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EXHIBIT 4.1
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LONG TERM CREDIT AGREEMENT
Dated as of July 10, 1998
among
REPUBLIC SERVICES, INC.,
THE CHASE MANHATTAN BANK,
THE FIRST NATIONAL BANK OF CHICAGO,
AND
NATIONSBANK, N.A.,
as Documentation Agents,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ SECURITIES INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
and
NATIONSBANK ▇▇▇▇▇▇▇▇▇▇ SECURITIES, INC.
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LONG TERM CREDIT AGREEMENT
This LONG TERM CREDIT AGREEMENT is entered into as of July 10, 1998,
among REPUBLIC SERVICES, INC., a Delaware corporation (the "COMPANY"), the
several financial institutions from time to time party to this Agreement
(collectively the "LENDERS"; individually each a "LENDER") and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as administrative agent for the Lenders.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. The following terms have the
following meanings:
ABSOLUTE RATE - see SUBSECTION 2.6(c)(ii)(D).
ABSOLUTE RATE AUCTION means a solicitation of Competitive Bids
setting forth Absolute Rates pursuant to SECTION 2.6.
ABSOLUTE RATE BID LOAN means a Bid Loan that bears interest at
a rate determined with reference to the Absolute Rate.
ACQUIRED PLAN means any Plan which was originally established
and maintained by a Person other than the Company or an ERISA Affiliate
and which became, or hereafter becomes, a Plan as a result of an
Acquisition by the Company or any Subsidiary.
ACQUISITION means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of all or substantially all of any business or division of a
Person, (b) the acquisition of in excess of 50% of the capital stock,
partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than
a Person that is a Subsidiary) provided that the Company or the
Subsidiary is the surviving entity.
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ADJUSTED PRO RATA SHARE means for any Lender at any time the
proportion (expressed as a decimal, rounded to the ninth decimal place)
which such Lender's Commitment constitutes of the combined Commitments
(or, after the Commitments have terminated, which (i) the principal
amount of such Lender's Loans PLUS (without duplication) the
participation of such Lender in (or in the case of an Issuing Lender or
the Swing Line Lender, its unparticipated portion of) the Effective
Amount of all L/C Obligations and the principal amount of all Swing
Line Loans constitutes of (ii) the aggregate principal amount of all
Loans PLUS (without duplication) the Effective Amount of all L/C
Obligations).
ADMINISTRATIVE AGENT means BofA in its capacity as agent for
the Lenders hereunder, and any successor agent arising under SECTION
10.9.
ADMINISTRATIVE AGENT-RELATED PERSONS means BofA and any
successor agent arising under SECTION 10.9 and any successor letter of
credit issuing bank hereunder, together with their respective
Affiliates (including, in the case of BofA, BRS), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
ADMINISTRATIVE AGENT'S PAYMENT OFFICE means the address for
payments set forth on SCHEDULE 11.2 or such other address as the
Administrative Agent may from time to time specify by notice to the
Company and the Lenders.
AFFILIATE means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities or membership interests, by contract or
otherwise.
AGREEMENT means this Credit Agreement.
APPLICABLE MARGIN - see SCHEDULE 1.1.
ASSIGNEE - see SUBSECTION 11.8(a).
ASSIGNMENT AND ACCEPTANCE - see SUBSECTION 11.8(a).
ATTORNEY COSTS means and includes all reasonable fees and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal
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legal services and all reasonable disbursements of internal
counsel.
BANKRUPTCY CODE means the Federal Bankruptcy Reform Act
of 1978 (11 U.S.C. Section 101, ET SEQ.).
BASE RATE means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; or (b) the rate of interest
in effect for such day as publicly announced from time to time by BofA
in San Francisco, California, as its "reference rate." (The "reference
rate" is a rate set by BofA based upon various factors including BofA's
costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which
may be priced at, above or below such announced rate.) Any change in
the reference rate announced by BofA shall take effect at the opening
of business on the day specified in the public announcement of such
change.
BASE RATE COMMITTED LOAN means a Committed Loan, or an L/C
Advance, that bears interest based on the Base Rate.
BID BORROWING means a Borrowing hereunder consisting of one or
more Bid Loans made to the Company on the same day by one or more
Lenders.
BID LOAN means a Loan by a Lender to the Company under SECTION
2.6, which may be a LIBOR Bid Loan or an Absolute Rate Bid Loan.
BOFA means Bank of America National Trust and Savings
Association, a national banking association.
BORROWING means a borrowing hereunder consisting of Committed
Loans of the same Type, or Bid Loans, made to the Company on the same
day by one or more Lenders under ARTICLE II and, other than in the case
of Base Rate Committed Loans, having the same Interest Period. A
Borrowing may be a Bid Borrowing or a Committed Borrowing.
BORROWING DATE means any date on which a Borrowing occurs
under SECTION 2.3 or 2.6 or a Swing Line Loan is made under SECTION
2.16.
BRS means BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a Delaware
corporation.
BUSINESS DAY means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City, Chicago or San
Francisco are authorized or required by law to close and, if the
applicable Business Day relates to
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any Offshore Rate Loan, means such a day on which dealings in Dollars
are carried on in the London interbank market.
CAPITAL ADEQUACY REGULATION means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
CAPITAL LEASE means, with respect to any Person, any lease of
(or other agreement conveying the right to use) any real or personal
property by such Person that, in conformity with GAAP, is accounted for
as a capital lease on the balance sheet of such Person.
CASH COLLATERALIZE means to pledge and deposit with or deliver
to the Administrative Agent, for the benefit of the Administrative
Agent, the Issuing Lenders and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation
in form and substance satisfactory to the Administrative Agent and the
Required Lenders. Derivatives of such term shall have corresponding
meanings. Cash collateral shall be maintained in blocked accounts at
the Administrative Agent or, with the Administrative Agent's consent,
the applicable Issuing Lender.
CHANGE OF CONTROL means (i) if any Person or group of Persons
acting in concert (other than a Specified Person) shall own or control,
directly or indirectly, more than 20% (or, if greater, the percentage
owned by the Specified Person holding the largest percentage) of the
outstanding securities (on a fully diluted basis and taking into
account any securities or contract rights exercisable, exchangeable or
convertible into equity securities) of the Company having voting rights
in the election of directors; or (ii) at any time after the Divestiture
Date, a majority of the members of the Board of Directors of the
Company shall cease to be Continuing Members. For purposes of CLAUSE
(i) above, "Specified Person" means Republic Industries, Inc. or a
Subsidiary thereof or any Person or group of Persons which, as of the
date of this Agreement, owns and controls more than 20% of the
outstanding securities (on a fully diluted basis and taking into
account any securities or contract rights exercisable, exchangeable or
convertible into equity securities) of Republic Industries, Inc. having
voting rights in the election of directors.
CODE means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
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COMMITMENT - see SECTION 2.1. As of the Effective Date, the
amount of the combined Commitments of all Lenders is $500,000,000.
COMMITTED BORROWING means a Borrowing hereunder consisting of
Committed Loans made by the Lenders ratably according to their
respective Pro Rata Shares.
COMMITTED LOAN means a Loan by a Lender to the Company under
SECTION 2.1, which may be a Base Rate Committed Loan or an Offshore
Rate Committed Loan (each a "TYPE" of Committed Loan).
COMPANY - see the PREAMBLE.
COMPETITIVE BID means an offer by a Lender to make a Bid Loan
in accordance with SUBSECTION 2.6(c).
COMPETITIVE BID REQUEST - see SUBSECTION 2.6(a).
COMPLIANCE CERTIFICATE means a certificate substantially in
the form of EXHIBIT F.
COMPUTATION PERIOD means any period of four consecutive fiscal
quarters ending on the last day of a fiscal quarter.
CONSOLIDATED EBITDA means, with respect to the Company and its
Subsidiaries for any period of computation thereof during such period,
the sum of, without duplication, (i) Consolidated Net Income, plus (ii)
Consolidated Interest Expense during such period, plus (iii) taxes on
income during such period, plus (iv) amortization during such period,
plus (v) depreciation during such period, determined, to the extent
applicable as a result of Acquisitions during such period, on a pro
forma basis in accordance with Article 11 of Regulation S-X of the SEC.
