CREDIT AGREEMENT AMONG RALCORP HOLDINGS, INC. as Borrower, THE LENDERS NAMED HEREIN, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Syndication Agent, and WACHOVIA BANK, NATIONAL ASSOCIATION, SUNTRUST BANK, and PNC BANK,...
Exhibit 10.4
EXECUTION
COPY
$150,000,000
AMONG
RALCORP
HOLDINGS, INC.
as
Borrower,
THE
LENDERS NAMED HEREIN,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent,
CITIBANK,
N.A.,
as
Syndication Agent,
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
U.S.
BANK
NATIONAL ASSOCIATION,
SUNTRUST
BANK,
and
PNC
BANK,
NATIONAL ASSOCIATION,
as
Documentation Agents
DATED
AS
OF
December
27, 2005
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
and
CITIGROUP
GLOBAL MARKETS INC.
as
Co-Lead Arrangers
TABLE
OF CONTENTS
ARTICLE
I
DEFINITIONS
ARTICLE
II THE FACILITY
2.1. The
Facility.
2.2. Ratable
Advances.
2.3. Competitive
Bid Advances.
2.4. Swing
Line Loans.
2.5. Availability
of Funds
2.6. Commitment
Fee; Reductions and Increases in Aggregate Commitment.
2.7. Minimum
Amount of Each Ratable Advance
2.8. Optional
Principal Payments
2.9. Changes
in Interest Rate, etc
2.10. Rates
Applicable After Default
2.11. Method
of
Payment
2.12. Notes;
Telephonic Notices
2.13. Interest
Payment Dates; Interest and Fee Basis
2.14. Notification
of Advances, Interest Rates, Prepayments, Commitment Reductions and Issuance
Requests
2.15. Lending
Installations
2.16. Non-Receipt
of Funds by the Administrative Agent
2.17. Taxes.
2.18. Administrative
Agent’s Fees
2.19. Facility
Letters of Credit.
2.20. Extension
of Facility Termination Date
ARTICLE
III CHANGE IN CIRCUMSTANCES
3.1. Yield
Protection
3.2. Changes
in Capital Adequacy Regulations
3.3. Availability
of Types of Advances
3.4. Funding
Indemnification
3.5. Lender
Statements; Survival of Indemnity
ARTICLE
IV CONDITIONS PRECEDENT
4.1. Initial
Loans and Facility Letters of Credit
4.2. Each
Future Advance and Facility Letter of Credit
ARTICLE
V
REPRESENTATIONS AND WARRANTIES
5.1. Corporate
Existence and Standing
5.2. Authorization
and Validity
5.3. Compliance
with Laws and Contracts
5.4. Governmental
Consents
5.5. Financial
Statements
5.6. Material
Adverse Change
5.7. Taxes
5.8. Litigation
and Contingent Obligations
5.9. Subsidiaries
and Capitalization
5.10. ERISA
5.11. Defaults
5.12. Federal
Reserve Regulations
5.13. Investment
Company; Public Utility Holding Company Act
5.14. Certain
Fees
5.15. Solvency
5.16. Ownership
of Properties
5.17. Indebtedness
5.18. Subordinated
Indebtedness
5.19. Employee
Controversies
5.20. Material
Agreements
5.21. Environmental
Laws
5.22. Insurance
5.23. Disclosure
5.24. Material
Foreign Subsidiaries
ARTICLE
VI COVENANTS
6.1. Financial
Reporting
6.2. Use
of
Proceeds
6.3. Notice
of
Default
6.4. Conduct
of Business
6.5. Taxes
6.6. Insurance
6.7. Compliance
with Laws
6.8. Maintenance
of Properties
6.9. Inspection
6.10. Capital
Stock and Dividends
6.11. Indebtedness
6.12. Merger
6.13. Sale
of
Assets
6.14. Sale
of
Accounts
6.15. Investments
and Purchases
6.16. Contingent
Obligations
6.17. Liens
6.18. Lease
Rentals
6.19. Affiliates
6.20. Subordinated
Indebtedness; Other Indebtedness
6.21. Environmental
Matters
6.22. Change
in
Corporate Structure; Fiscal Year
6.23. Inconsistent
Agreements
6.24. Financial
Covenants
6.25. ERISA
Compliance.
6.26. Material
Subsidiaries
6.27. Material
Foreign Subsidiaries
ARTICLE
VII DEFAULTS
ARTICLE
VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration
8.2. Amendments
8.3. Preservation
of Rights
ARTICLE
IX GENERAL PROVISIONS
9.1. Survival
of Representations
9.2. Governmental
Regulation
9.3. Taxes
9.4. Headings
9.5. Entire
Agreement
9.6. Several
Obligations; Benefits of this Agreement
9.7. Expenses;
Indemnification
9.8. Numbers
of Documents
9.9. Accounting
9.10. Severability
of Provisions
9.11. Nonliability
of Lenders
9.12. CHOICE
OF
LAW
9.13. CONSENT
TO JURISDICTION
9.14. WAIVER
OF
JURY TRIAL
9.15. Disclosure
9.16. Counterparts
9.17. Confidentiality
9.18. USA
PATRIOT Act
ARTICLE
X
THE ADMINISTRATIVE AGENT
10.1. Appointment
10.2. Powers
10.3. General
Immunity
10.4. No
Responsibility for Loans, Recitals, etc
10.5. Action
on
Instructions of Lenders
10.6. Employment
of Agents and Counsel
10.7. Reliance
on Documents; Counsel
10.8. Administrative
Agent’s Reimbursement and Indemnification
10.9. Notice
of
Default
10.10. Rights
as
a Lender
10.11. Lender
Credit Decision
10.12. Successor
Administrative Agent
10.13. Syndication
Agent; Documentation Agents
ARTICLE
XI SETOFF; RATABLE PAYMENTS
11.1. Setoff
11.2. Ratable
Payments
ARTICLE
XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors
and Assigns
12.2. Participations.
12.3. Assignments.
12.4. Dissemination
of Information
12.5. Tax
Treatment
ARTICLE
XIII NOTICES
13.1. Giving
Notice
13.2. Change
of
Address
EXHIBITS
Exhibit
A - Note
(Ratable Loan)
Exhibit
B - Note
(Competitive Bid Loan)
Exhibit
C
- Competitive
Bid Quote Request
Exhibit
D - Invitation
for Competitive Bid Quotes
Exhibit
E - Competitive
Bid Quote
Exhibit
F - Note
(Swing Line Loan)
Exhibit
G - Compliance
Certificate
Exhibit
H - Assignment
Agreement
Exhibit
I - Form
of
General Counsel Opinion
SCHEDULES
Schedule
1 - Commitments
Schedule
5.8 - Material
Contingent Obligations
Schedule
5.9 - Subsidiaries
and Capitalization
Schedule
5.14 - Brokers’
Fees
Schedule
5.16 - Properties
Schedule
5.17 - Indebtedness
Schedule
5.24 - Material
Foreign Subsidiaries
Schedule
6.15 - Investments
Schedule
6.17 - Liens
This
Credit Agreement, dated as of December 27, 2005, is among RALCORP HOLDINGS,
INC., a Missouri corporation, the Lenders, JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent, CITIBANK, N.A., individually and
as
Syndication Agent, WACHOVIA BANK, NATIONAL ASSOCIATION, individually and
as
Documentation Agent, U.S. BANK NATIONAL ASSOCIATION, individually and as
Documentation Agent, PNC BANK, NATIONAL ASSOCIATION, individually and as
Documentation Agent, and SUNTRUST BANK, individually and as Documentation
Agent.
R E C I T A L S:
A. The
Borrower has requested that the Lenders make financial accommodations to
it in
an initial aggregate principal amount of $150,000,000, the proceeds of which
the
Borrower will use for the (i) general corporate needs of the Borrower and
its
Subsidiaries, (ii) working capital for the Borrower and its Subsidiaries,
and
(iii) non-hostile acquisitions by the Borrower.
B. The
Lenders are willing to extend such financial accommodations on the terms
and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants and undertakings herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the Lenders and
the
Administrative Agent hereby agree as follows:
ARTICLE
I
DEFINITIONS
As
used
in this Agreement:
"Absolute
Rate" means, with respect to an Absolute Rate Loan made by a given Lender
for
the relevant Absolute Rate Interest Period, the rate of interest per annum
(rounded to the nearest 1/100 of 1%) offered by such Lender and accepted
by the
Borrower.
"Absolute
Rate Advance" means a borrowing hereunder consisting of the aggregate amount
of
the several Absolute Rate Loans made by some or all of the Lenders to the
Borrower at the same time and for the same Interest Period.
"Absolute
Rate Auction" means a solicitation of Competitive Bid Quotes setting forth
Absolute Rates pursuant to Section
2.3.
"Absolute
Rate Interest Period" means, with respect to an Absolute Rate Advance, a
period
of not less than 7 and not more than 180 days commencing on a Business Day
selected by the Borrower pursuant to this Agreement. If such Absolute Rate
Interest Period would end on a day which is not a Business Day, such Absolute
Rate Interest Period shall end on the next succeeding Business Day.
"Absolute
Rate Loan" means a Loan which bears interest at the Absolute Rate.
"Accounts
Receivable Financing Program" means a program of sales or securitization
of, or
transfers of interests in, accounts receivable and related contract rights
("Receivables")
by the
Borrower or any Subsidiary on a limited recourse basis pursuant to which
the
aggregate amount of financing thereunder at any time outstanding shall not
exceed 15% of the total assets of the Borrower and its Subsidiaries, provided
that such sale or transfer qualifies as a sale under Agreement Accounting
Principles.
"Adjusted
EBITDA" means, for any applicable computation period, the sum of (a) EBIT
for
such period plus
(b) the
Borrower’s and Subsidiaries’ amortization and depreciation deducted in
determining Net Income for such period; provided,
however,
that
(i) Adjusted EBITDA shall be calculated giving pro forma effect for any
Permitted Purchase during such period as though such Permitted Purchase occurred
on the first day of such period, and (ii) in the event that the Borrower
sells
or otherwise disposes of all or any portion of the capital stock of Vail
Resorts, Inc. during such period, then Adjusted EBITDA shall be calculated
by
subtracting (adding) all equity earnings (losses) attributable to such divested
interest for such period.
"Adjusted
Net Income" means, for any computation period (a) Net Income for such period,
minus
(plus)
(b)
earnings (losses) during such period attributable to the equity investment
by
the Borrower and its Subsidiaries in Vail Resorts, Inc. and included in the
computation of Net Income for such period, plus
(c) to
the extent not included in the computation of Net Income for such period,
the
sum of all proceeds in excess of book value (net of related costs, expenses,
fees and taxes) received by the Borrower or any Subsidiary of the Borrower
during such period from the sale or other disposition of the capital stock
of
Vail Resorts, Inc.
"Administrative
Agent" means JPMorgan Chase Bank, N.A. in its capacity as administrative
agent
for the Lenders pursuant to Article
X,
and not
in its individual capacity as a Lender, and any successor Administrative
Agent
appointed pursuant to Article
X.
"Advance"
means a borrowing hereunder consisting of the aggregate amount of the several
Loans made by some or all of the Lenders to the Borrower on the same Borrowing
Date, of the same Type (or on the same interest basis in the case of Competitive
Bid Advances) and, when applicable, for the same Interest Period and includes
a
Competitive Bid Advance and a Swing Line Loan.
"Affiliate"
of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person shall be
deemed
to control another Person if the controlling Person owns 10% or more of any
class of voting securities (or other ownership interests) of the controlled
Person or possesses, directly or indirectly, the power to direct or cause
the
direction of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all the Lenders hereunder. The initial Aggregate Commitment is $150,000,000 as of the date hereof, as adjusted from time to time pursuant to the terms of this Agreement.
"Agreement"
means this Credit Agreement, as it may be amended, modified or restated and
in
effect from time to time.
"Agreement
Accounting Principles" means generally accepted accounting principles as
in
effect from time to time, applied in a manner consistent with those used
in
preparing the Financial Statements; provided,
however,
that
for purposes of all computations required to be made with respect to compliance
by the Borrower with Section
6.24,
such
term shall mean generally accepted accounting principles as in effect on
the
date hereof, applied in a manner consistent with those used in preparing
the
Financial Statements.
"Alternate
Base Rate" means, for any day, a rate of interest per annum equal to the
higher
of (a) the Prime Rate for such day and (b) the Federal Funds Effective Rate
most
recently determined by the Administrative Agent plus ½ of 1% per
annum.
"Alternate
Base Rate Advance" means a Ratable Advance which bears interest at the Alternate
Base Rate.
"Alternate
Base Rate Loan" means a Ratable Loan which bears interest at the Alternate
Base
Rate.
"Alternate
Swing Line Rate" means a rate agreed upon from time to time by the Borrower
and
the Swing Line Lender.
"Applicable
Commitment Fee Percentage" means, subject to the last sentence of this
definition, for any period, the applicable of the following percentages in
effect with respect to such period as the Net Leverage Ratio shall fall within
the indicated ranges:
Net Leverage
Ratio
Applicable
Commitment Fee Percentage
|
Greater
than
|
But
less than or Equal to
|
|
|
3.25:1.0
|
--------
|
0.150%
|
|
2.50:1.0
|
3.25:1.0
|
0.125%
|
|
1.75:1.0
|
2.50:1.0
|
0.090%
|
|
--
|
1.75:1.0
|
0.080%
|
The
Net
Leverage Ratio shall be calculated by the Borrower as of the end of each
of its
Fiscal Quarters commencing December 31, 2005 and shall be reported to the
Administrative Agent pursuant to a certificate executed by an Authorized
Officer
of the Borrower and delivered in accordance with Section
6.1(d)
hereof.
The Applicable Commitment Fee Percentage shall be adjusted, if necessary,
quarterly as of the tenth day after the required delivery date for the
certificate referenced above; provided,
that if
such certificate, together with the financial statements to which such
certificate relates, are not delivered by such tenth day, then the Applicable
Commitment Fee Percentage shall be equal to 0.150% until such certificate
and
related financial statements are so delivered. Until adjusted as described
above
for the Fiscal Quarter ended December 31, 2005 the Applicable Commitment
Fee
Percentage shall be equal to 0.090%.
"Applicable
Eurodollar Margin" means, subject to the last sentence of this definition,
for
any period, the applicable of the following percentages in effect with respect
to such period as the Net Leverage Ratio shall fall within the indicated
ranges:
Net Leverage
Ratio
ApplicableEurodollar
Margin
|
Greater
than
|
But
less than or Equal to
|
|
|
3.25:1.0
|
--------
|
0.750%
|
|
2.50:1.0
|
3.25:1.0
|
0.625%
|
|
1.75:1.0
|
2.50:1.0
|
0.500%
|
|
--
|
1.75:1.0
|
0.400%
|
The
Net
Leverage Ratio shall be calculated by the Borrower as of the end of
each of its
Fiscal Quarters commencing December 31, 2005 and shall be reported
to the
Administrative Agent pursuant to a certificate executed by an Authorized
Officer
of the Borrower and delivered in accordance with Section
6.1(d)
hereof.
The Applicable Eurodollar Margin shall be adjusted, if necessary, quarterly
as
of the tenth day after the required delivery date for the certificate
referenced
above; provided,
that if
such certificate, together with the financial statements to which such
certificate relates, are not delivered by such tenth day, then the
Applicable
Eurodollar Margin shall be equal to 0.750% until such certificate and
related
financial statements are so delivered. Until adjusted as described
above for the
Fiscal Quarter ended December 31, 2005, the Applicable Eurodollar Margin
shall
be equal to 0.500%.
"Arrangers"
means ▇.▇. ▇▇▇▇▇▇ Securities Inc., Citigroup Global Markets Inc. and
their
respective successors.
"Article"
means an article of this Agreement unless another document is specifically
referenced.
"Asset
Disposition" means any sale, transfer or other disposition of any asset
of the
Borrower or any Subsidiary in a single transaction or in a series of
related
transactions (other than the sale of inventory or unused or obsolete
equipment
in the ordinary course).
"Authorized
Officer" means any of the president, chief financial officer, treasurer
or
controller of the Borrower, acting singly.
"Bankruptcy
Code" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, sections 1 et seq.,
as the
same may be amended from time to time, and any successor thereto or
replacement
therefor which may be hereafter enacted.
"Borrower"
means Ralcorp Holdings, Inc., a Missouri corporation.
"Borrowing
Date" means a date on which an Advance is made or a Facility Letter
of Credit is
issued hereunder.
"Business
Day" means (a) with respect to any borrowing, payment or rate selection
of
Eurodollar Advances, a day (other than a Saturday or Sunday) on which
banks
generally are open in Chicago for the conduct of substantially all
of their
commercial lending activities and on which dealings in United States
dollars are
carried on in the London interbank market, and (b) for all other purposes,
a day
(other than a Saturday or Sunday) on which banks generally are open
in Chicago
for the conduct of substantially all of their commercial lending
activities.
"Capitalized
Lease" of a Person means any lease of Property by such Person as lessee
which
would be capitalized on a balance sheet of such Person prepared in
accordance
with Agreement Accounting Principles.
"Capitalized
Lease Obligations" of a Person means the amount of the obligations
of such
Person under Capitalized Leases which would be shown as a liability
on a balance
sheet of such Person prepared in accordance with Agreement Accounting
Principles.
"Change"
is defined in Section
3.2.
"Change
in Control" means (a) the acquisition by any Person, or two or more
Persons
acting in concert, including without limitation any acquisition effected
by
means of any transaction contemplated by Section
6.12,
of
beneficial ownership (within the meaning of Rule 13d-3 of the Securities
and
Exchange Commission under the Securities Exchange Act of 1934) of 20%
or more of
the outstanding shares of voting stock of the Borrower, or (b) during
any period
of 25 consecutive calendar months, commencing on the date of this Agreement,
the
ceasing of those individuals (the "Continuing
Directors")
who
(i) were directors of the Borrower on the first day of each such period
or (ii)
subsequently became directors of the Borrower and whose initial election
or
initial nomination for election subsequent to that date was approved
by a
majority of the Continuing Directors then on the board of directors
of the
Borrower, to constitute a majority of the board of directors of the
Borrower.
"Code"
means the Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time.
"Commercial
Letter of Credit" means a trade or commercial Facility Letter of Credit
issued
by an Issuer pursuant to Section
2.19
hereof.
"Commitment"
means, for each Lender, the obligation of such Lender to make Loans
(other than
Swing Line Loans) and participate in Facility Letters of Credit not
exceeding
the amount set forth in Schedule 1 hereto and as set forth in any Notice
of
Assignment relating to any assignment which has become effective pursuant
to
Section
12.3.2,
as such
amount may be modified from time to time pursuant to the terms
hereof.
"Competitive
Bid Advance" means a borrowing hereunder consisting of the aggregate
amount of
the several Competitive Bid Loans made by some or all of the Lenders
to the
Borrower at the same time and for the same Interest Period.
"Competitive
Bid Borrowing Notice" is defined in Section
2.3.6.
"Competitive
Bid Loan" means a Eurodollar Bid Rate Loan or an Absolute Rate Loan,
or both, as
the case may be.
"Competitive
Bid Margin" means the margin above or below the applicable Eurodollar
Base Rate
offered for a Eurodollar Bid Rate Loan, expressed as a percentage (rounded
to
the nearest 1/100 of 1%) to be added or subtracted from such Eurodollar
Base
Rate.
"Competitive
Bid Note" means a promissory note in substantially the form of Exhibit
B
hereto,
with appropriate insertions, duly executed and delivered to the Administrative
Agent by the Borrower for the account of a Lender and payable to the
order of
such Lender, including any amendment, modification, renewal or replacement
of
such promissory note.
"Competitive
Bid Quote" means a Competitive Bid Quote substantially in the form
of
Exhibit
E
hereto
completed and delivered by a Lender to the Administrative Agent in
accordance
with Section
2.3.4.
"Competitive
Bid Quote Request" means a Competitive Bid Quote Request substantially
in the
form of Exhibit
C
hereto
completed and delivered by the Borrower to the Administrative Agent
in
accordance with Section
2.3.2.
"Condemnation"
is defined in Section
7.8.
"Consolidated"
or "consolidated", when used in connection with any calculation, means
a
calculation to be determined on a consolidated basis for the Borrower
and its
Subsidiaries in accordance with Agreement Accounting Principles.
"Consolidated
Interest Expense" means, with respect to any period, the sum (without
duplication) of (i) Consolidated interest expense of the Borrower and
its
Consolidated Subsidiaries for such period before the effect of interest
income,
as reflected on the Consolidated statements of income for the Borrower
and its
Consolidated Subsidiaries for such period, and (ii) Consolidated interest,
yield
or discount accrued during such period on the aggregate outstanding
investment
or claim held by purchasers, assignees or other transferees of (or
of interests
in) receivables of the Borrower and its Consolidated Subsidiaries in
connection
with a revolving Accounts Receivable Financing Program (regardless
of the
accounting treatment of such Accounts Receivable Financing
Program).
"Consolidated
Person" means, for the taxable year of reference, each Person which
is a member
of the affiliated group of the Borrower if Consolidated returns are
or shall be
filed for such affiliated group for federal income tax purposes or
any combined
or unitary group of which the Borrower is a member for state income
tax
purposes.
"Contingent
Obligation" of a Person means any agreement, undertaking or arrangement
by which
such Person assumes, guarantees, endorses, contingently agrees to purchase
or
provide funds for the payment of, or otherwise becomes or is contingently
liable
upon, the obligation or liability of any other Person, or agrees to
maintain the
net worth or working capital or other financial condition of any other
Person,
or otherwise assures any creditor of such other Person against loss,
including,
without limitation, any comfort letter, operating agreement or take-or-pay
contract or application for a Letter of Credit.
"Controlled
Group" means all members of a controlled group of corporations and
all trades or
businesses (whether or not incorporated) under common control which,
together
with the Borrower or any of its Subsidiaries, are treated as a single
employer
under Section 414 of the Code.
"Conversion/Continuation
Notice" is defined in Section
2.9.
"Default"
means an event described in Article
VII.
"EBIT"
means, for any applicable computation period, the Borrower’s and Subsidiaries’
Net Income on a consolidated basis, plus
(a)
consolidated federal, state, local and foreign income and franchise
taxes paid
or accrued during such period and (b) Consolidated Interest Expense
for such
period, minus
(or
plus)
equity
earnings (or losses) during such period attributable to equity investments
by
the Borrower and its Subsidiaries in the capital stock or other equity
interests
in any Person which is not a Subsidiary (other than Vail Resorts,
Inc.).
