EXHIBIT 99.1
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[Published CUSIP Number: ________________]
CREDIT AGREEMENT
Dated as of June 30, 2006
among
INFRASOURCE INCORPORATED,
as the Borrower,
INFRASOURCE SERVICES, INC.,
as Holdings,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,
JPMORGAN CHASE BANK, N.A.
as Syndication Agent,
LASALLE BANK NATIONAL ASSOCIATION and NATIONAL CITY BANK
as Co-Documentation Agents,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS.............................. 1
1.01. Defined Terms................................................. 1
1.02. Other Interpretive Provisions................................. 23
1.03. Accounting Terms.............................................. 24
1.04. Rounding...................................................... 25
1.05. Times of Day.................................................. 25
1.06. Letter of Credit Amounts...................................... 25
1.07. Exchange Rates; Currency Equivalents.......................... 25
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS........................ 25
2.01. Committed Loans............................................... 25
2.02. Borrowings, Conversions and Continuations of Loans............ 26
2.03. Letters of Credit............................................. 27
2.04. Swing Line Loans.............................................. 35
2.05. Prepayments................................................... 38
2.06. Termination or Reduction of Commitments....................... 38
2.07. Repayment of Loans............................................ 39
2.08. Interest...................................................... 39
2.09. Fees.......................................................... 40
2.10. Computation of Interest and Fees.............................. 40
2.11. Evidence of Debt.............................................. 41
2.12. Payments Generally; Administrative Agent's Clawback........... 41
2.13. Sharing of Payments by Lenders................................ 43
2.14. Increase in Commitments....................................... 44
2.15. The Term Loan Borrowings...................................... 45
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY...................... 45
3.01. Taxes......................................................... 45
3.02. Illegality.................................................... 47
3.03. Inability to Determine Rates.................................. 47
3.04. Increased Costs; Reserves on Eurodollar Rate Loans............ 48
3.05. Compensation for Losses....................................... 49
3.06. Mitigation Obligations; Replacement of Lenders................ 50
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3.07. Survival...................................................... 50
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.................... 50
4.01. Conditions of Initial Credit Extension........................ 50
4.02. Conditions to all Credit Extensions........................... 52
ARTICLE V. REPRESENTATIONS AND WARRANTIES................................ 53
5.01. Existence, Qualification and Power............................ 53
5.02. Authorization; No Contravention............................... 53
5.03. Governmental Authorization; Other Consents.................... 53
5.04. Binding Effect................................................ 54
5.05. Financial Statements; No Material Adverse Effect; No Internal
Control Event................................................. 54
5.06. Litigation.................................................... 54
5.07. No Default.................................................... 55
5.08. Ownership of Property; Liens.................................. 55
5.09. Environmental Compliance...................................... 55
5.10. Insurance..................................................... 55
5.11. Taxes......................................................... 55
5.12. ERISA Compliance.............................................. 55
5.13. Subsidiaries; Equity Interests................................ 56
5.14. Margin Regulations; Investment Company Act.................... 56
5.15. Disclosure.................................................... 56
5.16. Compliance with Laws.......................................... 56
5.17. Intellectual Property; Licenses, Etc.......................... 57
5.18. Solvency...................................................... 57
5.19. Collateral Documents.......................................... 57
5.20. Guaranty...................................................... 57
5.21. Regulated Subsidiaries........................................ 57
ARTICLE VI. AFFIRMATIVE COVENANTS........................................ 57
6.01. Financial Statements.......................................... 57
6.02. Certificates; Other Information............................... 58
6.03. Notices....................................................... 59
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6.04. Payment of Obligations........................................ 59
6.05. Preservation of Existence, Etc................................ 60
6.06. Maintenance of Properties..................................... 60
6.07. Maintenance of Insurance...................................... 60
6.08. Compliance with Laws.......................................... 60
6.09. Books and Records............................................. 60
6.10. Inspection of Properties and Books, etc....................... 60
6.11. Use of Proceeds............................................... 61
6.12. Covenant to Guarantee Obligations and Give Security........... 61
6.13. Further Assurances............................................ 62
6.14. Regulated Subsidiaries; Approval.............................. 62
6.15. Mechanical Specialties........................................ 62
ARTICLE VII. NEGATIVE COVENANTS.......................................... 63
7.01. Liens......................................................... 63
7.02. Investments................................................... 65
7.03. Indebtedness.................................................. 67
7.04. Fundamental Changes........................................... 68
7.05. Dispositions.................................................. 68
7.06. Restricted Payments........................................... 69
7.07. Change in Nature of Business.................................. 69
7.08. Transactions with Affiliates.................................. 70
7.09. Burdensome Agreements......................................... 70
7.10. Use of Proceeds............................................... 70
7.11. Financial Covenants........................................... 70
7.12. Capital Expenditures.......................................... 70
7.13. Amendments of Organization Documents.......................... 71
7.14. Accounting Changes............................................ 71
7.15. Prepayments, Etc. of Indebtedness............................. 71
7.16. Sales and Leasebacks.......................................... 71
7.17. Swap Contracts................................................ 71
7.18. Certain Agreements........................................... 71
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7.19. Holdings..................................................... 72
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES............................. 72
8.01. Events of Default............................................ 72
8.02. Remedies Upon Event of Default............................... 74
8.03. Application of Funds......................................... 74
ARTICLE IX. ADMINISTRATIVE AGENT......................................... 75
9.01. Appointment and Authority.................................... 75
9.02. Rights as a Lender........................................... 76
9.03. Exculpatory Provisions....................................... 76
9.04. Reliance by Administrative Agent............................. 77
9.05. Delegation of Duties......................................... 77
9.06. Resignation of Administrative Agent.......................... 77
9.07. Non-Reliance on Administrative Agent and Other Lenders....... 78
9.08. No Other Duties, Etc......................................... 78
9.09. Administrative Agent May File Proofs of Claim................ 78
9.10. Collateral and Guaranty Matters.............................. 79
ARTICLE X. CONTINUING GUARANTY........................................... 80
10.01. Guaranty..................................................... 80
10.02. Rights of Lenders............................................ 80
10.03. Certain Waivers.............................................. 80
10.04. Obligations Independent...................................... 81
10.05. Subrogation.................................................. 81
10.06. Termination; Reinstatement................................... 81
10.07. Subordination................................................ 81
10.08. Stay of Acceleration......................................... 81
10.09. Condition of Borrower........................................ 82
ARTICLE XI. MISCELLANEOUS................................................ 82
11.01. Amendments, Etc.............................................. 82
11.02. Notices; Effectiveness; Electronic Communication............. 83
11.03. No Waiver; Cumulative Remedies............................... 85
11.04. Expenses; Indemnity; Damage Waiver........................... 85
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11.05. Payments Set Aside........................................... 87
11.06. Successors and Assigns....................................... 87
11.07. Treatment of Certain Information; Confidentiality............ 91
11.08. Right of Setoff.............................................. 92
11.09. Interest Rate Limitation..................................... 92
11.10. Counterparts; Integration; Effectiveness..................... 93
11.11. Survival of Representations and Warranties................... 93
11.12. Severability................................................. 93
11.13. Replacement of Lenders....................................... 93
11.14. Governing Law; Jurisdiction; Etc............................. 94
11.15. Waiver of Jury Trial......................................... 95
11.16. No Advisory or Fiduciary Responsibility...................... 95
11.17. USA PATRIOT Act Notice....................................... 96
11.18. Judgment Currency............................................ 96
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SCHEDULES
1.01 Existing Letters of Credit
2.01 Commitments and Applicable Percentages
4.01(a)(iii) Landlord Waiver Locations
4.01(a)(vi) Local Counsel Opinions
5.08(b) Existing Liens
5.09 Environmental Matters
5.13 Subsidiaries; Other Equity Investments; Equity Interests in
the Borrower
6.12 Guarantors
7.03 Existing Indebtedness
7.05 Certain Dispositions
7.09 Existing Burdensome Agreements
11.02 Administrative Agent's Office; Certain Addresses for Notices
11.06 Processing and Recordation Fees
EXHIBITS
FORM OF
A Loan Notice
B Swing Line Loan Notice
C-1 Term Loan Note
C-2 Revolving Credit Note
D Compliance Certificate
E Assignment and Assumption
F Guaranty
G Security Agreement
H Pledge Agreement
I Collateral Assignment of Intercompany Notes
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of June 30, 2006,
among INFRASOURCE INCORPORATED, a Delaware corporation (the "Borrower"),
INFRASOURCE SERVICES, INC., a Delaware corporation ("Holdings") each lender from
time to time party hereto (collectively, the "Lenders" and individually, a
"Lender"), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender
and L/C Issuer.
The Borrower has requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto, intending to be legally bound hereby, covenant and agree as
follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01. DEFINED TERMS. As used in this Agreement, each of the following terms
shall have the meaning set forth below:
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 11.02, or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Commitments" means the Commitments of all the Revolving Credit
Lenders.
"Agreement" means this Credit Agreement.
"Alternative Currency" means the Canadian dollar.
"Alternative Currency Equivalent" means, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by the L/C Issuer at such time on the basis
of the Spot Rate (determined in respect of the most recent Revaluation Date) for
the purchase of such Alternative Currency with Dollars.
"Applicable Percentage" means (a) in respect of the Term Loan Facility,
with respect to any Term Loan Lender at any time, the percentage (carried out to
the ninth decimal place) of the Term Loan Facility represented by the principal
amount of such Term Loan Lender's Term Loan at such time and (b) in respect of
the Revolving Credit Facility, with respect to any Revolving Credit Lender at
any time, the percentage (carried out to the ninth decimal place) of the
Revolving Credit Facility represented by such Revolving Credit Lender's
Commitment at such time. If the commitment of each Revolving Credit
Lender to make Committed Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 8.02, or if the
Aggregate Commitments have expired, then the Applicable Percentage of each
Revolving Credit Lender in respect of the Revolving Credit Facility shall be
determined based on the Applicable Percentage of such Revolving Credit Lender in
respect of the Revolving Credit Facility most recently in effect, giving effect
to any subsequent assignments. The initial Applicable Percentage of each Lender
in respect of each Facility is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.
"Applicable Rate" means the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(a):
APPLICABLE RATE
EURODOLLAR
RATE
CONSOLIDATED LETTERS OF
PRICING LEVEL LEVERAGE RATIO COMMITMENT FEE CREDIT BASE RATE
------------- ----------------- -------------- ---------- ---------
1 > or = 3.00:1 0.350% 2.00% 1.00%
2 < 3.00:1
but > or = 2.25:1 0.300% 1.75% 0.75%
3 < 2.25:1
but > or = 1.50:1 0.250% 1.50% 0.50%
4 < 1.50:1
but > or = 1.00:1 0.200% 1.25% 0.25%
5 < 1.00:1 0.175% 1.00% 0.00%
Any increase or decrease in the Applicable Rate resulting from a change in
the Consolidated Leverage Ratio shall become effective as of the first Business
Day immediately following the date a Compliance Certificate is delivered
pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate
is not delivered when due in accordance with such Section, then Pricing Level 1
shall apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered until the first Business Day
after such Compliance Certificate is delivered. The Applicable Rate in effect
from the Closing Date through the date of receipt by the Administrative Agent of
the First Compliance Certificate after the Closing Date shall be determined
based upon Pricing Level 4.
"Applicable Revolving Credit Percentage" means with respect to any
Revolving Credit Lender at any time, such Revolving Credit Lender's Applicable
Percentage in respect of the Revolving Credit Facility at such time.
"Applicable Time" means, with respect to any payments in any Alternative
Currency, the local time in the place of settlement for such Alternative
Currency as may be determined by the L/C Issuer to be necessary for timely
settlement on the relevant date in accordance with normal banking procedures in
the place of payment.
"Appropriate Lender" means, at any time, (a) with respect to the Term Loan
Facility, a Lender that holds a Term Loan at such time, (b) with respect to the
Revolving Credit Facility, a Revolving Credit
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Lender that has a Commitment with respect to the Revolving Credit Facility or a
Committed Loan at such time, (b) with respect to the Letter of Credit Sublimit,
(i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant
to Section 2.03(a), the Revolving Credit Lenders and (c) with respect to the
Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans
are outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 11.06(b), and accepted by the Administrative Agent, in
substantially the form of Exhibit E or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance sheet
of Holdings and its Subsidiaries for the fiscal year ended December 31, 2005,
and the related consolidated statements of income or operations, shareholders'
equity and cash flows for such fiscal year of Holdings and its Subsidiaries,
including the notes thereto.
"Availability Period" means, in respect of the Revolving Credit Facility,
the period from and including the Closing Date to the earliest of (a) the
Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant
to Section 2.06, and (c) the date of termination of the commitment of each
Revolving Credit Lender to make Committed Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Committed Loan or a Term Loan that is a Base Rate
Loan.
"Bonded Contracts" has the meaning specified in Section 7.01(q).
3
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means a Committed Borrowing, a Swing Line Borrowing or a Term
Loan Borrowing, as the context may require.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Capital Expenditures" means, with respect to any Person for any period,
any expenditure in respect of the purchase or other acquisition of any fixed or
capital asset (excluding normal replacements and maintenance which are properly
charged to current operations). Notwithstanding the foregoing, Capital
Expenditures shall not include (a) expenditures with net cash proceeds of
substantially concurrent sales or issuances of Equity Interests, (b) amounts
expended in connection with Permitted Acquisitions, and (c) equipment or other
property purchases simultaneously or substantially concurrently with the
trade-in of existing equipment or property owned by the Borrower and its
Subsidiaries to the extent of the trade-in credit with respect to the equipment
or property being trade-in.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalents" means any of the following types of Investments:
(a) marketable obligations issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality thereof
having maturities of not more than one year from the date of acquisition
thereof; provided that the full faith and credit of the United States of America
is pledged in support thereof;
(b) dollar denominated (including eurodollar) time deposits with, or
certificates of deposit, repurchase agreements or bankers' acceptances of, any
commercial bank that (i) is a Lender or (ii) has combined capital and surplus of
at least $500,000,000, in each case with maturities of not more than one year
from the date of acquisition thereof;
(c) commercial paper issued by any Person organized under the laws of any
state of the United States of America and rated at least "Prime-1" (or the then
equivalent grade) by ▇▇▇▇▇'▇ or at least "A-1" (or the then equivalent grade) by
S&P, in each case with maturities of not more than six months from the date of
acquisition thereof;
(d) Investments, classified in accordance with GAAP as current assets of
the Borrower or any of its Subsidiaries, in money market investment programs
registered under the Investment Company Act of 1940, as amended, having
portfolios of at least $500,000,000, and which are limited substantially to
Investments of the character, quality and maturity described in clauses (a), (b)
and (c) of this definition; and
(e) Investments by Foreign Subsidiaries in short term Investments not
exceeding $2,000,000 in the aggregate at any time.
4
"Cash Management Agreement" means any agreement to provide cash management
services, including treasury, depository, overdraft, credit or debit card,
electronic funds transfer and other cash management arrangements.
"Cash Management Bank" means any Person that, at the time it enters into a
Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its
capacity as a party to such Cash Management Agreement.
"CFC" means a Person that is a controlled foreign corporation under Section
957 of the Code.
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934) becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
except that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire, whether such
right is exercisable immediately or only after the passage of time (such right,
an "option right")), directly or indirectly, of 35% or more of the equity
securities of Holdings entitled to vote for members of the board of directors or
equivalent governing body of Holdings on a fully-diluted basis (and taking into
account all such securities that such person or group has the right to acquire
pursuant to any option right), but excluding from such limitation (i) the
Existing Investors, (ii) any Person or Persons who acquires the Existing
Investors' equity securities in Holdings so long as such Person or Persons do
not become the "beneficial owner" of more than 50% of such securities, and (iii)
any employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) ;
(b) during any period of 12 consecutive months, a majority of the members
of the board of directors or other equivalent governing body of Holdings cease
to be composed of individuals (i) who were members of that board or equivalent
governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case of
both clause (ii) and clause (iii), any individual whose initial nomination for,
or assumption of office as, a member of that board or equivalent governing body
occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or
group other than a solicitation for the election of one or more directors by or
on behalf of the board of directors);
(c) any Person or two or more Persons acting in concert shall have acquired
by contract or otherwise, or shall have entered into a contract or arrangement
that, upon consummation thereof, will result in its or their acquisition of the
power to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower, or control over the equity securities of
Holdings entitled to vote for members of the board of directors or equivalent
governing body of Holdings on a fully-diluted
5
basis (and taking into account all such securities that such Person or group has
the right to acquire pursuant to any option right) representing 35% or more of
the combined voting power of such securities, but excluding from such limitation
(i) the Existing Investors and (ii) any Person or Persons who acquires the
Existing Investors' equity securities in Holdings so long such Person or Persons
shall not hold more than 50% of the combined voting power of such securities; or
(d) Holdings shall cease, directly or indirectly, to own and control
legally and beneficially all of the Equity Interests in the Borrower and, except
as provided in Sections 7.04 or 7.05, each of the Guarantors.
"Closing Date" means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 11.01.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all of the "Collateral" referred to in the Collateral
Documents and all of the other property that is or is intended under the terms
of the Collateral Documents to be subject to Liens in favor of the
Administrative Agent for the benefit of the Secured Parties.
"Collateral Assignment of Intercompany Notes" means collectively or
individually as the context may require, the Collateral Assignments of
Intercompany Notes, dated as of the Closing Date, executed by the Loan Parties
party thereto and substantially in the form of Exhibit I, and each other
Collateral Assignment of Intercompany Notes at any time delivered by a Loan
Party.
"Collateral Documents" means, collectively, the Security Agreement, the
Pledge Agreement, the Collateral Assignment of Intercompany Notes, each of the
collateral assignments, security agreements, pledge agreements or other similar
agreements delivered to the Administrative Agent pursuant to Section 6.12, and
each of the other agreements, instruments or documents that creates or purports
to create a Lien in favor of the Administrative Agent for the benefit of the
Secured Parties.
"Commitment" means, as to each Revolving Credit Lender, its obligation to
(a) make Committed Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Revolving Credit Lenders
pursuant to Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D.
"Consolidated Adjusted EBITDA" means, for any period, for Holdings and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in calculating
such Consolidated Net Income: (i) Consolidated Interest Charges for such period,
(ii) the provision for Federal, state, local and foreign income taxes payable by
Holdings and its Subsidiaries for such period, (iii) depreciation and
amortization expense, (iv) amortization of intangibles (including, but not
limited to, goodwill and organization costs) and any charges pursuant to
6
SFAS 142 or 144), (v) any extraordinary, unusual or non-recurring expenses or
losses which (A) do not represent a cash item in such period or any future
period or (B) do not, in the aggregate, exceed $20,000,000 for the term of this
Agreement (including, in the case of (A) or (B), whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period and losses on sales of assets outside of the ordinary course of
business), (vi) expenses or fees incurred in connection with any Permitted
Acquisitions, (vii) SFAS 123R expenses or payments or distributions in
compliance with Section 7.06(f), and (viii) offering costs related to the sale
by Holdings of Equity Interests or the sale by the Borrower of unsecured debt or
Subordinated Debt pursuant to Section 7.03(j) and minus (b) the following to the
extent included in calculating such Consolidated Net Income: (i) Federal, state,
local and foreign income tax credits of Holdings and its Subsidiaries for such
period, (ii) interest income, and (iii) all extraordinary, unusual or
non-recurring (it being understood that income arising from contracts with
customers entered into in the ordinary course of business shall not be
considered non-recurring for purposes of this definition) income or gain
increasing Consolidated Net Income for such period (including, whether or not
otherwise includable as a separate item in the statement of such Consolidated
Net Income for such period, gains on the sales of assets outside of the ordinary
course of business).