CONSOLIDATED INTEREST EXPENSE means, with respect to any
period of computation thereof, the gross interest expense of the
Company and its Subsidiaries, including, without limitation, (i) the
amortization of debt discounts, (ii) the amortization of all fees
payable in connection with the incurrence of Indebtedness to the extent
included in interest expense, (iii) the portion of any liabilities
incurred in connection with Capital Leases allocable to interest
expense and (iv) consolidated yield or discount accrued on the
aggregate outstanding investment or claim held by purchasers, assignees
or other transferees of (or of interests in) receivables of the Company
and its Subsidiaries in connection with any Securitization Transaction
(regardless of the accounting treatment of such Securitization
Transaction).
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CONSOLIDATED NET INCOME means, for any period of computation
thereof, the gross revenues from operations of the Company and its
Subsidiaries, less all operating and non-operating expenses of the
Company and its Subsidiaries, including taxes on income but excluding
all non-cash, non-recurring and all extraordinary gains or losses.
CONSOLIDATED SHAREHOLDERS' EQUITY means consolidated
shareholder's equity as shown on the Company's balance sheet, EXCLUDING
the amount of any foreign currency translation adjustment which is
included in the equity section of such balance sheet (whether positive
or negative) and MINUS all loans and advances by the Company or any
Subsidiary to any Affiliate (other than the Company or a Subsidiary).
CONSOLIDATED TANGIBLE ASSETS means the consolidated total
assets of the Company and its Subsidiaries but excluding goodwill,
franchises, licenses, patents, trademarks, trade names, copyrights and
any other intangible assets.
CONTINGENT OBLIGATION means, as to any Person, any direct or
indirect liability of such Person, whether or not contingent, (a) with
respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of such Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any
security therefor, (ii) to advance or provide funds for the payment or
discharge of any such primary obligation, or to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level of
income or financial condition of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation, or (iv) otherwise
to assure or hold harmless the holder of any such primary obligation
against loss in respect thereof (each a "GUARANTY OBLIGATION"); (b)
with respect to any Surety Instrument issued for the account of such
Person or as to which such Person is otherwise liable for reimbursement
of drawings or payments; or (c) to purchase any materials, supplies or
other property from, or to obtain the services of, another Person if
the relevant contract or other related document or obligation requires
that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such
materials, supplies or other property is ever made or tendered, or such
services are ever performed or tendered. The amount of any Contingent
Obligation shall
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(a) in the case of Guaranty Obligations, be deemed equal to the stated
or determinable amount of the primary obligation in respect of which
such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof, and (b) in the case of other Contingent Obligations, be equal
to the maximum reasonably anticipated liability in respect thereof.
CONTINUING MEMBER means a member of the Board of Directors of
the Company who either (a) was a member of the Company's Board of
Directors on the day before the Divestiture Date and has been such
continuously thereafter or (b) became a member of such Board of
Directors after the day before the Divestiture Date and whose election
or nomination for election was approved by a vote of the majority of
the Continuing Members then members of the Company's Board of
Directors.
CONTRACTUAL OBLIGATION means, as to any Person, any provision
of any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other document to which
such Person is a party or by which it or any of its property is bound.
CONVERSION/CONTINUATION DATE means any date on which, under
SECTION 2.4, the Company (a) converts Committed Loans of one Type to
the other Type or (b) continues Offshore Rate Committed Loans for a new
Interest Period.
CREDIT EXTENSION means and includes (a) the making of any Loan
hereunder and (b) the Issuance of any Letter of Credit hereunder.
CUMULATIVE CONSOLIDATED NET INCOME means the total of
Consolidated Net Income for all fiscal quarters ending after March 31,
1998 EXCLUDING any fiscal quarter in which Consolidated Net Income is
negative.
DIVESTITURE DATE means the date on which Republic Industries,
Inc. and/or its Subsidiaries cease to own and control more than 50% of
the outstanding securities (on a fully diluted basis and taking into
account any securities or contract rights exercisable, exchangeable or
convertible into equity securities) of the Company having voting rights
in the election of directors.
DOLLARS, dollars and $ each mean lawful money of the United
States.
EFFECTIVE AMOUNT means, with respect to any outstanding L/C
Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any
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Issuances of Letters of Credit occurring on such date, any other
changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements of outstanding unpaid
drawings under any Letter of Credit or any reduction in the maximum
amount available for drawing under Letters of Credit taking effect on
such date.
EFFECTIVE DATE - see SECTION 5.1.
ELIGIBLE ASSIGNEE means (a) a commercial bank organized under
the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $500,000,000; (b) a commercial
bank organized under the laws of any other country which is a member of
the Organization for Economic Cooperation and Development (the OECD),
or a political subdivision of any such country, and having a combined
capital and surplus of at least $500,000,000, provided that such bank
is acting through a branch or agency located in the United States; and
(c) a Person that is primarily engaged in the business of commercial
lending and that is (i) a Lender, (ii)a Subsidiary of a Lender, (iii) a
Subsidiary of a Person of which a Lender is a Subsidiary, or (iv) a
Person of which a Lender is a Subsidiary.
ENVIRONMENTAL CLAIMS means all written claims, however
asserted, by any Governmental Authority or other Person alleging
potential liability or responsibility for violation of any
Environmental Law, or for release or injury to the environment.
ENVIRONMENTAL LAWS means all federal, state, local or
municipal laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative or judicial
orders, directed duties, requests, licenses, authorizations and permits
of, and agreements with, any Governmental Authorities, in each case
relating to environmental matters.
ERISA means the Employee Retirement Income Security Act of
1974, and the regulations promulgated thereunder.
ERISA AFFILIATE means any trade or business (whether or not
incorporated) under common control with the Company within the meaning
of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of
the Code for purposes of provisions relating to Section 412 of the
Code).
ERISA EVENT means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a
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substantial cessation of operations which is treated as such a
withdrawal; (c) a complete or partial withdrawal by the Company or any
ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate a Pension Plan under Section 4041(c) of ERISA, the
termination of a Multiemployer Plan under 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any ERISA
Affiliate.
EVENT OF DEFAULT means any of the events or circumstances
specified in SECTION 9.1; provided that any requirement of notice or
lapse of time (or both) has been satisfied.
EXISTING LETTERS OF CREDIT means the letters of credit listed
on SCHEDULE 3.3.
FACILITY FEE RATE - see SCHEDULE 1.1.
FEDERAL FUNDS RATE means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the
Administrative Agent.
FRB means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
FURTHER TAXES means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings or
similar charges (including net income taxes and franchise taxes), and
all liabilities with respect thereto, imposed by any jurisdiction on
account of amounts payable or paid pursuant to SECTION 4.1.
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GAAP means generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date
of determination.
GOVERNMENTAL AUTHORITY means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
GUARANTY OBLIGATION has the meaning specified in the
definition of Contingent Obligation.
HONOR DATE has the meaning specified in SUBSECTION 3.3(b).
INDEBTEDNESS of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money; (b) all obligations
issued, undertaken or assumed by such Person as the deferred purchase
price of property or services (other than trade payables entered into
in the ordinary course of business on ordinary terms); (c) all
reimbursement or payment obligations of such Person with respect to
Surety Instruments; (d) all obligations of such Person evidenced by
notes, bonds, debentures or similar instruments; (e) all indebtedness
of such Person created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case
with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property);
(f) all obligations of such Person with respect to Capital Leases; (g)
all indebtedness of the types referred to in CLAUSES (a) through (f)
above secured by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien
upon or in property (including accounts and contracts rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Indebtedness, provided that the amount of any
such Indebtedness shall be deemed to be the lesser of the face
principal amount thereof and the fair market value of the property
subject to such Lien; and (h) all Guaranty
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Obligations of such Person in respect of Indebtedness of the types
described above; PROVIDED that Indebtedness shall not include
obligations arising out of the endorsement of instruments for deposit
or collection in the ordinary course of business. For all purposes of
this Agreement, the Indebtedness of any Person shall include all
Indebtedness of any partnership or joint venture in which such Person
is a general partner or a joint venturer (other than any such
Indebtedness which is expressly non-recourse to such Person).
INDEMNIFIED LIABILITIES - see SECTION 11.5.
INDEMNIFIED PERSON - see SECTION 11.5.
INDEPENDENT AUDITOR - see SUBSECTION 7.1(a).