"Environmental
Claims" means all claims, investigations, litigation, administrative
proceedings, notices, requests for information, whether pending or
threatened,
or judgements or orders, however asserted, by any Governmental Authority
or
other Person alleging potential liability or responsibility for any
violation of
any Environmental Laws, or for any Release or injury to the
environment.
"Environmental
Laws" means all federal, state and local laws, statutes, common law
duties,
rules, regulations, ordinances and codes, together with all administrative
orders, direct duties, requests, licenses, approvals, certificates,
decrees,
standards, permits and other authorizations of, and agreements with,
any
Governmental Authority, in each case relating to environmental, health,
safety
and land use matters, including without limitations, chemical substances,
air
emissions, effluent discharges and the storage, treatment, transport
and
disposal of Hazardous Materials.
"ERISA"
means the Employee Retirement Income Security Act of 1974, as amended
from time
to time.
"Eurodollar
Advance" means a Eurodollar Bid Rate Advance or a Eurodollar Ratable
Advance, or
both, as the case may be.
"Eurodollar
Auction" means a solicitation of Competitive Bid Quotes setting forth
Eurodollar
Bid Rates pursuant to Section
2.3.
"Eurodollar
Base Rate" means, with respect to a Eurodollar Advance for the relevant
Eurodollar Interest Period, the applicable British Bankers’ Association Interest
Settlement Rate for deposits in U.S. dollars appearing on Bloomberg
Screen BBAM
as of 11:00 a.m. (London time) two Business Days prior to the first
day of such
Eurodollar Interest Period, and having a maturity equal to such Eurodollar
Interest
Period
of
one, two, three or six months shall end on (but exclude) the day which
corresponds numerically to such date one, two, three or six months
thereafter;
provided,
however,
that if
there is no such numerically corresponding day in such next, second,
third or
sixth succeeding month, such Eurodollar Interest Period shall end on
the last
Business Day of such next, second, third or sixth succeeding month.
If a
Eurodollar Interest Period would otherwise end on a day which is not
a Business
Day, such Eurodollar Interest Period shall end on the next succeeding
Business
Day; provided,
however,
that
if, with respect to a Eurodollar Interest Period of one, two, three
or six
months, said next succeeding Business Day falls in a new month, such
Eurodollar
Interest Period shall end on the immediately preceding Business
Day.
"Eurodollar
Bid Rate" means, with respect to a Eurodollar Bid Rate Loan made by
a given
Lender for the relevant Eurodollar Interest Period, the sum of (a)
the
Eurodollar Base Rate and (b) the Competitive Bid Margin offered by
such Lender
and accepted by the Borrower.
"Eurodollar
Bid Rate Advance" means a Competitive Bid Advance which bears interest
at a
Eurodollar Bid Rate.
"Eurodollar
Bid Rate Loan" means a Loan which bears interest at the Eurodollar
Bid
Rate.
"Eurodollar
Interest Period" means, with respect to a Eurodollar Ratable Advance
or a
Eurodollar Bid Rate Advance, a period of seven days or one, two, three
or six
months commencing on a Business Day selected by the Borrower pursuant
to this
Agreement. A Eurodollar Interest Period of one, two, three or six months
shall
end on (but exclude) the day which corresponds numerically to such
date one,
two, three or six months thereafter; provided,
however,
that if
there is no such numerically corresponding day in such next, second,
third or
sixth succeeding month, such Eurodollar Interest Period shall end on
the last
Business Day of such next, second, third or sixth succeeding month.
If a
Eurodollar Interest Period would otherwise end on a day which is not
a Business
Day, such Eurodollar Interest Period shall end on the next succeeding
Business
Day; provided,
however,
that
if, with respect to a Eurodollar Interest Period of one, two, three
or six
months, said next succeeding Business Day falls in a new month, such
Eurodollar
Interest Period shall end on the immediately preceding Business
Day.
"Eurodollar
Loan" means a Eurodollar Ratable Loan or Eurodollar Bid Rate Loan,
or both, as
the case may be.
"Eurodollar
Ratable Advance" means an Advance which bears interest at a Eurodollar
Rate
requested by the Borrower pursuant to Section
2.2.3.
"Eurodollar
Ratable Loan" means a Loan requested by the Borrower pursuant to Section
2.2.3
which
bears interest at a Eurodollar Rate.
"Eurodollar
Rate" means, with respect to a Eurodollar Ratable Advance for the relevant
Eurodollar Interest Period, the sum of (a) the quotient of (i) the
Eurodollar
Base Rate applicable to such Eurodollar Interest Period, divided by
(ii) one
minus the Reserve Requirement (expressed as a decimal) applicable to
such
Eurodollar Interest Period, plus (b) the Applicable Eurodollar Margin
plus (c)
only in the case of Eurodollar Ratable Advances having a seven day
Interest
Period, .125%. The Eurodollar Rate shall be rounded to the next higher
multiple
of 1/16 of 1% if the rate is not such a multiple.
"Existing
Credit Agreement" means that certain credit agreement among JPMorgan
Chase Bank,
N.A., as administrative agent, the financial institutions party thereto,
and
Ralcorp Holdings, Inc. dated as of October 15, 2004, as amended.
"Facility
Letter of Credit" means a Letter of Credit issued pursuant to Section
2.19.
"Facility
Letter of Credit Obligations" means as at the time of determination
thereof, the
sum of (a) the Reimbursement Obligations then outstanding and (b) the
aggregate
then undrawn face amount of the then outstanding Facility Letters of
Credit.
"Facility
Letter of Credit Sublimit" means an aggregate amount of
$50,000,000.
"Facility
Termination Date" means December 27, 2010, as such date may be extended
pursuant
to Section
2.20.
"Federal
Funds Effective Rate" means, for any day, an interest 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 for such day (or, if such day is not a Business Day,
for the
immediately preceding Business Day) by the Federal Reserve Bank of
New York, or,
if such rate is not so published for any day which is a Business Day,
the
average of the quotations at approximately 10 a.m. (Chicago time) on
such day on
such transactions received by the Administrative Agent from three federal
funds
brokers of recognized standing selected by the Administrative Agent
in its sole
discretion.
"Financial
Statements" is defined in Section
5.5.
"Fiscal
Quarter" means one of the four three-month accounting periods comprising
a
Fiscal Year.
"Fiscal
Year" means the twelve-month accounting period ending September 30
of each
year.
"Governmental
Authority" means any government (foreign or domestic) or any state
or other
political subdivision thereof or any governmental body, agency, authority,
department or commission (including without limitation any taxing authority
or
political subdivision) or any instrumentality or officer thereof (including
without limitation any court or tribunal) exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government
and any corporation, partnership or other entity directly or indirectly
owned or
controlled by or subject to the control of any of the foregoing.
"Guarantors"
means ▇▇▇▇▇▇▇, Inc., Flavor House Products, Inc., Nutcracker Brands,
Inc., RH
Financial Corporation, Ripon Foods, Inc., Sugar Kake Cookie Inc., Heritage
Wafers, LLC, The Carriage House Companies, Inc., Bakery Chef, L.L.C.,
Community
Shops, Inc., The Bun Basket, Inc., Lofthouse Bakery Products, Inc.,
Medallion
Foods, Inc. and each other Material Subsidiary.
"Hazardous
Materials" means any toxic or hazardous waste, substance or chemical
or any
pollutant, contaminant, chemical or other substance defined or regulated
pursuant to any Environmental Laws, including, without limitation,
asbestos,
petroleum or crude oil.
"Indebtedness"
of a Person means such Person’s (a) obligations for borrowed money, (b)
obligations representing the deferred purchase price of Property or
services
(other than accounts payable arising in the ordinary course of such
Person’s
business payable on terms customary in the trade), (c) obligations,
whether or
not assumed, secured by Liens or payable out of the proceeds or production
from
Property now or hereafter owned or acquired by such Person, (d) obligations
which are evidenced by notes, acceptances, or similar instruments,
(e)
Capitalized Lease Obligations, (f) Rate Hedging Obligations, (g) Contingent
Obligations, (h) obligations for which such Person is obligated pursuant
to or
in respect of a Facility Letter of Credit and the face amount of any
other
Letter of Credit, (i) obligations under so-called åsynthetic leasesæ and (j)
repurchase obligations or liabilities of such Person with respect to
accounts or
notes receivable sold by such Person.
"Initial
Lender" means any Lender as of the date hereof.
"Interest
Expense Coverage Ratio" means for any applicable computation period
of the
Borrower, the ratio of EBIT to the Borrower’s Consolidated Interest Expense for
such period, all as determined in accordance with Agreement Accounting
Principles.
"Interest
Period" means a Eurodollar Interest Period or an Absolute Rate Interest
Period.
Notwithstanding the foregoing, each Swing Line Loan bearing interest
at the
Alternate Swing Line Rate shall be deemed to have an Interest Period
of from one
to seven days as agreed upon between the Borrower and the Swing Line
Lender.
"Investment"
of a Person means any loan, advance (other than commission, travel
and similar
advances to officers and employees made in the ordinary course of business),
extension of credit (other than accounts receivable arising in the
ordinary
course of business on terms customary in the trade), deposit account
or
contribution of capital by such Person to any other Person or any investment
in,
or purchase or other acquisition of, the stock, partnership interests,
notes,
debentures or other securities of any other Person made by such
Person.
"Invitation
for Competitive Bid Quotes" means an Invitation for Competitive Bid
Quotes
substantially in the form of Exhibit
D
hereto,
completed and delivered by the Administrative Agent to the Lenders
in accordance
with Section
2.3.3.
"Issuance
Request" is defined in Section
2.19.4.
"Issuer"
means JPMorgan Chase Bank, N.A.
"Lenders"
means the lending institutions listed on the signature pages of this Agreement
and their respective successors and assigns.
"Lending
Installation" means, with respect to a Lender or the Administrative Agent,
any
office, branch, subsidiary or affiliate of such Lender or the Administrative
Agent.
"Letter
of Credit" of a Person means a letter of credit or similar instrument which
is
issued upon the application of such Person or upon which such Person is an
account party or for which such Person is in any way liable.
"Letter
of Credit Cash Collateral Account" is defined in Section
8.1.
Such
account and the related cash collateralization shall be subject to documentation
satisfactory to the Administrative Agent.
"Leverage
Ratio" means, with respect to the Borrower on a consolidated basis with its
Subsidiaries, at the end of any Fiscal Quarter, the ratio of (a) Total Debt
at
the end of such Fiscal Quarter to (b) Adjusted EBITDA for the four Fiscal
Quarters then ending.
"Lien"
means any security interest, lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind
or
nature whatsoever (including, without limitation, the interest of a vendor
or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan"
means, with respect to a Lender, such Lender’s portion of any Advance and
"Loans" means, with respect to the Lenders, the aggregate of all Advances.
The
terms "Loan" and "Loans" shall also include any Swing Line Loans.
"Loan
Documents" means this Agreement, the Notes, the Subsidiary Guaranty, the
Reimbursement Agreements and the other documents and agreements contemplated
hereby and executed by the Borrower in favor of the Administrative Agent
or any
Lender.
"Margin
Stock" has the meaning assigned to that term under Regulation U.
"Material
Adverse Effect" means a material adverse effect on (a) the business, Property,
condition (financial or other) and
results of operations of the Borrower and its Subsidiaries taken as a whole,
(b)
the ability of the Borrower to perform its obligations under the Loan Documents,
or (c) the validity or enforceability of any of the Loan Documents or the
rights
or remedies of the Administrative Agent or the Lenders thereunder.
"Material
Foreign Subsidiary" means a Subsidiary of the Borrower organized under the
laws
of a jurisdiction located outside the United States and at any time having
assets with a fair market value in excess of $10,000,000.
"Material
Subsidiary" means a Subsidiary of the Borrower organized under the laws of
a
jurisdiction located within the United States and at any time having assets
with
a fair market value in excess of $10,000,000; provided, however, that any
special purpose Subsidiary established for the purpose of entering into the
Accounts Receivable Financing Program shall not be a Material
Subsidiary.
"Moody’s"
means ▇▇▇▇▇’▇ Investor Services, Inc.
"Multiemployer
Plan" means an employee pension benefit plan, as defined in section 3(2)
of
ERISA, maintained pursuant to a collective bargaining agreement or any other
arrangement to which the Borrower or any member of the Controlled Group is
a
party to which more than one employer outside of the Controlled Group is
obligated to make contributions.
"Net
Debt" means (a) Total Debt, plus
(b) the
aggregate principal amount of all Indebtedness of a special purpose Subsidiary
of the Borrower formed in connection with the sale of accounts receivable
and
other forms of off-balance sheet financing, minus
(c) the
amount of cash held by the Borrower in excess of $10,000,000, minus
(d) 50%
of the market value of the Borrower’s equity interests in Vail Resorts, Inc. as
of the end of the most recently ended Fiscal Quarter.
"Net
Income" means, for any computation period, with respect to the Borrower on
a
consolidated basis with its Subsidiaries (other than any Subsidiary which
is
restricted from declaring or paying dividends or otherwise advancing funds
to
its parent whether by contract or otherwise), cumulative net income earned
during such period as determined in accordance with Agreement Accounting
Principles, but (i) excluding any non-cash charges (except any non-cash charges
that require accrual of a reserve for anticipated future cash payments) or
non-cash gains (except any non-cash gains resulting in the Borrower’s accrual of
a receivable which will result in a cash in-flow at a later date), which
charges
or gains are unusual, non-recurring or extraordinary, (ii) excluding any
non-cash stock based incentive-related expenses, and (iii) including, to
the
extent not otherwise included in the determination of Net Income, all cash
dividends and cash distributions received by the Borrower or any Subsidiary
from
any Person in which the Borrower or such Subsidiary has made an Investment
pursuant to Section
6.15(j).
"Net
Leverage Ratio" means, with respect to the Borrower on a consolidated basis
with
its Subsidiaries, at the end of any Fiscal Quarter, the ratio of (a) Net
Debt at
the end of such Fiscal Quarter to (b) Adjusted EBITDA for the four Fiscal
Quarters then ending.
"Net
Worth" means at any date the consolidated common stockholders’ equity of the
Borrower and its consolidated Subsidiaries determined in accordance with
Agreement Accounting Principles.
"Notes"
means, collectively, the Competitive Bid Notes, the Ratable Notes and the
Swing
Line Note; and "Note" means any one of the Notes.
"Notice
of Assignment" is defined in Section
12.3.2.
"Obligations"
means all unpaid principal of and accrued and unpaid interest on the Notes,
the
Facility Letter of Credit Obligations and all other liabilities (if any),
whether actual or contingent, of the Borrower with respect to Facility Letters
of Credit, all accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Borrower to the Lenders or to any
Lender, the Administrative Agent or any indemnified party hereunder arising
under any of the Loan Documents.
"Participants"
is defined in Section
12.2.1.
"Payment
Date" means the last day of each March,
June, September and December.
"PBGC"
means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Permitted
Purchase" means an acquisition permitted by Section
6.15(m).
"Person"
means any natural person, corporation, firm, joint venture, partnership,
association, enterprise, limited liability company, trust or other entity
or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan"
means an employee pension benefit plan, as defined in Section 3(2) of ERISA,
as
to which the Borrower or any member of the Controlled Group may have any
liability.
"Prime
Rate" means a rate per annum equal to the prime rate of interest announced
from
time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at
its
principal office in New York City (which is not necessarily the lowest rate
charged to any customer), changing when and as said prime rate
changes.
"Property"
of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated
by such Person.
"pro-rata"
means, when used with respect to a Lender, and any described aggregate or
total
amount, an amount equal to such Lender’s pro-rata share or portion based on its
percentage of the Aggregate Commitment or if the Aggregate Commitment has
been
terminated, its percentage of the aggregate principal amount of outstanding
Advances and Facility Letter of Credit Obligations.
"Purchase"
means any transaction, or any series of related transactions, consummated
on or
after the date of this Agreement, by which the Borrower or any of its
Subsidiaries (a) acquires any ongoing business or all or substantially all
of
the assets of any firm, corporation or division or line of business thereof,
whether through purchase of assets, merger or otherwise, or (b) directly
or
indirectly acquires (in one transaction or as the most recent transaction
in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election
of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage or voting power)
of the
outstanding partnership interests of a partnership.
"Purchasers"
is defined in Section
12.3.1.
"▇▇▇▇▇▇▇
Obligations" means the indemnification obligations of the Borrower existing
on
the date hereof in favor of ▇▇▇▇▇▇▇ Purina Company with respect to its guaranty
of the obligations of ▇▇▇▇▇▇▇ Resorts, Inc. under the Sports Facilities
Refunding Revenue Bonds identified on Schedule
5.8.
"Ratable
Advance" means a borrowing hereunder consisting of the aggregate amount of
the
several Ratable Loans made by the Lenders to the Borrower at the same time,
of
the same Type and for the same Interest Period.
"Ratable
Borrowing Notice" is defined in Section
2.2.3.
"Ratable
Loan" means a Loan made by a Lender pursuant to Section
2.2
hereof.
"Ratable
Note" means a promissory note in substantially the form of Exhibit
A
hereto,
duly executed and delivered to the Administrative Agent by the Borrower for
the
account of each Lender and payable to the order of a Lender in the amount
of its
Commitment, including any amendment, modification, renewal or replacement
of
such promissory note.
"Rate
Hedging Obligations" of a Person means any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor), under (a) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto from
the
fluctuations of interest rates, exchange rates or forward rates applicable
to
such party’s assets, liabilities or exchange transactions, including, but not
limited to, dollar-denominated or cross-currency interest rate exchange
agreements, interest rate swaps, forward currency exchange agreements, interest
rate cap or collar protection agreements, forward rate currency or interest
rate
options, puts and warrants, and (b) any and all cancellations, buybacks,
reversals, terminations or assignments of any of the foregoing.
"Regulation
D" means Regulation D of the Board of Governors of the Federal Reserve System
as
from time to time in effect and any successor thereto or other regulation
or
official interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve
System.
"Regulation
T" means Regulation T of the Board of Governors of the Federal Reserve System
as
from time to time in effect and shall include any successor or other regulation
or official interpretation of such Board of Governors relating to the extension
of credit by securities brokers and dealers for the purpose of purchasing
or
carrying margin stocks applicable to such Persons.
"Regulation
U" means Regulation U of the Board of Governors of the Federal Reserve System
as
from time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors relating to the extension of credit
by
banks for the purpose of purchasing or carrying margin stocks applicable
to such
Persons.
"Regulation
X" means Regulation X of the Board of Governors of the Federal Reserve System
as
from time to time in effect and shall include any successor or other regulation
or official interpretation of said Board of Governors relating to the extension
of credit by the specified lenders for the purpose of purchasing or carrying
margin stocks applicable to such Persons.
"Reimbursement
Agreement" means a letter of credit application and reimbursement agreement
in
such form as the Issuer may from time to time employ in the ordinary course
of
business.
"Reimbursement
Obligations" means, at any time, the aggregate (without duplication) of the
Obligations of the Borrower to the Lenders, the Issuer and/or the Administrative
Agent in respect of all unreimbursed payments or disbursements made by the
Lenders, the Issuer and/or the Administrative Agent under or in respect of
draws
made under the Facility Letters of Credit.
"Related
Parties" means, with respect to any specified Person, such Person’s Affiliates
and the respective directors, officers, employees, agents and advisors of
such
Person and such Person’s Affiliates.
"Release"
is defined in the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, 42 U.S.C. 39601 et seq.
"Rentals"
of a Person means the aggregate fixed amounts payable by such Person under
any
operating lease of Property.
"Reportable
Event" means a reportable event as defined in Section 4043 of ERISA and the
regulations issued under such section, with respect to a Plan, excluding,
however, such events as to which the PBGC has by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days
of
the occurrence of such event; provided,
that a
failure to meet the minimum funding standard of Section 412 of the Code and
of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance
of
any such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
"Required
Lenders" means Lenders in the aggregate having at least 51% of the Aggregate
Commitment or, if the Aggregate Commitment has been terminated, 51% of the
sum
of (a) the aggregate unpaid principal amount of the outstanding Loans plus
(b)
the aggregate amount of the outstanding Facility Letter of Credit
Obligations.
"Reserve
Requirement" means, with respect to an Interest Period, the maximum aggregate
reserve requirement (including all basic, supplemental, marginal and other
reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Risk-Based
Capital Guidelines" is defined in Section
3.2.
"S&P"
means Standard & Poor’s Ratings Group, a division of the ▇▇▇▇▇▇-▇▇▇▇
Companies.
"Section"
means a numbered section of this Agreement, unless another document is
specifically referenced.
"Single
Employer Plan" means a Plan subject to Title IV of ERISA maintained by the
Borrower or any member of the Controlled Group for employees of the Borrower
or
any member of the Controlled Group, other than a Multiemployer
Plan.
"Solvent"
means, when used with respect to a Person, that (a) the fair saleable value
of
the assets of such Person is in excess of the total amount of the present
value
of its liabilities (including for purposes of this definition all liabilities
(including loss reserves as determined by such Person), whether or not reflected
on a balance sheet prepared in accordance with Agreement Accounting Principles
and whether direct or indirect, fixed or contingent, secured or unsecured,
disputed or undisputed), (b) such Person is able to pay its debts or obligations
in the ordinary course as they mature and (c) such Person does not have
unreasonably small capital to carry out its business as conducted and as
proposed to be conducted. "Solvency" shall have a correlative
meaning.
"Standby
Letter of Credit" means a Facility Letter of Credit which is not a Commercial
Letter of Credit.
"Subordinated
Indebtedness" of a Person means any Indebtedness of such Person the payment
of
which is subordinated to payment of the Obligations to the written satisfaction
of the Administrative Agent.
"Subsidiary"
of a Person means (a) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned
or
controlled, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or (b)
any
partnership, association, joint venture, limited liability company or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled. Unless
otherwise expressly provided, all references herein to a "Subsidiary" shall
mean
a Subsidiary of the Borrower.
"Subsidiary
Guaranty" means that certain Guaranty, dated as of the date hereof, duly
executed and delivered by the Guarantors in favor of the Administrative Agent,
on behalf of the Lenders, as the same may be amended, supplemented or otherwise
modified from time to time.
"Substantial
Portion" means, with respect to the Property of the Borrower and its
Subsidiaries, Property which (a) represents more than 15% of the consolidated
tangible assets of the Borrower and its Subsidiaries, as would be shown in
the
consolidated financial statements of the Borrower and its Subsidiaries as
at the
end of the Fiscal Quarter next preceding the date on which such determination
is
made, or (b) is responsible for more than 5% of the consolidated Net Income
from
continuing operations of the Borrower and its Subsidiaries for the 12-month
period ending as of the end of the Fiscal Quarter next preceding the date
of
determination.