For the purposes of calculating Consolidated Adjusted EBITDA for any period
of four consecutive fiscal quarters (each, a "Reference Period"), (i) if at any
time during such Reference Period Holdings or any Subsidiary shall have made any
Material Disposition, the Consolidated Adjusted EBITDA for such Reference Period
shall be reduced by an amount equal to the Consolidated Adjusted EBITDA (if
positive) attributable to the property that is the subject of such Material
Disposition for such Reference Period or increased by an amount equal to the
Consolidated Adjusted EBITDA (if negative) attributable thereto for such
Reference Period, in each case calculated as if such Material Disposition
occurred on the first day of such Reference Period and (ii) if during such
Reference Period Borrower or any Subsidiary shall have made a Material
Acquisition, Consolidated Adjusted EBITDA for such Reference Period shall be
calculated after giving pro forma effect thereto (including pro forma effect to
any Permitted Cost-Savings) as if such Material Acquisition occurred on the
first day of such Reference Period. As used in this definition, "Material
Acquisition" means any acquisition of property or series of related acquisitions
of property that (a) constitutes assets comprising all or substantially all of
an operating unit of a business or constitutes all or substantially all of the
Equity Interests of a Person and (b) involves the payment of consideration by
Holdings and its Subsidiaries in excess of $5,000,000; and "Material
Disposition" means any Disposition of property or series of related Dispositions
of property that yields gross proceeds to Holdings or any of its Subsidiaries in
excess of $5,000,000.
"Consolidated Adjusted EBITA" means, for any period, Consolidated Adjusted
EBITDA for such period minus depreciation expenses for such period.
"Consolidated Funded Indebtedness" means, as of any date of determination,
for Holdings and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder) and all obligations
evidenced by bonds (other than Surety Bonds), debentures, notes, loan agreements
or other similar instruments, (b) all purchase money Indebtedness, (c) all
direct obligations arising under letters of credit (including standby and
commercial), bankers' acceptances, bank guaranties, surety bonds and similar
instruments, (d) all obligations in respect of the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course
of business), (e) Attributable Indebtedness in respect of capital leases and
Synthetic Lease Obligations, (f) without duplication, all Guarantees with
respect to outstanding Indebtedness of the types specified in clauses (a)
through (e) above of Persons other than Holdings or any Subsidiary, and (g) all
Indebtedness of the types referred to in clauses (a) through (f) above of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which Holdings or a Subsidiary is a
general partner or joint venturer, unless such Indebtedness is expressly made
non-recourse to Holdings or such Subsidiary, in each case, as determined
7
in accordance with GAAP. Notwithstanding the foregoing, Consolidated Funded
Indebtedness shall not include (i) an amount equal to the lesser of (A) the face
amount of all outstanding Letters of Credit with an expiry date (exclusive of
automatic renewal provisions) of less than or equal to 365 days and (B)
$75,000,000, and (ii) surety bonds (and Guarantee obligations relating thereto),
other than those not reimbursed by Holdings or a Subsidiary thereof within five
(5) Business Days of a drawing thereunder.
"Consolidated Interest Charges" means, for any period, total cash interest
expense (including that attributable to capital leases) of Holdings and its
Subsidiaries for such period with respect to all outstanding Indebtedness of
Holdings 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 under Swap Contracts in respect of interest rates to the
extent such net costs, other than termination costs, are allocable to such
period in accordance with GAAP) minus total cash interest income of Holdings and
its Subsidiaries for such period, all as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Adjusted EBITA for the period of
the four prior fiscal quarters ending on such date to (b) Consolidated Interest
Charges for such period.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated Adjusted EBITDA for the period of the four fiscal quarters most
recently ended.
"Consolidated Net Income" means, for any period, for Holdings and its
Subsidiaries on a consolidated basis, the net income of the Holdings and its
Subsidiaries (excluding extraordinary gains and extraordinary losses) for that
period; provided that there shall be excluded (a) the income of any Person
accrued prior to the date it becomes a Subsidiary of Holdings or is merged into
or consolidated with Holdings or any of its Subsidiaries, (b) the income of any
Person (other than a Subsidiary of Holdings) in which Holdings or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by Holdings or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of Holdings to the extent that (i) such undistributed earnings exceed
5% of the net income of Holdings and its Subsidiaries and (ii) the declaration
or payment of dividends or similar distributions by such Subsidiary is not at
the time permitted by the terms of any Contractual Obligation (other than under
any Loan Document) or Law applicable to such Subsidiary.
"Consolidated Senior Funded Indebtedness" means, as of any date of
determination, for Holdings and its Subsidiaries on a consolidated basis,
Consolidated Funded Indebtedness minus the aggregate outstanding principal
amount of Subordinated Debt and unsecured senior debt incurred by the Borrower
pursuant to Section 7.03(j).
"Consolidated Senior Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Senior Funded Indebtedness as of
such date to (b) Consolidated Adjusted EBITDA for the period of the four fiscal
quarters most recently ended.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
8
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used
with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, the Term Loan, participations in L/C Obligations
or participations in Swing Line Loans required to be funded by it hereunder
within one Business Day of the date required to be funded by it hereunder unless
such failure has been cured, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within one Business Day of the date when due, unless the subject of
a good faith dispute or unless such failure has been cured, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person (or the granting of any option or other right to do any of the
foregoing), including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the L/C Issuer at such time on the basis of the Spot
Rate (determined in respect of the most recent Revaluation Date) for the
purchase of Dollars with such Alternative Currency.
"Domestic Subsidiary" means any Subsidiary that is organized under the laws
of any political subdivision of the United States.
"Effective Date" has the meaning specified in Section 2.14(b).
"Eligible Assignee" means any Person that meets the requirements to be an
assignee under Section 11.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 11.06(b)(iii)).
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the
9
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or receipt by the Borrower or any ERISA
Affiliate of notice that a Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate, the treatment of a Plan amendment as
a termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Borrower or any ERISA Affiliate.
"Eurodollar Rate" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in Same Day Funds in the approximate amount of the Eurodollar Rate Loan
10
being made, continued or converted by Bank of America and with a term equivalent
to such Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Rate Loan" means a Committed Loan or a Term Loan that bears
interest at a rate based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 11.13), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.01(a). Notwithstanding anything to
the contrary contained in this definition, "Excluded Taxes" shall not include
any withholding tax imposed at any time on payments made by or on behalf of a
Foreign Subsidiary to any Lender hereunder or under any other Loan Document so
long as such Lender shall have complied with the last paragraph of Section
3.01(e).
"Existing Credit Agreement" means that certain Amended and Restated Credit
Agreement, as amended, dated as of May 12, 2004, as amended, among Holdings, the
Borrower, Barclays Bank PLC, as agent, and a syndicate of lenders.
"Existing Investors" means GFI Energy Ventures, LLC and Oaktree Capital
Management, LLC.
"Existing Letters of Credit" means the letters of credit issued by LaSalle
Bank National Association under the Existing Credit Agreement and listed on
Schedule 1.01.
"Facility" means the Term Loan Facility or the Revolving Credit Facility,
as the context may require.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
11
"Fee Letter" means the letter agreement, dated May 11, 2006, among
Holdings, the Borrower, the Administrative Agent and the Arranger.
"Foreign L/C Exposure" means, at any time, the sum of the Dollar Equivalent
amounts of (a) 100% of the aggregate undrawn amount of all outstanding Letters
of Credit issued in an Alternative Currency at such time, plus (b) the aggregate
amount of all drawings under Letters of Credit issued in an Alternative Currency
that have not yet been reimbursed by or on behalf of any Loan Party at such
time.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"Granting Lender" has the meaning specified in Section 11.06(h).
"Guarantee" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien); provided, however,
that the term Guarantee shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The
12
amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guarantors" means, collectively, Holdings, the Subsidiaries of Holdings
listed on Schedule 6.12 and each other Subsidiary of Holdings (other than the
Borrower) that shall be required to execute and deliver a guaranty or guaranty
supplement pursuant to Section 6.12; provided that, no Regulated Subsidiary
shall be a Guarantor.
"Guaranty" means, collectively, the Guaranty made by Holdings under Article
X in favor of the Secured Parties and the Guaranty made by the other Guarantors
in favor of the Secured Parties, substantially in the form of Exhibit F,
together with each other guaranty and guaranty supplement delivered pursuant to
Section 6.12.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedge Bank" means any Person that, at the time it enters into a Secured
Hedge Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a
party to such Secured Hedge Agreement.
"Holdings" has the meaning specified in the introductory paragraph hereto.
"Immaterial Subsidiary" means, at any time, any Subsidiary of Holdings
(other than the Borrower) then having net assets with a fair market value of
less than $5,000,000 and gross assets with a fair market value of less than
$20,000,000; provided, that if the aggregate fair market value of (a) the net
assets of all Subsidiaries of Holdings (other than the Borrower) that would
otherwise constitute Immaterial Subsidiaries shall exceed $20,000,000 or (b) the
gross assets of all Subsidiaries of Holdings (other than the Borrower) that
would otherwise constitute Immaterial Subsidiaries shall exceed $50,000,000,
only those such Subsidiaries as shall not then have net assets the aggregate
fair market value of which is greater than $20,000,000 or gross assets the
aggregate fair market value of which is greater than $50,000,000 and as shall be
designated in writing by Holdings to the Administrative Agent as Immaterial
Subsidiaries shall be deemed to constitute Immaterial Subsidiaries.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations
of such Person evidenced by bonds (other than Surety Bonds), debentures, notes,
loan agreements or other similar instruments;
(b) (i) the maximum amount of all direct or contingent obligations of such
Person arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties and similar instruments and (ii) the
maximum amount of obligations due and payable as a result of a default arising
under surety bonds;
(c) net obligations of such Person under any Swap Contract;
13
(d) all obligations of such Person to pay the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course
of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited in
recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Equity Interest in such Person or
any other Person or any warrant, right or option to acquire such Equity
Interest, valued, in the case of a redeemable preferred interest, at the greater
of its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 11.04(b).
"Information" has the meaning specified in Section 11.07.
"Intercreditor Agreements" means those certain Intercreditor Agreements
from time to time entered into among the Administrative Agent, the applicable
Loan Party and the customer of such Loan Party providing surety bond(s) to such
Loan Party, each in form and substance reasonably satisfactory to the
Administrative Agent.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan or a Swing Line Loan, the last
Business Day of each March, June, September and December and the Maturity Date
(with Swing Line Loans being deemed made under the Revolving Credit Facility for
purposes of this definition).
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Loan Notice; provided
that:
14
(a) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(i) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(ii) no Interest Period shall extend beyond the Maturity Date.
"Internal Control Event" means a material weakness in, or fraud that
involves management or other employees who have a significant role in, Holding's
internal controls over financial reporting, in each case as described in the
Securities Laws.
"Investment" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of Equity Interests of another Person, (b) a loan, advance or
capital contribution to, Guarantee or assumption of debt of, or purchase or
other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such
other Person and any arrangement pursuant to which the investor Guarantees
Indebtedness of such other Person, or (c) the purchase or other acquisition (in
one transaction or a series of transactions) of assets of another Person that
constitute a business unit or all or a substantial part of the business, of such
Person. For purposes of covenant compliance, the amount of any Investment shall
be the amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"IP Rights" has the meaning specified in Section 5.17.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor the L/C
Issuer and relating to such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Revolving Credit Lender, such
Lender's funding of its participation in any L/C Borrowing in accordance with
its Applicable Revolving Credit Percentage. All L/C Advances shall be
denominated in Dollars.
15
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Committed Borrowing. All L/C Borrowings shall be denominated in
Dollars.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder and,
solely with respect to the Existing Letters of Credit, LaSalle Bank National
Association.
"L/C Obligations" means, as at any date of determination, the aggregate
Dollar Equivalent amount available to be drawn under all outstanding Letters of
Credit plus the aggregate of all Unreimbursed Amounts, including all L/C
Borrowings. For purposes of computing the amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Agreement, if on any date
of determination, a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder and
shall include the Existing Letters of Credit. Letters of Credit may be issued in
Dollars or in an Alternative Currency.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is five days prior to
the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.03(i).
"Letter of Credit Sublimit" means an amount equal to $100,000,000, up to
the Alternative Currency Equivalent of $2,000,000 of which may be denominated in
an Alternative Currency pursuant to Section 2.03(a)(i). The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
16
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Committed Loan, a Swing Line Loan or a Term Loan.
"Loan Documents" means, collectively, (a) this Agreement, (b) the Notes,
(c) the Guaranty, (d) the Collateral Documents, (e) the Fee Letter, (f) each
Issuer Document, (g) each Secured Hedge Agreement, (h) each Secured Cash
Management Agreement, and (i) each Intercreditor Agreement; provided that for
purposes of the definition of "Material Adverse Effect", Articles IV through IX
and Section 11.01, "Loan Documents" shall not include Secured Hedge Agreements
or Secured Cash Management Agreements.
"Loan Notice" means a notice of (a) a Committed Borrowing, (b) a conversion
of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate
Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially
in the form of Exhibit A.
"Loan Parties" means, collectively, the Borrower and each Guarantor.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), financial condition or prospects of the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the rights and
remedies of the Administrative Agent or any Lender under any Loan Document, or
of the ability of any Loan Party to perform its obligations under any Loan
Document to which it is a party; or (c) a material adverse effect upon the
legality, validity, binding effect, in each case, as related to a Loan Party, or
enforceability against any Loan Party of any Loan Document to which it is a
party.
"Maturity Date" means June 30, 2012 provided, however, that if such date is
not a Business Day, the Maturity Date shall be the next preceding Business Day.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Note" means a Term Note or a Revolving Credit Note, as the context may
require.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the
17
jurisdiction of its formation or organization and, if applicable, any
certificate or articles of formation or organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to the Term Loan, Committed
Loans and Swing Line Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or
repayments of the Term Loans, Committed Loans and Swing Line Loans, as the case
may be, occurring on such date; and (ii) with respect to any L/C Obligations on
any date, the Dollar Equivalent amount of such L/C Obligations on such date
after giving effect to any L/C Credit Extension occurring on such date and any
other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements by the Borrower of Unreimbursed
Amounts.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent, the L/C Issuer, or the
Swing Line Lender, as the case may be, in accordance with banking industry rules
on interbank compensation, and (b) with respect to any amount denominated in an
Alternative Currency, the rate of interest per annum at which overnight deposits
in the applicable Alternative Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for
such day by a branch or Affiliate of Bank of America in the applicable offshore
interbank market for such currency to major banks in such interbank market.
"Participant" has the meaning specified in Section 11.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"PCAOB" means the Public Company Accounting Oversight Board.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Acquisition" has the meaning specified in Section 7.02(h).
"Permitted Cost-Savings" means, in connection with any Permitted
Acquisition or Investment, those demonstrable cost-savings reasonably
anticipated by the Borrower as of any date of determination to be achieved in
connection with such Permitted Acquisition or Investment, as the case may be,
for the 12-month period following the consummation of such Permitted Acquisition
or Investment, which cost-savings shall be estimated by the Borrower on a good
faith basis as of each date of determination prior to the inclusion of the
applicable cost-savings in the calculation of Permitted Cost-Savings (which may
include, without limitation, those permitted under Regulation S-X of the
Exchange Act) and which are reasonably approved by the Administrative Agent; it
is understood and agreed that, for the avoidance of duplication, no anticipated
cost-savings shall be included in the calculation of Permitted Cost-Savings for
any period to the extent such anticipated cost-savings are otherwise reflected
in Consolidated Adjusted
18
EBITDA for such period by virtue of the achievement of actual cost-savings that
were part of the cost-savings anticipated to be achieved.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Platform" has the meaning specified in Section 6.02.
"Pledge Agreement" means collectively or individually as the context may
require, the Pledge Agreements, dated as of the Closing Date, executed by the
Loan Parties party thereto and substantially in the form of Exhibit H, and each
other Pledge Agreement at any time delivered by a Loan Party.
"Register" has the meaning specified in Section 11.06(c).
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of Holdings as prescribed by the
Securities Laws.
"Regulated Subsidiary" means any Subsidiary of Holdings (other than the
Borrower) so long as such Subsidiary is subject to regulation by a Governmental
Authority and for which the incurrence of Indebtedness (including Guarantees)
would be prohibited or require the consent or approval of any Governmental
Authority (and such consent or approval has not been obtained), as set forth in
any rule or regulation of such Governmental Authority.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans or Term Loans, a Loan Notice, (b)
with respect to an L/C Credit Extension, a Letter of Credit Application, and (c)
with respect to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders holding
more than 50% of the sum of the (a) Total Outstandings (with the aggregate
amount of each Revolving Credit Lender's risk participation and funded
participation in L/C Obligations and Swing Line Loans being deemed "held" by
such Revolving Credit Lender for purposes of this definition) and (b) aggregate
unused Commitments; provided that the unused Commitment of, and the portion of
the Total Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.
"Required Revolving Lenders" means, as of any date of determination,
Revolving Credit Lenders holding more than 50% of the sum of the (a) Total
Revolving Credit Outstandings (with the aggregate amount of each Revolving
Credit Lender's risk participation and funded participation in L/C Obligations
and Swing Line Loans being deemed "held" by such Revolving Credit Lender for
purposes of this definition) and (b) aggregate unused Commitments; provided that
the unused Commitment of, and the
19
portion of the Total Revolving Credit Outstandings held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Revolving Lenders.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, treasurer, assistant treasurer or controller of a Loan Party
and, any other officer of the applicable Loan Party so designated by any of the
foregoing officers in a notice to the Administrative Agent. Any document
delivered hereunder that is signed by a Responsible Officer shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
Equity Interest of Holdings 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 capital stock or other Equity Interest, or on account of
any return of capital to Holding's stockholders, partners or members (or the
equivalent Person thereof) or any option, warrant or other right to acquire any
such dividend or other distribution or payment.
"Revaluation Date" means, with respect to any Letter of Credit, each of the
following: (i) each date of issuance of a Letter of Credit denominated in an
Alternative Currency, (ii) each date of an amendment of any such Letter of
Credit having the effect of increasing the amount thereof (solely with respect
to the increased amount), (iii) each date of any payment by the L/C Issuer under
any Letter of Credit denominated in an Alternative Currency, (iv) the last
Business Day of each calendar month and (v) such additional dates as the
Administrative Agent or the L/C Issuer shall determine.
"Revolving Credit Facility" means, at any time, the aggregate amount of the
Revolving Credit Lenders' Commitments at such time.
"Revolving Credit Lender" means, at any time, any Lender that has a
Commitment at such time.
"Revolving Credit Note" means a promissory note made by the Borrower in
favor of a Revolving Credit Lender evidencing Committed Loans or Swing Line
Loans, as the case may be, made by such Revolving Credit Lender, substantially
in the form of Exhibit C-2.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
determined by the L/C Issuer to be customary in the place of disbursement or
payment for the settlement of international banking transactions in the relevant
Alternative Currency.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Cash Management Agreement" means any Cash Management Agreement
that is entered into by and between the Borrower and any Cash Management Bank.
20
"Secured Hedge Agreement" means any Swap Contract permitted under Article
VI or VII that is entered into by and between the Borrower and any Hedge Bank.
"Secured Parties" means, collectively, the Administrative Agent, the
Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks, each
co-agent or sub-agent appointed by the Administrative Agent from time to time
pursuant to Section 9.05, and the other Persons the Obligations owing to which
are or are purported to be secured by the Collateral under the terms of the
Collateral Documents.
"Securities Laws" means the Securities Act of 1933, the Securities Exchange
Act of 1934, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the PCAOB.
"Security Agreement" means collectively or individually as the context may
require, the Security Agreements, dated as of the Closing Date, executed by the
Loan Parties party thereto and substantially in the form of Exhibit G, and each
other Security Agreement at any time delivered by a Loan Party.
"SPC" has the meaning specified in Section 11.06(h).
"Spot Rate" for a currency means the rate determined by the L/C Issuer as
the spot rate for the purchase by such Person of such currency with another
currency through its principal foreign exchange trading office at approximately
11:00 a.m. on the date two Business Days prior to the date as of which the
foreign exchange computation is made; provided that the Administrative Agent or
the L/C Issuer may obtain such spot rate from another financial institution
designated by the Administrative Agent or the L/C Issuer if the Person acting in
such capacity does not have as of the date of determination a spot buying rate
for any such currency; and provided further that the L/C Issuer may use such
spot rate quoted on the date as of which the foreign exchange computation is
made in the case of any Letter of Credit denominated in an Alternative Currency.
"Solvent" and "Solvency" mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay such debts and
liabilities as they mature, (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute an unreasonably small capital, and (e)
such Person is able to pay its debts and liabilities, contingent obligations and
other commitments as they mature in the ordinary course of business. The amount
of contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
"Subordinated Debt" means any and all loans or other extensions of credit
from time to time made to any Loan Party subordinated to the Obligations in a
manner and form reasonably satisfactory to the Administrative Agent, as to right
and time of payment and as to any other rights and remedies thereunder.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more
21
intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of Holdings.
