administrative Agent
Each
of
the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The
bank
serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the
same
as though it were not the Administrative Agent, and such bank and its Affiliates
may accept deposits from, lend money to and generally engage in any kind of
business with the Company or any Subsidiary or other Affiliate thereof as if
it
were not the Administrative Agent hereunder.
The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing,
(a) the Administrative Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Administrative Agent shall not have
59
any
duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing as directed by the
Required Lenders (or such other number or percentage of the Lenders as shall
be
necessary under the circumstances as provided in Section
9.02),
and
(c) except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Company or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or
any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request
of
the Required Lenders (or such other number or percentage of the Lenders as
shall
be necessary under the circumstances as provided in Section
9.02)
or in
the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Company or a Lender, and the Administrative Agent shall not be responsible
for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (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 IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Company), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by
it
in accordance with the advice of any such counsel, accountants or
experts.
The
Administrative Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of
the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject
to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time
by
notifying the Lenders, the Issuing Bank and the Company. Upon any such
resignation, the Required Lenders shall have the right, subject, at any time
at
which no Default is outstanding, to the prior written consent of the Company
(which shall not be unreasonably withheld or delayed), to appoint a
60
successor.
If no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New
York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed
to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall
be
discharged from its duties and obligations hereunder. The fees payable by the
Company to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Company and such
successor. After the Administrative Agent’s resignation hereunder, the
provisions of this Article and Section
9.03
shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as Administrative
Agent.
Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent 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 Administrative Agent 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.
The
Administrative Agent shall be permitted from time to time to designate one
of
its Affiliates to perform the duties to be performed by the Administrative
Agent
hereunder with respect to Loans and Borrowings denominated in Foreign
Currencies. The provisions of this Article VIII shall apply to any such
Affiliate mutatis mutandis.
The
title
"Syndication Agent" is purely honorific, and the Person designated as the
"Syndication Agent" shall not have any duties or responsibilities in such
capacity.
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, as follows:
(i) if
to the
Company or any Subsidiary Borrower, to it at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇
▇▇▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
61
(ii) if
to the
Administrative Agent, (A) in the case of Dollar-denominated Borrowings, to
JPMorgan Loan Services, Agency Closing Unit, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (Telecopy No. (▇▇▇)
▇▇▇-▇▇▇▇) and (B) in the case of Borrowings denominated in another currency,
to
▇.▇. ▇▇▇▇▇▇ Europe Limited, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Attention Loan and Agency Services: ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (00 44 (0)
207)
777-2360);
(iii) if
to the
Issuing Bank, to it at JPMorgan Chase Bank, National Association, Global Trade
Services, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(iv) if
to the
Swingline Lender, JPMorgan Loan Services, Agency Closing Unit, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(v) if
to any
other Lender, to it at its address (or telecopy number) 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 Company 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 or telecopy number 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 Borrowers 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.
62
(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
Borrowers and the Required Lenders or by the Company 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 scheduled date of payment of the principal amount of any
Loan
or LC Disbursement, or any interest thereon, or any fees payable hereunder,
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) 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, without the written consent of each Lender, (vi) except as required
under Section
5.09(c)
or in
connection with a transaction permitted by Section
6.03,
release
any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty,
without the written consent of each Lender or (vii) change Article
X
in a
manner that would materially alter the obligations of the Company thereunder,
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.
(c) Notwithstanding
the foregoing, upon the execution and delivery of all documentation required
by
Section
2.08(d)
to be
delivered in connection with an increase to the aggregate Revolving Commitment,
the Administrative Agent, the Borrowers and the new or existing Lenders whose
Revolving Commitments have been affected may and shall enter into an amendment
hereof (which shall be binding on all parties hereto and the new Lenders) solely
for the purpose of reflecting any new Lenders and their new Revolving
Commitments and any increase in the Revolving Commitment of any existing
Lender.
(d) If,
in
connection with any proposed waiver, amendment or modification of any of the
provisions of this Agreement as contemplated by clauses (i) through (vi) of
Section
9.02(b),
the
consent of the Required Lenders is obtained but the consent of one or more
of
such other Lenders whose consent is required is not obtained, then the Company
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) and shall grant its consent to the proposed waiver,
amendment or modification; provided,
that
(i) the Company shall have received the prior written consent of the
Administrative Agent (and if a Commitment is being assigned, each Issuing Bank),
which consent shall not unreasonably be withheld, and (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other
63
amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Company (in the case of all
other amounts).
SECTION
9.03. Expenses;
Indemnity; Damage Waiver.