INSOLVENCY PROCEEDING means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any
court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors,
or other, similar arrangement in respect of its creditors generally or
any substantial portion of its creditors; in each case undertaken under
any U.S. Federal, state or foreign law, including the Bankruptcy Code.
INTEREST PAYMENT DATE means, as to any Loan other than a Base
Rate Committed Loan or Swing Line Loan, the last day of each Interest
Period applicable to such Loan and, as to any Base Rate Committed Loan
or Swing Line Loan, the last Business Day of each calendar quarter,
PROVIDED that if any Interest Period for an Offshore Rate Committed
Loan exceeds three months, each three-month anniversary of the first
day of such Interest Period also shall be an Interest Payment Date.
INTEREST PERIOD means, (a) as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the date on
which such Loan is converted into or continued as an Offshore Rate
Loan, and ending on the date seven days, one, two, three or six months
thereafter as selected by the Company in its Notice of Committed
Borrowing, Notice of Conversion/Continuation or Competitive Bid
Request, as the case may be; and (b) as to any Absolute Rate Bid Loan,
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a period not less than 7 days and not more than 183 days as selected by
the Company in the applicable Competitive Bid Request; PROVIDED that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the following Business Day unless, in the case of
an Offshore Rate Loan, the result of such extension would be
to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the preceding
Business Day;
(ii) any Interest Period for an Offshore Rate
Committed Loan that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend
beyond the Termination Date.
INVITATION FOR COMPETITIVE BIDS means a solicitation for
Competitive Bids, substantially in the form of EXHIBIT D.
IPO means the initial public offering of common stock of the
Company.
IRS means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
ISSUANCE DATE has the meaning specified in SUBSECTION 3.1(a).
ISSUE means, with respect to any Letter of Credit, to issue or
to extend the expiry of, or to renew or increase the amount of, such
Letter of Credit; and the terms "ISSUED," "ISSUING" and "ISSUANCE" have
corresponding
meanings.
ISSUING LENDER means each of BofA and The First National Bank
of Chicago in its capacity as issuer of one or more Letters of Credit
hereunder, together with (i) any replacement letter of credit issuer
arising under SUBSECTION 10.1(b) or SECTION 10.9 and (ii) any other
Lender or any Affiliate of a Lender which, with the written consents of
the Administrative Agent (which consent will not be unreasonably
withheld) and the Company, has agreed in writing to become an "Issuing
Lender" hereunder.
L/C ADVANCE means each Lender's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
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L/C AMENDMENT APPLICATION means an application form for
amendment of an outstanding standby letter of credit as shall at any
time be in use by the applicable Issuing Lender, as such Issuing Lender
shall request.
L/C APPLICATION means an application form for issuance of a
standby letter of credit as shall at any time be in use by the
applicable Issuing Lender, as such Issuing Lender shall request.
L/C BORROWING means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed
on the date when made nor converted into a Borrowing of Committed Loans
under SUBSECTION 3.3(d).
L/C COMMITMENT means the commitment of the Issuing Lenders to
Issue, and the commitment of the Lenders severally to participate in,
Letters of Credit from time to time Issued or outstanding under ARTICLE
III (including the Existing Letters of Credit) in an aggregate amount
not to exceed on any date the lesser of (a) $250,000,000 or (b) the
combined Commitments; it being understood that the L/C Commitment is a
part of the combined Commitments rather than a separate, independent
commitment.
L/C FEE RATE - see SCHEDULE 1.1.
L/C OBLIGATIONS means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the
amount of all unreimbursed drawings under all Letters of Credit,
including all outstanding L/C Borrowings.
L/C-RELATED DOCUMENTS means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the applicable
Issuing Lender's standard form documents for letter of credit
issuances.
LENDER - see the PREAMBLE. References to the "Lenders" shall
include BofA in its capacity as Swing Line Lender and each Issuing
Lender in its capacity as such; for purposes of clarification only, to
the extent that the Swing Line Lender or any Issuing Lender may have
any rights or obligations in addition to those of the other Lenders due
to its status as Swing Line Lender or Issuing Lender, its status as
such will be specifically referenced.
LENDING OFFICE means, as to any Lender, the office or offices
of such Lender specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, on SCHEDULE
11.2, or such other office or
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offices as such Lender may from time to time notify the Company and the
Administrative Agent.
LETTER OF CREDIT means each Existing Letter of Credit and any
other standby letter of credit Issued by an Issuing Lender pursuant to
ARTICLE III.
LIBOR - see the definition of Offshore Rate.
LIBOR AUCTION means a solicitation of Competitive Bids setting
forth a LIBOR Bid Margin pursuant to SECTION 2.6.
LIBOR BID LOAN means any Bid Loan that bears interest at a
rate based upon the Offshore Rate.
LIBOR BID MARGIN - see SUBSECTION 2.6(c)(ii)(C).
LIEN means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
Capital Lease, or any financing lease having substantially the same
economic effect as any of the foregoing, but not including the interest
of a lessor under an operating lease).
LOAN means an extension of credit by a Lender to the Company
under ARTICLE II or ARTICLE III in the form of a Committed Loan, Bid
Loan, Swing Line Loan or L/C Advance.
LOAN DOCUMENTS means this Agreement, any Notes, the
L/C-Related Documents and all other documents delivered to the
Administrative Agent or any Lender in connection herewith.
MARGIN STOCK means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
MATERIAL ADVERSE EFFECT means a material adverse change in, or
a material adverse effect upon, the operations, business, properties,
assets or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole.
MATERIAL FINANCIAL OBLIGATIONS means Indebtedness or
Contingent Obligations of the Company or any Subsidiary, or obligations
of the Company or any Subsidiary in respect of any Securitization
Transaction, in an aggregate amount (for all applicable Indebtedness,
Contingent Obligations and
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obligations in respect of Securitization Transactions, but
without duplication) equal to $25,000,000 or more.
MULTIEMPLOYER PLAN means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, with respect to which the
Company or any ERISA Affiliate may have any liability.
NOTE means a promissory note executed by the Company in favor
of a Lender pursuant to SUBSECTION 2.2(b), in substantially the form of
EXHIBIT I.
NOTICE OF COMMITTED BORROWING means a notice in substantially
the form of EXHIBIT A.
NOTICE OF CONVERSION/CONTINUATION means a notice in
substantially the form of EXHIBIT B.
NOTICE OF SWING LINE LOAN means a notice substantially in the
form of EXHIBIT J.
OBLIGATIONS means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing
by the Company to any Lender, the Administrative Agent or any other
Indemnified Person, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
or now existing or hereafter arising.
OFFSHORE RATE means, for any Interest Period, with respect to
Offshore Rate Committed Loans comprising part of the same Borrowing,
the rate of interest per annum (rounded upward to the next 1/32nd of
1%) determined by the Administrative Agent as follows:
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"EURODOLLAR RESERVE PERCENTAGE" means for any day for
any Interest Period the maximum reserve percentage (expressed
as a decimal, rounded upward, if necessary, to an integral
multiple of 1/100th of 1%) in effect on such day (whether or
not applicable to any Lender) under regulations issued from
time to time by the FRB for determining the maximum reserve
requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities");
and
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"LIBOR" means the rate of interest per annum
determined by the Administrative Agent to be the rate of
interest at which dollar deposits in the approximate amount of
the Loan to be made or continued as, or converted into, an
Offshore Rate Committed Loan by BofA (or, in the case of a
Borrowing of LIBOR Bid Loans in which BofA is not
participating, the largest such LIBOR Bid Loan) and having a
maturity comparable to such Interest Period would be offered
to prime banks in the London interbank market at their request
at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Committed Loans then outstanding as of the effective date of any
change in the Eurodollar Reserve Percentage.
OFFSHORE RATE COMMITTED LOAN means a Committed Loan that bears
interest based on the Offshore Rate.
OFFSHORE RATE LOAN means any LIBOR Bid Loan or any Offshore
Rate Committed Loan.
ORGANIZATION DOCUMENTS means (i) for any corporation, the
certificate of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee
thereof) of such corporation, (ii) for any partnership or joint
venture, the partnership or joint venture agreement and any other
organizational document of such entity, (iii) for any limited liability
company, the certificate or articles of organization, the operating
agreement and any other organizational document of such limited
liability company, (iv) for any trust, the declaration of trust, the
trust agreement and any other organizational document of such trust and
(v) for any other entity, the document or agreement pursuant to which
such entity was formed and any other organizational document of such
entity.