"Sunesys Pledge" means the pledge, by the Borrower to the Administrative
Agent, of the Equity Interests of Sunesys, Inc. pursuant to the applicable
Pledge Agreement.
"Surety" has the meaning specified in Section 7.01(q).
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.04(b), which, if in writing, shall be substantially in the form of
Exhibit B.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$10,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under any lease of goods or other property, whether real or personal, which is
treated by Holdings as an operating lease under GAAP and as a loan or financing
for U.S. income tax purposes.
22
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Term Loan Borrowing" means a borrowing consisting of simultaneous Term
Loans of the same Type and, in the case of Eurodollar Rate Loans, having the
same Interest Period made by each of the Term Loan Lenders pursuant to Section
2.15.
"Term Loan Facility" means, at any time, the aggregate principal amount of
the Term Loans of all Term Loan Lenders outstanding at such time.
"Term Loan Lender" means any Lender that holds Term Loans at such time.
"Term Loan" means an advance made by any Lender under the Term Loan
Facility, if any, pursuant to Section 2.15.
"Term Loan Note" means a promissory note made by the Borrower in favor of a
Term Loan Lender evidencing Term Loans made by such Term Loan Lender,
substantially in the form of Exhibit C-1.
"Threshold Amount" means $10,000,000.
"Treasury Regulations" means the income tax regulations promulgated under
the Code.
"Total Outstandings" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
"Total Revolving Credit Outstandings" means the aggregate Outstanding
Amount of all Committed Loans, Swing Line Loans and L/C Obligations.
"Type" means, with respect to a Loan, its character as a Base Rate Loan or
a Eurodollar Rate Loan.
"UCC" means the Uniform Commercial Code as in effect in the Commonwealth of
Pennsylvania; provided that, if perfection or the effect of perfection or
non-perfection or the priority of any security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the Commonwealth of Pennsylvania, "UCC" means the Uniform Commercial Code
as in effect from time to time in such other jurisdiction for purposes of the
provisions hereof relating to such perfection, effect of perfection or
non-perfection or priority.
"Unfunded Pension Liability" means the amount, if any, by which the
accumulated benefits for any Pension Plan as of the close of the most recent
plan year, determined using actuarial assumptions at the time consistent with
those prescribed by Financial Accounting Standard No. 87, exceeds the fair
market value of such assets allocable to such liabilities.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
1.02. OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
23
(a) The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" shall be deemed to be followed by the
phrase "without limitation." The word "will" shall be construed to have the same
meaning and effect as the word "shall." Unless the context requires otherwise,
(i) any definition of or reference to any agreement, instrument or other
document (including any Organization Document) shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (iii) the words "herein," "hereof" and
"hereunder," and words of similar import when used in any Loan Document, shall
be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in
which such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including;" the words "to" and
"until" each mean "to but excluding;" and the word "through" means "to and
including."
(c) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.03. ACCOUNTING TERMS. (a) Generally. All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed
herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders a
reconciliation between calculations of such ratio or requirement made before and
after giving effect to such change in GAAP.
(c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of Holdings and its Subsidiaries or to the
determination of any amount for Holdings and its Subsidiaries on a consolidated
basis or any similar reference shall, in each case, be deemed to include each
variable interest entity that Holdings is required to consolidate pursuant to
FASB Interpretation No. 46 - Consolidation of Variable Interest Entities: an
interpretation of ARB No. 51 (January 2003) as if such variable interest entity
were a Subsidiary as defined herein.
24
1.04. ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05. TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.06. LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the Dollar
Equivalent of the stated amount of such Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit that, by its terms
or the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or
not such maximum stated amount is in effect at such time.
1.07. EXCHANGE RATES; CURRENCY EQUIVALENTS. (a) The L/C Issuer shall
determine the Spot Rates as of each Revaluation Date to be used for calculating
Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts
denominated in Alternative Currencies. Such Spot Rates shall become effective as
of such Revaluation Date and shall be the Spot Rates employed in converting any
amounts between the applicable currencies until the next Revaluation Date to
occur. Except for purposes of financial statements delivered by Loan Parties
hereunder or calculating financial covenants hereunder or except as otherwise
provided herein, the applicable amount of any currency (other than Dollars) for
purposes of the Loan Documents shall be such Dollar Equivalent amount as so
determined by the L/C Issuer.
Wherever in this Agreement in connection with the issuance, amendment or
extension of a Letter of Credit, an amount, such as a required minimum or
multiple amount, is expressed in Dollars, but such Letter of Credit is
denominated in an Alternative Currency, such amount shall be the relevant
Alternative Currency Equivalent of such Dollar amount (rounded to the nearest
unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as
determined by the L/C Issuer.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01. COMMITTED LOANS. Subject to the terms and conditions set forth
herein, each Revolving Credit Lender severally agrees to make loans (each such
loan, a "Committed Loan") to the Borrower from time to time, on any Business Day
during the Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Commitment; provided, however, that
after giving effect to any Committed Borrowing, (i) the Total Revolving Credit
Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of the Committed Loans of any Revolving Credit Lender, plus
such Lender's Applicable Revolving Credit Percentage of the Outstanding Amount
of all L/C Obligations, plus such Lender's Applicable Revolving Credit
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment. Within the limits of each Revolving Credit Lender's
Commitment, and subject to the other terms and conditions hereof, the Borrower
may borrow under this Section 2.01, prepay under Section 2.05, and reborrow
under this Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar
Rate Loans, as further provided herein.
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2.02. BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each conversion of Term Loans or Committed Loans from
one Type to the other, and each continuation of Eurodollar Rate Loans shall be
made upon the Borrower's irrevocable notice to the Administrative Agent, which
may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate
Loans and (ii) on the requested date of any Borrowing of Base Rate Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to the Administrative Agent of a written Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate
Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c),
each Borrowing of or conversion to Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Loan
Notice (whether telephonic or written) shall specify (i) whether the Borrower is
requesting a Borrowing, a conversion of Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Loans to be borrowed, converted or continued, (iv)
the Type of Loans to be borrowed or to which existing Loans are to be converted,
and (v) if applicable, the duration of the Interest Period with respect thereto.
If the Borrower fails to specify a Type of Loan in a Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Loans shall be made as, or converted to, Base Rate Loans.
Any such automatic conversion to Base Rate Loans shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to,
or continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest
Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage under the
applicable Facility of the applicable Term Loans or Committed Loans, and if no
timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans described in the preceding subsection. In the case
of a Borrowing, each Appropriate Lender shall make the amount of its Loan
available to the Administrative Agent in Same Day Funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Loan Notice. Upon satisfaction of the applicable conditions set forth
in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section
4.01), the Administrative Agent shall make all funds so received available to
the Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Borrower; provided, however, that if, on the date
the Loan Notice with respect to a Committed Borrowing is given by the Borrower,
there are L/C Borrowings outstanding, then the proceeds of such Committed
Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and second, shall be made available to the Borrower as provided
above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such
26
interest rate. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in
Bank of America's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than ten Interest Periods in effect with respect to Loans.
2.03. LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the Revolving Credit
Lenders set forth in this Section 2.03, (1) from time to time on any
Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit for the account of the
Borrower or its Subsidiaries, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2)
to honor drawings under the Letters of Credit; and (B) the Revolving Credit
Lenders severally agree to participate in Letters of Credit issued for the
account of the Borrower or its Subsidiaries and any drawings thereunder;
provided that after giving effect to any L/C Credit Extension with respect
to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall
not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount
of the Committed Loans of any Revolving Credit Lender, plus such Lender's
Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender's Applicable Revolving Credit Percentage of
the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Commitment, and (z) the Outstanding Amount of the L/C Obligations
shall not exceed the Letter of Credit Sublimit. Subject to the other terms
and conditions set forth herein, the Borrower may request, for its own
account or the account of a Subsidiary, the issuance of such Letters of
Credit in an Alternative Currency; provided, however, that, in addition to
the other conditions to the issuance of Letters of Credit set forth in this
Section 2.03(a)(i), after giving effect to such request, the Dollar
Equivalent of the Foreign LC Exposure shall not exceed $2,000,000 at any
one time. Such Letters of Credit issued in an Alternative Currency
hereunder shall constitute utilization of the Aggregate Commitments in the
amount of the Dollar Equivalent of such Letter of Credit. Each request by
the Borrower for the issuance or amendment of a Letter of Credit shall be
deemed to be a representation by the Borrower that the L/C Credit Extension
so requested complies with the conditions set forth in the provisos to the
preceding two sentences. Within the foregoing limits, and subject to the
terms and conditions hereof, the Borrower's ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during
the foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed. All Existing
Letters of Credit shall be deemed to have been issued pursuant hereto, and
from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof; provided that, on or before the date that is
ninety (90) days after the Closing Date, the Borrower shall cause the
Existing Letters of Credit to be cancelled and, if necessary, re-issued as
Letters of Credit hereunder.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last extension, unless the Required Revolving
Lenders have approved such expiry date; or
27
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Revolving Credit Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good ▇▇▇▇▇
▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate one or
more policies of general applicability of the L/C Issuer applicable to
letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated amount
less than $100,000;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars or an Alternative Currency;
(E) such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder;
(F) a default of any Lender's obligations to fund under Section
2.03(c) exists or any Lender is at such time a Defaulting Lender
hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the Borrower or such Lender to eliminate the L/C
Issuer's risk with respect to such Lender (it being understood that
the L/C Issuer would consider the Borrower providing Cash Collateral
to the Administrative Agent, for the benefit of the L/C Issuer, to
secure the Defaulting Lender's pro rata share of the Letter of Credit
a satisfactory arrangement); or
(G) the L/C Issuer does not as of the issuance date of such
requested Letter of Credit issue Letters of Credit in the requested
currency.
(iv) If the Borrower requests any amendment to a Letter of Credit, the
L/C Issuer shall not so amend such Letter of Credit if the L/C Issuer would
not be permitted at such time to issue such Letter of Credit in its amended
form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of
Credit if (A) the L/C Issuer would have no obligation at such time to issue
such Letter of Credit in its amended form under the terms hereof, or (B)
the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
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(vi) The L/C Issuer shall act on behalf of the Revolving Credit
Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent by the
Lenders in Article IX with respect to any acts taken or omissions suffered
by the L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and Issuer Documents pertaining to such Letters
of Credit as fully as if the term "Administrative Agent" as used in Article
IX included the L/C Issuer with respect to such acts or omissions, and (B)
as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
the Borrower. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the Administrative Agent and
the L/C Issuer may agree in a particular instance in their sole discretion)
prior to the proposed issuance date or date of amendment, as the case may
be. In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
and currency thereof; (C) the expiry date thereof; (D) the name and address
of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the L/C Issuer may require. In
the case of a request for an amendment of any outstanding Letter of Credit,
such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B)
the proposed date of amendment thereof (which shall be a Business Day); (C)
the nature of the proposed amendment; and (D) such other matters as the L/C
Issuer may require. Additionally, the Borrower shall furnish to the L/C
Issuer and the Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or amendment,
including any Issuer Documents, as the L/C Issuer or the Administrative
Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Unless the L/C Issuer
has received written notice from any Revolving Credit Lender, the
Administrative Agent or any Loan Party, at least one Business Day prior to
the requested date of issuance or amendment of the applicable Letter of
Credit, that one or more applicable conditions contained in Article IV
shall not then be satisfied, then, subject to the terms and conditions
hereof, the L/C Issuer shall, on the requested date, issue a Letter of
Credit for the account of the Borrower or the applicable Subsidiary or
enter into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer's usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Revolving
Credit Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of
such Lender's Applicable Revolving Credit Percentage times the amount of
such Letter of Credit.
29
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree
to issue a Letter of Credit that has automatic extension provisions (each,
an "Auto-Extension Letter of Credit"); provided that any such
Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the L/C Issuer,
the Borrower shall not be required to make a specific request to the L/C
Issuer for any such extension. Once an Auto-Extension Letter of Credit has
been issued, the Revolving Credit Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to permit the extension of
such Letter of Credit at any time to an expiry date not later than the
Letter of Credit Expiration Date; provided, however, that the L/C Issuer
shall not permit any such extension if (A) the L/C Issuer has determined
that it would not be permitted, or would have no obligation, at such time
to issue such Letter of Credit in its revised form (as extended) under the
terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.03(a) or otherwise), or (B) it has received notice (which may be
by telephone or in writing) on or before the day that is five Business Days
before the Non-Extension Notice Date (1) from the Administrative Agent that
the Required Revolving Lenders have elected not to permit such extension or
(2) from the Administrative Agent, any Revolving Credit Lender or the
Borrower that one or more of the applicable conditions specified in Section
4.02 is not then satisfied, and in each such case directing the L/C Issuer
not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. In the case of a
Letter of Credit denominated in an Alternative Currency, the Borrower shall
reimburse the L/C Issuer in such Alternative Currency, unless the L/C
Issuer (at its option) shall have specified in such notice that it will
require reimbursement in Dollars. In the case of any such reimbursement in
Dollars of a drawing under a Letter of Credit denominated in an Alternative
Currency, the L/C Issuer shall notify the Borrower of the Dollar Equivalent
of the amount of the drawing promptly following the determination thereof.
Not later than 11:00 a.m. on the date of any payment by the L/C Issuer
under a Letter of Credit to be reimbursed in Dollars (in the event that the
Borrower has been notified prior to 10:00 a.m. on such day and otherwise
not later than 11:00 a.m. on the next Business Day), or the Applicable Time
on the date of any payment by the L/C Issuer under a Letter of Credit to be
reimbursed in an Alternative Currency (each such date, an "Honor Date"),
the Borrower shall reimburse the L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing and in the
applicable currency (i.e., Dollars or Canadian dollars). If the Borrower
fails to so reimburse the L/C Issuer by such time, the Administrative Agent
shall promptly notify each Revolving Credit Lender of the Honor Date, the
amount of the unreimbursed drawing (expressed in Dollars in the amount of
the Dollar Equivalent thereof in the case of a Letter of Credit denominated
in an Alternative Currency) (the "Unreimbursed Amount"), and the amount of
such Revolving Credit Lender's Applicable Revolving Credit Percentage
thereof. In such event, the Borrower shall be deemed to have requested a
Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in
an amount equal to the Unreimbursed Amount, without regard to the minimum
and
30
multiples specified in Section 2.02 for the principal amount of Base Rate
Loans, but subject to the amount of the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02 (other than the
delivery of a Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each Revolving Credit Lender shall upon any notice pursuant to
Section 2.03(c)(i) make funds available to the Administrative Agent for the
account of the L/C Issuer, in Dollars, at the Administrative Agent's Office
in an amount equal to its Applicable Revolving Credit Percentage of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified
in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii), each Revolving Credit Lender that so
makes funds available shall be deemed to have made a Base Rate Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds so
received to the L/C Issuer in Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Revolving Credit Lender's payment to the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii)
shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.03.
(iv) Until each Revolving Credit Lender funds its Committed Loan or
L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer
for any amount drawn under any Letter of Credit, interest in respect of
such Lender's Applicable Revolving Credit Percentage of such amount shall
be solely for the account of the L/C Issuer.
(v) Each Revolving Credit Lender's obligation to make Committed Loans
or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters
of Credit, as contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right which such
Lender may have against the L/C Issuer, the Borrower or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided, however, that each Revolving Credit
Lender's obligation to make Committed Loans pursuant to this Section
2.03(c) is subject to the conditions set forth in Section 4.02 (other than
delivery by the Borrower of a Loan Notice). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount required
to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.03(c) by the time specified in Section 2.03(c)(ii), the L/C
Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the L/C Issuer at a rate per annum
equal to the applicable Overnight Rate from time to time in effect, plus
any
31
administrative, processing or similar fees customarily charged by the L/C
Issuer in connection with the foregoing. If such Lender pays such amount
(with interest and fees as aforesaid), the amount so paid shall constitute
such Lender's Committed Loan included in the relevant Committed Borrowing
or L/C Advance in respect of the relevant L/C Borrowing, as the case may
be. A certificate of the L/C Issuer submitted to any Revolving Credit
Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Revolving Credit Lender such
Lender's L/C Advance in respect of such payment in accordance with Section
2.03(c), if the Administrative Agent receives for the account of the L/C
Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Lender its
Applicable Revolving Credit Percentage thereof in Dollars and in the same
funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 11.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Revolving Credit Lender shall pay to the Administrative
Agent for the account of the L/C Issuer its Applicable Revolving Credit
Percentage thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned by
such Lender, at a rate per annum equal to the applicable Overnight Rate
from time to time in effect. The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the
termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be acting),
the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit
or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any
32
payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding under any
Debtor Relief Law;
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower or any Subsidiary; or
(vi) any adverse change in the relevant exchange rates or in the
availability of the relevant Alternative Currency to the Borrower or any
Subsidiary or in the relevant currency markets generally.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Revolving Credit Lenders or the Required Revolving
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to any Letter
of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to,
and shall not, preclude the Borrower's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of the
L/C Issuer shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e); provided, however, that anything in
such clauses to the contrary notwithstanding, the Borrower may have a claim
against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Borrower which were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of
the Letter of Credit Expiration Date, any L/C Obligation for any reason
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remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.05
and 8.02(c) set forth certain additional requirements to deliver Cash Collateral
hereunder. For purposes of this Section 2.03, Section 2.05 and Section 8.02(c),
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Administrative Agent and
the L/C Issuer (which documents are hereby consented to by the Lenders).
Derivatives of such term have corresponding meanings. The Borrower hereby grants
to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders,
a security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America. If at any
time the Administrative Agent determines that any funds held as Cash Collateral
are subject to any right or claim of any Person other than the Administrative
Agent or that the total amount of such funds is less than the aggregate
Outstanding Amount of all L/C Obligations, the Borrower will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited as Cash Collateral, an amount equal to the
excess of (x) such aggregate Outstanding Amount over (y) the total amount of
funds, if any, then held as Cash Collateral that the Administrative Agent
determines to be free and clear of any such right and claim. Upon the drawing of
any Letter of Credit for which funds are on deposit as Cash Collateral, such
funds shall be applied, to the extent permitted under applicable Laws, to
reimburse the L/C Issuer.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), the rules of the ISP
shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Revolving Credit Lender in accordance with its
Applicable Revolving Credit Percentage a Letter of Credit fee (the "Letter of
Credit Fee") for each Letter of Credit equal to the Applicable Rate times the
Dollar Equivalent of the daily amount available to be drawn under such Letter of
Credit. For purposes of computing the daily amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. Letter of Credit Fees shall be (i) due and payable
on the third Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand and (ii) computed on a quarterly basis in arrears. If there is any change
in the Applicable Rate during any quarter, the daily amount available to be
drawn under each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit, at the rate per annum
specified in the Fee Letter, computed on the Dollar Equivalent of the daily
amount available to be drawn under such Letter of Credit on a quarterly basis in
arrears. Such fronting fee shall be due and payable on the third Business Day
after the end of each March, June, September and December in respect of the most
recently-ended quarterly period (or portion thereof, in the case of the first
payment), commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. For purposes of computing the daily amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. In addition, the Borrower shall pay directly to
the L/C Issuer for its own account, in Dollars, the customary issuance,
presentation, amendment and other
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processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary of the Borrower, the
Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and
all drawings under such Letter of Credit. The Borrower hereby acknowledges that
the issuance of Letters of Credit for the account of Subsidiaries of the
Borrower inures to the benefit of the Borrower, and that the Borrower's business
derives substantial benefits from the businesses of such Subsidiaries.