(a)
The
Borrowers shall jointly and severally pay (i) all reasonable out of pocket
expenses incurred by the Administrative Agent and its Affiliates, including
the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided
for
herein, the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (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 Administrative Agent, the Issuing Bank or any Lender, including the
fees,
charges and disbursements of any counsel for the Administrative Agent, the
Issuing Bank or any Lender, in connection with the enforcement or protection
of
its rights in connection with this Agreement, including its rights under this
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
Borrowers shall jointly and severally indemnify the Administrative 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 therefrom (including any refusal by the Issuing Bank to honor
a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Company or any of
its
Subsidiaries, or any Environmental Liability related in any way to the Company
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 willful misconduct of such
Indemnitee.
(c) To
the
extent that any Borrower fails to pay any amount required to be paid by it
to
the Administrative Agent, the Issuing Bank or the Swingline Lender under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to
the
Administrative Agent, the Issuing Bank or the Swingline 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,
64
claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.
(d) To
the
extent permitted by applicable law, the Borrowers shall not assert, and hereby
waive, 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 Borrowers may not assign or otherwise transfer any of their
respective rights or obligations hereunder without the prior written consent
of
each Lender (and any attempted assignment or transfer by the Borrowers 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 Commitment and the
Loans
at the time owing to it) with the prior written consent (such consent not to
be
unreasonably withheld) of:
(A) the
Company, provided
that no
consent of the Company shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred
and is continuing, any other assignee;
(B) the
Administrative Agent, provided
that no
consent of the Administrative Agent shall be required for an assignment of
any
Commitment to an assignee that is a Lender with a Commitment immediately prior
to giving effect to such assignment; and
(C) the
Issuing Bank.
(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 or an
assignment of the entire remaining amount of the assigning Lender’s
65
Commitment
or Loans of any Class, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Company and the Administrative Agent otherwise consent, provided
that no
such consent of the Company shall be required if an Event of Default has
occurred and is continuing;
(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, provided
that
this clause shall not be
construed to prohibit the assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of one Class of Commitments
or Loans;
(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 payable by either the assignee or the assignor; and
(D) the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent
an Administrative Questionnaire in which the assignee designates one or more
Credit Contacts to whom all syndicate-level information (which may contain
material non-public information about the Company and its affiliates, the Credit
Parties and their related parties or their respective securities) will be made
available and who may receive such information in accordance with the assignee’s
compliance procedures and applicable laws, including Federal and state
securities laws.
For
the
purposes of this Section
9.04(b),
the
term “Approved
Fund”
has
the
following meaning:
“Approved
Fund”
means
any Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a)
a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
(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
2.15,
2.16, 2.17 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.
66
(iv) The
Administrative Agent, acting for this purpose as an agent of the Borrowers,
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 Borrowers, 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 Company, 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; provided
that if
either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section
2.04(c),
2.05(d)
or
(e),
2.06(b),
2.17(d)
or
9.03(c),
the
Administrative Agent shall have no obligation to accept such Assignment and
Assumption and record the information therein in the Register unless and until
such payment shall have been made in full, together with all accrued interest
thereon. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(c) (i)
Any
Lender may, without the consent of the Borrowers, 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 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 Borrowers, 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
Borrowers agree 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
67
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.
(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 Company’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 Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Company, 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 without limitation 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 Borrowers
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
68
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 any time owing by such Lender or Affiliate to or for the
credit or the account of any of the Borrowers against any of and all the
obligations of such Person 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) Each
of
the Borrowers 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 Borrowers or their respective properties in the courts of any
jurisdiction.
(c) Each
of
the Borrowers 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.
69
(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 Administrative Agent, the Issuing Bank and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that
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 Company and its obligations, (g) with the consent of the Company 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
non-confidential basis from a source other than the Company. For the purposes
of
this Section, “Information”
means
all information received from the Company relating to the Company or its
business, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a non-confidential
basis
prior to disclosure by the Company; provided
that, in
the case of information received from the Company after the date hereof, such
information is clearly identified at the time of delivery as confidential.
Any
Person required to maintain the confidentiality of Information as provided
in
this Section shall be considered to have complied with its obligation to do
so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
70
EACH
LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED
TO
IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION
CONCERNING THE COMPANY AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES,
AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE
OF
MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC
INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.
ALL
INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE
COMPANY OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF
ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY
CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY AND ITS AFFILIATES,
THE CREDIT PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES)
AND
ITS SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE COMPANY AND THE
ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE
A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND
APPLICABLE LAW.
SECTION
9.13. 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
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
Federal Funds Effective Rate to the date of repayment, shall have been received
by such Lender.
SECTION
9.14. USA
PATRIOT Act.