"Swing
Line Lender" means JPMorgan Chase Bank, N.A. or any other Lender as a successor
Swing Line Lender.
"Swing
Line Commitment" means the obligation of the Swing Line Lender to make Swing
Line Loans hereunder in an aggregate amount at any one time outstanding not
to
exceed $15,000,000. The Swing Line Commitment will automatically and permanently
terminate on the Facility Termination Date.
"Swing
Line Loan" means a Loan made by the Swing Line Lender pursuant to Section
2.4.
"Swing
Line Note" means a promissory note substantially in the form of Exhibit
F
hereto,
duly executed and delivered to the Administrative Agent by the Borrower and
payable to the order of the Swing Line Lender in the amount of its Swing
Line
Commitment, including any amendment, modification, renewal or replacement
of
such promissory note.
"Termination
Event" means, with respect to a Plan which is subject to Title IV of ERISA,
(a)
a Reportable Event, (b) the withdrawal of the Borrower or any other member
of
the Controlled Group from such Plan during a plan year in which the Borrower
or
any other member of the Controlled Group was a "substantial employer" as
defined
in Section 4001(a)(2) of ERISA or was deemed such under Section 4068(f) of
ERISA, (c) the termination of such Plan, the filing of a notice of intent
to
terminate such Plan or the treatment of an amendment of such Plan as a
termination under Section 4041 of ERISA, (d) the institution by the PBGC
of
proceedings to terminate such Plan or (e) any event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or
appointment of a trustee to administer, such Plan.
"Thomson"
means Thomson BankWatch Inc.
"Total
Debt" means (a) all Indebtedness of the Borrower and its Subsidiaries, on
a
consolidated basis, reflected on a balance sheet prepared in accordance with
Agreement Accounting Principles, plus,
without
duplication (b) the face amount of all outstanding Letters of Credit in respect
of which the Borrower or any Subsidiary has any reimbursement obligation
and the
principal amount of all Contingent Obligations of the Borrower and its
Subsidiaries, minus
(c) to
the extent included in clause (b) above, (i) up to $25,000,000 in aggregate
face
or principal amount of surety bonds and Letters of Credit relating to workers’
compensation and similar benefits and (ii) the ▇▇▇▇▇▇▇ Obligations.
"Transferee"
is defined in Section
12.4.
"Type"
means, with respect to any Advance, its nature as an Alternate Base Rate
Advance, Eurodollar Advance or Absolute Rate Advance.
"UCC"
means the New York Uniform Commercial Code as amended or modified and in
effect
from time to time.
"Unfunded
Liability" means the amount (if any) by which a Single Employer Plan’s actuarial
accrued liability exceeds its actuarial asset value, as determined by the
then
most recent valuation for such plan used to determine the measures of funded
status required to be reported to the Internal Revenue Service.
"Unmatured
Default" means an event which but for the lapse of time or the giving of
notice,
or both, would constitute a Default.
"Unrefunded
Swing Line Loans" is defined in Section
2.4(d).
"Wholly-Owned
Subsidiary" of a Person means (a) any Subsidiary all of the outstanding voting
securities of which shall at the time be owned or controlled, directly or
indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such
Person, or by such Person and one or more Wholly-Owned Subsidiaries of such
Person, or (b) any partnership, association, joint venture, limited liability
company or similar business organization 100% of the ownership interests
having
ordinary voting power of which shall at the time be so owned or
controlled.
The
foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms.
ARTICLE
II
THE
FACILITY
2.1. The
Facility.
2.1.1. Description
of Facility.
The
Lenders hereby establish in favor of the Borrower a revolving credit facility
pursuant to which, and upon the terms and subject to the conditions herein
set
out:
(a) each
Lender severally agrees to make Ratable Loans to the Borrower in accordance
with
Section
2.2
in
amounts not to exceed in the aggregate at any one time outstanding the amount
of
its Commitment less the sum of (i) the amount of such Lender’s pro-rata share of
the outstanding principal amount of all Competitive Bid Advances (regardless
of
which Lender or Lenders made such Competitive Bid Advances) exclusive of
Competitive Bid Advances being repaid substantially contemporaneously with
the
making of any such Ratable Loans, plus
(ii) the
amount of such Lender’s pro-rata share of the outstanding principal amount of
all Swing Line Loans exclusive of Swing Line Loans being repaid substantially
contemporaneously with the making of any such Ratable Loans, plus
(iii)
the amount of such Lender’s pro-rata share of the outstanding Facility Letter of
Credit Obligations exclusive of Facility Letter of Credit Obligations being
repaid substantially contemporaneously with the making of any such Ratable
Loans;
(b) each
Lender may, in its sole discretion, make bids to make Competitive Bid Loans
to
the Borrower, and make such Loans, in accordance with Section
2.3;
and
(c) the
Swing
Line Lender agrees to make Swing Line Loans to the Borrower in accordance
with
Section
2.4.
2.1.2. Facility
Amount.
In no
event may the sum of (a) the aggregate principal amount of all outstanding
Advances (including the Ratable Advances, the Competitive Bid Advances and
the
Swing Line Loans) plus
(b) the
outstanding amount of Facility Letter of Credit Obligations at any time exceed
the Aggregate Commitment. If at any time the aggregate amount of the sum
of the
Loans and the
Facility
Letter of Credit Obligations exceeds the Aggregate Commitment, the Borrower
shall repay immediately its then outstanding Loans (first Swing Line Loans,
then
Ratable Loans and then Competitive Bid Loans) in such amount as may be necessary
to eliminate such excess; provided,
that if
an excess remains after repayment of all outstanding Loans, then the Borrower
shall cash collateralize the Facility Letter of Credit Obligations by depositing
into the Letter of Credit Cash Collateral Account such amount as may be
necessary to eliminate such excess.
2.1.3. Availability
of Facility.
Subject
to the terms of this Agreement, from and including the date hereof to, but
not
including the Facility Termination Date the Borrower may borrow, repay and
reborrow Advances hereunder. All outstanding Loans and Advances and all other
unpaid Obligations shall be due and payable in full by the Borrower on the
Facility Termination Date.
2.2. Ratable
Advances.
2.2.1. Ratable
Advances.
Each
Ratable Advance hereunder shall consist of borrowings made from the several
Lenders ratably in proportion to the amounts of their respective Commitments.
The Borrower’s obligation to pay the principal of, and interest on, the Ratable
Advances shall be evidenced by the Ratable Notes. Although the Ratable Notes
shall be dated the date of the initial Advance, interest in respect thereof
shall be payable only for the periods during which the Loans evidenced thereby
are outstanding and, although the stated amount of each Ratable Note shall
be
equal to the applicable Lender’s Commitment, each Ratable Note shall be
enforceable, with respect to the Borrower’s obligation to pay the principal
amount thereof, only to the extent of the unpaid principal amount of the
Ratable
Loans at the time evidenced thereby.
2.2.2 Ratable
Advance Rate Options.
The
Ratable Advances may be Alternate Base Rate Advances or Eurodollar Ratable
Advances, or a combination thereof, selected by the Borrower in accordance
with
Section
2.2.3
or
2.2.4.
No Ratable Advance may mature after, or have an Interest Period which extends
beyond, the Facility Termination Date.
2.2.3. Method
of Selecting Types and Interest Periods for Ratable Advances.
The
Borrower shall select the Type of each Ratable Advance and, in the case of
each
Eurodollar Ratable Advance, the Eurodollar Interest Period applicable to
such
Ratable Advance from time to time. The Borrower shall give the Administrative
Agent irrevocable notice (a "Ratable
Borrowing Notice")
not
later than 12:00 noon (Chicago time) on the Borrowing Date of each Alternate
Base Rate Advance and three Business Days before the Borrowing Date for each
Eurodollar Ratable Advance. Notwithstanding the foregoing, a Ratable Borrowing
Notice for an Alternate Base Rate Advance may be given not later than 30
minutes
after the time which the Borrower is required to reject one or more bids
offered
in connection with an Absolute Rate Auction pursuant to Section
2.3.6
and a
Ratable Borrowing Notice for a Eurodollar Ratable Advance may be given not
later
than 30 minutes after the time the Borrower is required to reject one or
more
bids offered in connection with a Eurodollar Auction pursuant to Section
2.3.6.
A
Ratable Borrowing Notice shall specify:
(a) the
Borrowing Date, which shall be a Business Day, of such Ratable
Advance;
(b) the
aggregate amount of such Ratable Advance, which, when added to all outstanding
Ratable Advances, Swing Line Loans and Competitive Bid Advances and after
giving
effect to the repayment of any such outstanding Advances or Loans out of
the
proceeds of the requested Ratable Advance, shall not exceed the Aggregate
Commitment;
(c) the
Type
of Advance selected; and
(d) in
the
case of each Eurodollar Ratable Advance, the Eurodollar Interest Period
applicable thereto (which may not end after the Facility Termination
Date).
2.2.4. Conversion
and Continuation of Outstanding Ratable Advances.
Alternate Base Rate Advances shall continue as Alternate Base Rate Advances
unless and until such Alternate Base Rate Advances are converted into Eurodollar
Ratable Advances. Each Eurodollar Ratable Advance shall continue as a Eurodollar
Ratable Advance until the end of the then applicable Eurodollar Interest
Period
therefor, at which time such Eurodollar Ratable Advance shall be automatically
converted into an Alternate Base Rate Advance unless the Borrower shall have
given the Administrative Agent a Conversion/Continuation Notice requesting
that,
at the end of such Eurodollar Interest Period, such Eurodollar Ratable Advance
continue as a Eurodollar Ratable Advance for the same or another Eurodollar
Interest Period. Subject to the terms of Section
2.7,
the
Borrower may elect from time to time to convert all or any part of a Ratable
Advance of any Type into any other Type or Types of Ratable Advances;
provided
that any
conversion of any Eurodollar Ratable Advance shall be made on, and only on,
the
last day of the Eurodollar Interest Period applicable thereto. The Borrower
shall give the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a Ratable Advance
or
continuation of a Eurodollar Ratable Advance not later than 10:00 a.m. (Chicago
time) at least one Business Day, in the case of a conversion into an Alternate
Base Rate Advance, or at least three Business Days, in the case of a conversion
into or continuation of a Eurodollar Ratable Advance, prior to the date of
the
requested conversion or continuation, specifying:
(a) the
requested date, which shall be a Business Day, of such conversion or
continuation;
(b) the
aggregate amount and Type of Ratable Advance which is to be converted or
continued; and
(c) the
amount and Type(s) of Ratable Advance(s) into which such Ratable Advance
is to
be converted or continued and, in the case of a conversion into or continuation
of an Eurodollar Ratable Advance, the duration of the Eurodollar Interest
Period
applicable thereto.
2.3. Competitive
Bid Advances.
2.3.1. Competitive
Bid Option.
In
addition to Ratable Advances pursuant to Section
2.2,
but
subject to the terms and conditions of this Agreement (including, without
limitation, the limitation set forth in Section
2.1.2
as to
the maximum aggregate principal amount of all outstanding Advances and Facility
Letter of Credit Obligations hereunder), prior to the Facility Termination
Date
the Borrower may, as set forth in this Section
2.3,
request
the Lenders to make offers to make Competitive Bid Advances to the Borrower.
Each Lender may, but shall have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept any such offers in
the
manner set forth in this Section
2.3.
The
Borrower’s obligation to pay the principal of, and interest on, the Competitive
Bid Advances shall be evidenced by the Competitive Bid Notes. Although the
Competitive Bid Notes shall be dated the date of the initial Advance, interest
in respect thereof shall be payable only for the periods during which the
Loans
evidenced thereby are outstanding. Each Competitive Bid Loan shall be repaid
in
full by the Borrower on the last day of the Interest Period applicable
thereto.
2.3.2. Competitive
Bid Quote Request.
When
the Borrower wishes to request offers to make Competitive Bid Loans under
this
Section
2.3,
it
shall transmit to the Administrative Agent by telecopy a Competitive Bid
Quote
Request substantially in the form of Exhibit
C
hereto
so as to be received no later than (a) 10:00 a.m. (Chicago time) at least
five
Business Days prior to the Borrowing Date proposed therein, in the case of
a
Eurodollar Auction or (b) 9:00 a.m. (Chicago time) at least one Business
Day
prior to the Borrowing Date proposed therein, in the case of an Absolute
Rate
Auction specifying:
(a) the
proposed Borrowing Date, which shall be a Business Day, for the proposed
Competitive Bid Advance;
(b) the
aggregate principal amount of such Competitive Bid Advance;
(c) whether
the Competitive Bid Quotes requested are to set forth a Eurodollar Bid Rate,
an
Absolute Rate, or both; and
(d) the
Interest Period applicable thereto (which may not end after the Facility
Termination Date).
The
Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period in a single Competitive Bid Quote Request. No Competitive
Bid
Quote Request shall be given within 5 Business Days (or such other number
of
days as the Borrower and the Administrative Agent may agree) of any other
Competitive Bid Quote Request. A Competitive Bid Quote Request that does
not
conform substantially to the format of Exhibit
C
hereto
shall be rejected, and the Administrative Agent shall promptly notify the
Borrower of such rejection by telecopy.
2.3.3. Invitation
for Competitive Bid Quotes.
Promptly and in any event before the close of business on the same Business
Day
of receipt of a Competitive Bid Quote Request that is not rejected pursuant
to
Section
2.3.2,
the
Administrative Agent shall send to each of the Lenders by telex or telecopy
an
Invitation for Competitive Bid Quotes substantially in the form of Exhibit
D
hereto,
which shall constitute an invitation by the Borrower to each Lender to submit
Competitive Bid Quotes offering to make the Competitive Bid Loans to which
such
Competitive Bid Quote Request relates in accordance with this Section
2.3.
|
2.3.4. Submission
and Contents of Competitive Bid Quotes.
|
(a) Each
Lender may, in its sole discretion, submit a Competitive Bid Quote containing
an
offer or offers to make Competitive Bid Loans in response to any Invitation
for
Competitive Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this Section
2.3.4
and must
be submitted to the Administrative Agent by telex or telecopy at its offices
specified in or pursuant to Article XIII not later than (i) 9:00 a.m. (Chicago
time) at least four
Business Days prior to the proposed Borrowing Date, in the case of a Eurodollar
Auction or (ii) 9:00 a.m. (Chicago time) on the proposed Borrowing Date,
in the
case of an Absolute Rate Auction (or, in either case upon reasonable prior
notice to the Lenders, such other time and date as the Borrower and the
Administrative Agent may agree); provided
that
Competitive Bid Quotes submitted by JPMorgan Chase Bank, N.A. may only be
submitted if the Administrative Agent or JPMorgan Chase Bank, N.A. notifies
the
Borrower of the terms of the offer or offers contained therein not later
than 15
minutes prior to the latest time at which the relevant Competitive Bid Quotes
must be submitted by the other Lenders. Subject to Articles IV and VIII,
any
Competitive Bid Quote so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the
Borrower.
(b) Each
Competitive Bid Quote shall be in substantially the form of Exhibit
E
hereto
and shall in any case specify:
(i) the
proposed Borrowing Date, which shall be the same as that set forth in the
applicable Invitation for Competitive Bid Quotes;
(ii) the
principal amount of the Competitive Bid Loan for which each such offer is
being
made, which principal amount
(a)
may be
greater than, less than or equal to the Commitment of the quoting
Lender,
(b)
must be
at least $5,000,000 and an integral multiple of $1,000,000, and
(c)
may not
exceed the principal amount of Competitive Bid Loans for which offers were
requested;
(iii) in
the
case of a Eurodollar Auction, the Competitive Bid Margin offered for each
such
Competitive Bid Loan;
(iv) the
minimum amount, if any, of the Competitive Bid Loan which may be accepted
by the
Borrower;
(v) in
the
case of an Absolute Rate Auction, the Absolute Rate offered for each such
Competitive Bid Loan; and
(vi) the
identity of the quoting Lender.
(c) The
Administrative Agent shall reject any Competitive Bid Quote that:
(i) is
not
substantially in the form of Exhibit
E
hereto
or does not specify all of the information required by Section
2.3.4(b);
(ii) contains
qualifying, conditional or similar language, other than any such language
contained in Exhibit
E
hereto;
(iii) proposes
terms other than or in addition to those set forth in the applicable Invitation
for Competitive Bid Quotes; or
(iv) arrives
after the time set forth in Section
2.3.4(a).
If
any
Competitive Bid Quote shall be rejected pursuant to this Section
2.3.4(c),
then
the Administrative Agent shall promptly notify the relevant Lender of such
rejection.
2.3.5. Notice
to Borrower.
The Administrative Agent shall promptly notify the Borrower of the terms
(a) of
any Competitive Bid Quote submitted by a Lender that is in accordance with
Section
2.3.4
and (b)
of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent
with a previous Competitive Bid Quote submitted by such Lender with respect
to
the same Competitive Bid Quote Request. Any such subsequent Competitive Bid
Quote shall be disregarded by the Administrative Agent unless such subsequent
Competitive Bid Quote specifically states that it is submitted solely to
correct
a manifest error in such former Competitive Bid Quote. The Administrative
Agent’s notice to the Borrower shall specify the aggregate principal amount of
Competitive Bid Loans for which offers have been received for each Interest
Period specified in the related Competitive Bid Quote Request and the respective
principal amounts and Eurodollar Bid Rates or Absolute Rates, as the case
may
be, so offered.
2.3.6.
Acceptance
and Notice by Borrower.
Not
later than (a) 10:00 a.m. (Chicago time) at least three Business Days prior
to
the proposed Borrowing Date, in the case of a Eurodollar Auction or (b) 10:00
a.m. (Chicago time) on the proposed Borrowing Date, in the case of an Absolute
Rate Auction (or, in either case upon reasonable prior notice to the Lenders,
such other time and date as the Borrower and the Administrative Agent may
agree), the Borrower shall notify the Administrative Agent of its acceptance
or
rejection of the offers so notified to it pursuant to Section
2.3.5;
provided,
however,
that
the failure by the Borrower to give such notice to the Administrative Agent
shall be deemed to be a rejection of all such offers. In the case of acceptance,
such notice (a "Competitive Bid Borrowing Notice") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Competitive Bid Quote in whole or in part (subject
to
the terms of Section
2.3.4(b)(iv));
provided
that:
(a) the
aggregate principal amount of each Competitive Bid Advance may not exceed
the
applicable amount set forth in the related Competitive Bid Quote
Request,
(b) acceptance
of offers may only be made on the basis of ascending Eurodollar Bid Rates
or
Absolute Rates, as the case may be, and
(c) the
Borrower may not accept any offer that is described in Section
2.3.4(c)
or that
otherwise fails to comply with the requirements of this Agreement.
2.3.7.
Allocation
by Administrative Agent.
If
offers are made by two or more Lenders with the same Eurodollar Bid Rates
or
Absolute Rates, as the case may be, for a greater aggregate principal amount
than the amount in respect of which offers are accepted for the related Interest
Period, the principal amount of Competitive Bid Loans in respect of which
such
offers are accepted shall be allocated by the Administrative Agent among
such
Lenders as nearly as possible (in such multiples, not greater than $1,000,000,
as the Administrative Agent may deem appropriate) in proportion to the aggregate
principal amount of such offers; provided,
however,
that no
Lender shall be allocated a portion of any Competitive Bid Advance which
is less
than the minimum amount which such Lender has indicated that it is willing
to
accept. Allocations by the Administrative Agent of the amounts of Competitive
Bid Loans shall be conclusive in the absence of manifest error. The
Administrative Agent shall promptly, but in any event on the same Business
Day,
notify each Lender of its receipt of a Competitive Bid Borrowing Notice and
the
aggregate principal amount of such Competitive Bid Advance allocated to each
participating Lender.
2.4. Swing
Line Loans.
(a)
On
the
terms and subject to the conditions and relying upon the representations
and
warranties herein set forth, the Swing Line Lender agrees at any time and
from
time to time from and including the date hereof to but excluding the earlier
of
the Facility Termination Date and the termination of the Commitments or the
Swing Line Commitment, in accordance with the terms hereof, to make Swing
Line
Loans to the Borrower in an aggregate principal amount at any time outstanding
not to exceed the lesser of (i) the amount of its Swing Line Commitment at
such
time and (ii) an amount equal to (A) the Aggregate Commitment at such time,
minus
(B) the
sum of the aggregate principal amounts of all Ratable Loans, Competitive
Bid
Loans and Swing Line Loans outstanding at such time, minus
(C) the
aggregate Facility Letter of Credit Obligations outstanding at such time.
The
Swing Line Loans shall be made by the Swing Line Lender, at the option of
the
Borrower, either at the Alternate Base Rate or at the Alternate Swing Line
Rate.
All Swing Line Loans shall be in a minimum amount of $100,000 and in any
integral multiple of $100,000 if in excess thereof. In no event shall any
Swing
Line Loan be made hereunder if (i) the Administrative Agent and the Swing
Line
Lender shall have received notice from the Required Lenders prior to any
such
Swing Line Loan that a condition specified in Section
4.1
or
4.2
has not
been satisfied and (ii) such condition shall not have been subsequently waived
in compliance with Section 8.2.
(b) The
Borrower shall give the Swing Line Lender (with a copy to the Administrative
Agent) telephonic, written or telecopy notice (in the case of telephonic
notice,
such notice shall be promptly confirmed in writing or by telecopy) not later
than noon, Chicago time, on the day of a proposed Swing Line Loan. Such notice
shall be delivered on a Business Day, shall be irrevocable and shall refer
to
this Agreement and shall specify the requested Borrowing Date (which shall
be a
Business Day) and amount of such Swing Line Loan.
(c) The
Swing
Line Lender shall by 2:00 p.m., Chicago time, on the requested Borrowing
Date,
make the requested Swing Line Loan by crediting the principal amount thereof,
in
immediately available funds, to the account of the Borrower maintained with
the
Swing Line Lender or to such other account as may be designated by the Borrower
and be acceptable to the Swing Line Lender.
(d)
The
Swing
Line Loans shall be evidenced by the Swing Line Note and each Swing Line
Loan
shall be paid in full by the Borrower on the earlier of the Facility Termination
Date and the date five Business Days after the making of such Swing Line
Loan.