2.04. SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.04, to make loans (each such loan, a "Swing
Line Loan") to the Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Applicable Revolving Credit Percentage of
the Outstanding Amount of Committed Loans and L/C Obligations of the Lender
acting as Swing Line Lender, may exceed the amount of such Lender's Commitment;
provided, however, that after giving effect to any Swing Line Loan, (i) the
Total Revolving Credit Outstandings shall not exceed the Aggregate Commitments,
and (ii) the aggregate Outstanding Amount of the Committed Loans of any
Revolving Credit Lender, plus such Revolving Credit Lender's Applicable
Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations,
plus such Revolving Credit Lender's Applicable Revolving Credit Percentage of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Commitment, and provided, further, that the Borrower shall not use the proceeds
of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. Each Swing Line Loan shall bear interest only
at a rate based on the Base Rate. Immediately upon the making of a Swing Line
Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Revolving Credit Lender's Applicable Revolving Credit Percentage times the
amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Borrower's irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum of $500,000 and (ii) the requested borrowing date, which
shall be a Business Day. Each such telephonic notice must be confirmed promptly
by delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any
Revolving Credit Lender) prior to 2:00 p.m. on the
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date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender
not to make such Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of Section 2.04(a), or (B) that one or more of the
applicable conditions specified in Article IV is not then satisfied, then,
subject to the terms and conditions hereof, the Swing Line Lender will, not
later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Borrower at its
office by crediting the account of the Borrower on the books of the Swing Line
Lender in Same Day Funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each
Revolving Credit Lender make a Base Rate Loan in an amount equal to such
Lender's Applicable Revolving Credit Percentage of the amount of Swing Line
Loans then outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Loan Notice for purposes hereof)
and in accordance with the requirements of Section 2.02, without regard to
the minimum and multiples specified therein for the principal amount of
Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing Line
Lender shall furnish the Borrower with a copy of the applicable Loan Notice
promptly after delivering such notice to the Administrative Agent. Each
Revolving Credit Lender shall make an amount equal to its Applicable
Revolving Credit Percentage of the amount specified in such Loan Notice
available to the Administrative Agent in Same Day Funds for the account of
the Swing Line Lender at the Administrative Agent's Office not later than
1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to
Section 2.04(c)(ii), each Revolving Credit Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so received to
the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Committed Borrowing in accordance with Section 2.04(c)(i), the
request for Base Rate Loans submitted by the Swing Line Lender as set forth
herein shall be deemed to be a request by the Swing Line Lender that each
of the Revolving Credit Lenders fund its risk participation in the relevant
Swing Line Loan and each Revolving Credit Lender's payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to
Section 2.04(c)(i) shall be deemed payment in respect of such
participation.
(iii) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions of
this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing
Line Lender shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per
annum equal to the applicable Overnight Rate from time to time in effect,
plus any administrative, processing or similar fees customarily charged by
the Swing Line Lender in connection with the foregoing. If such Lender pays
such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender's Committed Loan included in the relevant Committed
Borrowing or funded participation in the relevant Swing Line Loan, as the
case may be. A certificate of the Swing Line Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under
this clause (iii) shall be conclusive absent manifest error.
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(iv) Each Revolving Credit Lender's obligation to make Committed Loans
or to purchase and fund risk participations in Swing Line Loans pursuant to
this Section 2.04(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the
Swing Line Lender, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Revolving Credit Lender's
obligation to make Committed Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02. No such funding of
risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided
herein.
(d) Repayment of Participations.
(i) At any time after any Revolving Credit Lender has purchased and
funded a risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing Line
Lender will distribute to such Revolving Credit Lender its Applicable
Revolving Credit Percentage thereof in the same funds as those received by
the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section
11.05 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each Revolving Credit Lender shall pay to the
Swing Line Lender its Applicable Revolving Credit Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of
such demand to the date such amount is returned, at a rate per annum equal
to the applicable Overnight Rate. The Administrative Agent will make such
demand upon the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Borrower for interest on the Swing Line Loans.
Until each Revolving Credit Lender funds its Base Rate Loan or risk
participation pursuant to this Section 2.04 to refinance such Revolving Credit
Lender's Applicable Revolving Credit Percentage of any Swing Line Loan, interest
in respect of such Applicable Revolving Credit Percentage shall be solely for
the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05. PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at any time
or from time to time voluntarily prepay Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to
any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in
excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof,
or, in each case, if less, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such prepayment and the
Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be
37
prepaid, the Interest Period(s) of such Loans. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender's ratable portion of such prepayment (based on such
Lender's Applicable Percentage of such prepayment in respect of the relevant
Facility). If such notice is given by the Borrower, the Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05. Each such
prepayment shall be applied to the Loans of the Lenders in accordance with their
respective Applicable Percentages in respect of each of the relevant Facilities.
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to
the Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by
the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Revolving Credit Outstandings at any time
exceed the Aggregate Commitments then in effect, the Borrower shall immediately
prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess; provided, however, that the Borrower shall not be
required to Cash Collateralize the L/C Obligations pursuant to this Section
2.05(c) unless after the prepayment in full of the Loans the Total Revolving
Credit Outstandings exceed the Aggregate Commitments then in effect.
2.06. TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or from
time to time permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00
a.m. three Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Revolving Credit
Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving
effect to any reduction of the Aggregate Commitments, the Letter of Credit
Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate
Commitments, such Sublimit shall be automatically reduced by the amount of such
excess. The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Commitments. Any reduction
of the Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Applicable Percentage. All fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.
2.07. REPAYMENT OF LOANS.
(a) The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of all Loans outstanding on such date.
(b) The Borrower shall repay each Swing Line Loan on the earlier to occur
of (i) the date ten Business Days after such Loan is made and (ii) the Maturity
Date.
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(c) Currency Matters.
(i) Dollars are the currency of account and payment for each and every
sum at any time due from the Loan Parties hereunder. No payment to the
Administrative Agent, any Lender or the L/C Issuer (whether under any
judgment or court order or otherwise) shall discharge the obligation or
liability in respect of which it was made unless and until the
Administrative Agent or such Lender shall have received payment in full of
the Dollar Equivalent of the amount of such obligation or liability, and to
the extent that the amount of any such payment shall, on actual conversion
into Dollars, fall short of such obligation or liability actual or
contingent expressed in Dollars, the Borrower shall indemnify and hold
harmless the Administrative Agent, the L/C Issuer or such Lender, as the
case may be, with respect to the amount of the shortfall.
(ii) If, on any Revaluation Date, the Dollar Equivalent of the
aggregate outstanding amount of all Loans and the L/C Obligations exceeds
the Aggregate Commitments, then the Borrower shall repay or prepay the
Loans in accordance with this Agreement in an aggregate principal amount
such that, after giving effect thereto, the aggregate outstanding amount
(expressed in Dollars) of all Loans plus the L/C Obligations no longer
exceeds the Aggregate Commitments.
(iii) If on any Revaluation Date, the Dollar Equivalent of the Foreign
LC Exposure exceeds $2,000,000, then the Borrower shall immediately upon
demand provide cash collateral to the Administrative Agent in the amount of
such excess.
2.08. INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Rate; (ii) each Base Rate Loan shall bear
interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate.
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the
Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration
or otherwise, then upon the request of the Required Lenders, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iii) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(iv) Upon the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the principal amount of
all outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
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(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09. FEES. In addition to certain fees described in subsections (i) and
(j) of Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for
the account of each Revolving Credit Lender in accordance with its Applicable
Revolving Credit Percentage, a commitment fee equal to the Applicable Rate times
the actual daily amount by which the Aggregate Commitments exceed the sum of (i)
the Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the
last day of the Availability Period. The commitment fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) Other Fees. (i) The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have
been separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
(c) For the purposes of the Interest Act (Canada), whenever a fee rate
hereunder is calculated on the basis of a year (the "deemed year") that contains
fewer days than the actual number of days in the calendar year of calculation,
such fee rate shall be expressed as a yearly rate by multiplying such fee rate
by the actual number of days in the calendar year of calculation and dividing it
by the number of days in the deemed year.
2.10. COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.12(a),
bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.11. EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the
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interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event
of any conflict between the accounts and records maintained by any Lender and
the accounts and records of the Administrative Agent in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the
Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans. In the event
of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.12. PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in Same Day Funds not later than 2:30 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each
Lender its Applicable Percentage in respect of the relevant Facility (or other
applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender's Lending Office. All payments received by the
Administrative Agent after 2:30 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue. If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be reflected in computing interest or fees, as
the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such 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 Section
2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has
made such share available in accordance with and at the time required by Section
2.02) and may, in reliance upon such assumption, make available to the Borrower
a corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in Same Day
Funds with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the Overnight Rate, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by the Borrower, the
interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Borrowing
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to the Administrative Agent, then the amount so paid shall constitute such
Lender's Loan included in such Borrowing. Any payment by the Borrower shall be
without prejudice to any claim the Borrower may have against a Lender that shall
have failed to make such payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Appropriate Lenders or the L/C
Issuer, as the case may be, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the
Appropriate Lenders or the L/C Issuer, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or the L/C Issuer, in Same Day
Funds with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the Overnight Rate.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters of Credit and Swing
Line Loans and to make payments pursuant to Section 11.04(c) are several and not
joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any payment under Section 11.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Loan, to purchase its participation or to make its
payment under Section 11.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
(f) Insufficient Funds. If at any time insufficient funds are received by
and available to the Administrative Agent to pay fully all amounts of principal,
L/C Borrowings, interest and fees then due hereunder, such funds shall be
applied (i) first, toward payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, toward payment of
principal and L/C Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and L/C Borrowings
then due to such parties.
2.13. SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of
(a) Obligations in respect of any the Facilities due and payable to such Lender
hereunder and under the other Loan Documents at such time in excess of its
ratable share (according to the proportion of (i) the amount of such Obligations
due and payable to
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such Lender at such time to (ii) the aggregate amount of the Obligations in
respect of the Facilities due and payable to all Lenders hereunder and under the
other Loan Documents at such time) of payments on account of the Obligations in
respect of the Facilities due and payable to all Lenders hereunder and under the
other Loan Documents at such time obtained by all the Lenders at such time or
(b) Obligations in respect of any of the Facilities owing (but not due and
payable) to such Lender hereunder and under the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations owing (but not due and payable) to such Lender at
such time to (ii) the aggregate amount of the Obligations in respect of the
Facilities owing (but not due and payable) to all Lenders hereunder and under
the other Loan Parties at such time) of payment on account of the Obligations in
respect of the Facilities owing (but not due and payable) to all Lenders
hereunder and under the other Loan Documents at such time obtained by all of the
Lenders at such time then the Lender receiving such greater proportion shall (a)
notify the Administrative Agent of such fact, and (b) purchase (for cash at face
value) participations in the Loans and subparticipations in L/C Obligations and
Swing Line Loans of the other Lenders, or make such other adjustments as shall
be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of Obligations in
respect of the Facilities then due and payable to the Lenders or owing (but not
due and payable) to the Lenders, as the case may be, provided that:
(i) if any such participations or subparticipations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to
(x) any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Loans or subparticipations in L/C Obligations or Swing Line Loans to
any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).
Each of Holdings and the Borrower consent 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 Loan Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Loan
Party in the amount of such participation.
2.14. INCREASE IN COMMITMENTS.
(a) Request for Increase or a Term Loan. Provided there exists no Default,
upon written notice to the Administrative Agent and the Lenders, the Borrower
may from time to time, request an increase in the Aggregate Commitments or a
Term Loan; provided that (i) the aggregate amount of all such increases together
with the principal amount of such Term Loans shall not exceed $125,000,000, (ii)
any such request for an increase or a Term Loan shall be in a minimum amount of
$25,000,000, (iii) the Borrower may make a maximum of five (5) such requests and
(iv) in the case of a Term Loan, such Term Loan (A) shall be pari passu with the
Committed Loans, (B) shall mature on or after the Maturity Date, (C) shall be
subject to customary mandatory prepayment provisions and (D) shall otherwise be
on terms and conditions satisfactory to the Administrative Agent (such consent,
in the event that such Term Loan is on then market terms, not to be unreasonably
withheld). In the event of a request of a Term Loan, the parties hereto
acknowledge and agree that this Agreement shall be amended to incorporate the
Term Loan and related provisions and such amendment shall be subject to the
prior written consent of the Administrative Agent and the Required Lenders (such
consent not to be unreasonably withheld or delayed
43
so long as such Term Loan satisfies the provisions of the preceding sentence).
At the time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is
requested to respond (which shall in no event be less than ten Business Days
from the date of delivery of such notice to the Lenders).
(b) Lender Elections to Increase or Participate in a Term Loan. Each Lender
shall notify the Administrative Agent in writing within such time period whether
or not it agrees to increase its Commitment or participate in the Term Loan and,
if so, at what percentage of such requested increase or Term Loan. Any Lender
not responding within such time period shall be deemed to have declined to
increase its Commitment or participate in the Term Loan.
(c) Notification by Administrative Agent; Additional Lenders. The
Administrative Agent shall notify the Borrower and each Lender of the Lenders'
responses to each request made hereunder. In the event that the Lenders do not
agree to increase their Commitments or participate in the Term Loan in an amount
equal to the amount requested by the Borrower, to achieve the full amount of a
requested increase or Term Loan and subject to the approval of the
Administrative Agent and the L/C Issuer (which approvals shall not be
unreasonably withheld), the Borrower may also invite additional Eligible
Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) Effective Date and Allocations. If the Aggregate Commitments are
increased in accordance with this Section or a Term Loan is advanced, the
Administrative Agent and the Borrower shall determine the effective date (the
"Effective Date") and the final allocation of such increase or Term Loan. The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
final allocation of such increase or Term Loan and the Effective Date.
(e) Conditions to Effectiveness of Increase or Term Loan. As a condition
precedent to such increase or Term Loan, (i) the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the Effective
Date (in sufficient copies for each Lender) signed by a Responsible Officer of
such Loan Party (A) certifying and attaching the resolutions adopted by such
Loan Party approving or consenting to such increase or Term Loan, and (B) in the
case of Holdings and the Borrower, certifying that, before and after giving
effect to such increase or Term Loan, (1) the representations and warranties
contained in Article V and the other Loan Documents are true and correct on and
as of the Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this
Section 2.14, the representations and warranties contained in subsections (a)
and (b) of Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and
(2) no Default exists, (ii) counsel for Holdings and the Borrower shall have
provided to the Administrative Agent a supplemental opinion in form and
substance reasonably satisfactory to the Administrative Agent and (iii)
Holdings, the Borrower, the Lenders and any such additional Eligible Assignees
shall otherwise have executed and delivered such other instruments and documents
as the Administrative Agent shall have reasonably requested in connection with
such increase or Term Loan. The Borrower shall prepay any Committed Loans
outstanding on the Effective Date (and pay any additional amounts required
pursuant to Section 3.05) to the extent necessary to keep the outstanding
Committed Loans ratable with any revised Applicable Revolving Credit Percentages
arising from any nonratable increase in the Commitments under this Section.
(f) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.13 or 11.01 to the contrary.
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2.15. THE TERM LOAN BORROWINGS. If the Borrower requests a Term Loan
pursuant to Section 2.14, subject to the terms and conditions set forth herein,
each Term Loan Lender severally agrees to make a Term Loan on the applicable
Effective Date not to exceed such Term Loan Lender's Applicable Percentage of
the Term Loan requested by the Borrower. Amounts borrowed under this Section
2.15 and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate
Loans or Eurodollar Rate Loans, as provided herein.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01. TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower or Holdings hereunder or under any other Loan
Document shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes or Other Taxes, provided that if the Borrower shall be
required by applicable law to deduct any Indemnified Taxes (including any 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, any Lender or the L/C Issuer, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower or Holdings, as the case may be, shall make such deductions and
(iii) the Borrower or Holdings, as the case may be, shall timely pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) Payment of Other Taxes by the Borrower and Holdings. Without limiting
the provisions of subsection (a) above, the Borrower or Holdings, as applicable,
shall timely pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrower and Holdings. The Borrower and Holdings
shall, jointly and severally, indemnify the Administrative Agent, each Lender
and the L/C Issuer, within 10 days after demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent, such Lender or the L/C Issuer, as the case may
be, and any penalties, interest and reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the L/C Issuer (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or the L/C Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower or Holdings, as the case may
be, to a Governmental Authority, the Borrower or Holdings, as the case may be,
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) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower or Holdings, as the case may be, is resident for tax purposes, or
any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower and
Holdings (with
45
a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, Holdings or the
Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if
requested by the Borrower, Holdings, or the Administrative Agent, shall deliver
such other documentation prescribed by applicable law or reasonably requested by
the Borrower, Holdings or the Administrative Agent as will enable the Borrower,
Holdings or the Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements. Each such
Foreign Lender shall also deliver to the Borrower (with a copy to the
Administrative Agent) such further documentation requested by the Borrower on or
before the date that any documentation previously delivered to the Borrower
hereunder shall expire or become obsolete and after the occurrence of any event
requiring a change in such previously delivered documentation.
Without limiting the generality of the foregoing, in the event that the
Borrower or Holdings, as the case may be, is resident for tax purposes in the
United States, any Foreign Lender shall deliver to the Borrower, Holdings and
the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of the
Borrower, Holdings or the Administrative Agent, but only if such Foreign Lender
is legally entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
certifying that such Foreign Lender is not a United States Person and
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI
certifying that such Foreign Lender is not a United States Person and
claiming that payments hereunder are income effectively connected with the
conduct of a trade or business in the United States,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower or Holdings within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed copies
of Internal Revenue Service Form W-8BEN certifying that such Foreign Lender
is not a United States Person, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal withholding
tax, backup withholding or information reporting requirements, in each
case, duly completed together with such supplementary documentation as may
be prescribed by applicable law to permit the Borrower to determine the
withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender
or the L/C Issuer determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or Holdings, as the case may be, or with respect to which the Borrower
or Holdings, as the case may be, has paid additional amounts pursuant to this
Section, it shall pay to the Borrower or Holdings, as the case may be, an amount
equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower or Holdings under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund),
46
provided that the Borrower or Holdings, as the case may be, upon the request of
the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent,
such Lender or the L/C Issuer in the event the Administrative Agent, such Lender
or the L/C Issuer is required to repay such refund to such Governmental
Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the
Borrower, Holdings or any other Person.
3.02. ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on
the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.
Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted.
3.03. INABILITY TO DETERMINE RATES. If the Required Lenders determine that
for any reason in connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof that (a) adequate and reasonable means do
not exist for determining the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan, or (b) the Eurodollar Rate for
any requested Interest Period with respect to a proposed Eurodollar Rate Loan
does not adequately and fairly reflect the cost to such Lenders of funding such
Loan, the Administrative Agent will promptly so notify the Borrower and each
Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar
Rate Loans shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice. Upon receipt of such
notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that, will be
deemed to have converted such request into a request for a Committed Borrowing
of Base Rate Loans in the amount specified therein.
3.04. INCREASED COSTS; RESERVES ON EURODOLLAR RATE LOANS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in
by, any Lender (except any reserve requirement contemplated by Section
3.04(e)) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Rate Loan made by it,
or change the basis of taxation of payments to such Lender or the L/C
Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate
of, any Excluded Tax payable by such Lender or the L/C Issuer); or
47
(iii) impose on any Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurodollar Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining
its obligation to make any such Loan), or to increase the cost to such Lender or
the L/C Issuer of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines, in
its reasonable judgment, that any Change in Law affecting such Lender or the L/C
Issuer or any Lending Office of such Lender or such Lender's or the L/C Issuer's
holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's or the L/C Issuer's
capital or on the capital of such Lender's or the L/C Issuer's holding company,
if any, as a consequence of this Agreement, the Commitments of such Lender or
the Loans made by, or participations in Letters of Credit held by, such Lender,
or the Letters of Credit issued by the L/C Issuer, to a level below that which
such Lender or the L/C Issuer or such Lender's or the L/C Issuer's holding
company could have achieved but for such Change in Law (taking into
consideration such Lender's or the L/C Issuer's policies and the policies of
such Lender's or the L/C Issuer's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or the
L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer or such Lender's or the L/C Issuer's
holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or the L/C Issuer's right
to demand such compensation, provided that the Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
six months prior to the date that such Lender or the L/C Issuer, as the case may
be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall
be due and payable on each date on which interest is
48
payable on such Loan, provided the Borrower shall have received at least 10
days' prior notice (with a copy to the Administrative Agent) of such additional
interest from such Lender. If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and
payable 10 days from receipt of such notice.
3.05. COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy to
the Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower;
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 11.13;
(d) any failure by any Borrower to make payment of any drawing under any
Letter of Credit (or interest due thereon) denominated in an Alternative
Currency on its scheduled due date or any payment thereof in a different
currency;
including any foreign exchange losses and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained
or from the performance of any foreign exchange contract. The Borrower shall
also pay any customary administrative fees charged by such Lender in connection
with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders
under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.