Each
Lender that is subject to the requirements of the USA Patriot Act (Title III
of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) hereby notifies
the Borrowers that pursuant to the requirements of the Act, it is required
to
obtain, verify and record information that identifies such Person, which
information includes the names and addresses of the Borrowers and other
information that will allow such Lender to identify the Borrowers in accordance
with the Act.
SECTION
9.15. Conversion
of Currencies.
(a)
If, for
the purpose of obtaining judgment in any court, it is necessary to convert
a sum
owing hereunder in one currency into another currency, each party hereto agrees,
to the fullest extent that it may effectively do so, that
71
the
rate
of exchange used shall be that at which in accordance with normal banking
procedures in the relevant jurisdiction the first currency could be purchased
with such other currency on the Business Day immediately preceding the day
on
which final judgment is given.
(b) The
obligations of each Borrower in respect of any sum due to any party hereto
or
any holder of the obligations owing hereunder (the “Applicable Creditor”) shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than
the currency in which such sum is stated to be due hereunder (the “Agreement
Currency”), be discharged only to the extent that, on the Business Day following
receipt by the Applicable Creditor of any sum adjudged to be so due in the
Judgment Currency, the Applicable Creditor may in accordance with normal banking
procedures in the relevant jurisdiction purchase the Agreement Currency with
the
Judgment Currency; if the amount of the Agreement Currency so purchased is
less
than the sum originally due to the Applicable Creditor in the Agreement
Currency, the Company agrees, as a separate obligation and notwithstanding
any
such judgment, to indemnify the Applicable Creditor against such loss. The
obligations of the Company contained in this Section
9.15
shall
survive the termination of this Agreement and the payment of all other amounts
owing hereunder.
SECTION
9.16. Appointment.
Each
Subsidiary Borrower hereby authorizes and empowers the Company to act as its
representative and attorney-in-fact for the purposes of signing documents and
giving and receiving notices (including borrowing requests and interest
elections hereunder) and other communications in connection with the this
Agreement and the transactions contemplated thereby and for the purposes of
modifying or amending any provision of this Agreement and further agrees that
the Administrative Agent and each Lender may conclusively rely on the foregoing
authorization.
ARTICLE X
Guaranty
SECTION
10.01. Guaranty.
For
valuable consideration, the receipt of which is hereby acknowledged, and to
induce the Lenders to make advances to each Subsidiary Borrower, the Company
hereby absolutely and unconditionally guarantees prompt payment when due,
whether at stated maturity, upon acceleration or otherwise, and at all times
thereafter, of any and all existing and future obligations of each Subsidiary
Borrower to the Administrative Agent and the Lenders and their Affiliates,
or
any of them, under or with respect to the Credit Documents or any Swap
Agreements, whether for principal, interest, fees, expenses or otherwise
(collectively, the “Guaranteed
Obligations”).
SECTION
10.02. Waivers.
The
Company waives notice of the acceptance of this guaranty and of the extension
or
continuation of the Guaranteed Obligations or any part thereof. The Company
further waives presentment, protest, notice of notices delivered or demand
made
on any Subsidiary Borrower or action or delinquency in respect of the Guaranteed
Obligations or any part thereof, including any right to require the
Administrative Agent and the Lenders to ▇▇▇ the Subsidiary Borrower, any other
guarantor or any other Person obligated with respect to the Guaranteed
Obligations or any part thereof, or otherwise to enforce payment thereof against
any collateral securing the Guaranteed Obligations or any part thereof;
provided
that if
at any time
72
any
payment of any portion of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned upon the insolvency, bankruptcy or
reorganization of any of the Subsidiary Borrowers or otherwise, the Company’s
obligations hereunder with respect to such payment shall be reinstated at such
time as though such payment had not been made and whether or not the
Administrative Agent or the Lenders are in possession of this guaranty. The
Administrative Agent and the Lenders shall have no obligation to disclose or
discuss with the Company their assessments of the financial condition of the
Subsidiary Borrowers.
SECTION
10.03. Guaranty
Absolute.