OTHER CREDIT AGREEMENT means the Short Term Credit Agreement
dated as of July 10, 1998 among the Company, certain financial
institutions as lenders and documentation agents and BofA as
administrative agent, issuing lender and swing line lender.
OTHER TAXES means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance,
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enforcement or registration of, or otherwise with respect to, this
Agreement or any other Loan Document.
PARTICIPANT - see SUBSECTION 11.8(d).
PAYMENT SHARING NOTICE means a written notice from the Company
or any Lender informing the Administrative Agent that an Event of
Default has occurred and is continuing and directing the Administrative
Agent to allocate payments received from the Company in accordance with
SUBSECTION 2.15(b).
PBGC means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
PENSION PLAN means a pension plan (as defined in Section 3(2)
of ERISA) subject to Title IV of ERISA, other than a Multiemployer
Plan, with respect to which the Company or any ERISA Affiliate may have
any liability.
PERMITTED LIENS - see SECTION 8.2.
PERSON means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
PLAN ACQUISITION DATE means, with respect to any Acquired
Plan, the first date on which the Company or any ERISA Affiliate may
have any liability with respect to such Acquired Plan.
PLAN means an employee benefit plan (as defined in Section
3(3) of ERISA), other than a Multiemployer Plan, with respect to which
the Company or any ERISA Affiliate may have any liability, and includes
any Pension Plan.
PRO RATA SHARE means for any Lender at any time the proportion
(expressed as a decimal, rounded to the ninth decimal place) which such
Lender's Commitment constitutes of the combined Commitments (or, after
the Commitments have terminated, which (i) the principal amount of such
Lender's Committed Loans PLUS (without duplication) the participation
of such Lender in (or in the case of an Issuing Lender or the Swing
Line Lender, the unparticipated portion of) the Effective Amount of all
L/C Obligations and the principal amount of all Swing Line Loans
constitutes of (ii) the aggregate principal amount of all Committed
Loans and Swing Line Loans PLUS (without duplication) the Effective
Amount of all L/C Obligations).
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REPORTABLE EVENT means, any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
REQUIRED LENDERS means Lenders holding Adjusted Pro Rata
Shares aggregating more than 50%; PROVIDED that if and so long as any
Lender fails to fund any Committed Loan when required by SECTION 2.18
or SECTION 3.3 or a participation in a Swing Line Loan or an L/C
Borrowing pursuant to SECTION 2.19 or SECTION 3.3, as the case may be,
such Lender's Adjusted Pro Rata Share shall be deemed for purposes of
this definition to be reduced by the percentage which the defaulted
amount constitutes of the combined Commitments (or, if the Commitments
have terminated, the Total Outstandings), and the Adjusted Pro Rata
Share of the applicable Issuing Lender or the Swing Line Lender, as the
case may be, shall be deemed for purposes of this definition to be
increased by such percentage.
REQUIREMENT OF LAW means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental Authority, in each case applicable to
or binding upon such Person or any of its property or to which such
Person or any of its property is subject.
RESPONSIBLE OFFICER means the chief executive officer, the
president or any vice president of the Company, or any other officer
having substantially the same authority and responsibility; or, with
respect to financial matters, the chief financial officer, the vice
president - finance, the treasurer or any assistant treasurer of the
Company, or any other officer having substantially the same authority
and responsibility.
SEC means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
SECURITIZATION TRANSACTION means any sale, assignment or other
transfer by the Company or any Subsidiary of accounts receivable, lease
receivables or other payment obligations owing to the Company or any
Subsidiary or any interest in any of the foregoing, together in each
case with any collections and other proceeds thereof, any collection or
deposit accounts related thereto, and any collateral, guaranties or
other property or claims in favor of the Company or such Subsidiary
supporting or securing payment by the obligor thereon of, or otherwise
related to, any such receivables.
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SUBSIDIARY of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests
or other equity interests is owned or controlled directly or indirectly
by such Person, or one or more of the Subsidiaries of such Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the
Company.
SURETY INSTRUMENTS means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
SWAP CONTRACT means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity
index swap or option, bond, note or ▇▇▇▇ option, interest rate option,
forward foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, swaption, currency option or
any other, similar transaction (including any option to enter into any
of the foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any master agreement relating to or
governing any or all of the foregoing.
SWING LINE COMMITMENT means the commitment of the Swing Line
Lender to make Swing Line Loans hereunder.
SWING LINE LENDER means BofA in its capacity as swing line
lender hereunder, together with any replacement swing line lender
arising under SECTION 10.9.
SWING LINE LOAN - see SECTION 2.16.
TAXES means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the
case of each Lender and the Administrative Agent, taxes imposed on or
measured by its net income.
TERMINATION DATE means the earlier to occur of:
(a) July 10, 2003; and
(b) the date on which the Commitments terminate in
accordance with the provisions of this Agreement.
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TOTAL DEBT means, at any time, the sum (determined on a
consolidated basis and without duplication) of all Indebtedness of the
Company and its Subsidiaries, excluding contingent obligations with
respect to Surety Instruments (other than any letter of credit issued
for the account of the Company or any Subsidiary to support
Indebtedness of a Person other than the Company or any Subsidiary).
TOTAL DEBT TO EBITDA RATIO means in respect of any Computation
Period the ratio of (a) Total Debt, as at the end of such Computation
Period, to (b) Consolidated EBITDA for such Computation Period.
TOTAL OUTSTANDINGS means the sum of the aggregate principal
amount of all outstanding Loans (whether Committed Loans, Bid Loans or
Swing Line Loans) plus the Effective Amount of all L/C Obligations.
TYPE has the meaning specified in the definition of
"Committed Loan."
UNFUNDED PENSION LIABILITY means the excess of a Pension
Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of such Plan's assets, determined in accordance with the
assumptions used for funding such Pension Plan pursuant to Section 412
of the Code for the applicable plan year.
UNITED STATES and U.S. each means the United States of
America.
UNMATURED EVENT OF DEFAULT means any event or circumstance
which, with the giving of notice, the lapse of time or both, will (if
not cured or otherwise remedied during such time) constitute an Event
of Default.
UTILIZATION FEE RATE means
(a) when
(i) the sum of (A) the Total
Outstandings plus (B) the "Total
Outstandings" under and as defined in the
Other Credit Agreement,
exceeds
(ii) 50% of the sum of (A) the
aggregate Commitments, plus (B) the
aggregate "Commitments" under and as defined
in the Other Credit Agreement,
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then, 0.05%, and
(b) at all other times, zero.
WHOLLY-OWNED SUBSIDIARY means any Subsidiary in which (other
than directors' qualifying shares required by law) 100% of the capital
stock, membership interests or other equity interests of each class
having ordinary voting power, and 100% of the capital stock, membership
interests or other equity interests of every other class, in each case,
at the time as of which any determination is being made, is owned,
beneficially and of record, by the Company, or by one or more of the
other Wholly-Owned Subsidiaries, or both.
1.2 OTHER INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and including"; the
words "to" and "until" each mean "to but excluding", and the word "through"
means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
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(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms. Unless otherwise expressly provided
herein, any reference to any action of the Administrative Agent, the Lenders or
the Required Lenders by way of consent, approval or waiver shall be deemed
modified by the phrase "in its/their reasonable discretion."
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Administrative
Agent, the Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the
Administrative Agent merely because of the Administrative Agent's or Lenders'
involvement in their preparation.
1.3 ACCOUNTING PRINCIPLES.
(a) Unless the context otherwise requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied, but without giving effect to any change in GAAP
which would require the Company to "▇▇▇▇-to-market" its obligations under Swap
Contracts (unless the Company and the Required Lenders agree to give effect to
such change); PROVIDED that if the Company notifies the Administrative Agent
that the Company wishes to amend any covenant in ARTICLE VIII to eliminate the
effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Company that the Required Lenders wish to
amend ARTICLE VIII for such purpose), then the Company's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Required Lenders.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.1 AMOUNTS AND TERMS OF COMMITMENTS. Each Lender severally agrees, on
the terms and conditions set forth herein, to make Committed Loans to the
Company from time to time on any Business Day during the period from the
Effective Date to the
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Termination Date, in an aggregate amount not to exceed at any time outstanding
the amount set forth on SCHEDULE 2.1 (such amount, as reduced pursuant to
SECTION 2.7, or changed by one or more assignments under SECTION 11.8, such
Lender's "COMMITMENT"); PROVIDED, HOWEVER, that, after giving effect to any
Committed Borrowing, the Total Outstandings shall not exceed the combined
Commitments; AND PROVIDED, FURTHER, that the aggregate principal amount of the
Committed Loans of any Lender PLUS the participation of such Lender in the
principal amount of all outstanding Swing Line Loans and in the Effective Amount
of all L/C Obligations shall not at any time exceed such Lender's Commitment.