3.06. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, 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 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
49
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if the Lender determines it is unlawful to make, maintain or
fund Eurodollar Loans pursuant to Section 3.02, the Borrower may replace such
Lender in accordance with Section 11.13.
3.07. SURVIVAL. All of the Borrower's obligations under Sections 3.01, 3.04
and 3.05 shall survive termination of the Aggregate Commitments and repayment of
all other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01. CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) executed counterparts of this Agreement and the other Loan
Documents, sufficient in number for distribution to the Administrative
Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) executed counterparts of each Collateral Document, together
with:
(A) certificates representing the Equity Interests pledged
thereunder accompanied by undated stock powers executed in blank and
instruments evidencing any debt pledged thereunder indorsed in blank,
(B) proper Financing Statements in form appropriate for filing
under the Uniform Commercial Code of all jurisdictions that the
Administrative Agent may deem necessary or desirable in order to
perfect the Liens created under the Collateral Documents, covering the
Collateral described in the Collateral Documents,
(C) completed requests for information, dated on or before the
date of the initial Credit Extension, listing all effective financing
statements filed in any jurisdiction that name any Loan Party as
debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other actions, recordings
and filings of or with respect to the Collateral Documents that the
Administrative Agent may deem necessary or desirable in order to
perfect the Liens created thereby,
(E) evidence that all other action that the Administrative Agent
may deem necessary or desirable in order to perfect the Liens created
under the Security Agreement has been taken (including receipt of duly
executed payoff letters, UCC-3 termination
50
statements, bailees' waiver and consent agreements and a landlord
waiver for the locations listed on Schedule 4.01(a)(iii));
(iv) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each Loan
Party as the Administrative Agent may require evidencing the identity,
authority and capacity of each Responsible Officer thereof authorized to
act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or
formed, and that each Loan Party is validly existing, in good standing and
qualified to engage in business in each jurisdiction where its ownership,
lease or operation of properties or the conduct of its business requires
such qualification, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP,
counsel to the Loan Parties, and each local counsel listed on Schedule
4.01(a)(vi), each addressed to the Administrative Agent and each Lender, as
to the matters concerning the Loan Parties and the Loan Documents as the
Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of each Loan Party either
(A) attaching copies of all consents, licenses and approvals required in
connection with the execution, delivery and performance by such Loan Party
and the validity against such Loan Party of the Loan Documents to which it
is a party, and such consents, licenses and approvals shall be in full
force and effect, or (B) stating that no such consents, licenses or
approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Borrower
certifying (A) that the conditions specified in Sections 4.02(a) and (b)
have been satisfied, (B) that there has been no event or circumstance since
the date of the Audited Financial Statements that has had or could be
reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect; and (C) that, after giving effect to the
transactions contemplated hereby, each Loan Party is Solvent;
(ix) evidence that all insurance required to be maintained pursuant to
the Loan Documents has been obtained and is in effect, together with the
certificates of insurance, naming the Administrative Agent, on behalf of
the Lenders, as an additional insured or loss payee, as the case may be,
under all insurance policies maintained with respect to the assets and
properties of the Loan Parties that constitutes Collateral;
(x) evidence that the Existing Credit Agreement has been or
concurrently with the Closing Date is being terminated and all Liens
securing obligations under the Existing Credit Agreement have been or
concurrently with the Closing Date are being released
(xi) Intercreditor Agreement with Arch Insurance Company, duly
executed by the appropriate parties; and
(xii) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender
or the Required Lenders reasonably may require.
51
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid
all fees, charges and disbursements of counsel to the Administrative Agent
(directly to such counsel if requested by the Administrative Agent) to the
extent invoiced prior to or on the Closing Date, plus such additional amounts of
such fees, charges and disbursements as shall constitute its reasonable estimate
of such fees, charges and disbursements incurred or to be incurred by it through
the closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrower and the
Administrative Agent).
(d) The Closing Date shall have occurred on or before July 31, 2006.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02. CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender to
honor any Request for Credit Extension (other than a Loan Notice requesting only
a conversion of Loans to the other Type, or a continuation of Eurodollar Rate
Loans) is subject to the following conditions precedent:
(a) The representations and warranties of Holdings and the Borrower
contained in Article V or any other Loan Document, or which are contained in any
document furnished pursuant to the terms of this Agreement, shall be true and
correct in all material respects (except for representations and warranties that
are already qualified as to materiality, which shall instead be true and
correct) on and as of the date of such Credit Extension, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date, and except
that for purposes of this Section 4.02, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to
the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
(d) In the case of a Credit Extension to be denominated in an Alternative
Currency, there shall not have occurred any change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which in the reasonable opinion of the L/C Issuer would make
it impracticable for such Credit Extension to be denominated in the relevant
Alternative Currency.
Each Request for Credit Extension (other than a Loan Notice requesting only
a conversion of Loans to the other Type or a continuation of Eurodollar Rate
Loans) submitted by the Borrower shall be deemed to be a representation and
warranty that the conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.
52
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to the
Administrative Agent and the Lenders that:
5.01. EXISTENCE, QUALIFICATION AND POWER. Each Loan Party and each
Subsidiary thereof (a) is duly organized or formed, validly existing and, as
applicable, in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own or lease its assets and carry on its business and (ii) execute, deliver and
perform its obligations under the Loan Documents to which it is a party, and (c)
is duly qualified and is licensed and, as applicable, in good standing under the
Laws of each jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification or license; except in
each case referred to in clause (b)(i) or (c), to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect.
5.02. AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under (other than Liens
created under the Loan Documents), or require any payment to be made under (i)
any Contractual Obligation (other than the Loan Documents) to which such Person
is a party or affecting such Person or the properties of such Person or any of
its Subsidiaries or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate any Law.
5.03. GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with (a) the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document, (b) the
grant by any Loan Party of the Liens granted by it pursuant to the Collateral
Documents other than the required approval, if any, of the New Jersey Board of
Public Utilities, with respect to the pledge of any Regulated Subsidiary's stock
pursuant to the Pledge Agreement, (c) the perfection or maintenance of the Liens
created under the Collateral Documents (including the first priority nature
thereof) or (d) the exercise by the Administrative Agent or any Lender of its
rights under the Loan Documents or the remedies in respect of the Collateral
pursuant to the Collateral Documents other than the required approval, if any,
of (i) the applicable Governmental Authorities with respect to the transfer of
Equity Interests of any Regulated Subsidiary pursuant to the terms and
conditions of the Pledge Agreement and (ii) the United States Federal
Communications Commission with respect to the transfer of Equity Interests of
▇.▇. Electric, Inc. pursuant to the terms and conditions of the Pledge
Agreement.
5.04. BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms, except (a) enforceability may be
limited by applicable Debtor Relief Laws and by general equitable principals
(whether enforcement is sought by proceedings in equity or at law) and (b) with
respect to the Sunesys Pledge, with respect to the matters set forth in Section
8.01(j).
53
5.05. FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT; NO INTERNAL CONTROL
EVENT.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein and (ii) fairly present in all material
respects the financial condition of Holdings and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein.
(b) The unaudited consolidated balance sheet of Holdings and its
Subsidiaries dated March 31, 2006, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for the fiscal quarter
ended on that date (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present in all material respects the financial
condition of Holdings and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby, subject, in the case of
clauses (i) and (ii), to the absence of footnotes and to normal year-end audit
adjustments.
(c) Since the date of the Audited Financial Statements, there has been no
event or circumstance, either individually or in the aggregate, that has had or
could reasonably be expected to have a Material Adverse Effect.
(d) To the knowledge of Holdings and the Borrower, as of the date of this
Agreement, no Internal Control Event exists or has occurred since the date of
the Audited Financial Statements that has resulted in or could reasonably be
expected to result in a misstatement in any material respect, in any financial
information delivered to the Administrative Agent or the Lenders, of the assets,
liabilities, financial condition or results of operations of Holdings and its
Subsidiaries on a consolidated basis.
5.06. LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of Holdings and the Borrower, threatened
or contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against Holdings or any of its Subsidiaries or against any of
their properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) except as specifically disclosed in Holdings' SEC filings on the
date of this Agreement, either individually or in the aggregate could reasonably
be expected to have a Material Adverse Effect, and there has been no adverse
change that could reasonably be expected to have a Material Adverse Effect in
the status, or financial effect on any Loan Party or any Subsidiary thereof, of
the matters described in Holdings' SEC filings on the date of this Agreement.
5.07. NO DEFAULT. Neither any Loan Party nor any Subsidiary thereof is in
default under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08. OWNERSHIP OF PROPERTY; LIENS. (a) Each Loan Party and each of its
Subsidiaries has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(b) Schedule 5.08(b) sets forth a complete and accurate list of all Liens
on the property or assets of each Loan Party and each of its Subsidiaries,
showing as of the date hereof the lienholder thereof, the principal amount of
the obligations secured thereby and the property or assets of such Loan Party or
such Subsidiary subject thereto. The property of each Loan Party and each of its
Subsidiaries is
54
subject to no Liens, other than Liens set forth on Schedule 5.08(b), and as
otherwise permitted by Section 7.01.
5.09. ENVIRONMENTAL COMPLIANCE. Except as specifically disclosed in
Schedule 5.09, (a) Holdings and its subsidiaries are in material compliance with
all Environmental Laws unless the failure to comply could not reasonably be
expected to have a Material Adverse Effect and (b) no claims under the
Environmental Laws are pending or, to Holdings' or the Borrower's knowledge,
threatened against Holdings or its Subsidiaries that could, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
5.10. INSURANCE. The properties of Holdings and its Subsidiaries are
insured with financially sound and reputable insurance companies, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where Holdings or the applicable Subsidiary operates.
5.11. TAXES. Holdings and its Subsidiaries have filed all Federal, state
and other material tax returns and reports required to be filed, and have paid
all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except (a) those which are being contested in
good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP and (b) those which
could not reasonably be expected to have a Material Adverse Effect.
5.12. ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of Holdings and the Borrower, nothing has occurred which is reasonably
expected prevent, or cause the loss of, such qualification. Each of Holdings,
the Borrower and each ERISA Affiliate has made all required contributions to
each Plan subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the
Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower or
Holdings, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could reasonably be expected to have a
Material Adverse Effect. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan that has resulted
or could reasonably be expected to result in a Material Adverse Effect.
(c) Except as could not reasonably be excepted to have a Material Adverse
Effect, (i) no ERISA Event has occurred or is reasonably expected to occur; (ii)
no Pension Plan has any Unfunded Pension Liability; (iii) neither Holdings, the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
Holdings, the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability)
under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) neither Holdings, the Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
55
5.13. SUBSIDIARIES; EQUITY INTERESTS. Neither Holdings, the Borrower nor
any Guarantor has any Subsidiaries other than those specifically disclosed in
Part (a) of Schedule 5.13, and all of the outstanding Equity Interests in such
Subsidiaries have been validly issued, are fully paid and nonassessable and are
owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.13 free
and clear of all Liens (other than Liens created by the Collateral Documents).
All Immaterial Subsidiaries as of the Closing Date are listed on Part (b) of
Schedule 5.13.
5.14. MARGIN REGULATIONS; INVESTMENT COMPANY ACT.
(a) The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary is required to be registered as an "investment company" under the
Investment Company Act of 1940.
5.15. DISCLOSURE. No statement or information contained in this Agreement,
any other Loan Document, the confidential information memorandum dated May, 2006
or any other document, certificate or statement furnished by the Borrower
pursuant to the terms of this Agreement to the Administrative Agent or the
Lenders, when taken as a whole, contained as of the date of such statement,
information, document or certificate was furnished, any untrue statement of a
material fact or omitted a material fact necessary to make the statements
contained herein or therein, in light of the circumstances under which they were
made, not misleading.
5.16. COMPLIANCE WITH LAWS. Each Loan Party and each Subsidiary thereof is
in compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.17. INTELLECTUAL PROPERTY; LICENSES, ETC. Holdings and its Subsidiaries
own, or possess the right to use, all of the trademarks, service marks, trade
names, copyrights, patents, patent rights, franchises, licenses and other
intellectual property rights (collectively, "IP Rights") that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person unless the failure to own or possess such
right to use or such conflict with the rights of others could not reasonably be
expected to have a Material Adverse Effect.
5.18. SOLVENCY. The Borrower is Solvent. As of the date of this Agreement,
each Loan Party (other than the Borrower) is, individually and together with its
Subsidiaries on a consolidated basis, Solvent.
5.19. COLLATERAL DOCUMENTS. The provisions of the Collateral Documents are
effective to create in favor of the Administrative Agent for the benefit of the
Secured Parties a legal, valid and enforceable first priority Lien (subject to
Liens permitted by Section 7.01) on all right, title and interest of the
respective Loan Parties in the Collateral described therein, expect that, with
respect to the Sunesys Pledge, with respect to the matters set forth in Section
8.01(l). Except for filings completed prior to the Closing Date and as
contemplated hereby and by the Collateral Documents and the filing of periodic
continuation statements relating to any financing statements in accordance with
Uniform Commercial Code as in effect in the applicable jurisdiction, no filing
or other action will be necessary to perfect or protect such Liens.
56
5.20. GUARANTY. As of the Closing Date, each Domestic Subsidiary of
Holdings (other than the Regulated Subsidiaries and the Borrower) has guaranteed
the Obligations pursuant to the Guaranty.
5.21. REGULATED SUBSIDIARIES. As of the Closing Date, no Subsidiary of
Holdings (other than Sunesys, Inc. and Sunesys of Virginia, Inc.) is a Regulated
Subsidiary.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, each of Holdings and the Borrower shall, and
shall (except in the case of the covenants set forth in Sections 6.01, 6.02, and
6.03) cause each Subsidiary to:
6.01. FINANCIAL STATEMENTS. Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) as soon as available, but in any event within 105 days after the end of
each fiscal year of Holdings, a consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, audited and accompanied by (i) a report and opinion of a Registered Public
Accounting Firm of nationally recognized standing, which report and opinion
shall be prepared in accordance with generally accepted auditing standards and
applicable Securities Laws and shall not be subject to any "going concern" or
like qualification or exception or any qualification or exception as to the
scope of such audit or with respect to the absence of any material misstatement
and (ii) an opinion of such Registered Public Accounting Firm independently
assessing the Borrower's internal controls over financial reporting in
accordance with Item 308 of SEC Regulation S-K, PCAOB Auditing Standard No. 2,
and Section 404 of ▇▇▇▇▇▇▇▇-▇▇▇▇▇; and
(b) as soon as available, but in any event within 45 days after the end of
each of the first three fiscal quarters of each fiscal year of Holdings a
consolidated balance sheet of Holdings and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal quarter and for
the portion of Holding's fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail, certified by the chief executive officer, chief
financial officer, treasurer or controller of Holdings as fairly presenting in
all material respects the financial condition, results of operations,
shareholders' equity and cash flows of Holdings and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes.
As to any information contained in materials furnished pursuant to Section
6.02(b), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
57
6.02. CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative Agent
and each Lender, in form and detail satisfactory to the Administrative Agent and
the Required Lenders;
(a) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by
the chief executive officer, chief financial officer, treasurer or controller of
Holdings;
(b) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of any Loan Party, and copies of all annual, regular, periodic and
special reports and registration statements (excluding any registration
statements on Form S-8) which any Loan Party may file or be required to file
with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934,
and not otherwise required to be delivered to the Administrative Agent pursuant
hereto;
(c) promptly after the furnishing thereof and only to the extent not
otherwise disclosed in Holdings' SEC filings, copies of any statement or report
furnished to any holder of the Subordinated Debt or unsecured senior debt
permitted under Section 7.03(j) and not otherwise required to be furnished to
the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;
(d) within 45 days after the end of each of the first three fiscal quarters
of each fiscal year of Holdings and within 105 days after the end of the fourth
fiscal quarter of each fiscal year of Holdings, a narrative discussion and
analysis of the financial condition and results of operations of Holdings and
its Subsidiaries for such fiscal quarter and for the period from the beginning
of the fiscal year in which such fiscal quarter is included to the end of such
fiscal quarter; and
(e) promptly, such additional information regarding the business, financial
or corporate affairs of Holdings or any Subsidiary, or compliance with the terms
of the Loan Documents, as the Administrative Agent or any Lender may from time
to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(b) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 11.02; or (ii)
on which such documents are posted on the Borrower's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender that requests
the Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrower shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and provide
to the Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(a) to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.
Each of Holdings and the Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Arranger will make available to the Lenders and
the L/C Issuer materials and/or information
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provided by or on behalf of the Loan Parties hereunder (collectively, "Borrower
Materials") by posting the Borrower Materials on IntraLinks or another similar
electronic system (the "Platform") and (b) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to any Loan Party or its securities) (each,
a "Public Lender"). Each of Holdings and the Borrower hereby agrees that so long
as such Loan Party is the issuer of any outstanding debt or equity securities
that are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities (w) all Borrower Materials that are to
be made available to Public Lenders shall be clearly and conspicuously marked
"PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall appear
prominently on the first page thereof; (x) by marking Borrower Materials
"PUBLIC," the Loan Parties shall be deemed to have authorized the Administrative
Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to
any Loan Party or its securities for purposes of United States Federal and state
securities laws (provided, however, that to the extent such Borrower Materials
constitute Information, they shall be treated as set forth in Section 11.07);
(y) all Borrower Materials marked "PUBLIC" are permitted to be made available
through a portion of the Platform designated "Public Investor;" and (z) the
Administrative Agent and the Arranger shall be entitled to treat any Borrower
Materials that are not marked "PUBLIC" as being suitable only for posting on a
portion of the Platform not designated "Public Investor."
6.03. NOTICES. Promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default; and
(b) of the occurrence of any ERISA Event.
Each notice pursuant to this Section 6.03 shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto.
6.04. PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become
due and payable, (a) all material tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP are being maintained by Holdings or
such Subsidiary and (b) all lawful claims which, if unpaid, would by law become
a Lien upon its property.
6.05. PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.
6.06. MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted; (b) make
all necessary repairs thereto and renewals and replacements thereof except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.
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6.07. MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons and providing for not less than 30 days' prior notice to the
Administrative Agent of termination, lapse or cancellation of such insurance.
6.08. COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
6.09. BOOKS AND RECORDS. (a) Maintain proper books of record and account,
in which full, true and correct entries, in all material respects, in conformity
with GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of Holdings or such Subsidiary, as the
case may be; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over Holdings or such Subsidiary, as the case may be.
6.10. INSPECTION OF PROPERTIES AND BOOKS, ETC.. Permit representatives and
independent contractors of the Administrative Agent and each Lender to visit and
inspect any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent
public accountants, all at the expense of the Lenders and at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Borrower; provided, however, that when an
Event of Default exists, the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice.
6.11. USE OF PROCEEDS. Use the proceeds of the Credit Extensions for
general corporate purposes not in contravention of any Law or of any Loan
Document.
6.12. COVENANT TO GUARANTEE OBLIGATIONS AND GIVE SECURITY. (a) Upon (x) the
formation or acquisition of any new direct or indirect Subsidiary (other than
any CFC or a Subsidiary that is held directly or indirectly by a CFC) by any
Loan Party or (y) the receipt by a Subsidiary of the necessary approvals and/or
consents pursuant to Section 6.14, then, in each case, the Borrower shall, at
the Borrower's expense:
(i) within 30 days after such formation, acquisition or receipt of
such approvals and/or consents cause such Subsidiary (other than a
Regulated Subsidiary), and cause each direct and indirect parent of such
Subsidiary (if it has not already done so), to duly execute and deliver to
the Administrative Agent a guaranty or guaranty supplement, in form and
substance satisfactory to the Administrative Agent, guaranteeing the other
Loan Parties' obligations under the Loan Documents,
(ii) within 30 days after such formation, acquisition or receipt of
such approvals and/or consents, furnish to the Administrative Agent a
description of the personal properties of such Subsidiary, in detail
satisfactory to the Administrative Agent,
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(iii) within 30 days after such formation, acquisition or receipt of
such approvals and/or consents, cause such Subsidiary and each direct and
indirect parent of such Subsidiary (if it has not already done so) to duly
execute and deliver to the Administrative Agent a Security Agreement and
other security and pledge agreements, as specified by and in form and
substance satisfactory to the Administrative Agent (including delivery of
all pledged Equity Interests in and of such Subsidiary, and other
instruments of the type specified in Section 4.01(a)(iii)), securing
payment of all the Obligations of such Subsidiary or such parent, as the
case may be, under the Loan Documents and constituting Liens on all such
personal properties; provided that a Regulated Subsidiary shall not be
required to execute a Security Agreement or otherwise grant a security
interest to the Administrative Agent;
(iv) within 30 days after such formation, acquisition, or receipt of
such approvals and/or consents, cause such Subsidiary and each direct and
indirect parent of such Subsidiary (if it has not already done so) to take
whatever action (including the filing of Uniform Commercial Code financing
statements, the giving of notices and the endorsement of notices on title
documents) may be necessary or advisable in the opinion of the
Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the Security
Agreement and security and pledge agreements delivered pursuant to this
Section 6.12, enforceable against all third parties in accordance with
their terms, and
(v) within 30 days after such formation, acquisition or receipt of
such approvals and/or consents (other than with respect to the formation or
acquisition of an Immaterial Subsidiary), deliver to the Administrative
Agent, upon the request of the Administrative Agent in its sole discretion,
a signed copy of a favorable opinion, addressed to the Administrative Agent
and the other Secured Parties, of counsel for the Loan Parties acceptable
to the Administrative Agent as to the matters contained in clauses (i),
(iii) and (iv) above, and as to such other matters as the Administrative
Agent may reasonably request.