This
guaranty is a guaranty of payment and not of collection, is a primary obligation
of the Company and not one of surety, and the validity and enforceability of
this guaranty shall be absolute and unconditional irrespective of, and shall
not
be impaired or affected by any of the following: (a) any extension, modification
or renewal of, or indulgence with respect to, or substitutions for, the
Guaranteed Obligations or any part thereof or any agreement relating thereto
at
any time; (b) any failure or omission to enforce any right, power or remedy
with
respect to the Guaranteed Obligations or any part thereof or any agreement
relating thereto, or any collateral; (c) any waiver of any right, power or
remedy or of any default with respect to the Guaranteed Obligations or any
part
thereof or any agreement relating thereto or with respect to any collateral;
(d)
any release, surrender, compromise, settlement, waiver, subordination or
modification, with or without consideration, of any collateral, any other
guaranties with respect to the Guaranteed Obligations or any part thereof,
or
any other obligation of any Person with respect to the Guaranteed Obligations
or
any part thereof; (e) the enforceability or validity of the Guaranteed
Obligations or any part thereof or the genuineness, enforceability or validity
of any agreement relating thereto or with respect to any collateral; (f) the
application of payments received from any source to the payment of obligations
other than the Guaranteed Obligations, any part thereof or amounts which are
not
covered by this guaranty even though the Administrative Agent and the Lenders
might lawfully have elected to apply such payments to any part or all of the
Guaranteed Obligations or to amounts which are not covered by this guaranty;
(g)
any change in the ownership of any Subsidiary Borrower or the insolvency,
bankruptcy or any other change in the legal status of any Subsidiary Borrower;
(h) the change in or the imposition of any law, decree, regulation, order or
other governmental act which does or might impair, delay or in any way affect
the validity, enforceability or the payment when due of the Guaranteed
Obligations; (i) the failure of the Company or any Subsidiary Borrower to
maintain in full force, validity or effect or to obtain or renew when required
all governmental and other approvals, licenses or consents required in
connection with the Guaranteed Obligations or this guaranty, or to take any
other action required in connection with the performance of all obligations
pursuant to the Guaranteed Obligations or this guaranty; (j) the existence
of
any claim, setoff or other rights which the Company may have at any time against
any Subsidiary Borrower or any other Person in connection herewith or an
unrelated transaction; or (k) any other circumstances, whether or not similar
to
any of the foregoing, which could constitute a defense to a guarantor; all
whether or not the Company shall have had notice or knowledge of any act or
omission referred to in the foregoing clauses
(a)
through
(k)
of this
paragraph. It is agreed that the Company’s liability hereunder is several and
independent of any other guaranties or other obligations at any time in effect
with respect to the Guaranteed Obligations or any part thereof and that the
Company’s liability hereunder may be enforced regardless of the existence,
validity, enforcement or non-enforcement of any such other guaranties or other
obligations or any provision of any applicable law or regulation purporting
to
73
prohibit
payment by any Subsidiary Borrower of the Guaranteed Obligations in the manner
agreed upon between such Subsidiary Borrower and the Administrative Agent and
the Lenders.
SECTION
10.04. Subrogation.
The
Company hereby agrees not to assert any right, claim or cause of action,
including, without limitation, a claim for subrogation, reimbursement,
indemnification or otherwise, against any Subsidiary Borrower arising out of
or
by reason of this guaranty or the obligations hereunder, including, without
limitation, the payment or securing or purchasing of any of the Guaranteed
Obligations by the Company unless and until the Guaranteed Obligations are
indefeasibly paid in full and any commitment to lend under this Agreement and
any other Credit Documents is terminated.
SECTION
10.05. Limitation
on Obligations.
(i) The
provisions of this guaranty are severable, and in any action or proceeding
involving any state corporate law, or any state, federal or foreign bankruptcy,
insolvency, reorganization or other law affecting the rights of creditors
generally, if the obligations of the Company under this guaranty would otherwise
be held or determined to be avoidable, invalid or unenforceable on account
of
the amount of the Company’s liability under this guaranty, then, notwithstanding
any other provision of this guaranty to the contrary, the amount of such
liability shall, without any further action by the Company, the Administrative
Agent or any Lender, be automatically limited and reduced to the highest amount
that is valid and enforceable as determined in such action or proceeding (such
highest amount determined hereunder being the Company’s “Maximum Liability”).
This
Section
10.05
with
respect to the Maximum Liability of the Company is intended solely to preserve
the rights of the Administrative Agent of the Lenders hereunder to the maximum
extent not subject to avoidance under applicable law, and neither the Company
nor any other person or entity shall have any right or claim under this
Section
10.05
with
respect to the Maximum Liability, except to the extent necessary so that the
obligations of the Company hereunder shall not be rendered voidable under
applicable law.
(ii) The
Company agrees that the Guaranteed Obligations may at any time and from time
to
time exceed the Maximum Liability of the Company without impairing this guaranty
or affecting the rights and remedies of the Administrative Agent and the Lenders
hereunder. Nothing in this Section
10.05(b)
shall be
construed to increase the Company’s obligations hereunder beyond its Maximum
Liability.