(e)
Notwithstanding
the occurrence of any Default or Unmatured Default or noncompliance with
the
conditions precedent set forth in Article
IV,
if (i)
by noon Chicago time on the fifth Business Day following the Borrowing Date
of
any Swing Line Loan the Administrative Agent shall not have received a Ratable
Borrowing Notice delivered by the Borrower pursuant to Section
2.2.3
requesting that Ratable Loans be made pursuant to Section
2.2
on the
immediately succeeding Business Day in an amount at least equal to the aggregate
principal amount of such Swing Line Loan or (ii) on any date the Swing Line
Lender in its sole discretion shall so request with respect to the outstanding
Swing Line Loans, the Administrative Agent shall be deemed to have received
a
Ratable Borrowing Notice from the Borrower pursuant to Section
2.2.3
requesting that a Ratable Advance of Alternate Base Rate Loans be made pursuant
to Section
2.2
on such
immediately succeeding Business Day in an amount equal to the aggregate amount
of such Swing Line Loans, and the procedures set forth in Section
2.5
shall be
followed in making such Alternate Base Rate Loans. The proceeds of such
Alternate Base Rate Loans (or other Loans described in Section
2.4(e)(i),
if
requested) received by the Administrative Agent shall be immediately delivered
to the Swing Line Lender and applied to the direct repayment of such Swing
Line
Loans to the extent thereof. Effective on the day such Ratable Loans are
made,
the portion of the Swing Line Loans so paid shall no longer be outstanding
as
Swing Line Loans and shall be outstanding as Ratable Loans of the Lenders
bearing interest at a rate determined by reference to the Alternate Base
Rate,
in accordance with the provisions of this Article
II.
The
Borrower authorizes the Administrative Agent and the Swing Line Lender to
charge
the Borrower’s account maintained with the Swing Line Lender (up to the amount
available in such account) in order to immediately pay the amount of the
Swing
Line Loans to the extent amounts received from the Lenders are not sufficient
to
repay in full such Swing Line Loans. If any portion of any such amount paid
(or
deemed paid) to the Swing Line Lender should be recovered by or on behalf
of the
Borrower from the Swing Line Lender in the event of the bankruptcy or
reorganization of the Borrower or otherwise, the loss of the amount so recovered
shall be ratably shared among all Lenders in the manner contemplated by
Section
11.2.
(f)
If,
for
any reason (including, without limitation, the occurrence of a Default described
in Section
7.6
or
7.7
of
Article
VII),
Alternate Base Rate Loans may not be, or are not, made pursuant to paragraph
(e)
of this Section
2.4
to repay
Swing Line Loans as required by such paragraph, effective on the date such
Alternate Base Rate Loans would otherwise have been made, (i) each Lender
severally, unconditionally and irrevocably agrees that it shall, without
regard
to the occurrence of any Unmatured Default or Default, purchase a
participating
interest in such Swing Line Loans ("Unrefunded
Swing Line Loans")
in an
amount equal to the amount of Alternate Base Rate Loans which would otherwise
have been made by such Lender pursuant to paragraph (e) of this Section
2.4
and (ii)
each Unrefunded Swing Line Loan previously bearing interest at the Alternate
Swing Line Rate shall commence accruing interest at the Alternate Base Rate.
Each Lender will immediately transfer to the Administrative Agent, in
immediately available funds, the amount of its participation, and the proceeds
of such participation shall be distributed by the Administrative Agent to
the
Swing Line Lender in such amount as will reduce the amount of the participating
interest retained by the Swing Line Lender in the Swing Line Loans to the
amount
of the Alternate Base Rate Loans which were to have been made by the Swing
Line
Lender pursuant to paragraph (e) of this Section
2.4.
In the
event a Lender fails to make available to the Swing Line Lender the amount
of
such Lender’s participation as provided in this paragraph (f), the Swing Line
Lender shall be entitled to recover such amount on demand from such Lender
together with interest at the customary rate set by the Swing Line Lender
for
correction of errors among banks for one Business Day and thereafter at the
Alternate Base Rate then in effect. All payments in respect of Unrefunded
Swing
Line Loans and participations therein shall be made in accordance with
Section
2.12.
(g)
Each
Lender’s obligation to make Ratable Loans pursuant to paragraph (e) of this
Section
2.4
and to
purchase participating interests pursuant to paragraph (f) of this Section
2.4
shall be
absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any setoff, counterclaim, recoupment,
defense
or other right which such Lender or the Borrower may have against the Swing
Line
Lender, the Borrower or any other Person, as the case may be, for any reason
whatsoever; (ii) the occurrence or continuance of a Default or Unmatured
Default; (iii) any adverse change in the condition (financial or otherwise)
of
the Borrower or any of its Subsidiaries; (iv) any breach of this Agreement
by
the Borrower, any of its Subsidiaries or any Lender; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any
of
the foregoing.
2.5. Availability
of Funds.
Not
later than 1 p.m. (Chicago time) on each Borrowing Date, each Lender (or
in the
case of a Competitive Bid Advance, each Lender making a portion of such Advance)
shall make available its Loan or Loans (other than Swing Line Loans), in
funds
immediately available in Chicago to the Administrative Agent at its address
specified pursuant to Article XIII. The Administrative Agent will make the
funds
so received from the Lenders available to the Borrower at the Administrative
Agent’s aforesaid address.
2.6. Commitment
Fee; Reductions and Increases in Aggregate Commitment.
(a) The
Borrower agrees to pay to the Administrative Agent for the ratable account
of
each Lender a commitment fee equal to the Applicable Commitment Fee Percentage
per annum on the daily unborrowed portion of such Lender’s Commitment (without
giving effect to any outstanding Swing Line Loans or Competitive Bid Loans)
from
the date hereof to and including the Facility Termination Date applicable
to
such Lender, payable in arrears on each Payment Date hereafter and on the
Facility Termination Date.
(b)
The
Borrower may permanently reduce the Aggregate Commitment in whole, or in
part
ratably among the Lenders, in a minimum amount of $10,000,000 or any integral
multiple of $1,000,000 in excess thereof, upon at least three Business Days’
written notice to the Administrative Agent, which notice shall specify the
amount of any such reduction; provided,
however,
that
the amount of the Aggregate Commitment may not be reduced below the sum of
(i)
the aggregate principal amount of the outstanding Loans, plus
(ii) the
aggregate amount of the outstanding Facility Letter of Credit Obligations.
All
accrued commitment fees shall be payable on the effective date of any
termination of the obligations of the Lenders to make Loans
hereunder.
(c)
The
Borrower may, from time to time, at its option, seek to increase the Aggregate
Commitment by up to $150,000,000 in the aggregate (i.e.,
the
Aggregate Commitment shall not exceed $300,000,000) upon at least three (3)
Business Days’ prior notice to the Administrative Agent, which notice shall
specify the amount of any such requested increase (which shall be in an amount
not less than $25,000,000) and shall be delivered at a time when no Default
or
Unmatured Default has occurred or is continuing. The Borrower may, after
giving
such notice, offer the increase in the Aggregate Commitment to any of the
existing Lenders and/or to other banks, financial institutions or other entities
acceptable to the Administrative Agent on a non pro-rata basis in such amounts
as determined by the Borrower and agreed to by the Administrative Agent.
The
Borrower may elect to accept an increase in the Aggregate Commitment in an
amount equal to the aggregate increased commitments offered to the Borrower.
No
increase in the Aggregate Commitment shall become effective until (i) the
existing or new Lender extending such incremental commitment amount and the
Borrower shall have executed and delivered to the Administrative Agent an
agreement in writing in form and substance reasonably acceptable to the
Administrative Agent pursuant to which such Lender states its Commitment
amount
and agrees to assume and accept the obligations and rights of a Lender hereunder
and (ii) the Borrower has provided the Administrative Agent with such related
certificates, opinions and other documents as the Administrative Agent may
reasonably request. In conjunction with such increase, the Lenders (new or
existing) shall accept (and the existing Lenders shall make) an assignment
at
par of an interest in the Loans and Facility Letter of Credit Obligations
outstanding at the time of such Aggregate Commitment increase such that,
after
giving effect thereto, all Loans and Facility Letter of Credit Obligations
are
held by the Lenders on a pro-rata basis. The Borrower shall make any payments
under Section 3.4 resulting from such assignments.
2.7. Minimum
Amount of Each Ratable Advance.
Each
Ratable Advance shall be in the minimum amount of $10,000,000 (and in integral
multiples of $1,000,000 if in excess thereof); provided,
however,
that
(a) any Alternate Base Rate Advance may be in the amount of the unused Aggregate
Commitment or in an amount borrowed pursuant to Section
2.4(e)
and (b)
in no event shall more than eight (8) Eurodollar Advances be permitted to
be
outstanding at any time.
2.8. Optional
Principal Payments.
The
Borrower may from time to time pay, without penalty or premium, all outstanding
Advances (other than Competitive Bid Advances, which may not be voluntarily
prepaid), or, in a minimum aggregate amount of $5,000,000 (or $100,000 in
the
case of Swing Line Advances) or any integral multiple of $1,000,000 (or $100,000
in the case of Swing Line Advances) in excess thereof,
any
portion of the outstanding Advances (other than Competitive Bid Advances)
upon
(a) one Business Day’s prior notice to the Administrative Agent in the case of
an Alternate Base Rate Advance, (b) three Business Days’ prior notice to the
Administrative Agent in the case of a Eurodollar Advance or (c) notice to
the
Administrative Agent before noon on the date of such prepayment in the case
of a
Swing Line Advance. Any prepayment of a Eurodollar Advance prior to the last
day
of the applicable Eurodollar Interest Period shall be subject to the indemnity
provisions of Section
3.4.
2.9. Changes
in Interest Rate, etc.
Each
Alternate Base Rate Advance shall bear interest at the Alternate Base Rate
from
and including the date of such Advance or the date on which such Advance
was
converted into an Alternate Base Rate Advance to (but not including) the
date on
which such Alternate Base Rate Advance is paid or converted to a Eurodollar
Ratable Advance. Changes in the rate of interest on that portion of any Advance
maintained as an Alternate Base Rate Advance will take effect simultaneously
with each change in the Alternate Base Rate. Each Eurodollar Advance, Absolute
Rate Advance and Swing Line Loan shall bear interest from and including the
first day of the Interest Period applicable thereto to, but not including,
the
last day of such Interest Period at the interest rate determined as applicable
to such Eurodollar Advance, Absolute Rate Advance or Swing Line Loan. No
Interest Period may end after the Facility Termination Date.
2.10. Rates
Applicable After Default.
Notwithstanding anything to the contrary contained in Section
2.2.3
and
2.2.4,
no
Advance may be made as, converted into or continued as a Eurodollar Ratable
Advance (except with the consent of the Administrative Agent and the Required
Lenders) when any Default or Unmatured Default has occurred and is continuing.
During the continuance of a Default the Required Lenders may, at their option,
by notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section
8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that each Eurodollar Advance, Alternate Base Rate Advance and Swing
Line
Loan shall bear interest (for the remainder of the applicable Interest Period
in
the case of Eurodollar Advances and Absolute Rate Advances) at a rate per
annum
equal to the rate otherwise applicable plus two percent (2%) per annum;
provided,
however,
that
such increased rate shall automatically and without action of any kind by
the
Lenders become and remain applicable until revoked by the Required Lenders
in
the event of a Default described in Section
7.6
or
7.7.
2.11. Method
of Payment.
All
payments of the Obligations hereunder shall be made, without setoff, deduction
or counterclaim, in immediately available funds to the Administrative Agent
at
the Administrative Agent’s address specified pursuant to Article
XIII,
or at
any other Lending Installation of the Administrative Agent specified in writing
by the Administrative Agent to the Borrower, by noon (Chicago time) on the
date
when due and shall be applied ratably by the Administrative Agent among the
Lenders. Each payment delivered to the Administrative Agent for the account
of
any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds that the Administrative Agent received at
its
address specified pursuant to Article
XIII
or at
any Lending Installation specified in a notice received by the Administrative
Agent from such Lender. The Administrative Agent is hereby authorized to
charge
the account of the Borrower maintained with JPMorgan Chase Bank, N.A. for
each
payment of principal, interest and fees as it becomes due hereunder, if the
Administrative Agent has provided the Borrower with notice of each such payment
at least one day prior to its becoming due hereunder.
2.12. Notes;
Telephonic Notices.
Each
Lender is hereby authorized to record the principal amount of each of its
Loans
and each repayment on the schedule attached to its Note; provided,
however,
that
neither the failure to so record nor any error in such recordation shall
affect
the Borrower’s obligations under such Note. The Borrower hereby authorizes the
Lenders and the Administrative Agent to extend, convert or continue Advances,
effect selections of Types of Advances, submit Competitive Bid Quotes and
to
transfer funds based on telephonic notices made by any person or persons
the
Administrative Agent or any Lender in good faith believes to be acting on
behalf
of the Borrower. The Borrower agrees to deliver promptly to the Administrative
Agent a written confirmation, if such confirmation is requested by the
Administrative Agent or any Lender, of each telephonic notice signed by an
Authorized Officer or another management level employee designated in writing
by
an Authorized Officer to the Administrative Agent. If the written confirmation
differs in any material respect from the action taken by the Administrative
Agent and the Lenders, the records of the Administrative Agent and the Lenders
shall govern absent manifest error.
2.13. Interest
Payment Dates; Interest and Fee Basis.
Interest accrued on each Alternate Base Rate Advance shall be payable on
each
Payment Date, commencing with the first such date to occur after the date
hereof, on any date on which an Alternate Base Rate Advance is prepaid, whether
due to acceleration or otherwise, and at maturity. Interest upon each Swing
Line
Loan shall be payable upon the date such Swing Line Loan is repaid and at
its
maturity. Interest accrued on each Eurodollar Advance or Absolute Rate Advance
shall be payable on the last day of its applicable Interest Period, on any
date
on which the Eurodollar Advance or Absolute Rate Advance is prepaid, whether
by
acceleration or otherwise, and at maturity. Interest accrued on each Eurodollar
Advance or Absolute Rate Advance having an Interest Period longer than three
months shall also be payable on the last day of each three-month interval
during
such Interest Period. Interest and commitment fees shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest shall be payable
for the day an Advance is made but not for the day of any payment on the
amount
paid if payment is received prior to noon (Chicago time) at the place of
payment. If any payment of principal of or interest on an Advance shall become
due on a day which is not a Business Day, such payment shall be made on the
next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest in connection with such
payment.
2.14. Notification
of Advances, Interest Rates, Prepayments, Commitment Reductions and Issuance
Requests.
Promptly after receipt thereof, the Administrative Agent will notify each
Lender
of the contents of each Aggregate Commitment reduction notice, Ratable Borrowing
Notice, Conversion/Continuation Notice, Invitation for Competitive Quotes,
Issuance Request and repayment notice received by it hereunder. The
Administrative Agent will notify each Lender of the interest rate applicable
to
each Eurodollar Advance promptly upon determination of such interest rate
and
will give each Lender prompt notice of each change in the Alternate Base
Rate.
2.15. Lending
Installations.
Each
Lender may book its Loans at any Lending Installation selected by such Lender
and may change its Lending Installation from time to time. All terms of this
Agreement shall apply to any such Lending Installation and the Notes shall
be
deemed held by each Lender for the benefit of such Lending Installation.
Each
Lender may, by written or telex notice to the Administrative Agent and the
Borrower, designate a Lending Installation through which Loans will be made
by
it and for whose account Loan payments are to be made.
2.16. Non-Receipt
of Funds by the Administrative Agent.
Unless
the Borrower or a Lender, as the case may be, notifies the Administrative
Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (a) in the case of a Lender, the proceeds of a Loan, or (b) in the
case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount
of
such payment available to the intended recipient in reliance upon such
assumption. If the Borrower has not in fact made such payment to the
Administrative Agent, the Lenders shall, on demand by the Administrative
Agent,
repay to the Administrative Agent the amount so made available together with
interest thereon in respect of each day during the period commencing on the
date
such amount was so made available by the Administrative Agent until the date
the
Administrative Agent recovers such amount at a rate per annum equal to the
Federal Funds Effective Rate for such day. If any Lender has not in fact
made
such payment to the Administrative Agent, such Lender or the Borrower shall,
on
demand by the Administrative Agent, repay to the Administrative Agent the
amount
so made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (a) in the case of payment by a Lender,
the
Federal Funds Effective Rate for such day, or (b) in the case of payment
by the
Borrower, the interest rate applicable to the relevant Loan.
2.17. Taxes.
(a) Any
payments made by the Borrower under this Agreement shall be made free and
clear
of, and without deduction or withholding for or on account of, any present
or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income
taxes
and franchise taxes or any other tax based upon any income imposed on the
Administrative Agent or any Lender by the jurisdiction in which the
Administrative Agent or such Lender is incorporated or has its principal
place
of business. If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings ("Non-Excluded Taxes") are required to be
withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the Administrative
Agent
or such Lender (after payment of all Non-Excluded Taxes) interest or any
such
other
amounts
payable hereunder at the rates or in the amounts specified in or pursuant
to
this Agreement; provided,
however,
that
the Borrower shall not be required to increase any such amounts payable to
any
Lender that is not organized under the laws of the U.S. or a state thereof
if
such Lender fails to comply with the requirements of paragraph (b) of this
Section
2.17.
Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly
as
practicable thereafter the Borrower shall send to the Administrative Agent
for
its own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the Borrower showing
payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when
due to
the appropriate taxing authority or fails to remit to the Administrative
Agent
the required receipts or other required documentary evidence, the Borrower
shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by any Administrative Agent
or any
Lender as a result of any such failure. The agreements in this Section
2.17
shall
survive the termination of this Agreement and the payment of all other amounts
payable hereunder.
(b) At
least
five Business Days prior to the first date on which interest or fees are
payable
hereunder for the account of any Lender, each Lender that is not incorporated
under the laws of the United States of America, or a state thereof, agrees
that
it will deliver to each of the Borrower and the Administrative Agent two
duly
completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI, certifying in either case that such Lender is entitled to receive
payments under this Agreement and the Notes without deduction or withholding
of
any United States federal income taxes. Each Lender which so delivers a Form
W-8BEN or W-8ECI further undertakes to deliver to each of the Borrower and
the
Administrative Agent two additional copies of such form (or a successor form)
on
or before the date that such form expires (currently, three successive calendar
years for Form W-8BEN and one calendar year for Form W-8ECI) or becomes obsolete
or after the occurrence of any event requiring a change in the most recent
forms
so delivered by it, and such amendments thereto or extensions or renewals
thereof as may be reasonably requested by the Borrower or the Administrative
Agent, in each case certifying that such Lender is entitled to receive payments
under this Agreement and the Notes without deduction or withholding of any
United States federal income taxes, unless an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to
the
date on which any such delivery would otherwise be required which renders
all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender advises the
Borrower and the Administrative Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax.
218. Administrative
Agent’s Fees.
The
Borrower shall pay to the Administrative Agent those fees, in addition to
the
commitment fees referenced in Section
2.6(a),
in the
amounts and at the times separately agreed to between the Administrative
Agent
and the Borrower.
2.19. Facility
Letters of Credit.
2.19.1. Issuance
of Facility Letters of Credit.
(a)
From and after the date hereof, the Issuer agrees, upon the terms and conditions
set forth in this Agreement, to issue at the request and for the account
of the
Borrower, one or more Facility Letters of Credit; provided,
however,
that
the Issuer shall not be under any obligation to issue, and shall not issue,
any
Facility Letter of Credit if (i) any order, judgment or decree of any
governmental authority or other regulatory body with jurisdiction over the
Issuer shall purport by its terms to
enjoin
or restrain such Issuer from issuing such Facility Letter of Credit, or any
law
or governmental rule, regulation, policy, guideline or directive (whether
or not
having the force of law) from any governmental authority or other regulatory
body with jurisdiction over the Issuer shall prohibit, or request that the
Issuer refrain from, the issuance of Facility Letters of Credit in particular
or
shall impose upon the Issuer with respect to any Facility Letter of Credit
any
restriction or reserve or capital requirement (for which the Issuer is not
otherwise compensated) or any unreimbursed loss, cost or expense which was
not
applicable, in effect and known to the Issuer as of the date of this Agreement
and which the Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; (ii) one or more
of the
conditions to such issuance contained in Section
4.2
is not
then satisfied; or (iii) after giving effect to such issuance, the aggregate
outstanding amount of the Facility Letter of Credit Obligations would exceed
the
Facility Letter of Credit Sublimit.
(b)
In
no
event shall: (i) the aggregate amount of the Facility Letter of Credit
Obligations at any time exceed the Facility Letter of Credit Sublimit; (ii)
the
sum at any time of (A) the aggregate amount of Facility Letter of Credit
Obligations and (B) the aggregate principal balance of outstanding Advances
exceed the amount of the Aggregate Commitment; or (iii) the expiration date
of
any Facility Letter of Credit (including, without limitation, Facility Letters
of Credit issued with an automatic "evergreen" provision providing for renewal
absent advance notice by the Borrower or the Issuer), or the date for payment
of
any draft presented thereunder and accepted by the Issuer, be later than
the
date five (5) Business Days before the Facility Termination Date.
2.19.2 Participating
Interests.
Immediately upon the issuance by the Issuer of a Facility Letter of Credit
in
accordance with Section
2.19.4,
each
Lender shall be deemed to have irrevocably and unconditionally purchased
and
received from the Issuer, without recourse, representation or warranty, an
undivided participation interest equal to its pro-rata share of the Aggregate
Commitment of the face amount of such Facility Letter of Credit and each
draw
paid by the Issuer thereunder. Each Lender’s obligation to pay its
proportionate share of all draws under the Facility Letters of Credit, absent
gross negligence or willful misconduct by the Issuer in honoring any such
draw,
shall be absolute, unconditional and irrevocable and in each case shall be
made
without counterclaim or set-off by such Lender.
2.19.3 Facility
Letter of Credit Reimbursement Obligations.
(a) The
Borrower agrees to pay to the Issuer of a Facility Letter of Credit (i) on
each
date that any amount is drawn under each Facility Letter of Credit a sum
(and
interest on such sum as provided in clause (ii) below) equal to the amount
so
drawn plus all other charges and expenses with respect thereto specified
in
Section
2.19.6
or in
the applicable Reimbursement Agreement and (ii) interest on any and all amounts
remaining unpaid under this Section
2.19.3
until
payment in full at the Alternate Base Rate plus the margin specified in
Section
2.10.
The
Borrower agrees to pay to the Issuer the amount of all Facility Letter of
Credit
Reimbursement Obligations owing in respect of any Facility Letter of Credit
immediately when due, under all circumstances,
including,
without limitation, any of the following circumstances: (w) any lack of validity
or enforceability of this Agreement or any of the other Loan Documents; (x)
the
existence of any claim, set-off, defense or other right which the Borrower
may
have at any time against a beneficiary named in a Facility Letter of Credit,
any
transferee of any Facility Letter of Credit (or any Person for whom any such
transferee may be acting), any Lender or any other Person, whether in connection
with this Agreement, any Facility Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any underlying
transaction between the Borrower and the beneficiary named in any Facility
Letter of Credit); (y) the validity, sufficiency or genuineness of any document
which the Issuer has determined in good faith complies on its face with the
terms of the applicable Facility Letter of Credit, even if such document
should
later prove to have been forged, fraudulent, invalid or insufficient in any
respect or any statement therein shall have been untrue or inaccurate in
any
respect; or (z) the surrender or impairment of any security for the performance
or observance of any of the terms hereof.