(b) Upon the formation or acquisition by any Loan Party of any new direct
or indirect Subsidiary that is a CFC or of a Subsidiary that is held directly or
indirectly by a CFC, the Borrower shall, at the Borrower's expense, (i) within
30 days after such formation or acquisition, cause such Loan Party to pledge to
the Administrative Agent all of such Subsidiary's non-voting Equity Interests
and 66% of the total combined voting Equity Interests of such Subsidiaries that
are held directly or indirectly by such Loan Party pursuant to a pledge
agreement in form and substance satisfactory to the Administrative Agent; and
(ii) take such other actions and deliver, or caused to be delivered, such other
documents and opinions as required by Section 6.12(iv) and (v) in connection
with such pledge.
6.13. FURTHER ASSURANCES. Promptly upon request by the Administrative
Agent, or any Lender through the Administrative Agent, (a) correct any material
defect or error that may be discovered in any Loan Document (which correction
shall also be executed by the Administrative Agent and the Lenders) or in the
execution, acknowledgment, filing or recordation thereof, and (b) do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and re-register
any and all such further acts, deeds, certificates, assurances and other
instruments as the Administrative Agent, or any Lender through the
Administrative Agent, may reasonably require from time to time in order to (i)
carry out more effectively the purposes of the Loan Documents, (ii) to the
fullest extent permitted by applicable law, subject any Loan Party's or any of
its Subsidiaries' properties, assets, rights or interests which constitute
Collateral to the Liens now or hereafter intended to be covered by any of the
Collateral Documents, (iii) perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and any of the Liens intended to be
created thereunder (other than, with respect to the Sunesys Pledge, with respect
to the matters set forth in Section 8.01(j)) and (iv) assure, convey, grant,
assign, transfer, preserve, protect
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and confirm more effectively unto the Secured Parties the rights granted or now
or hereafter intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection with any Loan
Document to which any Loan Party or any of its Subsidiaries is or is to be a
party, and cause each of its Subsidiaries to do so.
6.14. REGULATED SUBSIDIARIES; APPROVAL. (a) Within a reasonable period of
time following the Closing Date (not to exceed fifteen days), commence to
diligently pursue, on a commercially reasonably basis, all required consents and
approvals from each applicable Governmental Authority so that (i) each Regulated
Subsidiary existing on the Closing Date may guarantee the Indebtedness pursuant
to the Guaranty and grant Liens to the Administrative Agent pursuant to the
Security Agreement and (ii) each parent of such Regulated Subsidiary may pledge
the Equity Interests of such Regulated Subsidiary to the Administrative Agent
and (b) within a reasonable period of time following the formation or
acquisition of any Regulated Subsidiary after the Closing Date (not to exceed
fifteen days), commence to diligently pursue, on a commercially reasonably
basis, all required consents and approvals from each applicable Governmental
Authority so that (i) such Regulated Subsidiary may guarantee the Indebtedness
pursuant to the Guaranty and grant Liens to the Administrative Agent pursuant to
the Security Agreement and (ii) each parent of such Regulated Subsidiary may
pledge the Equity Interests of such Regulated Subsidiary to the Administrative
Agent
6.15. MECHANICAL SPECIALTIES. In the event that Borrower has not provided
satisfactory evidence to the Administrative Agent within 90 days following the
Closing Date that Mechanical Specialties, Inc. consummated a sale of all or
substantially all of its assets and has subsequently dissolved, Mechanical
Specialties, Inc. shall become a Guarantor pursuant to Section 6.12 and execute
and/or deliver all security agreements, pledge agreements and certificates
required to be executed and/or delivered pursuant to Section 6.12.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, neither Holdings or the Borrower shall, nor
shall they permit any Subsidiary to, directly or indirectly:
7.01. LIENS. Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, or
sign or file or suffer to exist under the Uniform Commercial Code of any
jurisdiction a financing statement that names Holdings or any of its
Subsidiaries as debtor, or assign any accounts or other right to receive income,
other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 5.08(b) and
any renewals or extensions thereof, provided that (i) the property covered
thereby is not changed, (ii) the amount secured or benefited thereby is not
increased except as contemplated by Section 7.03(b), (iii) the direct or any
contingent obligor with respect thereto is not changed, and (iv) any renewal or
extension of the obligations secured or benefited thereby is permitted by
Section 7.03(b);
(c) Liens for taxes not yet due or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
62
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 60 days or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the applicable Person;
(g) Liens securing judgments for the payment of money not constituting an
Event of Default under Section 8.01(h);
(h) Liens securing Indebtedness permitted under Section 7.03(e); provided
that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (ii) the Indebtedness secured thereby
does not exceed the cost or fair market value, whichever is lower, of the
property being acquired on the date of acquisition;
(i) any interest or title of a lessor, licensor or sublessor under any
lease, license or sublease entered into by the Borrower or any other Subsidiary
in the ordinary course of its business and covering only the assets so leased,
licensed or subleased;
(j) Liens arising out of any conditional sale, title retention, consignment
or other similar arrangements for the sale of goods by the Borrower or any of
its Subsidiaries in the ordinary course of business to the extent such Liens do
not attach to any assets other than the goods subject to such arrangements;
(k) Liens on insurance policies and the proceeds thereof pursuant to
insurance premium financing arrangements;
(l) Liens (i) incurred in the ordinary course of business in connection
with the purchase or shipping of goods or assets (or the related assets and
proceeds thereof), which Liens are in favor of the seller or shipper of such
goods or assets and only attached to such goods or assets, and (ii) in favor of
customs and revenue authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods;
(m) Liens in favor of collecting banks having a right of setoff,
revocation, refund or chargeback with respect to money or instruments of the
Borrower or any of its Subsidiaries on deposits with or in possession of such
banks, other than relating to Indebtedness;
(n) Liens on the assets of Foreign Subsidiaries that are not Guarantors in
connection with financing arrangements for their benefit that are not otherwise
prohibited under this Agreement;
(o) purported Liens evidenced by the filing of precautionary UCC financing
statements relating solely to operating leases of personal property entered into
in the ordinary course of business;
63
(p) (i) deposits to secure the performance of bids, trade contracts and
leases (other than Indebtedness), statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business and (ii) Liens on cash reserves securing
Indebtedness of the Borrower and its Subsidiaries in respect of letters of
credit or surety bonds permitted by Section 7.03(g); and Liens on cash reserves
securing other obligations of the Borrower and its Subsidiaries in respect of
letters of credit or surety bonds arising in the ordinary course of business, to
the extent not provided to secure the repayment of other Indebtedness of the
Borrower and its Subsidiaries; provided that the aggregate amount of all such
deposits and cash reserves provided by the Borrower and its Subsidiaries in
respect of surety bonds shall not, at any time, exceed ten percent (10%) of the
aggregate backlog of all contracts covered by surety bonds;
(q) Liens on contracts entered into with its customers by Holdings or any
of its Subsidiaries, and on all assets related thereto and to the projects that
are the subject thereof, to secure the obligations of Holdings or such
Subsidiary in respect of surety bonds issued on its behalf (the issuer thereof,
the "Surety") to assure performance of such contracts (each such contract, a
"Bonded Contract"); provided that (i) all such Liens (other than those on
accounts receivable due and to become due with respect to all Bonded Contracts,
contract rights related to such accounts receivable and materials purchased for
incorporation in any project that is the subject of a Bonded Contract) shall be
subject, subordinate and junior to the Liens on the assets that are subject
thereto created by the Collateral Documents and (ii) prior to the creation of
any such Liens each Person (directly or through its agent) which is to be
secured thereby shall have entered into with the Administrative Agent, on behalf
of the Lenders, an Intercreditor Agreement which is in form and substance
satisfactory to the Administrative Agent; and
(r) Liens not otherwise permitted by this Section so long as the aggregate
outstanding principal amount of the obligations secured thereby do not exceed
$10,000,000 at any one time; and
(s) Liens deemed to exist in connection with Investments in repurchase
agreements permitted under Section 7.02.
7.02. INVESTMENTS. Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the form of Cash
Equivalents;
(b) advances (i) to employees of the Borrower and Subsidiaries in the
ordinary course of business and (ii) to officers and directors of the Borrower
and Subsidiaries in an aggregate amount not to exceed $1,000,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes;
(c) Investments of the Borrower in any Guarantor and Investments of any
Guarantor in the Borrower or in another Guarantor;
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(e) Guarantees permitted by Section 7.03;
(f) Investments existing on the date hereof; provided that, any existing
Investment consisting of intercompany loans by any Loan Party in a Person that
is a Regulated Subsidiary that is not a Guarantor (A) shall be evidenced by an
intercompany note or notes, (B) such notes shall be in form and
64
substance reasonably satisfactory to the Administrative Agent and (C) such notes
shall be pledged and delivered to the Administrative Agent as Collateral;
(g) Investments by the Borrower in Swap Contracts permitted under Section
7.03(d);
(h) Investments by the Borrower or a Guarantor consisting of the purchase
or other acquisition of all of the Equity Interests in, or all or substantially
all of the property of, any Person or a line of business or a division of such
Person that, upon the consummation thereof, will be wholly-owned directly by the
Borrower or one or more of its wholly-owned Subsidiaries (including as a result
of a merger or consolidation) (each, a "Permitted Acquisition"); provided that,
with respect to each purchase or other acquisition made pursuant to this Section
7.03(h):
(i) any such newly-created or acquired Subsidiary shall comply with
the requirements of Section 6.12;
(ii) the lines of business of the Person to be (or the property of
which is to be) so purchased or otherwise acquired shall not be
substantially different from the lines of business conducted by the
Borrower and its Subsidiaries on the date hereof or any business
substantially related or incidental thereto;
(iii) (A) immediately before and immediately after giving pro forma
effect to any such purchase or other acquisition (including the revenues
and expenses (less Permitted Cost-Savings)), no Default shall have occurred
and be continuing and (B) immediately after giving effect to such purchase
or other acquisition, Holdings and its Subsidiaries shall be in pro forma
compliance with all of the covenants set forth in Section 7.11, such
compliance to be determined on the basis of the financial information most
recently delivered to the Administrative Agent and the Lenders pursuant to
Section 6.01(a) or (b) as though such purchase or other acquisition had
been consummated as of the first day of the fiscal period covered thereby;
(iv) after giving effect to such Permitted Acquisition, the sum of (i)
the Aggregate Commitments minus the Total Revolving Credit Outstandings
plus (ii) the aggregate amount of cash and Cash Equivalents then held by
the Borrower and its Subsidiaries shall be no less than $15,000,000; and
(v) in the case of any newly created or acquired Regulated Subsidiary
that is not a Guarantor or Foreign Subsidiary that is not a Guarantor, such
Investment shall be permitted by clause (i)(iii) or, as applicable, clause
(i)(iv) of this Section.
(i) (i) intercompany Investments by any Loan Party in the Borrower or any
Person that, prior to such investment, is a Guarantor, (ii) Investments by any
Foreign Subsidiary that is not a Guarantor in any Person that, prior to such
Investment, is a Foreign Subsidiary and not a Guarantor, (iii) Investments by
any Loan Party in any Foreign Subsidiary in an aggregate amount outstanding at
any time not to exceed $5,000,000 (after giving effect to any portion of any
such Investment returned to the investor in cash, whether as a repayment of
principal or a return of invested capital, as the case may be, but without
giving effect to any earnings on such Investment, whether in the form of
interest, dividends or otherwise), and (iv) Investments consisting of
intercompany loans by any Loan Party (other than a Foreign Subsidiary) in a
Person that, prior to such Investment, is a Regulated Subsidiary that is not a
Guarantor in an aggregate amount outstanding at any time not to exceed
$75,000,000 (after giving effect to any portion of any such Investment returned
to the investor in cash, whether as a repayment of principal or a return of
invested capital, as the case may be, but without giving effect to any earnings
on such Investment, whether in the form of interest, dividends or otherwise);
provided that (A) all such loans are evidenced by
65
an intercompany note or notes, (B) such notes are in form and substance
reasonably satisfactory to the Administrative Agent and (C) such notes are
pledged and delivered to the Administrative Agent as Collateral;
(j) Investments (including Indebtedness and Equity Interests) received in
connection with the bankruptcy or reorganization of suppliers and customers and
in settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(k) without duplication, Investments that constitute Capital Expenditures
permitted pursuant to Section 7.12;
(l) Investments funded through substantially concurrent capital
contributions to Holdings or substantially concurrent sales or issuances of
Equity Interests of Holdings; provided, that the proceeds (if any) of such
capital contributions, sales or issuances are contributed by Holdings, directly
or indirectly through any Subsidiary, to the Borrower or a Subsidiary of the
Borrower, as the case may be, making such Investment or used to fund the
acquisition of Investments which are so contributed to the Borrower or a
Subsidiary of the Borrower;
(m) guarantees by the Borrower of employment contracts entered into between
Holdings and officers of Holdings and its Subsidiaries; and
(n) in addition to Investments otherwise expressly permitted by this
Section, Investments by the Borrower or any of its Subsidiaries in an aggregate
amount (valued at cost but giving effect to any portion of such Investments
returned to the investor in cash as a repayment of principal or a return of
invested capital but without giving effect to any earnings on such Investment,
whether in the form of interest, dividends or otherwise) not to exceed
$10,000,000 in any fiscal year of Holdings.
7.03. INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.03
and any refinancings, refundings, renewals or extensions thereof; provided that
(i) the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder and (ii) the terms relating to
principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing,
refunding, renewing or extending Indebtedness, and of any agreement entered into
and of any instrument issued in connection therewith, are no less favorable in
any material respect to the Loan Parties or the Lenders than the terms of any
agreement or instrument governing the Indebtedness being refinanced, refunded,
renewed or extended and the interest rate applicable to any such refinancing,
refunding, renewing or extending Indebtedness does not exceed the then
applicable market interest rate;
(c) Guarantees of the Borrower or any Guarantor in respect of Indebtedness
otherwise permitted hereunder of the Borrower or any other Guarantor;
(d) obligations (contingent or otherwise) of the Borrower or any Subsidiary
existing or arising under any Swap Contract, provided that (i) such obligations
are (or were) entered into by such Person in the ordinary course of business for
the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably anticipated by
such Person,
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or changes in the value of securities issued by such Person, and not for
purposes of speculation or taking a "market view;" and (ii) such Swap Contract
does not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting party;
(e) Indebtedness in respect of capital leases, Synthetic Lease Obligations
and purchase money obligations for fixed or capital assets within the
limitations set forth in Section 7.01(h); provided, however, that the aggregate
amount of all such Indebtedness at any one time outstanding shall not exceed
$20,000,000;
(f) (i) Indebtedness of the Borrower to any Guarantor, (ii) Indebtedness of
any Guarantor (other than Holdings) to the Borrower or any other Guarantor,
(iii) Indebtedness of a Regulated Subsidiary that is not a Guarantor to the
Borrower or any Guarantor to the extent such Indebtedness constitutes an
Investment permitted under Section 7.02(i)(iv), (iv) Indebtedness of any Foreign
Subsidiary that is a Guarantor to any other Foreign Subsidiary, and (v)
Indebtedness in an aggregate principal amount not to exceed $5,000,000 of all
Foreign Subsidiaries;
(g) Indebtedness in respect of performance bonds, bid bonds, appeal bonds,
bankers acceptances, letters of credit, surety bonds or other similar
obligations arising in the ordinary course of business, and any refinancings
thereof to the extent not provided to secure the repayment of other Indebtedness
(including Guarantee Obligations relating thereto);
(h) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn against insufficient
funds in the ordinary course of business, provided that such Indebtedness is
extinguished within five Business Days after its incurrence;
(i) Indebtedness of the Borrower or any of its Subsidiaries consisting of
the financing of insurance premiums in the ordinary course of business;
(j) Indebtedness of the Borrower consisting of unsecured senior debt or
unsecured Subordinated Debt in an aggregate amount not to exceed $150,000,000,
in each case, on terms and conditions reasonably satisfactory to the
Administrative Agent (including, without limitation, satisfactory evidence of
pro forma compliance with all financial covenants contained in Section 7.11
after giving effect to such incurrence of Indebtedness under this clause (j))
and any refinancing of such Indebtedness permitted under Section 7.15;
(k) Indebtedness of the Borrower or any Subsidiary Guarantor assumed in
connection with any Permitted Acquisition; provided, however, that such
Indebtedness existed at the time of the completion of such Permitted Acquisition
and was not incurred or created in anticipation of such Permitted Acquisition;
and
(l) Other Indebtedness of the Borrower and the Guarantors in an aggregate
amount not to exceed $5,000,000.
7.04. FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, or (ii) any one or more
other Subsidiaries, provided that when any Guarantor is merging with another
Subsidiary, the Guarantor shall be the continuing or surviving Person;
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(b) any Subsidiary may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or to another
Subsidiary; provided that if the transferor in such a transaction is a
Guarantor, then the transferee must either be the Borrower or a Guarantor; and
(c) any Immaterial Subsidiary may liquidate, wind up or dissolve.
7.05. DISPOSITIONS. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of obsolete, worn out, replaced or upgraded property or
property that the Borrower and its Subsidiaries have ceased to use or need in
the ordinary conduct of their business, whether now owned or hereafter acquired,
in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such
property is identified on Schedule 7.05. (ii) such property is exchanged for
credit against the purchase price of similar replacement property or (iii) the
proceeds of such Disposition are reasonably promptly applied to the purchase
price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or to a
wholly-owned Subsidiary; provided that if the transferor of such property is a
Guarantor, the transferee thereof must either be the Borrower or a Guarantor;
(e) Dispositions permitted by Section 7.04;
(f) the Disposition of cash or Cash Equivalents in the ordinary course of
business;
(g) non-exclusive licenses of IP Rights in the ordinary course of business
and substantially consistent with past practice for terms not exceeding five
years; and
(h) Dispositions by the Borrower and its Subsidiaries not otherwise
permitted under this Section 7.05; provided that (i) at the time of such
Disposition, no Default shall exist or would result from such Disposition and
(ii) the aggregate book value of all property Disposed of in reliance on this
clause (h) in any fiscal year shall not exceed $20,000,000.