SECTION
10.06. Acceleration.
The
Company agrees that, as between the Company on the one hand, and the Lenders
and
the Administrative Agent, on the other hand, the obligations of each Subsidiary
Borrower guaranteed under this Article X
may be
declared to be forthwith due and payable, or may be deemed automatically to
have
been accelerated, as provided in Article
VII
hereof
for purposes of this Article X,
notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Subsidiary Borrower or otherwise)
preventing such declaration as against such Subsidiary Borrower and that, in
the
event of such declaration or automatic acceleration, such obligations (whether
or not due and payable by such Subsidiary Borrower) shall forthwith become
due
and payable by the Company for purposes of this Article X.
74
SECTION
10.07. Termination
Date.
This
guaranty shall continue in effect until the date the Commitments shall have
been
terminated or otherwise expired in accordance with its terms and all of the
Guaranteed Obligations have been paid in full.
SECTION
10.08. Foreign
Currency.
The
specification of payment in a specific currency at a specific place and time
pursuant to this Agreement, any Note or any other Loan Document is essential.
That currency or those currencies are also the currency of account and payment
under this guaranty. If the Company is unable for any reason to effect payment
of a specific currency (other than Dollars) as required by the preceding
sentence or if the Company defaults in the payment when due of any payment
of a
specific currency (other than Dollars) under this guaranty, the Administrative
Agent may, at its option, require such payment to be made to the Administrative
Agent’s principal office in the equivalent amount in Dollars at the
Administrative Agent’s then current selling rate for electronic transfers of
that currency to the place or places where the Guaranteed Obligations were
payable. In the event that any payment, whether pursuant to a judgment or
otherwise, does not result in payment of the amount of currency due under this
guaranty, upon conversion to the currency of account and transfer to the place
specified for payment, the Administrative Agent and the Lenders shall have
an
independent cause of action against the Company for the deficiency.
75
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.
SELECT
COMFORT
CORPORATION, as a
Borrower
By:
/s/
▇▇▇▇▇
▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
SVP
and
Chief Financial Officer
SELECT
COMFORT RETAIL
CORPORATION, as a
Borrower
By:
/s/
▇▇▇▇▇
▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
SVP
and
Chief Financial Officer
SELECT
COMFORT DIRECT
CORPORATION, as a
Borrower
By:
/s/
▇▇▇▇▇
▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
SVP
and
Chief Financial Officer
SELECT
COMFORT SC
CORPORATION, as a
Borrower
By:
/s/
▇▇▇▇▇
▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
SVP
and
Chief Financial Officer
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, individually
and as
Administrative
Agent
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice
President
BANK
OF AMERICA,
N.A., individually and as
Syndication
Agent
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Senior
Vice President
CITICORP
USA, INC.
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Vice
President
▇▇▇▇▇
FARGO BANK,
NATIONAL
ASSOCIATION
By:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice
President
BRANCH
BANKING AND
TRUST CO.
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Assistant Vice President
Signature
Page to Credit Agreement
Schedule
1.01
PRICING
SCHEDULE
|
Applicable
Rate
|
Level
I
Status
|
Level
II
Status
|
Level
III
Status
|
Level
IV
Status
|
Level
V
Status
|
|
Eurocurrency
Spread
|
0.41
%
|
0.50%
|
0.60%
|
0.70%
|
0.80%
|
|
Facility
Fee Rate
|
0.09%
|
0.125%
|
0.15%
|
0.175%
|
0.20%
|
For
the
purposes of this Schedule, the following terms have the following meanings,
subject to the final paragraph of this Schedule:
“Financials”
means the annual or quarterly financial statements of the Company delivered
pursuant to Section
5.01
of this
Agreement.
“Level
I
Status” exists at any date if, as of the last day of the fiscal quarter of the
Company referred to in the most recent Financials, the Leverage Ratio is less
than 1.00 to 1.00.
“Level
II
Status” exists at any date if, as of the last day of the fiscal quarter of the
Company referred to in the most recent Financials, (i) the Company has not
qualified for Level I Status and (ii) the Leverage Ratio is less than 1.50
to
1.00.
“Level
III Status” exists at any date if, as of the last day of the fiscal quarter of
the Company referred to in the most recent Financials, (i) the Company has
not
qualified for Level I Status or Level II Status and (ii) the Leverage Ratio
is
less than 2.00 to 1.00.
“Level
IV
Status” exists at any date if, as of the last day of the fiscal quarter of the
Company referred to in the most recent Financials, (i) the Company has not
qualified for Level I Status, Level II Status or Level III Status and (ii)
the
Leverage Ratio is less than 2.50 to 1.00.
“Level
V
Status” exists at any date if the Company has not qualified for Level I Status,
Level II Status, Level III Status or Level IV Status.