(b)
Notwithstanding
any provisions to the contrary in any Reimbursement Agreement, the Borrower
agrees to reimburse the Issuer for amounts which the Issuer pays under such
Facility Letter of Credit no later than the time specified in this Agreement.
If
the Borrower does not pay any such Facility Letter of Credit Reimbursement
Obligations when due, the Borrower shall be deemed to have immediately requested
that the Lenders make an Alternate Base Rate Advance under this Agreement
in a
principal amount equal to such unreimbursed Facility Letter of Credit
Reimbursement Obligations. The Administrative Agent shall promptly notify
the
Lenders of such deemed request and, without the necessity of compliance with
the
requirements of Sections
2.2.3
and
4.2,
each
Lender shall make available to the Administrative Agent its Loan in the manner
prescribed for Alternate Base Rate Advances. The proceeds of such Loans shall
be
paid over by the Administrative Agent to the Issuer for the account of the
Borrower in satisfaction of such unreimbursed Facility Letter of Credit
Reimbursement Obligations, which shall thereupon be deemed satisfied by the
proceeds of, and replaced by, such Alternate Base Rate Advance.
(c)
If
the
Issuer makes a payment on account of any Facility Letter of Credit and is
not
concurrently reimbursed therefor by the Borrower and if for any reason an
Alternate Base Rate Advance may not be made pursuant to paragraph (b) above,
then as promptly as practical during normal banking hours on the date of
its
receipt of such notice or, if not practicable on such date, not later than
noon
(Chicago time) on the Business Day immediately succeeding such date of
notification, each Lender shall deliver to the Administrative Agent for the
account of the Issuer, in immediately available funds, the purchase price
for
such Lender’s interest in such unreimbursed Facility Letter of Credit
Obligations, which shall be an amount equal to such Lender’s pro-rata share of
such payment. Each Lender shall, upon demand by the Issuer, pay the Issuer
interest on such Lender’s pro-rata share of such draw from the date of payment
by the Issuer on account of such Facility Letter of Credit until the date
of
delivery of such funds to the Issuer by such Lender at a rate per annum,
computed for actual days elapsed based on a 360-day year, equal to the Federal
Funds Effective Rate for such period; provided,
that
such payments shall be made by the Lenders only in the event and to the extent
that the Issuer is not reimbursed in full by the Borrower for interest on
the
amount of any draw on the Facility Letters of Credit.
(d)
At
any
time after the Issuer has made a payment on account of any Facility Letter
of
Credit and has received from any other Lender such Lender’s pro-rata share of
such payment, such Issuer shall, forthwith upon its receipt of any reimbursement
(in whole or in part) by the Borrower for such payment, or of any other amount
from the Borrower or any other Person in respect of such payment (including,
without limitation, any payment of interest or penalty fees and any payment
under any collateral account agreement of the Borrower or any Loan Document
but
excluding any transfer of funds from any other Lender pursuant to Section
2.19.3(b)),
transfer to such other Lender such other Lender’s ratable share of such
reimbursement or other amount; provided,
that
interest shall accrue for the benefit of such Lender from the time such Issuer
has made a payment on account of any Facility Letter of Credit; provided,
further,
that in
the event that the receipt by the Issuer of such reimbursement or other amount
is found to have been a transfer in fraud of creditors or a preferential
payment
under the United States Bankruptcy Code or is otherwise required to be returned,
such Lender shall promptly return to the Issuer any portion thereof previously
transferred by the Issuer to such Lender, but without interest to the extent
that interest is not payable by the Issuer in connection therewith.
2.19.4 Procedure
for Issuance.
Prior to the issuance of each Facility Letter of Credit, and as a condition
of
such issuance, the Borrower shall deliver to the Issuer (with a copy to the
Administrative Agent) a Reimbursement Agreement signed by the Borrower, together
with such other documents or items as may be required pursuant to the terms
thereof, and the proposed form and content of such Facility Letter of Credit
shall be reasonably satisfactory to the Issuer. Each Facility Letter of Credit
shall be issued no earlier than two (2) Business Days after delivery of the
foregoing documents, which delivery may be by the Borrower to the Issuer
by
telecopy, telex or other electronic means followed by delivery of executed
originals within five (5) days thereafter. The documents so delivered shall
be
in compliance with the requirements set forth in Section
2.19.1(b),
and
shall specify therein (i) the stated amount of the Facility Letter of Credit
requested, (ii) the effective date of issuance of such requested Facility
Letter
of Credit, which shall be a Business Day, (iii) the date on which such requested
Facility Letter of Credit is to expire, which shall be a Business Day prior
to
the date five (5) Business Days prior to the Facility Termination Date, (iv)
the
entity for whose benefit the requested Facility Letter of Credit is to be
issued, which shall be the Borrower or a Subsidiary, and (v) the aggregate
amount of Facility Letter of Credit Obligations which are outstanding and
which
will be outstanding after giving effect to the requested Facility Letter
of
Credit issuance. The delivery of the foregoing documents and information
shall
constitute an "Issuance Request" for purposes of this Agreement. Subject
to the
terms and conditions of Section
2.19.1
and
provided
that the
applicable conditions set forth in Section
4.2
hereof
have been satisfied, the Issuer shall, on the requested date, issue a Facility
Letter of Credit on behalf of the Borrower in accordance with the Issuer’s usual
and customary business practices. In addition, any amendment of an existing
Facility Letter of Credit shall be deemed to be an issuance of a new Facility
Letter of Credit and shall be subject to the requirements set forth above.
The
Issuer shall give the Administrative Agent prompt written notice of the issuance
of any Facility Letter of Credit.
2.19.5 Nature
of the Lenders’ Obligations.
(a) As
between the Borrower and the Lenders, the Borrower assumes all risks of the
acts
and omissions of, or misuse of the Facility Letters of Credit by, the respective
beneficiaries of the Facility Letters of Credit. In furtherance and not in
limitation of the foregoing, the Lenders shall not be responsible for (i)
the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for an
issuance of a Facility Letter of Credit, even if it should in fact prove
to be
in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning
or
purporting to transfer or assign a Facility 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; (iii) the failure of the beneficiary
of a Facility Letter of Credit to comply fully with conditions required to
be
satisfied by any Person other than the Issuer in order to draw upon such
Facility Letter of Credit; (iv) errors, omissions, interruptions or delays
in
transmission or delivery of any messages, by mail, cable, telegraph, telex
or
otherwise; (v) errors in the interpretation of technical terms; (vi) the
misapplication by the beneficiary of a Facility Letter of Credit of the proceeds
of any drawing under such Facility Letter of Credit; or (vii) any consequences
arising from causes beyond control of the Issuer.
(b)
In
furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by the Issuer under or
in
connection with the Facility Letters of Credit or any related certificates,
if
taken or omitted in good faith, shall not put the Administrative Agent or
any
Lender under any resulting liability to the Borrower or relieve the Borrower
of
any of its obligations hereunder to the Issuer or any such Person.
2.19.6 Facility
Letter of Credit Fees.
The
Borrower hereby agrees to pay to the Administrative Agent for the account
of the
Issuer or the Lenders, as applicable, letter of credit fees with respect
to each
Facility Letter of Credit from and including the date of issuance thereof
until
the date such Facility Letter of Credit is fully drawn, canceled or expired,
(a)
for the account of the Issuer, computed at such rate as may be agreed upon
between the Issuer and the Borrower, on the aggregate initial face amount
of
such Facility Letter of Credit payable on the date of issuance, and (b) for
the
ratable account of the Lenders, equal to (i) in the case of Commercial Letters
of Credit, 50% of the Applicable Eurodollar Margin times the aggregate initial
face amount of such Commercial Letter of Credit, payable upon the date of
issuance thereof, and (ii) in the case of Standby Letters of Credit, the
Applicable Eurodollar Margin times the aggregate amount from time to time
available to be drawn on such Standby Facility Letter of Credit, calculated
with
respect to actual days elapsed on the basis of a 360-day year and payable
quarterly in arrears on each Payment Date in each year and upon the expiration,
cancellation or utilization in full of such Facility Letter of Credit. In
addition to the foregoing, the Borrower agrees to pay the Issuer any other
fees
customarily charged by it in respect of Letters of Credit issued by
it.
2.20. Extension
of Facility Termination Date.
The
Borrower may request an extension of the Facility Termination Date by submitting
a request for an extension to the Administrative Agent (an "Extension Request")
no more than 60 days but no less than 40 days prior to the then effective
Facility Termination Date. The Extension Request must specify the new Facility
Termination Date requested by the Borrower and the date (which must be at
least
30 days after the Extension Request is delivered to the Administrative Agent)
as
of which the
Lenders
must respond to the Extension Request (the "Extension Date"). The new Facility
Termination Date shall be no more than 364 days after the Extension Date,
including the Extension Date as one of the days in the calculation of the
days
elapsed. Promptly upon receipt of an Extension Request, the Administrative
Agent
shall notify each Lender of the contents thereof and shall request each Lender
to approve the Extension Request. Each Lender may, in its sole discretion,
elect
to approve or deny such Extension Request. Failure of a Lender to respond
to an
Extension Request by the Extension Date shall be deemed a refusal to approve
such Extension Request. Each Lender approving the Extension Request shall
deliver its written consent no later than the Extension Date. Any consent
delivered by a Lender to the Administrative Agent prior to the Extension
Date
may be revoked prior to the Extension Date by the Lender giving written notice
of such revocation to the Administrative Agent before the Extension Date.
If the
consent of the Required Lenders is received by the Administrative Agent and
remains in effect on the Extension Date, the Facility Termination Date specified
in the Extension Request shall become effective on the Extension Date only
as to
those Lenders which provided an effective consent. The then effective Facility
Termination Date shall be unchanged with respect to the Lenders which did
not
provide an effective consent, and the Commitments of such Lenders shall
terminate on the unchanged Facility Termination Date, and the Borrower shall
repay all Obligations (including, without limitation, any indemnity obligations
pursuant to Section
3.4)
to such
Lenders on or before such date, notwithstanding the provisions of Section
11.2.
The
Administrative Agent shall promptly notify the Borrower and each Lender of
the
Facility Termination Date for each Lender. In no event shall the Borrower
be
entitled to seek or obtain more than two extensions pursuant to this
Section
2.20.
ARTICLE III
CHANGE
IN CIRCUMSTANCES
3.1. Yield
Protection.
If,
after the date hereof, the adoption of or any change in any law or any
governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any interpretation
thereof, or the compliance of any Lender therewith,
(a)
subjects
any Lender or any applicable Lending Installation to any tax, duty, charge
or
withholding on or from payments due from the Borrower (excluding taxation
of the
overall net income of any Lender or applicable Lending Installation imposed
by
the jurisdiction in which such Lender or Lending Installation is incorporated
or
has its principal place of business), or changes (excluding increases in
the
income tax rates imposed by the jurisdiction in which the applicable Lender
or
Lending Installation is incorporated or has its principal place of business)
the
basis of taxation of principal, interest or any other payments to any Lender
or
Lending Installation in respect of its Loans, its interest in the Facility
Letters of Credit or other amounts due it hereunder, or
(b)
imposes
or increases or deems applicable any reserve, assessment, insurance charge,
special deposit or similar requirement against assets of, deposits with or
for
the account of, or credit extended by, any Lender or any applicable Lending
Installation (other than reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar Advances),
or
(c)
imposes
any other condition the result of which is to increase the cost to any Lender
or
any applicable Lending Installation of making, funding or maintaining Loans
or
issuing Facility Letters of Credit or reduces any amount receivable by any
Lender or any applicable Lending Installation in connection with any Loans
or
Facility Letters of Credit, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference to the amount of
Loans
held, Facility Letters of Credit issued or participated in or interest received
by it, by an amount deemed material by such Lender,
then,
within 15 days of demand by such Lender, the Borrower shall pay such Lender
that
portion of such increased expense incurred or resulting in an amount received
which such Lender determines is attributable to making, funding and maintaining
its Loans, its interest in the Facility Letters of Credit and its
Commitment.
3.2. Changes
in Capital Adequacy Regulations.
If a Lender determines the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such Lender or any
corporation controlling such Lender is increased as a result of a Change,
then,
within 15 days of demand by such Lender, the Borrower shall pay such Lender
the
amount necessary to compensate for any shortfall in the rate of return on
the
portion of such increased capital which such Lender determines is attributable
to this Agreement, its Loans, its interest in the Facility Letters of Credit
or
its obligation to make Loans or participate in or issue Facility Letters
of
Credit hereunder (after taking into account such Lender’s policies as to capital
adequacy). "Change"
means
(a) any change after the date of this Agreement in the Risk-Based Capital
Guidelines, or (b) any adoption of or change in any other law, governmental
or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based
Capital Guidelines"
means
(a) the risk-based capital guidelines in effect in the United States on the
date
of this Agreement and (b) the corresponding capital regulations promulgated
by
regulatory authorities outside the United States implementing the July 1988
report of the Basle Committee on Banking Regulation and Supervisory Practices
entitled "International Convergence of Capital Measurements and Capital
Standards" and any amendments to such regulations adopted prior to the date
of
this Agreement.
3.3. Availability
of Types of Advances.
If any
Lender determines that maintenance of its Eurodollar Loans at a suitable
Lending
Installation would violate any applicable law, rule, regulation, or directive,
whether or not having the force of law, or if the Required Lenders determine
that (a) deposits of a type and maturity appropriate to match fund Eurodollar
Advances are not available, or (b) the interest rate applicable to a Type
of
Advance does not accurately or fairly reflect the cost of making or maintaining
such Advance, then the Administrative Agent shall suspend the availability
of
the affected Type of Advance until such circumstance no longer exists and
require any Eurodollar Advances of the affected Type to be repaid.
3.4. Funding
Indemnification.
If any
payment of a Eurodollar Advance or Swing Line Advance bearing interest at
the
Alternate Swing Line Rate occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration, prepayment or
otherwise, or any such Advance is not made on the date specified by the Borrower
for any reason other than default by the Lenders, the Borrower will indemnify
the Administrative Agent and each Lender for any loss or cost incurred by
it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such
Advance.
3.5. Lender
Statements; Survival of Indemnity.
To the
extent reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Loans to reduce any liability
of the
Borrower to such Lender under Sections
3.1
and
3.2
or to
avoid the unavailability of a Type of Advance under Section
3.3,
so long
as such designation is not disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Borrower (with a copy to
the
Administrative Agent) as to the amount due, if any, under Section
3.1,
3.2
or
3.4.
Such
written statement shall set forth in reasonable detail the calculations upon
which such Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurodollar Loan
shall
be calculated as though each Lender funded its Eurodollar Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit
used
as a reference in determining the Eurodollar Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise provided herein,
the
amount specified in the written statement of any Lender shall be payable
on
demand after receipt by the Borrower of the written statement. The obligations
of the Borrower under Sections
3.1,
3.2
and
3.4
shall
survive payment of the Obligations and termination of this
Agreement.
ARTICLE
IV
CONDITIONS
PRECEDENT
4.1. Initial
Loans and Facility Letters of Credit.
The
Lenders shall not be required to make the initial Advances hereunder and
the
Issuer shall not be required to issue any Facility Letter of Credit hereunder
unless the Borrower has furnished the following to the Administrative Agent
with
sufficient copies for the Lenders and the other conditions set forth below
have
been satisfied, in each case on or before January 13, 2006:
(a)
Charter
Documents; Good Standing Certificates.
Copies
of the certificate of incorporation of the Borrower, together with all
amendments and other modifications thereto, certified by the appropriate
governmental officer in its jurisdiction of incorporation, together with
a good
standing certificate issued by the Secretary of State of the jurisdiction
of its
incorporation and such other jurisdictions as shall be requested by the
Administrative Agent.
(b)
By-Laws
and Resolutions.
Copies,
certified by the Secretary or Assistant Secretary of the Borrower, of its
by-laws and of its Board of Directors’ resolutions authorizing the execution,
delivery and performance of the Loan Documents to which the Borrower is a
party.
(c)
Secretary’s
Certificate.
An
incumbency certificate, executed by the Secretary or Assistant Secretary
of the
Borrower, which shall identify by name and title and bear the signature of
the
officers of the Borrower authorized to sign the Loan Documents and to make
borrowings hereunder, upon which certificate the Administrative Agent and
the
Lenders shall be entitled to rely until informed of any change in writing
by the
Borrower.
(d)
Officer’s
Certificate.
A
certificate, dated the date hereof, signed by an Authorized Officer of the
Borrower, in form and substance satisfactory to the Administrative Agent,
to the
effect that: (i) on the initial Borrowing Date (both before and after giving
effect to the making of any Loans (or issuance of any Facility Letters of
Credit
hereunder) no Default or Unmatured Default has occurred and is continuing;
(ii)
no injunction or temporary restraining order which would prohibit the making
of
any Loans (or issuance of any Facility Letters of Credit) or other litigation
which could reasonably be expected to have a Material Adverse Effect is pending
or, to the best of such Person’s knowledge, threatened; (iii) each of the
representations and warranties set forth in Article
V
of this
Agreement is true and correct on and as of the initial Borrowing Date; and
(iv)
since September 30, 2005, no event or change has occurred that has caused
or
evidences a Material Adverse Effect.
(e)
Legal
Opinions.
A
written opinion of ▇. ▇. ▇▇▇▇▇, General Counsel for the Borrower and the
Guarantors, addressed to the Administrative Agent and the Lenders in the
form of
Exhibit
I
attached
hereto.
(f)
Notes.
Notes
payable to the order of each of the Lenders duly executed by the
Borrower.
(g)
Loan
Documents.
Executed originals of this Agreement and each of the Loan Documents, which
shall
be in full force and effect, together with all schedules, exhibits,
certificates, instruments, opinions, documents and financial statements required
to be delivered pursuant hereto and thereto.
(h)
Letters
of Direction.
Written
money transfer instructions with respect to Advances in form and substance
acceptable to the Administrative Agent and its counsel addressed to the
Administrative Agent and signed by an Authorized Officer, together with such
other related money transfer authorizations as the Administrative Agent may
have
reasonably requested.
(i)
Guarantor
Charter Documents; Good Standing Certificates.
Copies
of the articles or certificates of incorporation of each Guarantor, together
with all amendments thereto, both certified by the Secretary or Assistant
Secretary of such Guarantor, together with a good standing certificate issued
by
the Secretary of State of the jurisdiction of its incorporation and such
other
jurisdictions as shall be requested by the Administrative Agent.
(j)
Guarantor By-Laws
and Resolutions.
Copies,
certified by the Secretary or Assistant Secretary of each Guarantor, of its
by-laws and Board of Directors’ resolutions of such Guarantor (and resolutions
of other bodies, if any are deemed necessary by counsel for the Administrative
Agent) authorizing the execution, delivery and performance of the Loan Documents
to which each such Guarantor is a party.
(k)
Guarantor
Secretary’s Certificate.
An
incumbency certificate, executed by the Secretary or Assistant Secretary
of each
Guarantor, which shall identify by name and title and bear the signature
of the
officers of such Guarantor authorized to sign the Loan Documents upon which
certificate the Administrative Agent and the Lenders shall be entitled to
rely
until informed of any change in writing by the Borrower.
(l)
Termination
of Existing Credit Agreement.
The
Existing Credit Agreement shall have terminated and all outstanding obligations
thereunder shall be paid in full and all commitments thereunder shall have
terminated.
(m)
Other.
Such
other documents as the Administrative Agent, any Lender or their counsel
may
have reasonably requested.
4.2. Each
Future Advance and Facility Letter of Credit.
The
Lenders shall not be required to make any Advance and the Issuer shall not
be
obligated to issue any future Facility Letter of Credit unless on the applicable
Borrowing Date:
(a)
There
exists no Default or Unmatured Default and none would result from such Advance
or issuance of such Facility Letter of Credit;
(b)
The
representations and warranties contained in Article
V
are true
and correct as of such Borrowing Date;
(c)
A
Borrowing Notice or Issuance Request, as applicable, shall have been properly
submitted; and
(d)
All
legal
matters incident to the making of such Advance or issuance of such Facility
Letter of Credit shall be satisfactory to the Lenders and their
counsel.
Each
Ratable Borrowing Notice and Competitive Bid Quote Request with respect to
each
such Advance and each Issuance Request with respect to each such Facility
Letter
of Credit shall constitute a representation and warranty by the Borrower
that
the conditions contained in Section
4.2
have
been satisfied. Any Lender may require a duly completed compliance certificate
in substantially the form of Exhibit
G
hereto
as a condition to making an Advance or issuing a Facility Letter of
Credit.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
The
Borrower represents and warrants to the Administrative Agent and the Lenders
that:
5.1. Corporate
Existence and Standing.
The
Borrower and each Material Subsidiary is a corporation duly incorporated,
validly existing and in good standing under the laws of its respective
jurisdiction of incorporation and is duly qualified and in good standing
as a
foreign corporation and is duly authorized to conduct its business in each
jurisdiction in which its business is conducted or proposed to be conducted
except where the failure to be so qualified or authorized could not reasonably
be expected to have a Material Adverse Effect.
5.2. Authorization
and Validity.
The
Borrower and each Guarantor have all requisite power and authority (corporate
and otherwise) and legal right to execute and deliver (or file, as the case
may
be) each of the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery (or filing, as the case
may
be) by the Borrower and each Guarantor of the Loan Documents to which it
is a
party and the performance of their respective obligations thereunder have
been
duly authorized by proper corporate proceedings and the Loan Documents
constitute legal, valid and binding obligations of the Borrower or such
Guarantor, as applicable, enforceable against the Borrower or such Guarantor,
as
applicable, in accordance with their terms, except as enforceability may
be
limited by bankruptcy, insolvency or similar laws affecting the enforcement
of
creditors’ rights generally or by general principles of equity.
5.3. Compliance
with Laws and Contracts.