Within the limits of each Lender's Commitment, and subject to the other terms
and conditions hereof, the Company may borrow under this SECTION 2.1, prepay
under SECTION 2.8 and reborrow under this SECTION 2.1.
2.2 LOAN ACCOUNTS. (a) The Loans made by each Lender and the Letters of
Credit Issued by each Issuing Lender shall be evidenced by one or more accounts
or records maintained by such Lender or Issuing Lender, as the case may be, in
the ordinary course of business. The accounts or records maintained by the
Administrative Agent, each Issuing Lender and each Lender shall be rebuttable
presumptive evidence of the amount of the Loans made by the Lenders to the
Company and the Letters of Credit Issued for the account of the Company, and the
interest and payments thereon. Any failure so to record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Company
hereunder to pay any amount owing with respect to the Loans or any Letter of
Credit.
(b) Upon the request of any Lender made through the
Administrative Agent, the Loans made by such Lender may be evidenced by one or
more Notes, instead of or in addition to loan accounts. Each such Lender shall
endorse on the schedules annexed to its Note(s) the date, amount and maturity of
each Loan evidenced thereby and the amount of each payment of principal made by
the Company with respect thereto. Each such Lender is irrevocably authorized by
the Company to endorse its Note(s) and each Lender's record shall be rebuttable
presumptive evidence of the amount of the Loans evidenced thereby, and the
interest and payments thereon; PROVIDED, HOWEVER, that the failure of a Lender
to make, or an error in making, a notation thereon with respect to any Loan
shall not limit or otherwise affect the obligations of the Company hereunder or
under any such Note to such Lender.
2.3 PROCEDURE FOR COMMITTED BORROWING. (a) Each Committed Borrowing
shall be made upon the Company's irrevocable written notice delivered to the
Administrative Agent in the form of a Notice of Committed Borrowing, which
notice must be received by the Administrative Agent prior to (i) 10:30 a.m.
(Chicago time) three Business Days prior to the requested Borrowing Date, in the
case of Offshore Rate Committed Loans, and (ii) 10:30 a.m.
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(Chicago time) on the requested Borrowing Date, in the case of Base Rate
Committed Loans, specifying:
(A) the amount of the Committed Borrowing,
which shall be in an aggregate amount of $10,000,000 or a
higher multiple of $1,000,000;
(B) the requested Borrowing Date, which
shall be a Business Day;
(C) the Type of Loans comprising such
Committed Borrowing; and
(D) in the case of Offshore Rate Committed
Loans, the duration of the initial Interest Period applicable
to such Loans.
(b) The Administrative Agent will promptly notify each Lender
of its receipt of any Notice of Committed Borrowing and of the amount of such
Lender's Pro Rata Share of such Borrowing.
(c) Each Lender will make the amount of its Pro Rata Share of
each Committed Borrowing available to the Administrative Agent for the account
of the Company at the Administrative Agent's Payment Office by 12:00 noon
(Chicago time) on the Borrowing Date requested by the Company in funds
immediately available to the Administrative Agent. The proceeds of all such
Loans will then promptly be made available to the Company by the Administrative
Agent by wire transfer in accordance with written instructions provided to the
Administrative Agent by the Company of like funds as received by the
Administrative Agent.
(d) After giving effect to any Committed Borrowing, unless the
Administrative Agent otherwise consents, (i) the number of Interest Periods in
effect hereunder shall not exceed 10 and (ii) there may not be more than one
seven-day Interest Period in effect for all Committed Borrowings hereunder.
2.4 CONVERSION AND CONTINUATION ELECTIONS FOR COMMITTED BORROWINGS. (a)
The Company may, upon irrevocable written notice to the Administrative Agent in
accordance with SUBSECTION 2.4(b):
(i) elect, as of any Business Day, in the case of
Base Rate Committed Loans, or as of the last day of the applicable
Interest Period, in the case of Offshore Rate Committed Loans, to
convert such Loans (or any part thereof in an aggregate amount of
$10,000,000 or a higher integral multiple of $1,000,000) into Committed
Loans of the other Type; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Offshore Rate Committed
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Loans having Interest Periods expiring on such day (or any part thereof
in an aggregate amount of $10,000,000 or a higher integral multiple of
$1,000,000) for another Interest Period;
PROVIDED that if at any time the aggregate amount of Offshore Rate Committed
Loans in respect of any Borrowing is reduced, by payment, prepayment, or
conversion of any part thereof, to be less than $10,000,000, such Offshore Rate
Committed Loans shall automatically convert into Base Rate Committed Loans.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not later
than 10:30 a.m. (Chicago time) (i) three Business Days in advance of the
Conversion/Continuation Date, if the Committed Loans are to be converted into or
continued as Offshore Rate Committed Loans; and (ii) on the
Conversion/Continuation Date, if the Committed Loans are to be converted into
Base Rate Committed Loans, specifying:
(A) the proposed Conversion/Continuation
Date;
(B) the aggregate amount of Committed Loans
to be converted or continued;
(C) the Type of Committed Loans resulting
from the proposed conversion or continuation; and
(D) in the case of conversion into or
continuation of Offshore Rate Committed Loans, the duration of
the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable
to Offshore Rate Committed Loans, the Company has failed to select timely a new
Interest Period to be applicable to such Offshore Rate Committed Loans (or any
Event of Default or Unmatured Event of Default exists and the Required Lenders
have not given the consent referred to in SUBSECTION (e) below), such Offshore
Rate Committed Loans shall automatically convert into Base Rate Committed Loans
effective as of the expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each Lender
of its receipt of a Notice of Conversion/Continuation, or, if no timely notice
is provided by the Company, the Administrative Agent will promptly notify each
Lender of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective outstanding
principal amounts of the Committed Loans with respect to which the notice was
given held by each Lender.
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(e) Unless the Required Lenders otherwise consent, the Company
may not elect to have a Loan converted into or continued as an Offshore Rate
Committed Loan during the existence of an Event of Default or Unmatured Event of
Default.
(f) After giving effect to any conversion or continuation of
Loans, unless the Administrative Agent shall otherwise consent, the number of
Interest Periods in effect hereunder shall not exceed 10 and (ii) there may not
be more than one seven-day Interest Period in effect for all Committed
Borrowings.
2.5 BID BORROWINGS. In addition to Committed Borrowings pursuant to
SECTION 2.3, each Lender severally agrees that the Company may, as set forth in
SECTION 2.6, from time to time request the Lenders prior to the Termination Date
to submit offers to make Bid Loans to the Company; PROVIDED that the Lenders
may, but shall have no obligation to, submit such offers and the Company may,
but shall have no obligation to, accept any such offers; and PROVIDED, FURTHER,
that after giving effect to any Bid Borrowing, (a) the Total Outstandings shall
not exceed the combined Commitments and (b) the number of Interest Periods in
effect hereunder shall not exceed 10.
2.6 PROCEDURE FOR BID BORROWINGS.
(a) When the Company wishes to request the Lenders to submit offers to
make Bid Loans hereunder, it shall transmit to the Administrative Agent by
telephone call followed promptly by facsimile transmission a notice in
substantially the form of EXHIBIT C (a "COMPETITIVE BID REQUEST") so as to be
received no later than 10:30 a.m. Chicago time (x) four Business Days prior to
the date of a proposed Bid Borrowing in the case of a LIBOR Auction or (y) one
Business Day prior to the date of a proposed Bid Borrowing in the case of an
Absolute Rate Auction, specifying:
(i) the date of such Bid Borrowing, which shall
be a Business Day;
(ii) the aggregate amount of such Bid Borrowing,
which shall be $10,000,000 or a higher integral multiple of $1,000,000;
(iii) whether the Competitive Bids requested are to
be for LIBOR Bid Loans or Absolute Rate Bid Loans or both; and
(iv) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of "Interest
Period" herein.