7.06. RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
or issue or sell any Equity Interests, except:
(a) each Subsidiary may make Restricted Payments to Holdings, the Borrower,
the Guarantors and any other Person that owns an Equity Interest in such
Subsidiary, ratably according to their respective holdings of the type of Equity
Interest in respect of which such Restricted Payment is being made;
(b) Holdings and each Subsidiary may declare and make dividend payments or
other distributions payable solely in the common stock or other common Equity
Interests of such Person;
(c) Holdings and each Subsidiary may purchase, redeem or otherwise acquire
Equity Interests issued by it with the proceeds received from the substantially
concurrent issue of new shares of its common stock or other common Equity
Interests;
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(d) Holdings may declare or pay cash dividends to its stockholders and make
redemptions or purchases of its Equity Interests in any fiscal year of Holdings
in an amount not to exceed 50% of Consolidated Net Income for such fiscal year;
provided, that (i) the Consolidated Leverage Ratio, determined as of the end of
the most recent fiscal quarter (calculated on a pro forma basis to include any
borrowings used to make any dividend or redemption) is less than 2.00:1.00 and
(ii) no Default or Event of Default shall have occurred or be continuing at the
time of the making of such dividend or redemption;
(e) the Borrower may declare and pay cash dividends to Holdings not to
exceed an amount necessary to permit Holdings to pay (i) reasonable and
customary corporate and operating expenses (including reasonable out-of-pocket
expenses for legal, administrative and accounting services provided by third
parties, and compensation, benefits and other amounts payable to officers and
employees in connection with their employment in the ordinary course of business
and to board of director observers), (ii) franchise fees or similar taxes and
fees required to maintain its corporate existence, (iii) its proportionate share
of the tax liability of the affiliated group of corporations that file
consolidated Federal income tax returns (or that file state and local income tax
returns on a consolidated basis) as determined using any method permitted by
Section 1552 of the Code or Section 1.1502-33(d) of the Treasury Regulations and
(iv) to provide funding of Restricted Payments permitted under Section 7.06(d);
and
(f) so long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may pay dividends to Holdings to permit Holdings to
purchase Holding's common stock or common stock options from present or former
officers or employees of any of Holdings or its Subsidiaries upon the death,
disability or termination of employment of such officer or employee or pursuant
to the terms of any stock option plan or like agreement.
7.07. CHANGE IN NATURE OF BUSINESS. Engage in any material line of business
substantially different from those lines of business conducted by the Borrower
and its Subsidiaries on the date hereof or any business substantially related or
incidental thereto.
7.08. TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any kind
with any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the Borrower or such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm's length transaction with a Person
other than an Affiliate, provided that the foregoing restriction shall not apply
to transactions between or among the Borrower and any Guarantor or between and
among any Guarantors.
7.09. BURDENSOME AGREEMENTS. Enter into any Contractual Obligation (other
than this Agreement or any other Loan Document) that (a) limits the ability (i)
of any Subsidiary to make Restricted Payments to the Borrower or any Guarantor
or to otherwise transfer property to the Borrower or any Guarantor, except for
any agreement in effect (A) on the date hereof and set forth on Schedule 7.09 or
(B) at the time any Subsidiary becomes a Subsidiary of Holdings, so long as such
agreement was not entered into solely in contemplation of such Person becoming a
Subsidiary of Holdings, (ii) of any Subsidiary to Guarantee the Indebtedness of
the Borrower or (iii) of the Borrower or any Subsidiary to create, incur, assume
or suffer to exist Liens on property of such Person; provided, however, that
this clause (iii) shall not prohibit any negative pledge incurred or provided in
favor of any holder of Indebtedness permitted under Section 7.03(e) solely to
the extent any such negative pledge relates to the property financed by or the
subject of such Indebtedness; or (b) requires the grant of a Lien to secure an
obligation of such Person if a Lien is granted to secure another obligation of
such Person.
7.10. USE OF PROCEEDS. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within
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the meaning of Regulation U of the FRB) or to extend credit to others for the
purpose of purchasing or carrying margin stock or to refund indebtedness
originally incurred for such purpose.
7.11. FINANCIAL COVENANTS.
(a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio as of the end of any fiscal quarter of Holdings to be less than
2.00:1.00:
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio,
determined (i) as of the end of any fiscal quarter of Holdings ending prior to
the incurrence of Subordinated Debt and/or senior unsecured debt pursuant to
Section 7.03(j) in an amount equal to or greater than $25,000,000, to be greater
than 3.25:1.00 and (ii) as of the end of any fiscal quarter of Holdings ending
after such incurrence, to be greater than 4.00:1.00; provided that subsection
(i) shall apply if such Subordinated Debt and senior unsecured debt is no longer
outstanding.
(c) Consolidated Senior Leverage Ratio. Permit the Consolidated Senior
Leverage Ratio, determined as of the end of any fiscal quarter of Holdings
ending after the incurrence of Subordinated Debt and/or senior unsecured debt
pursuant to Section 7.03(j) in an amount equal to or greater than $25,000,000,
to be greater than 2.50:1.00; provided that this provision shall not apply if
such Subordinated Debt and senior unsecured debt is no longer outstanding.
7.12. CAPITAL EXPENDITURES. Make or become legally obligated to make
Capital Expenditures exceeding, in the aggregate for the Borrower and it
Subsidiaries during each fiscal year set forth below, net of the proceeds
received by the Borrower and its Subsidiaries during such fiscal year from
Dispositions of property pursuant to Section 7.05(a), the amount set forth
opposite such fiscal year:
Fiscal Year Amount
----------- -----------
2006 $65,000,000
2007 and each fiscal year
of Holdings thereafter $70,000,000
provided, however, that so long as no Default has occurred and is
continuing or would result from such expenditure, 50% of any amount set forth
above, if not expended in the fiscal year for which it is permitted above, may
be carried over for expenditure in the next following fiscal year.
7.13. AMENDMENTS OF ORGANIZATION DOCUMENTS. Amend any of its Organization
Documents if such amendment could reasonably have a Material Adverse Effect.
7.14. ACCOUNTING CHANGES. Make any change in Holdings' fiscal year or the
determination of the quarters within the fiscal year.
7.15. PREPAYMENTS, ETC. OF INDEBTEDNESS. Prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled maturity thereof in any manner or
make any payment in violation of any subordination terms of, (a) any
Subordinated Debt or (b) senior unsecured Indebtedness set forth in Section
7.03(j); provided that nothing in this Section shall prohibit Holdings and its
Subsidiaries from (i) converting such Indebtedness to Equity Interests or (ii)
prepaying such Indebtedness in full with proceeds received from a refinancing of
such Indebtedness; provided that (A) the amount of such Indebtedness is not
increased at the time of such refinancing except by an amount equal to a
reasonable premium or other
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reasonable amount paid, and fees and expenses reasonably incurred, in connection
with such refinancing and by an amount equal to any existing commitments
unutilized thereunder, (B) the terms relating to principal amount, amortization,
maturity, collateral (if any) and subordination (if any), and other material
terms taken as a whole, of any such refinancing, and of any agreement entered
into and of any instrument issued in connection therewith, are no less favorable
in any material respect to the Loan Parties or the Lenders than the terms of any
agreement or instrument governing the Indebtedness being refinanced and the
interest rate applicable to any such refinancing does not exceed the then
applicable market interest rate and (C) such refinancing shall be on terms and
conditions reasonably satisfactory to the Administrative Agent (including,
without limitation, satisfactory evidence of pro forma compliance with all
financial covenants contained in Section 7.11 after giving effect to such
refinancing of Indebtedness under this clause (ii)).
7.16. SALES AND LEASEBACKS. Enter into any arrangement with any Person
providing for the leasing by any Loan Party of real or personal property that
has been or is to be sold or transferred by such Loan Party to such Person or to
any other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of such Loan Party, except
for the sale and leaseback of trucks and equipment for immaterial amounts in the
ordinary course of business.
7.17. SWAP CONTRACTS. Enter into any Swap Contract, except (a) Swap
Contracts entered into to hedge or mitigate risks to which the Borrower or any
Subsidiary has actual exposure (other than those in respect of Equity Interests)
and (b) Swap Contracts entered into in order to effectively cap, collar or
exchange interest rates (from fixed to floating rates, from one floating rate to
another floating rate or otherwise) with respect to any interest-bearing
liability or investment of the Borrower or any Subsidiary.
7.18. CERTAIN AGREEMENTS. Consent to, or otherwise enter into or permit,
any amendment, supplement or other modification of any document governing
Subordinated Debt or the senior unsecured Indebtedness set forth in Section
7.03(j) without the prior written consent of the Administrative Agent.
7.19. HOLDINGS. Holdings shall not directly or indirectly (i) conduct,
transact or otherwise engage in, or commit to conduct, transact or otherwise
engage in, any business or operations other than those incidental to its
ownership of the Equity Interests of the Borrower and in connection with
employment contracts entered into with officers of Holdings and its
Subsidiaries, or (ii) incur, create, assume or suffer to exist any Indebtedness
or other liabilities or financial obligations, except (w) obligations in respect
of surety bonds referred to in Section 7.01(q), (x) nonconsensual obligations
imposed by operation of law, (y) Indebtedness, liabilities and obligations
pursuant to the Loan Documents to which it is a party, agreements entered into
in connection with or related to Permitted Acquisitions and issuances of Equity
Interests, agreements entered into with directors and officers of Holdings and
corporate overhead expenses and (z) obligations with respect to its Equity
Interests.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01. EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Loan or any
L/C Obligation, or (ii) within five days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any fee due hereunder, or
(iii) within five days after the same becomes due, any other amount payable
hereunder or under any other Loan Document; or
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(b) Specific Covenants. The Borrower or any other Loan Party fails to
perform or observe (a) any term, covenant or agreement contained in any of (i)
Section 6.05(a), 6.10, 6.11 or 6.12 or Article VII (excluding 7.19), or (ii)
Section 6.01, 6.02, or 6.03 and such failure continues for 15 days after the
earlier of (A) the date on which any Responsible Officer of the Borrower knows
or should have known of such failure, and (B) notice thereof to the Borrower and
Holdings by the Administrative Agent or the Required Lenders; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days after the earlier of (i) the date on which any Responsible
Officer of the Borrower knows of such failure, and (ii) notice thereof to the
Borrower and Holdings by the Administrative Agent or the Required Lenders; or
(d) Representations and Warranties. Any representation, warranty or
certification made by or on behalf of the Borrower or any other Loan Party
herein, in any other Loan Document, or in any document delivered pursuant to the
terms of this Agreement shall be materially incorrect or misleading when made or
deemed made; or
(e) Cross-Default. (i) Any Loan Party or any Subsidiary thereof (A) fails
to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness
or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than the Threshold Amount, or
(B) fails to observe or perform any other agreement or condition relating to any
such Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect
of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event
of default under such Swap Contract as to which any Loan Party or any Subsidiary
thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which any Loan
Party or any Subsidiary thereof is an Affected Party (as so defined) and, in
either event, (x) the Swap Termination Value owed by such Loan Party or such
Subsidiary as a result thereof is greater than the Threshold Amount and (y) such
Loan Party does not pay in full such Swap Termination Value within fifteen (15)
days after it becomes due and payable; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary thereof
(other than an Immaterial Subsidiary) institutes or consents to the institution
of any proceeding under any Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding under
any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
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(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any
Subsidiary thereof (other than an Immaterial Subsidiary) becomes unable or
admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of
any such Person and is not released, vacated or fully bonded within 30 days
after its issue or levy; or
(h) Judgments. There is entered against any Loan Party or any Subsidiary
thereof (other than an Immaterial Subsidiary) (i) one or more final judgments or
orders for the payment of money in an aggregate amount (as to all such judgments
and orders) exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage).
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any provision of any Loan Document, at
any time after its execution and delivery and for any reason (other than (i) as
expressly permitted hereunder or thereunder, (ii) as a result of the
satisfaction in full of all the Obligations or (iii) as a result of the Sunesys
Pledge being voided by the New Jersey Board of Public Utilities) ceases to be in
full force and effect with respect to any Loan Party; or any Loan Party contests
in any manner the validity or enforceability of any provision of any Loan
Document; or any Loan Party denies that it has any or further liability or
obligation under any provision of any Loan Document, or purports to revoke,
terminate or rescind any provision of any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Collateral Documents. Any Collateral Document after delivery thereof
pursuant to Section 4.01 or 6.12 shall for any reason (other than (i) pursuant
to the terms thereof or (ii) as a result of the Sunesys Pledge being voided by
the New Jersey Board of Public Utilities) cease to create a valid and perfected
first priority Lien (subject to Liens permitted by Section 7.01) on the
Collateral purported to be covered thereby; or
(m) (i) The subordination provisions of the documents evidencing or
governing any Subordinated Debt (the "Subordinated Provisions") shall, in whole
or in part, terminate, cease to be effective or cease to be legally valid,
binding and enforceable against any holder of the applicable Subordinated Debt;
or (ii) the Borrower or any other Loan Party shall, directly or indirectly,
disavow or contest in any manner (A) the effectiveness, validity or
enforceability of any of the Subordination Provisions, (B) that the
Subordination Provisions exist for the benefit of the Administrative Agent, the
Lenders and the L/C Issuer or (C) that all payments of principal of or premium
and interest on the applicable Subordinated Debt, or realized from the
liquidation of any property of any Loan Party, shall be subject to any of the
Subordination Provisions.
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8.02. REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights
and remedies available to it, the Lenders and the L/C Issuer under the Loan
Documents;
provided, however, that upon the occurrence of an actual or deemed entry of
an order for relief with respect to the Borrower under the Bankruptcy Code of
the United States, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable, and
the obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
8.03. APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal, interest and Letter of
Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges
and disbursements of counsel to the respective Lenders and the L/C Issuer
(including fees and time charges for attorneys who may be employees of any
Lender or the L/C Issuer) and amounts payable under Article III), ratably among
them in proportion to the respective amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and
other Obligations, ratably among the Lenders and the L/C Issuer in proportion to
the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, L/C Borrowings and amounts owing under Secured Hedge
Agreements and Secured Cash Management Agreements and to the Administrative
Agent for the account of the L/C Issuer, to Cash Collateralize that
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portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit, ratably among the Lenders, the L/C Issuer, the Hedge Banks and the
Cash Management Banks in proportion to the respective amounts described in this
clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above
shall be applied to satisfy drawings under such Letters of Credit as they occur.
If any amount remains on deposit as Cash Collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01. APPOINTMENT AND AUTHORITY. (a) Each of the Lenders and the L/C Issuer
hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower
nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.
(b) The Administrative Agent shall also act as the "collateral agent" under
the Loan Documents, and each of the Lenders (in its capacities as a Lender,
Swing Line Lender (if applicable), potential Hedge Bank and potential Cash
Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes
the Administrative Agent to act as the agent of such Lender and the L/C Issuer
for purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Obligations, together
with such powers and discretion as are reasonably incidental thereto. In this
connection, the Administrative Agent, as "collateral agent" and any co-agents,
sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant
to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral
(or any portion thereof) granted under the Collateral Documents, or for
exercising any rights and remedies thereunder at the direction of the
Administrative Agent), shall be entitled to the benefits of all provisions of
this Article IX and Article XI (including Section 11.04(c), as though such
co-agents, sub-agents and attorneys-in-fact were the "collateral agent" under
the Loan Documents) as if set forth in full herein with respect thereto.
(c) The Administrative Agent is authorized and directed to execute and
deliver the Intercreditor Agreements on behalf of the Secured Parties and to act
in accordance with the provisions thereof. Each of the Secured Parties agrees to
be bound by the provisions thereof.
(d) The Administrative Agent is authorized and directed to grant to the
Borrower and the other Loan Parties a limited power of attorney, for the
administration of Collateral, the ownership of or title to, which is evidenced
by a motor vehicle or other certificate of title.
9.02. RIGHTS AS A LENDER. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the
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Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor
or in any other advisory capacity for and generally engage in any kind of
business with Holdings, the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
9.03. EXCULPATORY PROVISIONS. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent
is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Affiliates that
is communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11.01 and 8.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by Holdings, the
Borrower, a Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Collateral
Documents, (v) the value or the sufficiency of any Collateral, or (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.
9.04. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed,
sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper Person, and shall not incur
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any liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or the L/C
Issuer, the Administrative Agent may presume that such condition is satisfactory
to such Lender or the L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or the L/C Issuer prior to the
making of such Loan or the issuance of such Letter of Credit. The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
9.05. DELEGATION OF DUTIES. The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
9.06. RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the L/C Issuer and the
Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, with the approval of the Borrower if no Default exists, to
appoint a successor, which shall be a bank with an office in the United States,
or an Affiliate of any such bank with an office in the United States. If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders or
the L/C Issuer under any of the Loan Documents, the retiring Administrative
Agent shall continue to hold such collateral security until such time as a
successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the retiring Administrative Agent's resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 11.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this
Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender. Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, (a) such successor shall succeed to and become vested
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with all of the rights, powers, privileges and duties of the retiring L/C Issuer
and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall
be discharged from all of their respective duties and obligations hereunder or
under the other Loan Documents, and (c) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit.
9.07. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
9.08. NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers, Syndication Agents or
Documentation Agents listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a
Lender or the L/C Issuer hereunder.
9.09. ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the L/C
Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.03(i) and (j), 2.09 and 11.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.09
and 11.04.
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Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the L/C Issuer any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or the L/C
Issuer to authorize the Administrative Agent to vote in respect of the claim of
any Lender or the L/C Issuer in any such proceeding.
9.10. COLLATERAL AND GUARANTY MATTERS. The Lenders and the L/C Issuer
irrevocably authorize the Administrative Agent, at its option and in its
discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration or termination of all
Letters of Credit, (ii) that is sold or to be sold as part of or in connection
with any sale permitted hereunder or under any other Loan Document, or (iii) if
approved, authorized or ratified in writing in accordance with Section 11.01;
(b) to release the Collateral granted pursuant to the Collateral Assignment
of Intercompany Notes upon Sunesys, Inc. and Sunesys of Virginia, Inc. (a)
obtaining the necessary approvals and/or consents pursuant to Section 6.14 and
(b) becoming a Guarantor, granting a security interest to the Administrative
Agent in substantially all of its assets and otherwise executing and/or
delivering all documents, certificates, opinions and other items required under
Section 6.12;
(c) to subordinate any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such
property that is permitted by Section 7.01(h); and
(d) to release any Guarantor from its obligations under the Guaranty if
such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
9.10. In each case as specified in this Section 9.10, the Administrative Agent
will, at the Borrower's expense, execute and deliver to the applicable Loan
Party such documents as such Loan Party may reasonably request to evidence the
release of such item of Collateral from the assignment and security interest
granted under the Collateral Documents or to subordinate its interest in such
item, or to release such Guarantor from its obligations under the Guaranty, in
each case in accordance with the terms of the Loan Documents and this Section
9.10.
ARTICLE X.
CONTINUING GUARANTY
10.01. GUARANTY. Holdings hereby absolutely and unconditionally guarantees,
as a guaranty of payment and performance and not merely as a guaranty of
collection, prompt payment when due, whether at stated maturity, by required
prepayment, upon acceleration, demand or otherwise, and at all times thereafter,
of any and all of the Obligations, whether for principal, interest, premiums,
fees, indemnities, damages, costs, expenses or otherwise, of the Borrower to the
Secured Parties, arising hereunder and under the other Loan Documents (including
all renewals, extensions, amendments, refinancings and other modifications
thereof and all costs, attorneys' fees and expenses incurred by the Secured
Parties in connection with the collection or enforcement thereof). The
Administrative Agent's books and records showing the amount of the Obligations
shall be admissible in evidence in any action or proceeding, and
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shall be binding upon Holdings, and conclusive for the purpose of establishing
the amount of the Obligations. This Guaranty shall not be affected by the
genuineness, validity, regularity or enforceability of the Obligations or any
instrument or agreement evidencing any Obligations, or by the existence,
validity, enforceability, perfection, non-perfection or extent of any collateral
therefor, or by any fact or circumstance relating to the Obligations which might
otherwise constitute a defense to the obligations of Holdings under this
Guaranty, and Holdings hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to any or all of the foregoing.
Notwithstanding any provision to the contrary contained herein or in any
other of the Loan Documents or Swap Contracts, the obligations of Holdings under
this Article X and the other Loan Documents shall be limited to an aggregate
amount equal to the largest amount that would not render such obligations
subject to avoidance under the Debtor Relief Laws or any comparable provisions
of any applicable state law.
10.02. RIGHTS OF LENDERS. Holdings consents and agrees that the Secured
Parties may, at any time and from time to time, without notice to or demand of
Holdings, and without affecting the enforceability or continuing effectiveness
hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise
agree to change the time for payment or the terms of the Obligations or any part
thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect,
sell, or otherwise dispose of any security for the payment of this Guaranty or
any Obligations; (c) apply such security and direct the order or manner of sale
thereof as the Administrative Agent, the L/C Issuer and the Lenders in their
sole discretion may determine; and (d) release or substitute one or more of any
endorsers or other guarantors of any of the Obligations. Without limiting the
generality of the foregoing, Holdings consents to the taking of, or failure to
take, any action which might in any manner or to any extent vary the risks of
Holdings under this Guaranty or which, but for this provision, might operate as
a discharge of Holdings.