The
Borrower and its Subsidiaries have complied with all applicable statutes,
rules,
regulations, orders and restrictions of any domestic or foreign government
or
any instrumentality or agency thereof, having jurisdiction over the conduct
of
their respective businesses or the ownership of their respective properties,
except where the failure to so comply could not reasonably be expected to
have a
Material Adverse Effect. Neither the execution and delivery by the Borrower
or
any Guarantor of the Loan Documents to which it is a party, the application
of
the proceeds of the Loans and the Facility Letters of Credit, the consummation
of any transaction contemplated in the Loan Documents, nor compliance with
the
provisions of the Loan Documents will, or at the relevant time did, (a) violate
any law, rule, regulation (including Regulation T, Regulation U and Regulation
X), order, writ, judgment, injunction, decree or award binding on the Borrower
or any Subsidiary or the Borrower’s or any Subsidiary’s charter, articles or
certificate of incorporation or by-laws, (b) violate the provisions of or
require the approval or consent of any party to any indenture, instrument
or
agreement to which the Borrower or any Subsidiary is a party or is subject,
or
by which it, or its property, is bound, or conflict with or constitute a
default
thereunder, or result in the creation or imposition of any Lien (other than
Liens permitted by, the Loan Documents) in, of or on the property of the
Borrower or any Subsidiary pursuant to the terms of any such indenture,
instrument or agreement, or (c) require any consent of the stockholders of
any
Person.
5.4. Governmental
Consents.
No
order, consent, approval, qualification, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, or other
action
in respect of, Governmental Authority, or any subdivision thereof, any
securities exchange or other Person is or at the relevant time was required
to
authorize, or is or at the relevant time was required in connection with
the
execution, delivery, consummation or performance of, or the legality, validity,
binding effect or enforceability of, any of the Loan Documents, the application
of the proceeds of the Loans or the Facility Letters of Credit or any other
transaction contemplated in the Loan Documents.
5.5. Financial
Statements.
The
Borrower has heretofore furnished to each of the Lenders the September 30,
2005
audited consolidated financial statements of the Borrower and its Subsidiaries
(collectively, the "Financial
Statements").
Each
of the Financial Statements was prepared in accordance with Agreement Accounting
Principles and fairly presents the consolidated financial condition and
operations of the Borrower and its Subsidiaries at such dates and the
consolidated results of their operations for the respective periods then
ended
(except, in the case of such unaudited statements, for normal year-end audit
adjustments).
5.6. Material
Adverse Change.
Since
September 30, 2005, there has been no change from that reflected in the
Financial Statements, in the business, Property, condition (financial or
otherwise) or results of operations of the Borrower and its
Subsidiaries taken
as
a whole which could reasonably be expected to have a Material Adverse
Effect.
5.7. Taxes.
The
Borrower and its Subsidiaries have filed or caused to be filed in correct
form
all United States federal and applicable foreign, state and local tax returns
and all other tax returns which are required to be filed and have paid all
taxes
due pursuant to said returns or pursuant to any assessment received by the
Borrower or any Subsidiary, except such taxes, if any, as are being contested
in
good faith and as to which adequate reserves have been provided in accordance
with Agreement Accounting Principles and as to which no Lien exists. No tax
liens have been filed and no claims are being asserted with respect to any
such
taxes which could reasonably be expected to have a Material Adverse Effect.
The
charges, accruals and reserves on the books of the Borrower and its Subsidiaries
in respect of any taxes or other governmental charges are in accordance with
Agreement Accounting Principles.
5.8. Litigation
and Contingent Obligations.
There
is no litigation, arbitration, proceeding, inquiry or governmental investigation
(including, without limitation, by the Federal Trade Commission) pending
or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any Subsidiary or any of their respective Properties which could
reasonably be expected to have a Material Adverse Effect or to prevent, enjoin
or unduly delay the making of the Loans or the issuance of Facility Letters
of
Credit under this Agreement. Neither the Borrower nor any Subsidiary has
any
material Contingent Obligations except as set forth on Schedule
5.8.
5.9. Subsidiaries
and Capitalization.
Schedule
5.9
hereto
contains an accurate list of all of the existing Subsidiaries as of the date
of
this Agreement, setting forth their respective jurisdictions of incorporation
and the percentage of their capital stock owned by the Borrower or other
Subsidiaries. All of the issued and outstanding shares of capital stock of
each
Subsidiary have been duly authorized and validly issued, are fully paid and
non-assessable, and are free and clear of all Liens, other than the Liens
created by the Loan Documents. No authorized but unissued or treasury shares
of
capital stock of the Borrower or any Subsidiary are subject to any option,
warrant, right to call or commitment of any kind or character. Except as
set
forth on Schedule
5.9,
neither
the Borrower nor any Subsidiary has any outstanding stock or securities
convertible into or exchangeable for any shares of its capital stock, or
any
right issued to any Person (either preemptive or other) to subscribe for
or to
purchase, or any options for the purchase of, or any agreements providing
for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to any of its capital stock or any stock or securities
convertible into or exchangeable for any of its capital stock other than
as
expressly set forth in the certificate or articles of incorporation of the
Borrower or such Subsidiary. Neither the Borrower nor any Subsidiary is subject
to any obligation (contingent or otherwise) to repurchase or otherwise acquire
or retire any shares of its capital stock or any convertible securities,
rights
or options of the type described in the preceding sentence except as otherwise
set forth on Schedule
5.9.
Except
as set forth on Schedule
5.9,
as of
the date hereof the Borrower does not own or hold, directly or indirectly,
any
capital stock or equity security of, or any equity or partnership interest
in
any Person other than such Subsidiaries and Vail Resorts, Inc.
5.10. ERISA.
Each of
the Borrower and each member of the Controlled Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan. Neither the Borrower nor any other member of the
Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to any Multiemployer Plan which could reasonably be
expected to have a Material Adverse Effect. Each Plan complies in all respects
with all applicable requirements of law and regulations, except where the
failure to so comply could not reasonably be expected to cause the relevant
Plan
to become disqualified under the Code. Neither the Borrower nor any member
of
the Controlled Group has, with respect to any Plan, failed to make any
contribution or pay any amount required under Section 412 of the Code or
Section
302 of ERISA or the terms of such Plan. There are no pending or, to the
knowledge of the Borrower, threatened claims, actions, investigations or
lawsuits against any Plan, any fiduciary thereof, or the Borrower or any
member
of the Controlled Group with respect to a Plan which could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any
member
of the Controlled Group has engaged in any prohibited transaction (as defined
in
Section 4975 of the Code or Section 406 of ERISA) in connection with any
Plan
which would subject such Person to any material liability. Within the last
five
years neither the Borrower nor any member of the Controlled Group has engaged
in
a transaction which resulted in a Single Employer Plan with an Unfunded
Liability being transferred out of the Controlled Group. No Termination Event
has occurred or is reasonably expected to occur with respect to any Plan
which
is subject to Title IV of ERISA.
5.11. Defaults.
No
Default or Unmatured Default has occurred and is continuing.
5.12. Federal
Reserve Regulations.
Neither
the Borrower nor any Subsidiary is engaged, directly or indirectly, principally,
or as one of its important activities, in the business of extending, or
arranging for the extension of, credit for the purpose of purchasing or carrying
Margin Stock. Neither the making of any Advance or issuance of any Facility
Letters of Credit hereunder, the use of the proceeds thereof, will violate
or be
inconsistent with the provisions of Regulation T, Regulation U or Regulation
X.
Following the application of the proceeds of the Loans, less than 25% of
the
value (as determined by any reasonable method) of the assets of the Borrower
and
its Subsidiaries which are subject to any limitation on sale, pledge, or
other
restriction hereunder taken as a whole have been, and will continue to be,
represented by Margin Stock.
5.13. Investment
Company; Public Utility Holding Company Act.
Neither
the Borrower nor any Subsidiary is, or after giving effect to any Advance
will
be, an "nvestment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended. Neither
the Borrower nor any Subsidiary is a "holding company" or a "subsidiary company"
of a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
5.14. Certain
Fees.
Other
than as disclosed on Schedule
5.14,
no
broker’s or finder’s fee or commission was, is or will be payable by the
Borrower or any Subsidiary with respect to the transactions contemplated
by this
Agreement. The Borrower hereby agrees to indemnify the Administrative Agent
and
the Lenders against and agrees that it will hold each of them harmless from
any
claim, demand or liability for broker’s or finder’s fees or commissions alleged
to have been incurred by the Borrower in connection with any of the transactions
contemplated by this Agreement and any expenses (including, without limitation,
attorneys’ fees and time charges of attorneys for the Administrative Agent or
any Lender, which attorneys may be employees of the Administrative Agent
or any
Lender) arising in connection with any such claim, demand or
liability.
5.15. Solvency.
As of
the date hereof, after giving effect to the consummation of the transactions
contemplated by the Loan Documents and the payment of all fees, costs and
expenses payable by the Borrower or its Subsidiaries with respect to the
transactions contemplated by the Loan Documents, each of the Borrower and
each
Guarantor is Solvent.
5.16. Ownership
of Properties.
Except
as set forth on Schedule
5.16
hereto,
the Borrower and its Subsidiaries have a subsisting leasehold interest in,
or
good and marketable title, free of all Liens, other than those permitted
by
Section
6.17
or by
any of the other Loan Documents, to all of the properties and assets reflected
in the Financial Statements as being owned by it, except for assets sold,
transferred or otherwise disposed of in the ordinary course of business since
the date thereof. There are no actual, threatened or alleged defaults with
respect to any leases of real property under which the Borrower or any
Subsidiary is lessee or lessor which could reasonably be expected to have
a
Material Adverse Effect. The Borrower and its Subsidiaries own or possess
rights
to use all material licenses, patents, patent applications, copyrights, service
marks, trademarks and trade names necessary to continue to conduct their
business as heretofore conducted, and no such license, patent or trademark
has
been declared invalid, been limited by order of any court or by agreement
or is
the subject of any infringement, interference or similar proceeding or
challenge, except for proceedings and challenges which could not reasonably
be
expected to have a Material Adverse Effect.
5.17. Indebtedness.
Attached hereto as Schedule
5.17
is a
complete and correct list of all Indebtedness of the Borrower and its
Subsidiaries outstanding on the date of this Agreement (other than Indebtedness
in a principal amount not exceeding $100,000
for a single item of Indebtedness and $500,000
in the aggregate for all such Indebtedness), showing the aggregate principal
amount which was outstanding on such date.
5.18. Subordinated
Indebtedness.
The
principal of and interest on the Notes and all other Obligations will constitute
"senior debt" as that or any similar term is or may be used in any other
instrument evidencing or applicable to any Subordinated Indebtedness of the
Borrower.
5.19. Employee
Controversies.
There
are no strikes, work stoppages or controversies pending or threatened between
the Borrower or any Subsidiary and any of its employees, other than strikes,
work stoppages or controversies arising in the ordinary course of business,
which, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
5.20. Material
Agreements.
Neither
the Borrower nor any Subsidiary is a party to any agreement or instrument
or
subject to any charter or other corporate restriction which could reasonably
be
expected to have a Material Adverse Effect or which restricts or imposes
conditions upon the ability of the Borrower or any Subsidiary to (a) pay
dividends or make other distributions on its capital stock (b) make loans
or
advances to the Borrower, (c) repay loans or advances from Borrower or (d)
grant
Liens to the Administrative Agent to secure the Obligations. Neither the
Borrower nor any Subsidiary is in default in the performance, observance
or
fulfillment of any of the obligations, covenants or conditions contained
in any
agreement to which it is a party, which default could reasonably be expected
to
have a Material Adverse Effect.
5.21. Environmental
Laws.
The
Borrower and its Material Subsidiaries each conduct in the ordinary course
of
business a review of the effects of then existing Environmental Laws and
then
existing Environmental Claims on its business, condition (financial and other),
results of operations and Property, and as a result thereof the Borrower
and its
Material Subsidiaries have reasonably concluded that the application of such
Environmental Laws and the existence of such Environmental Claims, in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.22. Insurance.
The
Borrower and its Subsidiaries maintain with financially sound and reputable
insurance companies insurance on their Property in such amounts and covering
such risks as is consistent with sound business practice.
5.23. Disclosure.
None of
the (a) information, exhibits or reports furnished or to be furnished by
the
Borrower or any Subsidiary to the Administrative Agent or to any Lender in
connection with the negotiation of the Loan Documents, or (b) representations
or
warranties of the Borrower or any Subsidiary contained in this Agreement,
the
other Loan Documents or any certificate or other written information furnished
to the Administrative Agent or the Lenders by or on behalf of the Borrower
or
any Subsidiary pursuant to a request from the Administrative Agent or the
Lenders permitted hereunder and for use in connection with the transactions
contemplated by this Agreement, contained, contains or will contain any untrue
statement of a material fact or omitted, omits or will omit to state a material
fact necessary in order to make the statements contained herein or therein
not
misleading in light of the circumstances in which the same were made. The
pro
forma financial information contained in such materials is based upon good
faith
estimates and assumptions believed by the Borrower to be reasonable at the
time
made. There is no fact known to the Borrower (other than matters of a general
economic nature) that has had or could reasonably be expected to have a Material
Adverse Effect and that has not been disclosed herein or in such other
documents, certificates and other written information furnished to the Lenders
for use in connection with the transactions contemplated by this
Agreement.
5.24. Material
Foreign Subsidiaries.
Except
as set forth on Schedule
5.24
hereto, as of the Closing Date, Borrower has no Material Foreign
Subsidiaries.
ARTICLE
VI
COVENANTS
During
the term of this Agreement, unless the Required Lenders
shall otherwise consent in writing:
6.1. Financial
Reporting. The Borrower will
maintain, for itself and each Subsidiary, a system of accounting established
and
administered in accordance with generally accepted accounting principles,
consistently applied, and furnish to the Lenders:
(a)
As
soon as practicable and in any
event within 95 days after the close of each of its Fiscal Years, an unqualified
audit report certified by independent certified public accountants, acceptable
to the Lenders, prepared in accordance with Agreement Accounting Principles
on a
consolidated and consolidating basis (consolidating statements need not be
certified by such accountants) for itself and its Subsidiaries, including
balance sheets as of the end of such period and related statements of income,
retained earnings and cash flows (but not consolidating statements of retained
earnings or cash flows) accompanied by a certificate of said accountants that,
in the course of the examination necessary for their certification of the
foregoing, they have obtained no knowledge of Default or Unmatured Default,
or
if, in the opinion of such accountants, any Default or Unmatured Default shall
exist, stating the nature and status thereof.
(b)
As
soon as practicable and in any
event within 50 days after the close of the first three Fiscal Quarters of
each
of its Fiscal Years, for itself and its Subsidiaries, consolidated and
consolidating unaudited balance sheets as at the close of each such period
and
consolidated and consolidating statements of income, retained earnings and
cash
flows (but not consolidating statements of retained earnings or cash flows)
for
the period from the beginning of such Fiscal Year to the end of such quarter,
all certified by an Authorized Officer.
(c)
As
soon as available, but in any event
not later than the last Business Day in November of each year, a copy of the
plan and forecast of the Borrower, and its Subsidiaries for the next Fiscal
Year
organized by individual lines of business (including a projected consolidated
and consolidating balance sheet, income statement and funds flow
statement).
(d)
Together
with the financial statements
required by clauses (a) and (b) above, a compliance certificate in
substantially the form of Exhibit G hereto signed by an Authorized
Officer showing the calculations necessary to determine compliance with this
Agreement and stating that no Default or Unmatured Default exists, or if any
Default or Unmatured Default exists, stating the nature and status
thereof.
(e)
Within
270 days after the close of
each Fiscal Year, a statement of the Unfunded Liabilities of each Single
Employer Plan, certified as correct by an actuary enrolled under ERISA.
(f)
As
soon as possible and in any event
within 10 days after the Borrower knows that any Termination Event has occurred
with respect to any Plan, a statement, signed by the chief financial officer,
treasurer or controller of the Borrower, describing said Termination Event
and
the action which the Borrower proposes to take with respect thereto.
(g)
As
soon as possible and in any event
within 10 days after the Borrower learns thereof, notice of the assertion or
commencement of any claims, action, suit or proceeding against or affecting
the
Borrower or any Subsidiary which could reasonably be expected to have a Material
Adverse Effect.
(h)
Promptly
upon the furnishing thereof
to the shareholders of the Borrower, copies of all financial statements, reports
and proxy statements so furnished.
(i)
Promptly
upon the filing thereof,
copies of all registration statements and annual, quarterly, monthly or other
regular reports which the Borrower or any of its Subsidiaries files with the
Securities and Exchange Commission.
(j)
Such
other information (including
non-financial information) as the Administrative Agent or any Lender may from
time to time reasonably request.
6.2. Use
of Proceeds. The Borrower will, and
will cause each Subsidiary to, use the proceeds of the Advances to meet the
general corporate and working capital needs of the Borrower and its
Subsidiaries, including the making of stock redemptions and repurchases,
dividends on its capital stock, Investments and non-hostile Purchases, all
as
permitted hereunder. The Borrower will not, nor will it permit any Subsidiary
to, use any of the proceeds of the Advances or any Facility Letter of Credit
to
purchase or carry any "margin stock" (as defined in Regulation U) or to finance
the Purchase of any Person which has not been approved and recommended by the
board of directors (or functional equivalent thereof) of such Person.
6.3. Notice
of Default. The Borrower will give
prompt notice in writing to the Lenders of the occurrence of (a) any Default
or
Unmatured Default and (b) of any other event or development, financial or other,
relating specifically to the Borrower or any of its Subsidiaries (and not of
a
general economic or political nature) which could reasonably be expected to
have
a Material Adverse Effect.
6.4. Conduct
of Business. The Borrower will, and
will cause each Subsidiary to, carry on and conduct its business in
substantially the same manner as is presently conducted or in other consumer
products markets and the manufacturing of ingredients therefor, and to do all
things necessary to remain duly incorporated, validly existing and in good
standing as a domestic corporation in its jurisdiction of incorporation and
maintain all requisite authority to conduct its business in each jurisdiction
in
which its business is conducted, except where the failure to maintain such
authority could not reasonably be expected to have a Material Adverse
Effect.
6.5. Taxes.
The Borrower will, and will cause
each Subsidiary to, timely file complete and correct United States federal
and
applicable foreign, state and local tax returns required by applicable law
and
pay when due all taxes, assessments and governmental charges and levies upon
it
or its income, profits or Property, except those which are being contested
in
good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside.
6.6. Insurance.
The Borrower will, and will
cause each Subsidiary to, maintain with financially sound and reputable
insurance companies insurance on all their Property in such amounts and covering
such risks as is consistent with sound business practice for similarly situated
businesses in the industries in which the Borrower and its Subsidiaries operate,
and the Borrower will furnish to the Administrative Agent and any Lender upon
request full information as to the insurance carried.
6.7. Compliance
with Laws. The Borrower will,
and will cause each Subsidiary to, comply with all laws, rules, regulations,
orders, writs, judgments, injunctions, decrees or awards to which it may be
subject, the failure to comply with which could reasonably be expected to have
a
Material Adverse Effect.
6.8. Maintenance
of Properties. The Borrower
will, and will cause each Subsidiary to, do all things necessary to maintain,
preserve, protect and keep its Property in good repair, working order and
condition, and make all necessary and proper repairs, renewals and replacements
so that its business carried on in connection therewith may be properly
conducted at all times, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
6.9. Inspection.
The Borrower will, and will
cause each Subsidiary to, permit the Administrative Agent and the Lenders,
by
their respective representatives and agents, to inspect any of the Property,
corporate books and financial records of the Borrower and each Subsidiary,
to
examine and make copies of the books of accounts and other financial records
of
the Borrower and each Subsidiary, and to discuss the affairs, finances and
accounts of the Borrower and each Subsidiary with, and to be advised as to
the
same by, their respective officers at such reasonable times and intervals as
the
Lenders may designate. The Borrower shall reimburse the Administrative Agent
and
the Lenders for any costs and expenses incurred in connection with any such
inspection, examination or copies made during the pendency of a Default. The
Borrower will keep or cause to be kept, and cause each Subsidiary to keep or
cause to be kept, appropriate records and books of account in which complete
entries are to be made reflecting its and their business and financial
transactions, such entries to be made in accordance with Agreement Accounting
Principles consistently applied.
6.10. Capital
Stock and Dividends. The Borrower
will not, nor will it permit any Subsidiary to issue or have outstanding any
preferred stock, other than preferred stock not having mandatory redemption,
retirement and other repurchase dates commencing less than 91 days after the
Facility Termination Date then in effect.
6.11. Indebtedness.
The Borrower will not, nor
will it permit any Subsidiary to, create, incur or suffer to exist any
Indebtedness, except:
(a)
the
Loans;
(b)
Indebtedness
existing on the date
hereof and described in Schedule 5.17;
(c)
Contingent
Obligations permitted by
Section 6.16;
(d)
Rate-Hedging
Obligations incurred in
the ordinary course of business;
(e)
Indebtedness
arising in connection
with the Accounts Receivable Financing Program; and
(f)
other
Indebtedness so long as
immediately after giving effect to the incurrence of such Indebtedness, the
Borrower is in compliance with the financial covenants set forth in Section
6.24.
6.12. Merger.
The Borrower will not, nor will it
permit any Subsidiary to, merge or consolidate with or into any other Person,
except that (a) a Wholly-Owned Subsidiary may merge into the Borrower or any
Wholly-Owned Subsidiary of the Borrower, (b) the Borrower or any Subsidiary
may
merge or consolidate with any other Person so long as the Borrower or such
Subsidiary is the continuing or surviving corporation and, prior to and after
giving effect to such merger or consolidation, no Default or Unmatured Default
shall exist, and (c) any Subsidiary may enter into a merger or consolidation
as
a means of effecting a disposition permitted by Section 6.13.
6.13. Sale
of Assets. The Borrower will not, nor
will it permit any Subsidiary to, lease, sell, transfer or otherwise dispose
of
its Property to any other Person except for (a) sales of inventory or unused
or
obsolete equipment in the ordinary course of business, (b) sales of Borrower’s
or any of Borrower’s Subsidiaries’ stock in Vail Resorts, Inc., and (c) leases,
sales, transfers or other dispositions of its Property that, together with
all
other Property of the Borrower and its Subsidiaries previously leased, sold,
transferred or otherwise disposed of (other than inventory or unused or obsolete
equipment sold in the ordinary course of business and accounts receivables
transactions permitted by Section 6.14) as permitted by this Section
6.13 since the date hereof, do not constitute a Substantial Portion of the
Property of Borrower and its Subsidiaries.
6.14. Sale
of Accounts. The Borrower will not,
nor will it permit any Subsidiary to, sell or otherwise dispose of any notes
receivable or accounts receivable, with or without recourse, except that the
Borrower or any Subsidiary may sell or otherwise grant an interest in its
accounts receivable to other Persons, in each case pursuant to an Accounts
Receivable Financing Program.