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Subject to SUBSECTION 2.6(c), the Company may not request Competitive Bids for
more than three Interest Periods in a single Competitive Bid Request and may not
request Competitive Bids more than once in any period of five consecutive
Business Days.
(b) Upon receipt of a Competitive Bid Request, the
Administrative Agent will promptly send to the Lenders by facsimile transmission
an Invitation for Competitive Bids, which shall constitute an invitation by the
Company to each Lender to submit Competitive Bids offering to make the Bid Loans
to which such Competitive Bid Request relates in accordance with this SECTION
2.6.
(c) (i) Each Lender may at its discretion submit a Competitive
Bid containing an offer or offers to make Bid Loans in response to any
Invitation for Competitive Bids. Each Competitive Bid must comply with
the requirements of this SUBSECTION 2.6(c) and must be submitted to the
Administrative Agent by facsimile transmission at the Administrative
Agent's office for notices not later than (1) 8:30 a.m. (Chicago time)
three Business Days prior to the proposed date of Borrowing, in the
case of a LIBOR Auction, or (2) 8:30 a.m. (Chicago time) on the
proposed date of Borrowing, in the case of an Absolute Rate Auction;
PROVIDED that Competitive Bids submitted by the Administrative Agent
(or any Affiliate of the Administrative Agent) in the capacity of a
Lender may be submitted, and may only be submitted, if the
Administrative Agent or such Affiliate notifies the Company of the
terms of the offer or offers contained therein not later than (A) 8:15
a.m. (Chicago time) three Business Days prior to the proposed date of
Borrowing, in the case of a LIBOR Auction, or (B) 8:15 a.m. (Chicago
time) on the proposed date of Borrowing, in the case of an Absolute
Rate Auction.
(ii) Each Competitive Bid shall be in substantially
the form of EXHIBIT E, specifying therein:
(A) the proposed date of Borrowing;
(B) the principal amount of each Bid Loan
for which such Competitive Bid is being made, which principal
amount (x) may be equal to, greater than or less than the
Commitment of the quoting Lender, (y) must be $10,000,000 or a
higher integral multiple of $1,000,000 and (z) may not exceed
the principal amount of Bid Loans for which Competitive Bids
were requested;
(C) if the Company elects a LIBOR Auction,
the margin above or below the Offshore Rate (the "LIBOR BID
MARGIN") offered for each such Bid Loan, expressed as a
percentage (rounded to the nearest 1/32nd of 1%)
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to be added to or subtracted from the applicable
Offshore Rate, and the Interest Period applicable
thereto;
(D) if the Company elects an Absolute Rate
Auction, the rate of interest per annum (which shall be an
integral multiple of 1/10,000th of 1%) (the "ABSOLUTE RATE")
offered for each such Bid Loan; and
(E) the identity of the quoting Lender.
A Competitive Bid may contain up to three separate offers by the
quoting Lender with respect to each Interest Period specified in the
related Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with
EXHIBIT E or does not specify all of the information required
by SUBSECTION (c)(ii) of this Section;
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in addition
to those set forth in the applicable Invitation for
Competitive Bids; or
(D) arrives after the time set forth in
SUBSECTION (c)(i) of this Section.
(d) Promptly on receipt and not later than 9:00 a.m. (Chicago
time) three Business Days prior to the proposed date of Borrowing in the case of
a LIBOR Auction, or 9:00 a.m. (Chicago time) on the proposed date of Borrowing,
in the case of an Absolute Rate Auction, the Administrative Agent will notify
the Company of the terms (i) of any Competitive Bid submitted by a Lender that
is in accordance with SUBSECTION 2.6(c) and (ii) of any Competitive Bid that
amends, modifies or is otherwise inconsistent with a previous Competitive Bid
submitted by such Lender with respect to the same Competitive Bid Request. Any
such subsequent Competitive Bid shall be disregarded by the Administrative Agent
unless such subsequent Competitive Bid is submitted solely to correct a manifest
error in such former Competitive Bid and only if received within the times set
forth in SUBSECTION 2.6(c). The Administrative Agent's notice to the Company
shall specify (1) the aggregate principal amount of Bid Loans for which offers
have been received for each Interest Period specified in the related Competitive
Bid request; and (2) the respective principal amounts and LIBOR Bid Margins or
Absolute Rates, as the case may be, so offered. Subject only to
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the provisions of SECTIONS 4.2 and 4.5 and ARTICLE V hereof and the provisions
of this SUBSECTION (d), any Competitive Bid shall be irrevocable except with the
written consent of the Administrative Agent given on the written instructions of
the Company.
(e) Not later than 9:30 a.m. (Chicago time) three Business
Days prior to the proposed date of Borrowing, in the case of a LIBOR Auction, or
9:30 a.m. (Chicago time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction, the Company shall notify the Administrative Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
SUBSECTION 2.6(d). The Company shall be under no obligation to accept any offer
and may choose to reject all offers. In the case of acceptance, such notice
shall specify the aggregate principal amount of offers for each Interest Period
that is accepted. The Company may accept any Competitive Bid in whole or in
part; PROVIDED that:
(i) the aggregate principal amount of each Bid
Borrowing may not exceed the applicable amount set forth in the related
Competitive Bid Request;
(ii) the principal amount of each Bid Borrowing must
be $10,000,000 or a higher integral multiple of $1,000,000;
(iii) acceptance of offers may only be made on the
basis of ascending LIBOR Bid Margins or Absolute Rates, as the case may
be, within each Interest Period; and
(iv) the Company may not accept any offer that is
described in SUBSECTION 2.6(c)(iii) or that otherwise fails to comply
with the requirements of this Agreement.
(f) If offers are made by two or more Lenders with the same
LIBOR Bid Margins or Absolute Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which such offers are accepted
for the related Interest Period, the principal amount of 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 less than
$1,000,000, as the Administrative Agent may deem appropriate) in proportion to
the aggregate principal amounts of such offers. Determination by the
Administrative Agent of the amount of Bid Loans shall be conclusive in the
absence of manifest error.
(g) (i) The Administrative Agent will promptly notify each
Lender having submitted a Competitive Bid if its offer has been
accepted and, if its offer has been accepted, of
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the amount of the Bid Loan to be made by it on the date of
the applicable Bid Borrowing.
(ii) Each Lender which has received notice pursuant
to SUBSECTION 2.6(g)(i) that its Competitive Bid has been accepted
shall make the amounts of such Bid Loans available to the
Administrative Agent for the account of the Company at the
Administrative Agent's Payment Office by 1:00 p.m. Chicago time on such
date of Bid Borrowing, in immediately available funds.
(iii) Promptly following each Bid Borrowing, the
Administrative Agent shall notify each Lender of the ranges of bids
submitted and the highest and lowest Bids accepted for each Interest
Period requested by the Company and the aggregate amount borrowed
pursuant to such Bid Borrowing.
(iv) From time to time, the Company and the Lenders
shall furnish such information to the Administrative Agent as the
Administrative Agent may request relating to the making of Bid Loans,
including the amounts, interest rates, dates of borrowings and
maturities thereof, for purposes of the allocation of amounts received
from the Company for payment of all amounts owing hereunder.
(h) If, on the proposed date of Borrowing, the Commitments
have not been terminated and all applicable conditions to funding referenced in
SECTIONS 4.2 and 4.5 and ARTICLE V hereof are satisfied, the Lender or Lenders
whose offers the Company has accepted will fund each Bid Loan so accepted.
Nothing in this SECTION 2.6 shall be construed as a right of first offer in
favor of the Lenders or to otherwise limit the ability of the Company to request
and accept credit facilities from any Person (including any of the Lenders),
provided that no Event of Default or Unmatured Event of Default would result
from the Company executing, delivering or performing under such credit
facilities.
2.7 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS. The Company may,
upon not less than three Business Days' prior notice to the Administrative
Agent, terminate the Commitments, or permanently reduce the Commitments by a
minimum amount of $10,000,000 or a higher integral multiple of $1,000,000;
UNLESS, after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the Total Outstandings would exceed the amount of the
combined Commitments then in effect. Once reduced in accordance with this
Section, the Commitments may not be increased. Any reduction of the Commitments
shall be applied to reduce the Commitment of each Lender according to its Pro
Rata Share. If the Company terminates the Commitments or reduces the Commitments
to zero, the Company shall pay all
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accrued and unpaid interest, fees and other amounts payable hereunder on the
date of such termination.