“Status”
means Level I Status, Level II Status, Level III Status, Level IV Status, or
Level V Status.
The
Applicable Rate shall be determined in accordance with the foregoing table
based
on the Company’s Status as reflected in the then most recent Financials.
Adjustments, if any, to the Applicable Rate shall be effective five Business
Days after the Administrative Agent has received the applicable Financials.
If
the Company fails to deliver the Financials to the Administrative Agent at
the
time required pursuant to the Credit Agreement, then the Applicable Rate shall
be the highest Applicable Rate set forth in the foregoing table until five
days
after such Financials are so
delivered.
Until adjusted commencing with the delivery of the Company’s Financials with
respect to the fiscal quarter ending June 30, 2006, Level I Status shall be
deemed to exist.
2
Schedule
2.01
Commitments
|
JPMorgan
Chase Bank, National Association
|
$27,000,000
|
|
Bank
of America, N.A.
|
$23,000,000
|
|
Citicorp
USA, Inc.
|
$20,000,000
|
|
▇▇▇▇▇
Fargo Bank, National Association
|
$15,000,000
|
|
Branch
Banking and Trust Co.
|
$15,000,000
|
|
TOTAL
|
$100,000,000
|
EXHIBIT
A
ASSIGNMENT
AND ASSUMPTION
This
Assignment and Assumption (the “Assignment
and Assumption”)
is
dated as of the Effective Date set forth below and is entered into by and
between [Insert
name of Assignor]
(the
“Assignor”)
and
[Insert
name of Assignee]
(the
“Assignee”).
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Credit Agreement identified below (as amended, the “Credit
Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
to
and incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For
an
agreed consideration, the Assignor hereby irrevocably sells and assigns to
the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor’s rights and
obligations in its capacity as a Lender under the Credit Agreement and any
other
documents or instruments delivered pursuant thereto to the extent related to
the
amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the respective facilities
identified below (including any letters of credit, guarantees, and swingline
loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any
other
right of the Assignor (in its capacity as a Lender) against any Person, whether
known or unknown, arising under or in connection with the Credit Agreement,
any
other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the “Assigned
Interest”).
Such
sale and assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty
by the Assignor.
1. Assignor:
2. Assignee:
[and is an Affiliate/Approved Fund of [identify Lender]1]
3. Borrower(s):
4. Administrative
Agent: ______________________,
as the administrative agent under the Credit Agreement
5. Credit
Agreement: The
$100,000,000 Credit Agreement dated as of June 9, 2006 among Select Comfort
Corporation, the Subsidiary Borrowers party thereto, the Lenders
parties
thereto, JPMorgan Chase Bank, National Association, as Administrative Agent,
and
the other agents parties thereto.
1
Select
as applicable.
|
|
|
6.
Assigned
Interest:
|
Aggregate
Amount of Commitment/Loans for all Lenders
|
Amount
of Commitment/Loans Assigned
|
Percentage
Assigned of Commitment/Loans2
|
|
|
Revolving
Credit
|
$
|
$
|
%
|
Effective
Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND
WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The
Assignee agrees to deliver to the Administrative Agent a completed
Administrative Questionnaire in which the Assignee designates one or more Credit
Contacts to whom all syndicate-level information (which may contain material
non-public information about the Credit Parties and their related parties or
their respective securities) will be made available and who may receive such
information in accordance with the Assignee’s compliance procedures and
applicable laws, including Federal and state securities laws.
The
terms
set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME
OF
ASSIGNOR]
By:
Title:
ASSIGNEE
[NAME
OF
ASSIGNEE]
By:
Title:
[Consented
to and]3
Accepted:
JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, as
Administrative
Agent and Issuing Bank
2 Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans of
all
Lenders thereunder.
3 To
be
added only if the consent of the Administrative Agent is required by the
terms
of the Credit Agreement.
2
By
Title:
[Consented
to:]4
SELECT
COMFORT CORPORATION
By
Title:
4 To
be
added only if the consent of the Company is required by the terms of the
Credit
Agreement.
3
ANNEX
1
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1. Representations
and Warranties.
1.1 Assignor.
The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear
of
any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Credit Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Documents or
any
collateral thereunder, (iii) the financial condition of the Company, any of
its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by the Company, any of
its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Credit Document.
1.2. Assignee.
The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment
and
Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the Credit Agreement, (ii) it satisfies the requirements, if
any,
specified in the Credit Agreement that are required to be satisfied by it in
order to acquire the Assigned Interest and become a Lender, (iii) from and
after
the Effective Date, it shall be bound by the provisions of the Credit Agreement
as a Lender thereunder and, to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to Section
5.01
thereof,
as applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis
of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, the Assignor
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 the Credit Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Documents are required to be performed by it as a Lender.