6.15. Investments
and Purchases. The Borrower
will not, nor will it permit any Subsidiary to, make or suffer to exist any
Investments (including, without limitation, loans and advances to, and other
Investments in, Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or joint venture,
or to make any Purchases, except:
(a)
Short-term
obligations of, or fully
guaranteed by, the United States of America and short-term obligations of United
States government agencies;
(b)
Commercial
paper rated A-1 or better
by S&P or P-1 or better by ▇▇▇▇▇’▇;
(c)
Demand
deposit and money market bank
accounts maintained in the ordinary course of business with Initial Lenders
or
with commercial banks which are members of the Federal Deposit Insurance
Corporation;
(d)
Bankers
acceptances and certificates
of deposit issued by and time deposits with Initial Lenders or with commercial
banks (whether domestic or foreign) rated B or better
by Thomson, A or better by S&P or A2 or better by
▇▇▇▇▇’▇;
(e)
Repurchase
agreements with Initial
Lenders or with commercial banks (whether domestic or foreign) rated B or better
by Thomson, A or better by S&P or A2 or better by ▇▇▇▇▇’▇, so long at least
102% of the principal amount of each repurchase agreement is collateralized
by
obligations of, or fully guaranteed by, the United States of America or by
commercial paper rated A-1 or better by S&P or P-1 or better by
▇▇▇▇▇’▇;
(f)
Loan
participations and master notes
with corporations rated A-1 or better by S&P or P-1 or better by ▇▇▇▇▇’▇ and
with Initial Lenders or with commercial banks rated B or better by Thomson,
A or
better by S&P or A2 or better by ▇▇▇▇▇’▇;
(g)
Money
market preferred stock accounts
in corporations rated A or better by S&P or A2 or better by ▇▇▇▇▇’▇ or in
other corporations so long as such Investments are secured by Letters of Credit
issued by Initial Lenders or by commercial banks rated B or better by Thomson,
A
or better by S&P or A2 or better by ▇▇▇▇▇’▇;
(h)
Existing
Investments in Subsidiaries
and additional Investments in Guarantors;
(i)
Other
Investments in existence on the
date hereof and described in Schedule 6.15 hereto;
(j)
Other
Investments in Persons or
Subsidiaries which are not Guarantors (including, without limitation, (i) any
Investment in a joint venture and (ii) the creation of and the Investment in
any
Subsidiary that is not a Guarantor) in an aggregate amount not exceeding
$20,000,000;
(k)
Investments
in, and the creation of,
any special purpose Subsidiary created for the purpose of entering into the
Accounts Receivable Financing Program;
(l)
Additional
equity Investments in Vail
Resorts, Inc. necessary to permit the Borrower to retain equity accounting
treatment for such Investment;
(m)
(i)
Non-hostile Purchases in the same
line of business or related or ancillary businesses as the Borrower (including
but not limited to consumer packaged goods), not exceeding $50,000,000 in the
case of any single Purchase or series of related Purchases, provided that
(A) there shall exist no Default or Unmatured Default either immediately before
or immediately after giving effect to any such
Purchase
and (B) the representations and warranties contained in
Article V are true and correct both immediately before and immediately
after giving effect to any such Purchases, or (ii) non-hostile Purchases in
the
same line of business or related or ancillary businesses as the Borrower
(including but not limited to consumer packaged goods), in excess of $50,000,000
in the case of any single Purchase or series of related Purchases,
provided that (A) there shall exist no Default or Unmatured Default
either immediately before or immediately after giving effect to any such
Purchases, (B) the representations and warranties contained in Article V
are true and correct both immediately before and immediately after giving effect
to any such Purchases, and (C) the Borrower submits pro forma financial
statements for the most recent period of four consecutive Fiscal Quarters for
which financial statements have been furnished or are due pursuant to Section
6.1 and a certificate executed by an Authorized Officer of the Borrower
prior to closing any such transaction showing that the Borrower is in compliance
with Section 6.24 (treating such Purchase as having occurred on the first
day of such four-quarter period); and
(n)
United
States mutual funds that invest
solely in any of the Investments described in subsections (a) through (g)
above.
6.16. Contingent
Obligations. The Borrower will
not, nor will it permit any Subsidiary to, make or suffer to exist any
Contingent Obligation (including, without limitation, any Contingent Obligation
with respect to the obligations of a Subsidiary), except (a) by endorsement
of
instruments for deposit or collection in the ordinary course of business, (b)
the Subsidiary Guaranty and (c) the ▇▇▇▇▇▇▇ Obligations.
6.17. Liens.
The Borrower will not, nor will it
permit any Subsidiary to, create, incur, or suffer to exist any Lien in, of
or
on the Property of the Borrower or any of its Subsidiaries, except:
(a)
Liens
for taxes, assessments or
governmental charges or levies on its Property if the same shall not at the
time
be delinquent or thereafter can be paid without penalty, or are being contested
in good faith and by appropriate proceedings and for which adequate reserves
in
accordance with generally accepted principles of accounting shall have been
set
aside on its books;
(b)
Liens
imposed by law, such as
carriers’, warehousemen’s and mechanics’ liens and other similar liens arising
in the ordinary course of business which secure the payment of obligations
not
more than 60 days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on its books;
(c)
Liens
arising out of pledges or
deposits under worker’s compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits, or similar
legislation;
(d)
Liens
arising out of good faith
deposits in connection with or to secure performance of statutory obligations,
surety and appeal bonds, government contracts, leases otherwise permitted
hereunder, performance and return of money bonds and other similar obligations
incurred in the ordinary course of business;
(e)
Easements,
minor defects or
irregularities in title, building restrictions and such other encumbrances
or
charges against real property, all of which as are of a nature generally
existing with respect to properties of a similar character and which do not
in
any material way affect (i) the marketability of the same or (ii) interfere
with
the use thereof in the business of the Borrower or the Subsidiaries;
(f)
Liens
existing on the date hereof and
described in Schedule 6.17 hereto, including extensions, renewals and
replacements thereof in whole or in part, so long as the principal amount of
the
Indebtedness secured thereby at the time of such extension, renewal or
replacement is limited to all or any part of the Property (including
improvements thereon) securing the Lien so extended, renewed or replaced;
(g)
Liens
on the Property of a Subsidiary
of the Borrower and exclusively securing Indebtedness of such Subsidiary to
the
Borrower or any Guarantor;
(h)
Liens
of purchasers or providers of
financing under an Accounts Receivable Financing Program in accordance with
Section 6.14 herein;
(i)
Liens
on the capital stock of any
Material Foreign Subsidiary and exclusively securing Indebtedness permitted
by
Section 6.11, so long as such Liens are pari passu or junior to the Liens
granted pursuant to Section 6.27;
(j)
Liens
on the capital stock of Vail
Resorts, Inc. in connection with the sale or forward sale of such stock;
and
(k) Other
Liens securing aggregate
principal Indebtedness at no time exceeding $25,000,000.
6.18. Lease
Rentals. The Borrower will not, nor
will it permit any Subsidiary to, create, incur or suffer to exist obligations
for Rentals in excess of $40,000,000 during any one Fiscal Year on a
non-cumulative basis in the aggregate for the Borrower and its
Subsidiaries.
6.19. Affiliates.
The Borrower will not, and
will not permit any Subsidiary to, enter into any transaction (including,
without limitation, the purchase or sale of any Property or service) with,
or
make any payment or transfer to, any Affiliate except (a) in the ordinary course
of business and pursuant to the reasonable requirements of the Borrower’s or
such Subsidiary’s business and upon fair and reasonable terms no less favorable
to the Borrower or such Subsidiary than the Borrower or such Subsidiary would
obtain in a comparable arms-length transaction, (b) transactions among the
Borrower and Guarantors and (c) in connection with the Accounts Receivable
Financing Program.
6.20. Subordinated
Indebtedness; Other
Indebtedness. The Borrower will not, and will not permit any Subsidiary to,
make any amendment or modification to the indenture, note or other agreement
evidencing or governing any Subordinated Indebtedness, or directly or indirectly
voluntarily prepay, defease or in substance defease, purchase, redeem, retire
or
otherwise acquire, any Subordinated Indebtedness.
6.21. Environmental
Matters. The Borrower shall
and shall cause each of its Material Subsidiaries to conduct in the ordinary
course of its business reviews of the effects of then existing Environmental
Laws and then existing Environmental Claims on its business, condition
(financial and other), results of operations and
Property and to take all actions required by such
Environmental Laws and in respect of such Environmental Claims, except where
the
failure to so act could not reasonably be expected to have a Material Adverse
Effect.
6.22. Change
in Corporate Structure; Fiscal
Year. The Borrower shall not, nor shall it permit any Subsidiary to, (a)
permit any amendment or modification to be made to its certificate or articles
of incorporation or by-laws which is materially adverse to the interests of
the
Lenders or (b) change its Fiscal Year to end on any date other than September
30
of each year.
6.23. Inconsistent
Agreements. The Borrower
shall not, nor shall it permit any Subsidiary to, enter into any indenture,
agreement, instrument or other arrangement which, (a) directly or indirectly
prohibits or restrains, or has the effect of prohibiting or restraining, or
imposes materially adverse conditions upon, the incurrence of the Obligations,
the granting of Liens to secure the Obligations (other than agreements by the
Borrower that it will grant Liens to secure any Rate Hedging Obligations to
the
same extent as, and pari passu with, any Liens granted to secure the
Obligations), the provision of the Subsidiary Guaranty, the amending of the
Loan
Documents or the ability of any Subsidiary (other than a special purpose
Subsidiary created for the purpose of entering into the Accounts Receivable
Financing Program) to (i) pay dividends or make other distributions on its
capital stock, (ii) make loans or advances to the Borrower or (iii) repay loans
or advances from the Borrower or (b) contains any provision which would be
violated or breached by the making of Advances, by the issuance of Facility
Letters of Credit or by the performance by the Borrower or any Subsidiary of
any
of its obligations under any Loan Document.
6.24. Financial
Covenants. The Borrower on a
consolidated basis with its Subsidiaries shall:
6.24.1.
Leverage Ratio.
As of the end of each Fiscal
Quarter, maintain a Leverage Ratio of not more than 3.50:1.00
6.24.2.
Interest
Expense Coverage Ratio. As of the end of
each four Fiscal Quarters ending after the date hereof, maintain an Interest
Expense Coverage Ratio of not less than 3.00:1.00
6.25. ERISA
Compliance.
With
respect to any Plan, neither the Borrower nor any Subsidiary
shall:
(a)
engage
in any åprohibited transactionæ
(as such term is defined in Section 406 of ERISA or Section 4975 of the Code)
for which a civil penalty pursuant to Section 502(i) of ERISA or a tax pursuant
to Section 4975 of the Code in excess of $10,000,000 could be imposed;
(b)
permit
the occurrence of any
Termination Event which could result in a liability to the Borrower or any
other
member of the Controlled Group in excess of $10,000,000; or
(c)
permit
the establishment or amendment
of any Plan or fail to comply with the applicable provisions of ERISA and the
Code with respect to any Plan which could result in liability to the Borrower
or
any other member of the Controlled Group which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
6.26. Material
Subsidiaries. The Borrower shall
cause each of its Subsidiaries which becomes a Material Subsidiary on or after
the date hereof to join the Subsidiary Guaranty as a Guarantor pursuant to
a
joinder agreement in the form attached to the Subsidiary Guaranty within thirty
(30) days of such Person becoming a Material Subsidiary.
6.27. Material
Foreign Subsidiaries. Within
thirty (30) days after any Person becomes a Material Foreign Subsidiary, the
Borrower shall, or shall cause its applicable Subsidiary to, pledge to the
Administrative Agent 65% of the capital stock of such Person to secure the
Obligations and shall deliver such documents as the Administrative Agent may
reasonably require in connection therewith. Notwithstanding the foregoing,
the
Borrower shall cause RH Financial Corporation to, pledge to the Administrative
Agent 65% of the capital stock of each of Waffle Holdings Ltd., a corporation
organized under the laws of British Columbia, and Western Waffles Corp., a
corporation organized under the laws of British Columbia, within sixty (60)
days
of the Closing Date.
ARTICLE
VII
DEFAULTS
The
occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any
representation or warranty made or deemed made
by or on behalf of the Borrower or any of its Subsidiaries to the Lenders or
the
Administrative Agent under or in connection with this Agreement, any other
Loan
Document, any Loan, any Facility Letter of Credit or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be false in any material respect on the date as of which made
or
deemed made.
7.2. Nonpayment
of (a) any principal of any Note or any
Reimbursement Obligation when due, or (b) any interest upon any Note or any
commitment fee or other fee or obligations under any of the Loan Documents
within five days after the same becomes due.
7.3. The
breach by the Borrower of any of the terms or
provisions of Section 6.2, Section 6.3(a) or Sections 6.10
through 6.24.
7.4. The
breach by the Borrower (other than a breach which constitutes a Default under
Section
7.1,
7.2
or
7.3)
of any
of the terms or provisions of this Agreement which is not remedied within
thirty
(30) days after written notice from the Administrative Agent or any
Lender.
7.5. Failure
of the Borrower or any of its Subsidiaries to pay any Indebtedness aggregating
in excess of $25,000,000 when due; or the default by the Borrower or any
of its
Subsidiaries in the performance of any term, provision or condition contained
in
any agreement or agreements under which any such Indebtedness was created
or is
governed, or the occurrence of any other event or existence of any other
condition, the effect of any of which is to cause, or to permit the holder
or
holders of such Indebtedness to cause, such Indebtedness to become due prior
to
its stated maturity; or any such Indebtedness of the Borrower or any of its
Subsidiaries shall be declared to be due and payable or required to be prepaid
(other than by a regularly scheduled payment) prior to the stated maturity
thereof.
7.6. The
Borrower or any of its Subsidiaries shall (a) have an order for relief entered
with respect to it under the federal bankruptcy laws as now or hereafter
in
effect, (b) make an assignment for the benefit of creditors, (c) apply for,
seek, consent to, or acquiesce in, the appointment of a receiver, custodian,
trustee, examiner, liquidator or similar official for it or any Substantial
Portion of its Property, (d) institute any proceeding seeking an order for
relief under the federal bankruptcy laws as now or hereafter in effect or
seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it,
(e)
take any corporate action to authorize or effect any of the foregoing actions
set forth in this Section
7.6,
(f)
fail to contest in good faith any appointment or proceeding described in
Section
7.7
or (g)
become unable to pay, not pay, or admit in writing its inability to pay,
its
debts generally as they become due.
7.7. Without
the application, approval or consent of the Borrower or any of its Subsidiaries,
a receiver, trustee, examiner, liquidator or similar official shall be appointed
for the Borrower or any of its Subsidiaries or any Substantial Portion of
its
Property, or a proceeding described in Section
7.6(d)
shall be
instituted against the Borrower or any of its Subsidiaries and such appointment
continues undischarged or such proceeding continues undismissed or unstayed
for
a period of thirty consecutive days.
7.8. Any
court, government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of (each a "Condemnation"),
all
or any portion of the Property of the Borrower and its Subsidiaries which,
when
taken together with all other Property of the Borrower and its Subsidiaries
so
condemned, seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such Condemnation
occurs,
constitutes a Substantial Portion.
7.9. The
Borrower or any of its Subsidiaries shall fail within thirty days to pay,
bond
or otherwise discharge any judgments or orders for the payment of an aggregate
amount in excess of $15,000,000, which is not covered by undisputed insurance
or
stayed on appeal or otherwise being appropriately contested in good faith
and as
to which no enforcement actions have been commenced.
7.10. Any
Change in Control shall occur.
7.11. The
Subsidiary Guaranty shall fail to remain in full force or effect or any action
shall be taken to discontinue or to assert the invalidity or unenforceability
of
the Subsidiary Guaranty, or any Guarantor shall fail to comply with any of
the
terms or provisions of the Subsidiary Guaranty, or any Guarantor denies that
it
has any further liability under the Subsidiary Guaranty, or gives notice
to such
effect.
7.12. The
Unfunded Liabilities of all Single Employer Plans shall exceed in the aggregate
an amount which could reasonably be expected to have a Material Adverse Effect
or any Reportable Event shall occur in connection with any Plan.
7.13. The
Borrower or any other member of the Controlled Group shall have been notified
by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA,
if as a result of such reorganization or termination the aggregate annual
contributions of the Borrower and the other members of the Controlled Group
(taken as a whole) to all Multiemployer Plans which are then in reorganization
or being terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the respective plan years of each such
Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding
$15,000,000.
ARTICLE
VIII
ACCELERATION,
WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration.
If any
Default described in Section
7.6
or
7.7
occurs
with respect to the Borrower, the obligations of the Lenders to make Loans
or
issue Facility Letters of Credit hereunder shall automatically terminate
and the
Obligations shall immediately become due and payable without any election
or
action on the part of the Administrative Agent or any Lender. If any other
Default occurs, the Required Lenders (or the Administrative Agent with the
consent of the Required Lenders) may terminate or suspend the obligations
of the
Lenders to make Loans or issue Facility Letters of Credit hereunder, or declare
the Obligations to be due and payable, or both, whereupon the Obligations
shall
become immediately due and payable, without presentment, demand, protest
or
notice of any kind, all of which the Borrower hereby expressly waives. In
addition to the foregoing, following the occurrence and during the continuance
of a Default, so long as any Facility Letter of Credit has not been fully
drawn
and has not been canceled or expired by its terms, upon demand by the
Administrative Agent, the Borrower shall deposit in an account (the
"Letter
of Credit Cash Collateral Account")
maintained with JPMorgan Chase in the name of the Administrative Agent, for
the
ratable benefit of the Lenders and the Administrative Agent, cash in an amount
equal to the
aggregate
undrawn face amount of all outstanding Facility Letters of Credit and all
fees
and other amounts due or which may become due with respect thereto. The Borrower
shall have no control over funds in the Letter of Credit Cash Collateral
Account, which funds shall be invested by the Administrative Agent from time
to
time in its discretion in certificates of deposit of JPMorgan Chase Bank,
N.A.
having a maturity not exceeding thirty days. Such funds shall be promptly
applied by the Administrative Agent to reimburse the Issuer for drafts drawn
from time to time under the Facility Letters of Credit. Such funds, if any,
remaining in the Letter of Credit Cash Collateral Account following the payment
of all Obligations in full or the earlier termination of all Defaults shall,
unless the Administrative Agent is otherwise directed by a court of competent
jurisdiction, be promptly paid over to the Borrower.
If,
within ten Business Days after acceleration of the maturity of the Obligations
or termination of the obligations of the Lenders to make Loans hereunder
as a
result of any Default (other than any Default as described in Section
7.6
or
7.7
with
respect to the Borrower) and before any judgment or decree for the payment
of
the Obligations due shall have been obtained or entered, the Required Lenders
(in their sole discretion) shall so direct, the Administrative Agent shall,
by
notice to the Borrower, rescind and annul such acceleration and/or
termination.
8.2. Amendments.
Subject
to the provisions of this Article
VIII,
the
Required Lenders (or the Administrative Agent with the consent in writing
of the
Required Lenders) and the Borrower may enter into agreements supplemental
hereto
for the purpose of adding or modifying any provisions to the Loan Documents
or
changing in any manner the rights of the Lenders or the Borrower hereunder
or
waiving any Default hereunder; provided,
however,
that no
such supplemental agreement shall, without the consent of each
Lender:
(a)
Extend
the final maturity of any Loan or Note or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest or fees
thereon;
(b)
Reduce
the percentage specified in the definition of Required Lenders;
(c)
Reduce
the amount of or extend the date for the mandatory payments required under
Section
2.1.2,
increase the amount of the Commitment of any Lender hereunder (except in
accordance with Section
2.6(c)),
or
amend Section
2.6(c)
to allow
the Aggregate Commitment to increase by more than $100,000,000;
(d)
Subject
to Section
2.20,
extend
the Facility Termination Date or permit any Facility Letter of Credit to
have an
expiry date beyond the Facility Termination Date then in effect;
(e)
Amend
this Section
8.2;
(f)
Release
any Guarantor from the Subsidiary Guaranty; or
(g)
Permit
any assignment by the Borrower of its Obligations or its rights
hereunder.
No
amendment of any provision of this Agreement relating to (i) the Administrative
Agent shall be effective without the written consent of the Administrative
Agent, (ii) the Issuer or the Facility Letters of Credit shall be effective
without the consent of the Issuer or (iii) Swing Line Loans shall be effective
without the consent of the Swing Line Lender. The Administrative Agent may
waive
payment of the fee required under Section
12.3.2
without
obtaining the consent of any other party to this Agreement.
8.3. Preservation
of Rights.
No
delay or omission of the Lenders or the Administrative Agent to exercise
any
right under the Loan Documents shall impair such right or be construed to
be a
waiver of any Default or an acquiescence therein, and the making of a Loan
notwithstanding the existence of a Default or the inability of the Borrower
to
satisfy the conditions precedent to such Loan shall not constitute any waiver
or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to Section
8.2,
and
then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and
all
shall be available to the Administrative Agent and the Lenders until the
Obligations have been paid in full.
ARTICLE
IX
GENERAL
PROVISIONS
9.1. Survival
of Representations.
All
representations and warranties of the Borrower contained in this Agreement
or of
the Borrower or any Subsidiary contained in any Loan Document shall survive
delivery of the Notes and the making of the Loans herein
contemplated.
9.2. Governmental
Regulation.
Anything contained in this Agreement to the contrary notwithstanding, no
Lender
shall be obligated to extend credit to the Borrower in violation of any
limitation or prohibition provided by any applicable statute or
regulation.
9.3. Taxes.
Any
stamp, documentary or similar taxes, assessments or charges payable or ruled
payable by any governmental authority in respect of the Loan Documents shall
be
paid by the Borrower, together with interest and penalties, if any.
9.4. Headings.
Section
headings in the Loan Documents are for convenience of reference only, and
shall
not govern the interpretation of any of the provisions of the Loan
Documents.
9.5. Entire
Agreement.
The
Loan Documents embody the entire agreement and understanding among the Borrower,
the Administrative Agent and the Lenders and supersede all prior agreements
and
understandings among the Borrower, the Administrative Agent, and the Lenders
relating to the subject matter thereof other than the fee letter dated November
18, 2005 in favor of JPMorgan Chase Bank, N.A.
9.6. Several
Obligations; Benefits of this Agreement.
The
respective obligations of the Lenders hereunder are several and not joint
and no
Lender shall be the partner or agent of any other (except to the extent to
which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any
other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than
the
parties to this Agreement and their respective successors and
assigns.
9.7. Expenses;
Indemnification.