2.8 OPTIONAL PREPAYMENTS. (a) Subject to the proviso to SUBSECTION
2.4(a) and to SECTION 4.4, the Company may, from time to time, upon irrevocable
notice to the Administrative Agent, which notice must be received by the
Administrative Agent prior to 10:30 a.m. Chicago time (i) three Business Days
prior to the date of prepayment, in the case of Offshore Rate Committed Loans,
and (ii) on the date of prepayment, in the case of Base Rate Committed Loans,
ratably prepay Committed Loans in whole or in part, in an aggregate amount of
$10,000,000 or a higher integral multiple of $1,000,000 (or, if any Base Rate
Committed Loans have been made pursuant to SUBSECTION 3.3(c), in an aggregate
amount equal to the aggregate amount of such Base Rate Committed Loans). Such
notice of prepayment shall specify the date and amount of such prepayment and
the Committed Loans to be prepaid. The Administrative Agent will promptly notify
each Lender of its receipt of any such notice and of such Lender's Pro Rata
Share of such prepayment. If such notice is given by the Company, the Company
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein, together with, in the case of
Offshore Rate Committed Loans, accrued interest to such date on the amount
prepaid and any amounts required pursuant to SECTION 4.4.
(b) No Bid Loan may be voluntarily prepaid without the written consent
of the applicable Lender.
2.9 REPAYMENT. The Company shall repay each Bid Loan on the last day of
the Interest Period therefor. The Company shall repay all Loans (including any
outstanding Bid Loans and Swing Line Loans) on the Termination Date.
2.10 INTEREST. (a) Each Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to (i) the Offshore Rate plus the Applicable Margin or (ii)
the Base Rate, as the case may be (and subject to the Company's right to convert
to the other Type of Committed Loan under SECTION 2.4). Each Swing Line Loan
shall bear interest on the outstanding principal amount thereof from the
applicable Borrowing Date at a rate per annum equal to the Base Rate or such
other rate as may be agreed to from time to time by the Company and the Swing
Line Lender; provided that after any purchase by the Lenders of a participation
in a Swing Line Loan, the rate of interest on such Swing Line Loan shall not be
less than the Base Rate. Each Bid Loan shall bear interest on the outstanding
principal amount thereof from the relevant Borrowing Date at the applicable
Absolute Rate or at LIBOR for the applicable Interest Period plus or minus the
LIBOR Bid Margin.
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(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest also shall be paid on the date of any conversion
of Offshore Rate Committed Loans under SECTION 2.4 and prepayment of Offshore
Rate Committed Loans under SECTION 2.8, in each case for the portion of the
Loans so converted or prepaid.
(c) Notwithstanding the foregoing provisions of this Section,
upon notice to the Company from the Agent (acting at the request or with the
consent of the Required Lenders) during the existence of any Event of Default,
and for so long as such Event of Default continues, the Company shall pay
interest (after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all outstanding Loans and, to the
extent permitted by applicable law, on any other amount payable hereunder or
under any other Loan Document, at a rate per annum which is determined by adding
2% per annum to the rate otherwise applicable thereto pursuant to the terms
hereof or such other Loan Document (or, if no such rate is specified, the Base
Rate). All such interest shall be payable on demand.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Lender hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Lender would be contrary
to the provisions of any law applicable to such Lender limiting the highest rate
of interest that may be lawfully contracted for, charged or received by such
Lender, and in such event the Company shall pay such Lender interest at the
highest rate permitted by applicable law.
2.11 FEES. In addition to certain fees described in SECTION 3.8:
(a) ARRANGEMENT, AGENCY FEES. The Company agrees to pay to the
Administrative Agent and BRS such fees at such times and in such amounts as are
mutually agreed to from time to time by the Company, the Administrative Agent
and BRS.
(b) FACILITY FEES. The Company shall pay to the Administrative
Agent for the account of each Lender a facility fee computed at the Facility Fee
Rate per annum on the amount of such Lender's Commitment as in effect from time
to time (whether used or unused) or, if the Commitments have terminated, on the
sum (without duplication) of (i) the principal amount of such Lender's Committed
Loans plus (ii) the participation of such Lender in (or in the case of an
Issuing Lender or the Swing Line Lender, its unparticipated portion of) the
Effective Amount of all L/C Obligations and the principal amount of all Swing
Line Loans. Such facility fee shall accrue from the Effective Date to
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the Termination Date, and thereafter until all Committed Loans are paid in full,
and shall be due and payable quarterly in arrears on the last Business Day of
each calendar quarter, with the final payment to be made on the Termination Date
(or, if later, on the date all Committed Loans and L/C Obligations are paid in
full).
(c) UTILIZATION FEES. The Company shall pay to the
Administrative Agent for the account of each Lender a utilization fee for any
period computed at a rate per annum equal to the Utilization Fee Rate on the sum
(without duplication) of (i) the principal amount of such Lender's Committed
Loans and L/C Obligations plus (ii) the participation of such Lender in (or in
the case of an Issuing Lender or the Swing Line Lender, its unparticipated
portion of) the Effective Amount of all L/C Obligations and the principal amount
of all Swing Line Loans. Such utilization fee shall accrue from the Effective
Date to the Termination Date, and thereafter until all Committed Loans are paid
in full, and shall be due and payable quarterly in arrears on the last Business
Day of each calendar quarter, with the final payment to be made on the
Termination Date (or, if later, on the date all Committed Loans and L/C
Obligations are paid in full).
2.12 COMPUTATION OF FEES AND INTEREST. (a) All computations of interest
for Base Rate Committed Loans (and Swing Line Loans bearing interest at the Base
Rate) when the Base Rate is determined by BofA's "reference rate", and all
computations of facility fees and utilization fees, shall be made on the basis
of a year of 365 or 366 days, as the case may be, and actual days elapsed. All
other computations of interest and fees shall be made on the basis of a 360-day
year and actual days elapsed. Interest and fees shall accrue during each period
during which such interest or such fees are computed from the first day thereof
to the last day thereof.
(b) Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the Company and the
Lenders in the absence of manifest error. The Administrative Agent will, at the
request of the Company or any Lender, deliver to the Company or such Lender, as
the case may be, a statement showing the quotations used by the Administrative
Agent in determining any interest rate and the resulting interest rate.
2.13 PAYMENTS BY THE COMPANY. (a) All payments to be made by the
Company shall be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Company shall be made
to the Administrative Agent for the account of the Lenders at the Administrative
Agent's Payment Office, and shall be made in Dollars and in immediately
available funds, no later than 1:00 p.m. (Chicago time) on the date specified
herein. The Administrative Agent will promptly
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distribute to each Lender its Pro Rata Share (or other applicable share as
expressly provided herein) of such payment in like funds as received. Any
payment received by the Administrative Agent later than 1:00 p.m. (Chicago time)
shall be deemed to have been received on the following Business Day and any
applicable interest or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a Business
Day, such payment shall be made on the following Business Day (unless, in the
case of a payment with respect to an Offshore Rate Committed Loan, the following
Business Day is in another calendar month, in which case such payment shall be
made on the preceding Business Day), and such extension of time shall in such
case be included in the computation of interest or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the
Company prior to the date on which any payment is due to the Lenders that the
Company will not make such payment in full as and when required, the
Administrative Agent may assume that the Company has made such payment in full
to the Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Company has not made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Lender until the date repaid.