10.03. CERTAIN WAIVERS. Holdings waives (a) any defense arising by reason
of any disability or other defense of the Borrower or any other guarantor, or
the cessation from any cause whatsoever (including any act or omission of any
Secured Party) of the liability of the Borrower; (b) any defense based on any
claim that Holdings' obligations exceed or are more burdensome than those of the
Borrower; (c) the benefit of any statute of limitations affecting Holdings'
liability hereunder; (d) except as provided in Section 10.05, any right to
proceed against the Borrower, proceed against or exhaust any security for the
Obligations, or pursue any other remedy in the power of any Secured Party
whatsoever; (e) any benefit of and any right to participate in any security now
or hereafter held by any Secured Party; and (f) to the fullest extent permitted
by law, any and all other defenses or benefits that may be derived from or
afforded by applicable law limiting the liability of or exonerating guarantors
or sureties. Holdings expressly waives all setoffs and counterclaims and all
presentments, demands for payment or performance, notices of nonpayment or
nonperformance, protests, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever with respect to the
Obligations, and all notices of acceptance of this Guaranty or of the existence,
creation or incurrence of new or additional Obligations. As provided below, this
Guaranty shall be governed by, and construed in accordance with, the laws of the
Commonwealth of Pennsylvania.
10.04. OBLIGATIONS INDEPENDENT. The obligations of Holdings hereunder are
those of primary obligor, and not merely as surety, and are independent of the
Obligations and the obligations of any other guarantor, and a separate action
may be brought against Holdings to enforce this Guaranty whether or not the
Borrower or any other person or entity is joined as a party.
10.05. SUBROGATION. Holdings shall not exercise any right of subrogation,
contribution, indemnity, reimbursement or similar rights with respect to any
payments it makes under this Guaranty until all of the Obligations and any
amounts payable under this Guaranty have been indefeasibly paid and
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performed in full and the Commitments are terminated. If any amounts are paid to
Holdings in violation of the foregoing limitation, then such amounts shall be
held in trust for the benefit of the Secured Parties and shall forthwith be paid
to the Secured Parties to reduce the amount of the Obligations, whether matured
or unmatured.
10.06. TERMINATION; REINSTATEMENT. This Guaranty is a continuing and
irrevocable guaranty of all Obligations now or hereafter existing and shall
remain in full force and effect until all Obligations and any other amounts
payable under this Guaranty are indefeasibly paid in full in cash and the
Commitments with respect to the Obligations are terminated. Notwithstanding the
foregoing, this Guaranty shall continue in full force and effect or be revived,
as the case may be, if any payment by or on behalf of the Borrower or Holdings
is made, or any of the Secured Parties exercises its right of setoff, in respect
of the Obligations and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by any
of the Secured Parties in their discretion) to be repaid to a trustee, receiver
or any other party, in connection with any proceeding under any Debtor Relief
Laws or otherwise, all as if such payment had not been made or such setoff had
not occurred and whether or not the Secured Parties are in possession of or have
released this Guaranty and regardless of any prior revocation, rescission,
termination or reduction. The obligations of Holdings under this paragraph shall
survive termination of this Guaranty.
10.07. SUBORDINATION. Holdings hereby subordinates the payment of all
obligations and indebtedness of the Borrower owing to Holdings, whether now
existing or hereafter arising, including but not limited to any obligation of
the Borrower to Holdings as subrogee of the Secured Parties or resulting from
Holdings' performance under this Guaranty, to the indefeasible payment in full
in cash of all Obligations. If the Secured Parties so request, any such
obligation or indebtedness of the Borrower to Holdings shall be enforced and
performance received by Holdings as trustee for the Secured Parties and the
proceeds thereof shall be paid over to the Secured Parties on account of the
Obligations, but without reducing or affecting in any manner the liability of
Holdings under this Guaranty.
10.08. STAY OF ACCELERATION. If acceleration of the time for payment of any
of the Obligations is stayed, in connection with any case commenced by or
against Holdings or the Borrower under any Debtor Relief Laws, or otherwise, all
such amounts shall nonetheless be payable by Holdings immediately upon demand by
the Secured Parties.
10.09. CONDITION OF BORROWER. Holdings acknowledges and agrees that it has
the sole responsibility for, and has adequate means of, obtaining from the
Borrower and any other guarantor such information concerning the financial
condition, business and operations of the Borrower and any such other guarantor
as Holdings requires, and that none of the Secured Parties has any duty, and
Holdings is not relying on the Secured Parties at any time, to disclose to
Holdings any information relating to the business, operations or financial
condition of the Borrower or any other guarantor (Holdings waiving any duty on
the part of the Secured Parties to disclose such information and any defense
relating to the failure to provide the same).
ARTICLE XI.
MISCELLANEOUS
11.01. AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
and signed by the Required Lenders, Holdings and the Borrower or the applicable
Loan Party, as the case may be, and acknowledged by the Administrative
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Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (v) of the second proviso to
this Section 11.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required Lenders shall
be necessary (i) to amend the definition of "Default Rate" or to waive any
obligation of the Borrower to pay interest or Letter of Credit Fees at the
Default Rate or (ii) to amend any financial covenant hereunder (or any defined
term used therein) even if the effect of such amendment would be to reduce the
rate of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;
(e) change Section 2.13 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the definition of "Required
Lenders", "Required Revolving Lenders" or any other provision hereof specifying
the number or percentage of Lenders required to amend, waive or otherwise modify
any rights hereunder or make any determination or grant any consent hereunder
without the written consent of each Lender;
(g) release all or substantially all of the value of the Guaranty without
the written consent of each Lender;
(h) release all or substantially all of the Collateral in any transaction
or series of related transactions, without the written consent of each Lender;
or
(i) amend the definition of "Alternative Currency" without the written
consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the L/C Issuer in addition to the Lenders
required above, affect the rights or duties of the L/C Issuer under this
Agreement or any Issuer Document relating to any Letter of Credit issued or to
be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above,
affect the rights or duties of the Swing Line Lender under this Agreement; (iii)
no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; (iv) Section 11.06(h) may not be amended, waived or otherwise
modified without the consent of each Granting Lender all or any part of whose
Loans are being funded by an SPC at the time of such amendment, waiver or other
modification; (v) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto and (vi)
Sections 2.02, 2.03, 2.04, 2.05, 4.02 and this clause (vi) may not be
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amended, waived or otherwise modified without the consent of the Required
Revolving Lenders. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender.
If any Lender does not consent to a proposed amendment, waiver, consent or
release with respect to any Loan Document that requires the consent of each
Lender and that has been approved by the Required Lenders, the Borrower may
replace such non-consenting Lender in accordance with Section 11.13; provided
that such amendment, waiver, consent or release can be effected as a result of
the assignment contemplated by such Section (together with all other such
assignments required by the Borrower to be made pursuant to this paragraph).
11.02. NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to Holdings, the Borrower, the Administrative Agent, the L/C
Issuer or the Swing Line Lender, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on
Schedule 11.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its Administrative
Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
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posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to Holdings, the Borrower, any Lender, the
L/C Issuer or any other Person for losses, claims, damages, liabilities or
expenses of any kind (whether in tort, contract or otherwise) arising out of the
Borrower's or the Administrative Agent's transmission of Borrower Materials
through the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent jurisdiction by a
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent Party; provided, however, that in no event
shall any Agent Party have any liability to Holdings, the Borrower, any Lender,
the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of Holdings, the Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender may change its
address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other communications
hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer
and the Swing Line Lender. In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower. All telephonic notices
to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
11.03. NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person
in exercising, any right, remedy, power or privilege hereunder or under any
other Loan Document shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights,
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remedies, powers and privileges herein provided, and provided under each other
Loan Document, are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
11.04. EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder, (iii) all costs and
expenses of lien searches, (iv) taxes, fees and other charges for filing
financing statements and continuations, and other actions to perfect, protect,
and continue the Administrative Agent's Liens, (v) costs of appraisals,
inspections, and verifications, including, without limitation, travel, lodging,
and meals for inspections of the Collateral and the Borrower's operations by the
Administrative Agent, subject to Section 6.10, (vi) costs and expenses of
preserving and protecting the Collateral, (vii) sums paid or incurred to pay any
amount or take any action required of the Borrower under the Loan Documents that
the Borrower fails to pay or take and (viii) all out-of-pocket expenses incurred
by the Administrative Agent, any Lender or the L/C Issuer (including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Lender or the L/C Issuer), and shall pay all fees and time charges for attorneys
who may be employees of the Administrative Agent, any Lender or the L/C Issuer,
in connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under
this Section, (B) 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, or (C) in connection with the sale or other realization upon the
Collateral.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (including
the fees, charges and disbursements of any counsel for any Indemnitee), and
shall indemnify and hold harmless each Indemnitee from all fees and time charges
and disbursements for attorneys who may be employees of any Indemnitee, incurred
by any Indemnitee or asserted against any Indemnitee by any third party or by
the Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or thereby,
or, in the case of the Administrative Agent (and any sub-agent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the
Borrower or any other Loan Party, 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,
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damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee or (y) result from
a claim brought by the Borrower or any other Loan Party against an Indemnitee
for breach in bad faith of such Indemnitee's obligations hereunder or under any
other Loan Document, if the Borrower or such Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction. To the extent it is legally permitted to do so, the
applicable Indemnitee will provide the Borrower with notice of any such
investigation, litigation or proceeding described in clause (iv) above and, in
the case of litigation, the opportunity to defend such litigation, provided that
the Borrower shall not settle any such litigation without the applicable
Indemnitee's consent.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, the Borrower and the Lenders, except as otherwise
specifically provided herein, shall not assert, and hereby waives, any claim
against any Indemnitee or Loan Party, as applicable, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed to such
unintended recipients by such Indemnitee through telecommunications, electronic
or other information transmission systems in connection with this Agreement or
the other Loan Documents or the transactions contemplated hereby or thereby
other than for direct or actual damages resulting from the gross negligence or
willful misconduct of such Indemnitee as determined by a final and nonappealable
judgment of a court of competent jurisdiction.
(e) Payments. All amounts due under this Section shall be payable not later
than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent, the L/C Issuer and the Swing Line Lender, the
replacement of any Lender, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
11.05. PAYMENTS SET ASIDE. To the extent that any payment by or on behalf
of the Borrower is made to the Administrative Agent, the L/C Issuer or any
Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its
right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such
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Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had
not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to
the Administrative Agent upon demand its applicable share (without duplication)
of any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the applicable Overnight Rate from time to time in
effect, in the applicable currency of such recovery or payment. The obligations
of the Lenders and the L/C Issuer under clause (b) of the preceding sentence
shall survive the payment in full of the Obligations and the termination of this
Agreement.
11.06. SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Loan Party (except as provided in Section 7.04(a) may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance with
the provisions of subsection (d) of this Section, (iii) by way of pledge or
assignment of a security interest subject to the restrictions of subsection (f)
of this Section, or (iv) to an SPC in accordance with the provisions of
subsection (h) of this Section (and any other attempted assignment or transfer
by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans (including
for purposes of this subsection (b), participations in L/C Obligations and in
Swing Line Loans) at the time owing to it); provided that any such assignment
shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount
of the assigning Lender's Commitment and the Loans at the time owing
to it or in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this
Section, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the Commitment
is not then in effect, the principal outstanding balance of the Loans
of the assigning Lender subject to each such assignment, determined as
of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if "Trade
Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Event of Default has occurred
and is continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or
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delayed); provided, however, that concurrent assignments to members of
an Assignee Group and concurrent assignments from members of an
Assignee Group to a single assignee (or to an assignee and members of
its Assignee Group) will be treated as a single assignment for
purposes of determining whether such minimum amount has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender's rights
and obligations under this Agreement with respect to the Loans or the
Commitment assigned, except that this clause (ii) shall not apply to the
Swing Line Lender's rights and obligations in respect of Swing Line Loans;
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of this
Section and, in addition:
(A) the consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (1) an
Event of Default has occurred and is continuing at the time of such
assignment or (2) such assignment is to a Lender, an Affiliate of a
Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent not to
be unreasonably withheld or delayed) shall be required for assignments
in respect of (i) any Commitment if such assignment is to a Person
that is not a Lender with a Commitment, an Affiliate of such Lender or
an Approved Fund with respect to such Lender or (ii) the Term Loan to
a Person that is not a Lender, an Affiliate of a Lender or an Approved
Fund;
(C) the consent of the L/C Issuer (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment
that increases the obligation of the assignee to participate in
exposure under one or more Letters of Credit (whether or not then
outstanding); and
(D) the consent of the Swing Line Lender (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment
in respect of the Revolving Credit Facility.
(iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee in the amount,
if any, required as set forth in Schedule 11.06; provided, however, that
the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment. The assignee,
if it is not a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be
made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the
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assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto) but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05, and 11.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Upon
request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this subsection shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 11.01 that affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 11.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.01(e) as though it were a
Lender.
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(f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Special Purpose Funding Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower (an "SPC")
the option to provide all or any part of any Loan that such Granting Lender
would otherwise be obligated to make pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to make
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof or, if it fails to do so, to make such
payment to the Administrative Agent as is required under Section 2.12(b)(ii).
Each party hereto hereby agrees that (i) neither the grant to any SPC nor the
exercise by any SPC of such option shall increase the costs or expenses or
otherwise increase or change the obligations of the Borrower under this
Agreement (including its obligations under Section 3.04), (ii) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement for
which a Lender would be liable, and (iii) the Granting Lender shall for all
purposes, including the approval of any amendment, waiver or other modification
of any provision of any Loan Document, remain the lender of record hereunder.
The making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to, but
without prior consent of the Borrower and the Administrative Agent and with the
payment of a processing fee in the amount of $2,500, assign all or any portion
of its right to receive payment with respect to any Loan to the Granting Lender
and (ii) disclose on a confidential basis any non-public information relating to
its funding of Loans to any rating agency, commercial paper dealer or provider
of any surety or Guarantee or credit or liquidity enhancement to such SPC.
(i) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Committed Loans pursuant to
subsection (b) above, Bank of America may, (i) upon 30 days' notice to the
Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice
to the Borrower, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled
to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however, that no failure by the Borrower to appoint any
such successor shall affect the resignation of Bank of America as L/C Issuer or
Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer,
it shall retain all the rights, powers, privileges and duties of the
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L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as L/C Issuer and all L/C Obligations with
respect thereto (including the right to require the Lenders to make Base Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain all
the rights of the Swing Line Lender provided for hereunder with respect to Swing
Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Loans
or fund risk participations in outstanding Swing Line Loans pursuant to Section
2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line
Lender, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line
Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters
of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to Bank of
America to effectively assume the obligations of Bank of America with respect to
such Letters of Credit.
11.07. TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information received
from any Loan Party or any Subsidiary thereof relating to any Loan Party or any
Subsidiary thereof or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the L/C
Issuer on a nonconfidential basis prior to disclosure by any Loan Party or any
Subsidiary thereof, provided that, in the case of information received from a
Loan Party or any such Subsidiary 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.
Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrower or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
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11.08. RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account
of the Borrower or any other Loan Party against any and all of the obligations
of the Borrower or such Loan Party now or hereafter existing under this
Agreement or any other Loan Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer shall have made any
demand under this Agreement or any other Loan Document or are owed to a branch
or office of such Lender or the L/C Issuer different from the branch or office
holding such deposit or obligated on such indebtedness. The rights of each
Lender, the L/C Issuer and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that
such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender
and the L/C Issuer agrees to notify the Borrower and the Administrative Agent
promptly after any such setoff and application, provided that the failure to
give such notice shall not affect the validity of such setoff and application.
Each Lender and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
11.09. INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
11.10. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
11.11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
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11.12. SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11.13. REPLACEMENT OF LENDERS. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, if any Lender is a Defaulting Lender or if any other circumstance
exists hereunder that gives the Borrower the right to replace a Lender as a
party hereto, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 11.06), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment
fee specified in Section 11.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
11.14. GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF PENNSYLVANIA.
(b) SUBMISSION TO JURISDICTION. EACH OF THE BORROWER AND HOLDINGS
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA
SITTING IN PHILADELPHIA COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE
EASTERN DISTRICT OF PENNSYLVANIA, AND ANY APPELLATE COURT FROM ANY THEREOF, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH
OF THE PARTIES
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HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN
ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT,
ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
BORROWER OR HOLDINGS OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. EACH OF THE BORROWER AND HOLDINGS IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
11.15. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.16. NO ADVISORY OR FIDUCIARY RESPONSIBILITY. In connection with all
aspects of each transaction contemplated hereby, each of the Borrower and
Holdings acknowledges and agrees, and acknowledges its Affiliates' understanding
that: (i) the credit facility provided for hereunder and any related arranging
or other services in connection therewith (including in connection with any
amendment, waiver or other modification hereof or of any other Loan Document)
are an arm's-length commercial transaction between the Borrower, Holdings and
their respective Affiliates, on the one hand, and the Administrative Agent and
the Arranger, on the other hand, and each of Holdings and the Borrower is
capable of evaluating and understanding and understands and accepts the terms,
risks and conditions of the transactions contemplated hereby and by the other
Loan Documents (including any amendment, waiver or other modification hereof or
thereof); (ii) in connection with the process leading to such
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transaction, the Administrative Agent and the Arranger each is and has been
acting solely as a principal and is not the financial advisor, agent or
fiduciary, for the Borrower and Holdings or any of their respective Affiliates,
stockholders, creditors or employees or any other Person; (iii) neither the
Administrative Agent nor the Arranger has assumed or will assume an advisory,
agency or fiduciary responsibility in favor of the Borrower or Holdings with
respect to any of the transactions contemplated hereby or the process leading
thereto, including with respect to any amendment, waiver or other modification
hereof or of any other Loan Document (irrespective of whether the Administrative
Agent or the Arranger has advised or is currently advising the Borrower,
Holdings or any of their respective Affiliates on other matters) and neither the
Administrative Agent nor the Arranger has any obligation to the Borrower,
Holdings or any of their respective Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in
the other Loan Documents; (iv) the Administrative Agent and the Arranger and
their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower, Holdings and their
respective Affiliates, and neither the Administrative Agent nor the Arranger has
any obligation to disclose any of such interests by virtue of any advisory,
agency or fiduciary relationship; and (v) the Administrative Agent and the
Arranger have not provided and will not provide any legal, accounting,
regulatory or tax advice with respect to any of the transactions contemplated
hereby (including any amendment, waiver or other modification hereof or of any
other Loan Document) and each of the Borrower and Holdings has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate. Each of the Borrower and Holdings hereby waives and releases, to
the fullest extent permitted by law, any claims that it may have against the
Administrative Agent and the Arranger with respect to any breach or alleged
breach of agency or fiduciary duty.
11.17. USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower and Holdings that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies the Borrower and Holdings, which information
includes the name and address of the Borrower and Holdings and other information
that will allow such Lender or the Administrative Agent, as applicable, to
identify the Borrower and Holdings in accordance with the Act.
11.18. JUDGMENT CURRENCY. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Loan Document
in one currency into another currency, the rate of exchange used shall be that
at which in accordance with normal banking procedures the Administrative Agent
could purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of each Borrower
in respect of any such sum due from it to the Administrative Agent or the
Lenders hereunder or under the other Loan Documents shall, notwithstanding any
judgment in a currency (the "Judgment Currency") other than that in which such
sum is denominated in accordance with the applicable provisions of this
Agreement (the "Agreement Currency"), be discharged only to the extent that on
the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent may in
accordance with normal banking procedures 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 Administrative Agent from any Borrower
in the Agreement Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the
Person to whom such obligation was owing against such loss. If the amount of the
Agreement Currency so purchased is greater than the sum originally due to the
Administrative Agent in such currency, the Administrative Agent agrees to return
the amount of any excess to such Borrower (or to any other Person who may be
entitled thereto under applicable law).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
INFRASOURCE SERVICES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
INFRASOURCE INCORPORATED
By:
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Name:
----------------------------------
Title:
---------------------------------
BANK OF AMERICA, N.A., AS ADMINISTRATIVE
AGENT
By:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
BANK OF AMERICA, N.A., AS A LENDER, L/C
ISSUER AND SWING LINE LENDER
By:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
[OTHER LENDERS]