2. Payments.
From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.
3. General
Provisions.
This
Assignment and Assumption shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a
signature page of this Assignment and Assumption by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and construed
in accordance with, the law of the State of New York.
2
EXHIBIT
B
[FORM
OF]
BORROWING
SUBSIDIARY AGREEMENT
BORROWING
SUBSIDIARY AGREEMENT dated as of [_____], among Select Comfort Corporation,
a
Minnesota corporation (the “Company”),
[Name
of Subsidiary Borrower], a [__________] (the “New
Borrowing Subsidiary”),
and
JPMorgan Chase Bank, National Association, as Administrative Agent (the
“Administrative
Agent”).
Reference
is hereby made to the Credit Agreement dated as of June 9, 2006 (as amended,
supplemented or otherwise modified from time to time, the “Credit
Agreement”),
among
the Company, the Subsidiary Borrowers from time to time party thereto, the
Lenders from time to time party thereto, JPMorgan Chase Bank, National
Association, as Administrative Agent and Bank of America, N.A., as Syndication
Agent. Capitalized terms used herein but not otherwise defined herein shall
have
the meanings assigned to such terms in the Credit Agreement. Under the Credit
Agreement, the Lenders have agreed, upon the terms and subject to the conditions
therein set forth, to make Loans to certain Subsidiary Borrowers (collectively
with the Company, the “Borrowers”),
and
the Company and the New Borrowing Subsidiary desire that the New Borrowing
Subsidiary become a Subsidiary Borrower. In addition, the New Borrowing
Subsidiary hereby authorizes the Company to act on its behalf as and to the
extent provided for in Article
II
of the
Credit Agreement. [Notwithstanding
the preceding sentence, the New Borrowing Subsidiary hereby designates the
following officers as being authorized to request Borrowings under the Credit
Agreement on behalf of the New Subsidiary Borrower and sign this Borrowing
Subsidiary Agreement and the other Credit Documents to which the New Borrowing
Subsidiary is, or may from time to time become, a party:
[______________].]
Each
of
the Company and the New Borrowing Subsidiary represents and warrants that the
representations and warranties of the Company in the Credit Agreement relating
to the New Borrowing Subsidiary and this Agreement are true and correct on
and
as of the date hereof, other than representations given as of a particular
date,
in which case they shall be true and correct as of that date. [The Company
and
the New Borrowing Subsidiary further represent and warrant that the execution,
delivery and performance by the New Borrowing Subsidiary of the transactions
contemplated under this Agreement and the use of any of the proceeds raised
in
connection with this Agreement will not contravene or conflict with the
provisions of section 151 of the Companies ▇▇▇ ▇▇▇▇ of England and Wales (as
amended).]5 [INSERT
OTHER PROVISIONS REASONABLY REQUESTED BY ADMINISTRATIVE AGENT OR ITS COUNSEL]
The Company agrees that the guarantee of the Company contained in the Credit
Agreement will apply to the obligations of the New Borrowing Subsidiary. Upon
execution of this Agreement by each of the Company, the New Borrowing Subsidiary
and the Administrative Agent, the New Borrowing Subsidiary shall be a party
to
the Credit Agreement and shall
1 To
be included only if a New Borrowing Subsidiary will be a Borrower organized
under the laws of England and Wales.
constitute
a “Subsidiary Borrower” for all purposes thereof, and the New Borrowing
Subsidiary hereby agrees to be bound by all provisions of the Credit
Agreement.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York.
[Signature
Page Follows]
2
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their authorized officers as of the date first appearing
above.
|
SELECT
COMFORT CORPORATION
By:
_________________________________
Name:
Title:
|
|
|
[NAME
OF NEW BORROWING SUBSIDIARY]
By:
_________________________________
Name:
Title:
|
|
|
JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, as
Administrative
Agent
By:
_________________________________
Name:
Title:
|
3
EXHIBIT
C
MANDATORY
COST RATE
1. Definitions.
In
this
Exhibit
E:
“Act”
means the Bank of England Act of 1998.
The
terms
“Eligible Liabilities” and “Special Deposits” have the meanings ascribed to the
them under or pursuant to the Act or by the Bank of England (as may be
appropriate), on the day of the application of the formula set forth in this
Exhibit
C.
“Fee
Base” has the meaning ascribed to it for the purposes of, and shall be
calculated in accordance with, the Fees Regulations.
“Fees
Regulations” means, as appropriate, either: (i) the Banking Supervision (Fees)
Regulations 1998, or (ii) such regulations as from time to time may be in force,
relating to the payment of fees for banking supervision in the United
Kingdom.