The
Borrower shall reimburse the Administrative Agent, and the Arrangers for
any
costs, internal charges and out-of-pocket expenses (including attorneys’ fees
and time charges of attorneys for the Administrative Agent and the Arrangers,
which attorneys may be employees of the Administrative Agent or any Arranger)
paid or incurred by the Administrative Agent or any Arranger in connection
with
the preparation, negotiation, execution, delivery, review, amendment,
modification, syndication and administration of the Loan Documents. The Borrower
also agrees to reimburse the Administrative Agent, the Arrangers and the
Lenders
for any costs, internal charges and out-of-pocket expenses (including attorneys’
fees and time charges of attorneys for the Administrative Agent, the Arrangers
and the Lenders, which attorneys may be employees of the Administrative Agent,
any Arranger or the Lenders) paid or incurred by the Administrative Agent,
any
Arranger or any Lender in connection with the collection and enforcement
of the
Loan Documents. The Borrower further agrees to indemnify the Administrative
Agent, each Arranger and each Lender, its directors, officers and employees
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all expenses of litigation or
preparation therefor whether or not the Administrative Agent, any Arranger
or
any Lender is a party thereto) which any of them may pay or incur arising
out of
or relating to this Agreement, the other Loan Documents, the transactions
contemplated hereby or thereby or the direct or indirect application or proposed
application of the proceeds of any Loan hereunder or the use or intended
use of
any Facility Letter of Credit, except to the extent that they arise out of
the
gross negligence or willful misconduct of the party seeking indemnification.
The
obligations of the Borrower under this Section shall survive the termination
of
this Agreement.
9.8. Numbers
of Documents.
All
statements, notices, closing documents, and requests hereunder shall be
furnished to the Administrative Agent with sufficient counterparts so that
the
Administrative Agent may furnish one to each of the Lenders.
9.9. Accounting.
Except
as provided to the contrary herein, all accounting terms used herein shall
be
interpreted and all accounting determinations hereunder shall be made in
accordance with Agreement Accounting Principles.
9.10. Severability
of Provisions.
Any
provision in any Loan Document that is held to be inoperative, unenforceable,
or
invalid in any jurisdiction shall, as to that jurisdiction, be inoperative,
unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision
in
any other jurisdiction, and to this end the provisions of all Loan Documents
are
declared to be severable.
9.11. Nonliability
of Lenders.
The
relationship between the Borrower and the Lenders and the Administrative
Agent
shall be solely that of borrower and lender. Neither the Administrative Agent
nor any Lender shall have any fiduciary responsibilities to the Borrower.
Neither the Administrative Agent nor any Lender undertakes any responsibility
to
the Borrower to review or inform the Borrower of any matter in connection
with
any phase of the Borrower’s business or operations. The Borrower shall rely
entirely upon its own judgment with respect to its business, and any review,
inspection or supervision of, or information supplied to the Borrower by
the
Administrative Agent or the Lenders is for the protection of the Administrative
Agent and the Lenders and neither the Borrower nor any other Person is entitled
to rely thereon. The Borrower agrees that neither the Administrative Agent
nor
any Lender shall have any liability with respect to, and the Borrower hereby
waives, releases and agrees not to ▇▇▇ for, any punitive, special, indirect
or
consequential damages suffered by the Borrower in connection with, arising
out
of, or in any way related to the Loan Documents or the transactions contemplated
thereby or the relationship established by the Loan Documents, or any act,
omission or event occurring in connection therewith.
9.12. CHOICE
OF LAW.
THE
LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF
LAW
PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS, WITHOUT
REGARD TO CONFLICT OF LAWS PROVISIONS, OF THE STATE OF NEW YORK, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13. CONSENT
TO JURISDICTION.
THE
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
ANY
UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK COUNTY
IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND
THE
BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE
AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS
OF
ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE
ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE
AGENT
OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT
ONLY IN
A COURT IN NEW YORK COUNTY, NEW YORK; PROVIDED,
THAT
SUCH PROCEEDINGS MAY BE BROUGHT IN OTHER COURTS IF JURISDICTION MAY NOT BE
OBTAINED IN A COURT IN NEW YORK COUNTY, NEW YORK.
9.14. WAIVER
OF JURY TRIAL.
THE
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY
JURY IN
ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED
TO,
OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
9.15. Disclosure.
The
Borrower and each Lender hereby (a) acknowledge and agree that JPMorgan Chase
Bank, N.A. and/or its Affiliates from time to time may hold other investments
in, make other loans to or have other relationships with the Borrower,
including, without limitation, in connection with any interest rate hedging
instruments or agreements or swap transactions, and (b) waive any liability
of
JPMorgan Chase Bank, N.A. or such Affiliate to the Borrower or any Lender,
respectively, arising out of or resulting from such investments, loans or
relationships other than liabilities arising out of the gross negligence
or
willful misconduct of JPMorgan Chase Bank, N.A. or its Affiliates.
9.16. Counterparts.
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall
be
effective when it has been executed by the Borrower, the Administrative Agent
and the Lenders and each party has notified the Administrative Agent that
it has
taken such action.
9.17. Confidentiality.
Each
Lender agrees to take normal and reasonable precautions and exercise due
care to
maintain the confidentiality of all information provided to it by the Borrower,
or by the Administrative Agent on the Borrower’s behalf, in connection with this
Agreement or any other Loan Document, and no Lender shall use any such
information for any purpose or in any manner other than pursuant to the terms
contemplated by this Agreement, except to the extent such information (a)
was or
becomes generally available to the public other than as a result of a disclosure
by such Lender, or (b) was or becomes available on a non-confidential basis
from
a source other than the Borrower, provided
that
such source is not bound by a confidentiality agreement with the Borrower
or its
agents known to such Lender; provided,
further,
however,
that
any Lender may disclose such information (i) after being advised by counsel
(including internal counsel), at the request or pursuant to any requirement
of
any governmental or regulatory authority to which such Lender is subject
or in
connection with an examination of such Lender by any such authority; (ii)
pursuant to subpoena or other court process, provided
that, if
it is lawful to do so, such Lender shall give prompt notice to the Borrower
of
service thereof so that the Borrower may seek a protective order or other
appropriate remedy or waive compliance with the provisions of this Section
9.17;
(iii)
after being advised by counsel (including internal counsel), when required
to do
so in accordance with the provisions of any applicable requirement of law;
(iv)
to the extent reasonably required in connection with any litigation or
proceeding involving the Borrower or any of its Subsidiaries to which the
Administrative Agent, any Lender or their respective Affiliates may be party,
(v) to the extent reasonably required in connection with the exercise of
any
remedy hereunder or under any other Loan Document, (vi) to such Lender’s
independent auditors and other professional advisors as to which such
information has been identified as confidential, and (vii) to such Lender’s
Affiliates which have agreed to be bound by the same confidentiality obligations
as apply to such Lender.
9.18. USA
PATRIOT Act.
Each
Lender that is subject to the requirements of the USA PATRIOT Act (Title
III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act") hereby notifies
the Borrower that pursuant to the requirements of the Act, it is required
to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the
Act.
ARTICLE
X
THE
ADMINISTRATIVE AGENT
10.1. Appointment.
JPMorgan Chase Bank, N.A. is hereby appointed Administrative Agent hereunder
and
under each other Loan Document, and each of the Lenders authorizes the
Administrative Agent to act as the administrative agent of such Lender. The
Administrative Agent agrees to act as such upon the express conditions contained
in this Article
X.
The
Administrative Agent shall not have a fiduciary relationship in respect of
the
Borrower or any Lender by reason of this Agreement.
10.2. Powers.
The
Administrative Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Administrative Agent by the
terms
of each thereof, together with such powers as are reasonably incidental thereto.
The Administrative Agent shall have no implied duties to the Lenders, or
any
obligation to the Lenders to take any action thereunder, except any action
specifically provided by the Loan Documents to be taken by the Administrative
Agent.
10.3. General
Immunity.
Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to the Borrower or any Lender for any action taken or omitted
to
be taken by it or them hereunder or under any other Loan Document or in
connection herewith or therewith except for its or their own gross negligence
or
willful misconduct.
10.4. No
Responsibility for Loans, Recitals, etc.
Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or
verify
(a) any statement, warranty or representation made in connection with any
Loan
Document or any borrowing hereunder, (b) the performance or observance of
any of
the covenants or agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish information directly
to each Lender; (c) the satisfaction of any condition specified in Article
IV,
except
receipt of items required to be delivered to the Administrative Agent and
not
waived at closing, or (d) the validity, effectiveness, sufficiency,
enforceability or genuineness of any Loan Document or any other instrument
or
writing furnished in connection therewith. The Administrative Agent shall
have
no duty to disclose to the Lenders information that is not required to be
furnished by the Borrower to the Administrative Agent at such time, but is
voluntarily furnished by the Borrower to the Administrative Agent (either
in its
capacity as Administrative Agent or in its individual
capacity).
10.5. Action
on Instructions of Lenders.
The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and under any other Loan Document in
accordance with written instructions signed by the Required Lenders (or, to
the
extent required by Section
8.2,
all
Lenders), and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders and on all holders of Notes.
The
Administrative Agent shall be fully justified in failing or refusing to take
any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
10.6. Employment
of Agents and Counsel.
The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents
and
attorneys-in-fact and shall not be answerable to the Lenders, except as to
money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning all matters pertaining to the agency hereby created and its duties
hereunder and under any other Loan Document. The Administrative Agent may
perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all its duties
and exercise its rights and powers through their respective Related Parties.
The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with
the
syndication of the credit facility provided for herein as well as activities
as
Administrative Agent.
10.7.
Reliance
on Documents; Counsel.
The
Administrative Agent shall be entitled to rely upon any Note, notice, consent,
certificate, affidavit, letter, telegram, statement, paper or document believed
by it to be genuine and correct and to have been signed or sent by the proper
person or persons, and, in respect to legal matters, upon the opinion of counsel
selected by the Administrative Agent, which counsel may be employees of the
Administrative Agent.
10.8 Administrative
Agent’s Reimbursement and Indemnification.
The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Commitments (or, if the Commitments have been
terminated, in proportion to their Commitments immediately prior to such
termination) (a) for any amounts not reimbursed by the Borrower for which the
Administrative Agent is entitled to reimbursement by the Borrower under the
Loan
Documents, (b) for any other expenses incurred by the Administrative Agent
on
behalf of the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents, and (c) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may
be
imposed on, incurred by or asserted against the Administrative Agent in any
way
relating to or arising out of the Loan Documents or any other document delivered
in connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents;
provided,
that no
Lender shall be liable for any of the foregoing to the extent they arise from
the gross negligence or willful misconduct of the Administrative Agent. The
obligations of the Lenders under this Section
10.8
shall
survive payment of the Obligations and termination of this
Agreement.
10.9. Notice
of Default.
The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Unmatured Default hereunder unless the
Administrative Agent has received written notice from a Lender or the Borrower
referring to this Agreement describing such Default or Unmatured Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
give
prompt notice thereof to the Lenders.
10.10. Rights
as a Lender.
In the
event the Administrative Agent is a Lender, the Administrative Agent shall
have
the same rights and powers hereunder and under any other Loan Document as any
Lender and may exercise the same as though it were not the Administrative Agent,
and the term "Lender" or "Lenders" shall, at any time when the Administrative
Agent is a Lender, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
accept deposits from, lend money to, and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not restricted hereby
from engaging with any other Person. The Administrative Agent, in its individual
capacity, is not obligated to remain a Lender.
10.11. Lender
Credit Decision.
Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on the financial statements
prepared by the Borrower and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this
Agreement and the other Loan Documents. Each Lender also acknowledges that
it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or
not taking action under this Agreement and the other Loan
Documents.
10.12. Successor
Administrative Agent.
The
Administrative Agent may resign at any time by giving written notice thereof
to
the Lenders and the Borrower, such resignation to be effective upon the
appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five days after the retiring
Administrative Agent gives notice of its intention to resign. Upon any such
resignation, the Required Lenders shall have the right to appoint, on behalf
of
the Lenders, a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty days after the resigning Administrative
Agent’s giving notice of its intention to resign, then the resigning
Administrative Agent may appoint, on behalf of the Borrower and the Lenders,
a
successor Administrative Agent. If the Administrative Agent has resigned and
no
successor Administrative Agent has been appointed, the Lenders may perform
all
the duties of the Administrative Agent hereunder and the Borrower shall make
all
payments in respect of the Obligations to the applicable Lender and for all
other purposes shall deal directly with the
Lenders.
No successor Administrative Agent shall be deemed to be appointed hereunder
until such successor Administrative Agent has accepted the appointment. Any
such
successor Administrative Agent shall be a commercial bank having capital and
retained earnings of at least $50,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning
Administrative Agent. Upon the effectiveness of the resignation of the
Administrative Agent, the resigning Administrative Agent shall be discharged
from its duties and obligations hereunder and under the Loan Documents. After
the effectiveness of the resignation of an Administrative Agent, the provisions
of this Article
X
shall
continue in effect for its benefit in respect of any actions taken or omitted
to
be taken by it while it was acting as the Administrative Agent hereunder and
under the other Loan Documents.
10.13. Syndication
Agent; Documentation Agents.
Any
Lender identified in this Agreement as a Syndication Agent or a Documentation
Agent shall not have any right, power, obligation, liability, responsibility
or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of such Lenders shall have or be deemed
to
have a fiduciary relationship with any Lender. Each Lender hereby makes the
same
acknowledgments with respect to such Lenders as it makes with respect to the
Administrative Agent in Section
10.11.
ARTICLE XI
SETOFF;
RATABLE PAYMENTS
11.1. Setoff.
In
addition to, and without limitation of, any rights of the Lenders under
applicable law, if the Borrower becomes insolvent, however evidenced, or any
Default or Unmatured Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender
to
or for the credit or account of the Borrower may be offset and applied toward
the payment of the Obligations owing to such Lender, whether or not the
Obligations, or any part hereof, shall then be due.
11.2. Ratable
Payments.
If any
Lender, whether by setoff or otherwise, has payment made to it upon its Loans
(other than payments received pursuant to Section
3.1,
3.2
or
3.4)
in a
greater proportion than its pro-rata share of such Loans, such Lender agrees,
promptly upon demand, to purchase a portion of the Loans held by the other
Lenders so that after such purchase each Lender will hold its ratable proportion
of Loans. If any Lender, whether in connection with setoff or amounts which
might be subject to setoff or otherwise, receives collateral or other protection
for its Obligations or such amounts which may be subject to setoff, such Lender
agrees, promptly upon demand, to take such action necessary such that all
Lenders share in the benefits of such collateral ratably in proportion to their
Loans. In case any such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made. If an amount to be setoff is
to
be applied to Indebtedness of the Borrower to a Lender, other than Indebtedness
evidenced by any of the Notes held by such Lender, such amount shall be applied
ratably to such other Indebtedness and to the Indebtedness evidenced by such
Notes.
ARTICLE
XII
BENEFIT
OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors
and Assigns.
The
terms and provisions of the Loan Documents shall be binding upon and inure
to
the benefit of the Borrower and the Lenders and their respective successors
and
assigns, except that (a) the Borrower shall not have the right to assign its
rights or obligations under the Loan Documents, and (b) any assignment by any
Lender must be made in compliance with Section
12.3.
Notwithstanding clause
(b)
of this
Section, any Lender may at any time, without the consent of the Borrower or
the
Administrative Agent, assign all or any portion of its rights under this
Agreement and its Notes to a Federal Reserve Bank; provided,
however,
that no
such assignment to a Federal Reserve Bank shall release the transferor Lender
from its obligations hereunder. The Administrative Agent may treat the payee
of
any Note as the owner thereof for all purposes hereof unless and until such
payee complies with Section
12.3
in the
case of an assignment thereof or, in the case of any other transfer, a written
notice of the transfer is filed with the Administrative Agent. Any assignee
or
transferee of a Note agrees by acceptance thereof to be bound by all the terms
and provisions of the Loan Documents. Any request, authority or consent of
any
Person, who at the time of making such request or giving such authority or
consent is the holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
12.2. Participations.
12.2.1.
Permitted
Participants; Effect.
Any
Lender may, in the ordinary course of its business and in accordance with
applicable law, at any time sell to one or more banks or other entities
("Participants")
participating interests in any Loan owing to such Lender, any Note held by
such
Lender, any Lender’s interest in any Facility Letter of Credit Obligation, any
Commitment of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender’s obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the holder of any such Note for all purposes under the Loan Documents, all
amounts payable by the Borrower under this Agreement shall be determined as
if
such Lender had not sold such participating interests, and the Borrower and
the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under the Loan
Documents.
12.2.2.
Voting
Rights.
Each
Lender shall retain the sole right to approve, without the consent of any
Participant, any amendment, modification or waiver of any provision of the
Loan
Documents other than any amendment, modification or waiver which effects any
of
the modifications referenced in clauses (a) through (g) of Section
8.2.
12.2.3.
Benefit
of Setoff.
The
Borrower agrees that each Participant shall be deemed to have the right of
setoff provided in Section
11.1
in
respect of its participating interest in amounts owing under the Loan Documents
to the same extent as if the amount of its
participating
interest were owing directly to it as a Lender under the Loan Documents;
provided,
that
each Lender shall retain the right of setoff provided in Section
11.1
with
respect to the amount of participating interests sold to each Participant.
The
Lenders agree to share with each Participant, and each Participant, by
exercising the right of setoff provided in Section
11.1,
agrees
to share with each Lender, any amount received pursuant to the exercise of
its
right of setoff, such amounts to be shared in accordance with Section
11.2
as if
each Participant were a Lender.
12.3. Assignments.
12.3.1.
Permitted
Assignments.
Any
Lender may, in the ordinary course of its business and in accordance with
applicable law, at any time assign to one or more banks or other entities
("Purchasers")
all or
any part of its rights and obligations under the Loan Documents; provided,
however,
that in
the case of an assignment to an entity which is not a Lender or an Affiliate
of
a lender, such assignment shall be in a minimum amount of $5,000,000 (or less
if
such amount is the entire amount of such assigning Lender’s Commitment). Such
assignment shall be substantially in the form of Exhibit
H
hereto
or in such other form as may be agreed to by the parties thereto. The consent
of
the Administrative Agent, the Issuer and, so long as no Default is continuing,
the Borrower shall be required prior to an assignment becoming effective with
respect to a Purchaser. Such consent shall not be unreasonably
withheld.
12.3.2.
Effect;
Effective Date.
Upon
(a) delivery to the Administrative Agent of a notice of assignment,
substantially in the form attached as Exhibit I to Exhibit
H
hereto
(a "Notice
of Assignment"),
together with any consents required by Section
12.3.1,
and (b)
payment of a $3,500 fee to the Administrative Agent for processing such
assignment, such assignment shall become effective on the effective date
specified in such Notice of Assignment. On and after the effective date of
such
assignment, (a) such Purchaser shall for all purposes be a Lender party to
this
Agreement and any other Loan Document executed by the Lenders and shall have
all
the rights and obligations of a Lender under the Loan Documents, to the same
extent as if it were an original party hereto, and (b) the transferor Lender
shall be released with respect to the percentage of the Aggregate Commitment
and
Loans assigned to such Purchaser without any further consent or action by the
Borrower, the Lenders or the Administrative Agent. Upon the consummation of
any
assignment to a Purchaser pursuant to this Section
12.3.2,
the
transferor Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that replacement Notes are issued to such transferor
Lender and new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case, to the extent applicable, in principal amounts
reflecting their Commitment, as adjusted pursuant to such
assignment.
12.4. Dissemination
of Information.
The
Borrower authorizes each Lender to disclose to any Participant or Purchaser
or
any other Person acquiring an interest in the Loan Documents by operation of
law
(each a "Transferee")
and
any prospective Transferee any and all information in such Lender’s possession
concerning the creditworthiness of the Borrower and its
Subsidiaries.
12.5. Tax
Treatment.
If any
interest in any Loan Document is transferred to any Transferee which is
organized under the laws of any jurisdiction other than the United States or
any
State thereof, the transferor Lender shall cause such Transferee, concurrently
with the effectiveness of such transfer, to comply with the provisions of
Section
2.17.
ARTICLE XIII
NOTICES
13.1. Giving
Notice.
Except
as otherwise permitted by Section
2.12
with
respect to borrowing notices, all notices and other communications provided
to
any party hereto under this Agreement or any other Loan Document shall be in
writing, by facsimile, first class U.S. mail or overnight courier and addressed
or delivered to such party at its address set forth below its signature hereto
or at such other address as may be designated by such party in a notice to
the
other parties. Any notice, if mailed and properly addressed with first class
postage prepaid, return receipt requested, shall be deemed given three (3)
Business Days after deposit in the U.S. mail; any notice, if transmitted by
facsimile, shall be deemed given when transmitted; and any notice given by
overnight courier shall be deemed given when received by the
addressee.
13.2. Change
of Address.
The
Borrower, the Administrative Agent and any Lender may each change the address
for service of notice upon it by a notice in writing to the other parties
hereto.
[signature
pages to follow]
IN
WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent have
executed this Agreement as of the date first above written.
RALCORP
HOLDINGS, INC.
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇
Print
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Corporate Vice President and Treasurer
Address:
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Treasurer
Telecopy: (▇▇▇)
▇▇▇-▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
JPMORGAN
CHASE BANK, N.A.,
Individually
and as Administrative Agent
By:
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Print
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Vice President
Address:
IL1-0364
▇▇
▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Telecopy:
(▇▇▇)
▇▇▇-▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
CITIBANK,
N.A.,
Individually
and as Syndication Agent
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇
Print
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President
Address:
Phone:
Fax:
CITIBANK,
N.A.,
Individually
and as Syndication Agent
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇
Print
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Director
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
WACHOVIA
BANK, NATIONAL
ASSOCIATION,
Individually
and as Documentation Agent
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Print
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate
Address: ▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone:
(▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
U.S.
BANK
NATIONAL ASSOCIATION,
Individually
and as Documentation Agent
By:
/s/ ▇▇▇▇
▇▇▇▇▇▇▇
Print
Name: ▇▇▇▇
▇▇▇▇▇▇▇
Title: Senior
Vice President
Address:
▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
SUNTRUST
BANK,
Individually
and as Documentation Agent
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Print
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Managing Director
Address:
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail
Code
▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Phone:
(▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
PNC
BANK,
NATIONAL ASSOCIATION,
Individually
and as Documentation Agent
By:
/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Print
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
Vice President
▇▇▇▇▇▇
▇.▇.,
Individually
as Lender
By:
/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Print
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Vice President
Address:
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
Attention:
▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
COBANK,
ACB,
Individually
and as Lender
By:
/s/ S. ▇▇▇▇▇▇▇
▇▇▇▇
Print
Name: S. ▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Vice President
Address: ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention:
S. ▇▇▇▇▇▇▇
▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
COMMERCE
BANK, N.A.,
Individually
and as Documentation Agent
By:
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇
Print
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Assistant Vice President
Address: ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇.
▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