“FSA”
means the Financial Services Authority.
2. Calculation
of the Mandatory Cost Rate.
The
Mandatory Cost Rate is an incremental per annum addition to the interest rate
charged with respect to each Eurocurrency Loan to compensate the Lenders for
the
cost attributable to such Eurocurrency Loan resulting from the imposition from
time to time under or pursuant to the Act and/or by the Bank of England and/or
the FSA (or other United Kingdom governmental authorities or agencies) of a
requirement to place non-interest bearing or Special Deposits (whether interest
bearing or not) with the Bank of England and/or pay fees to the FSA calculated
by reference to the liabilities used to fund the relevant Eurocurrency
Loan.
The
“Mandatory Cost Rate” is the rate determined by the Administrative Agent to be
equal to the rate (rounded upward, if necessary, to the next higher 1/100 of
1%)
resulting from the application of the following formula:
For
Sterling:
AB
+C(B-D) + E x 0.01
100
-
(A+C)
For
other
Agreed Currencies:
E
x
0.01
300
where
on
the day of application of the formula,
|
A
|
is
the percentage of Eligible Liabilities (in excess of any stated minimum)
which the Administrative Agent is from time to time required to maintain
as an interest free cash ratio deposit with the Bank of
England.
|
|
B
|
is
the Eurocurrency Base Rate applicable to the related Eurocurrency
Loan.
|
|
C
|
is
the level of interest-bearing Special Deposits, expressed as a percentage
of Eligible Liabilities, which the Administrative Agent is required
from
time to time to maintain by the Bank of England (or other United
Kingdom
governmental authority or agency).
|
|
D
|
is
the percentage rate per annum payable by the Bank of England to the
Administrative Agent on Special
Deposits.
|
|
E
|
is
the rate payable by the Administrative Agent to the FSA pursuant
to the
Fees Regulations and expressed in pounds per 1,000,000 Sterling of
the Fee
Base of the Administrative Agent.
|
(A,
B, C
and D are to be expressed in the formula as numbers and not as percentages.
A
negative result obtained from subtracting D from B shall be counted as
zero.)
The
Mandatory Cost Rate attributable to a Eurocurrency Loan for any period shall
be
calculated at or about 11:00 a.m. (London time) on the first day of such period
for the duration of such period.
The
determination of the Mandatory Cost Rate by the Administrative Agent in relation
to any period shall, in the absence of manifest error, be conclusive and binding
on all parties hereto.
2
EXHIBIT
D
[FORM
OF]
BORROWING
SUBSIDIARY TERMINATION
JPMorgan
Chase Bank, National Association,
as
Administrative Agent
for
the
Lenders referred to below
▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
[__________]
[Date]
Ladies
and Gentlemen:
The
undersigned, Select Comfort Corporation (the “Company”),
refers to the Credit Agreement dated as of June 9, 2006 (as amended,
supplemented or otherwise modified from time to time, the “Credit
Agreement”),
among
the Company, the Subsidiary Borrowers from time to time party thereto, JPMorgan
Chase Bank, National Association, as Administrative Agent and Bank of America,
N.A., as Syndication Agent. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit
Agreement.
The
Company hereby terminates the status of [______________] (the “Terminated
Borrowing Subsidiary”)
as a
Subsidiary Borrower under the Credit Agreement. [The Company represents and
warrants that no Loans made to the Terminated Borrowing Subsidiary are
outstanding as of the date hereof and that all amounts payable by the Terminated
Borrowing Subsidiary in respect of interest and/or fees (and, to the extent
notified by the Administrative Agent or any Lender, any other amounts payable
under the Credit Agreement) pursuant to the Credit Agreement have been paid
in
full on or prior to the date hereof.] [The Company acknowledges that the
Terminated Borrowing Subsidiary shall continue to be a Borrower until such
time
as all Loans made to the Terminated Borrowing Subsidiary shall have been paid
and all amounts payable by the Terminated Borrowing Subsidiary in respect of
interest and/or fees (and, to the extent notified by the Administrative Agent
or
any Lender, any other amounts payable under the Credit Agreement) pursuant
to
the Credit Agreement shall have been paid in full, provided
that the
Terminated Borrowing Subsidiary shall not have the right to make further
Borrowings under the Credit Agreement.]
[Signature
Page Follows]
This
instrument shall be construed in accordance with and governed by the laws of
the
State of New York.
Very
truly yours,
SELECT
COMFORT
CORPORATION
By:
______________________________
Name:
Title:
Copy
to: JPMorgan Chase Bank, National
Association
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
2