2.14 PAYMENTS BY THE LENDERS TO THE ADMINISTRATIVE AGENT. (a) Unless
the Administrative Agent receives notice from a Lender at least one Business Day
prior to the date of a Borrowing of Offshore Rate Committed Loans or by 11:30
a.m. (Chicago time) on the day of any Borrowing of Base Rate Committed Loans,
that such Lender will not make available as and when required hereunder to the
Administrative Agent for the account of the Company the amount of such Lender's
Pro Rata Share of such Committed Borrowing, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent in
immediately available funds on the Borrowing Date and the Administrative Agent
may (but shall not be so required), in reliance upon such assumption, make
available to the Company on such date a corresponding amount. If and to the
extent any Lender shall not have made its full amount available to the
Administrative Agent in immediately available funds and the Administrative Agent
in such circumstances has made available to the Company such amount, such Lender
shall on the Business Day following such Borrowing Date make such amount
available to the Administrative Agent, together with interest at the Federal
Funds
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Rate. A notice of the Administrative Agent submitted to any Lender with respect
to amounts owing under this SUBSECTION (a) shall be conclusive, absent manifest
error. If such amount is so made available, such payment to the Administrative
Agent shall constitute such Lender's Committed Loan on the date of Borrowing for
all purposes of this Agreement. If such amount is not made available to the
Administrative Agent on the Business Day following the Borrowing Date, the
Administrative Agent will notify the Company of such failure to fund and, upon
demand by the Administrative Agent, the Company shall pay such amount to the
Administrative Agent for the Administrative Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the time to the
Committed Loans comprising such Committed Borrowing.
(b) The failure of any Lender to make any Loan on any
Borrowing Date shall not relieve any other Lender of any obligation hereunder to
make a Loan on such Borrowing Date, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on
any Borrowing Date.
2.15 SHARING OF PAYMENTS, ETC. (a) Except as otherwise expressly
provided herein, whenever any payment received by the Administrative Agent to be
distributed to the Lenders is insufficient to pay in full the amounts then due
and payable to the Lenders, and the Administrative Agent has not received a
Payment Sharing Notice, such payment shall be distributed to the Lenders (and
for purposes of this Agreement shall be deemed to have been applied by the
Lenders, notwithstanding the fact that any Lender may have made a different
application in its books and records) in the following order: FIRST, to the
payment of reimbursement obligations of the Company in respect of any Letter of
Credit; SECOND, to the payment of the principal amount of the Loans which is
then due and payable, ratably among the Lenders in accordance with the aggregate
principal amount owed to each Lender; THIRD, to the payment of interest then due
and payable on the Loans and on the reimbursement obligations in respect of
Letters of Credit, ratably among the Lenders in accordance with the aggregate
amount of interest owed to each Lender; FOURTH, to the payment of the facility
fees and utilization fees payable under SUBSECTIONS 2.11(b) and (c) and letter
of credit fees payable under SECTION 3.8, ratably among the Lenders in
accordance with the amount of such fees owed to each Lender; and FIFTH, to the
payment of any other amount payable under this Agreement, ratably among the
Lenders in accordance with the aggregate amount owed to each Lender.
(b) After the Administrative Agent has received a Payment
Sharing Notice, and for so long thereafter as any Event of Default exists, all
payments received by the Administrative
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Agent to be distributed to the Lenders shall be distributed to the Lenders (and
for purposes of this Agreement shall be deemed to have been applied by the
Lenders, notwithstanding the fact that any Lender may have made a different
application in its books and records) in the following order: FIRST, to the
payment of amounts payable under SECTIONS 11.4 and 11.5, ratably among the
Lenders in accordance with the aggregate amount owed to each Lender; SECOND, to
the payment of facility fees and utilization fees payable under SUBSECTIONS
2.11(b) and (c) and letter of credit fees payable under SECTION 3.8, ratably
among the Lenders in accordance with the amount of such fees owed to each
Lender; THIRD, to the payment of the interest accrued on and the principal
amount of all of the Loans and reimbursement obligations (including contingent
reimbursement obligations) regardless of whether any such amount is then due and
payable, ratably among the Lenders in accordance with the aggregate accrued
interest plus the aggregate principal amount owed to each Lender; and FOURTH, to
the payment of any other amount payable under this Agreement, ratably among the
Lenders in accordance with the aggregate amount owed to each Lender.
(c) If, other than as expressly provided elsewhere herein, any
Lender shall obtain any payment or other recovery (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on
account of principal of or interest on any Loan, or any other amount payable
hereunder, in excess of the share of payments and other recoveries such Lender
would have received if such payment or other recovery had been distributed
pursuant to the provisions of SUBSECTION 2.15(a) or (b) (whichever is applicable
at the time of such payment or other recovery), such Lender shall immediately
(i) notify the Administrative Agent of such fact and (ii) purchase from the
other Lenders such participations in the Loans made by (or other Obligations
owed to) them as shall be necessary to cause such purchasing Lender to share the
excess payment or other recovery pro rata with each of them in accordance with
the order of payments set forth in SUBSECTION 2.15(a) or (b), as the case may
be; PROVIDED that if all or any portion of such excess payment or other recovery
is thereafter recovered from the purchasing Lender, such purchase shall to that
extent be rescinded and each other Lender shall repay to the purchasing Lender
the purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Company
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to SECTION 11.10) with respect to
such participation as fully as if such Lender were the direct creditor of the
Company in the amount
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of such participation. The Administrative Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders following
any such purchases or repayments.
(d) Any amount that would be applied to a contingent
obligation of the Company in respect of a Letter of Credit under CLAUSE THIRD of
SUBSECTION 2.15(b) shall be held by the Administrative Agent as Cash Collateral
hereunder. If such Letter of Credit is thereafter drawn upon, the Administrative
Agent shall pay the applicable Issuing Lender an amount equal to the lesser of
the amount of such drawing and the amount of the funds so held as Cash
Collateral for such Letter of Credit. If and to the extent that such Letter of
Credit expires or terminates (or the maximum amount available for drawing
thereunder is reduced), the funds so held as Cash Collateral for such Letter of
Credit (or the portion thereof in excess of the maximum amount available for
drawing thereunder) shall be applied by the Administrative Agent as set forth in
SUBSECTION 2.15(a) or 2.15(b), as applicable.
2.16 SWING LINE COMMITMENT. Subject to the terms and conditions of this
Agreement, the Swing Line Lender agrees to make loans to the Company on a
revolving basis (each such loan, a "SWING LINE LOAN") from time to time on any
Business Day during the period from the Effective Date to the Termination Date
in an aggregate principal amount at any one time outstanding not to exceed
$50,000,000 MINUS the outstanding principal amount of all "Swing Line Loans"
then outstanding under (and as defined in) the Other Credit Agreement; PROVIDED
that after giving effect to any proposed Swing Line Loan, the Total Outstandings
shall not exceed the combined Commitments.
2.17 BORROWING PROCEDURES FOR SWING LINE LOANS. The Company shall
provide a Notice of Swing Line Loan or telephonic notice (followed by a
confirming Notice of Swing Line Loan) of a proposed Swing Line Loan to the
Administrative Agent and the Swing Line Lender not later than 12:00 noon
(Chicago time) on the proposed Borrowing Date. Each such notice shall be
effective upon receipt by the Administrative Agent and the Swing Line Lender and
shall specify the date and the principal amount of such Swing Line Loan. Unless
the Swing Line Lender has received written notice prior to 12:00 noon (Chicago
time) on the proposed Borrowing Date from the Administrative Agent or any Lender
that one or more of the conditions precedent set forth in ARTICLE V with respect
to such Swing Line Loan is not then satisfied, the Swing Line Lender shall pay
over the requested principal amount to the Company on the requested Borrowing
Date in immediately available funds. Each Swing Line Loan shall be made on a
Business Day and shall be in the amount of $1,000,000 or an integral multiple
thereof. The Swing Line Lender will promptly
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notify the Administrative Agent of the making and amount of each
Swing Line Loan.
2.18 PREPAYMENT OR REFUNDING OF SWING LINE LOANS. (a) The Company may,
at any time and from time to time, prepay any Swing Line Loan in whole or in
part, in an amount equal to $1,000,000 or an integral multiple thereof. The
Company shall deliver a notice of prepayment in accordance with SECTION 11.2 to
be received by the Administrative Agent and the Swing Line Lender not later than
11:00 a.m. (Chicago time) on the Business Day of such prepayment, specifying the
date and amount of such prepayment. If such notice is given by the Company, the
payment amount specified in such notice shall be due and payable on the date
specified therein.
(b) The Swing Line Lender may, at any time in its sole and absolute
discretion, on behalf of the Company (which hereby irrevocably directs the Swing
Line Lender to act on its behalf), request each Lender to make a Committed Loan
in an amount equal to such Lender's Pro Rata Share of the principal amount of
the Swing Line Loans outstanding on the date such notice is given. Unless any of
the events described in SUBSECTION 9.1(f) or (g) shall have occurred (in which
event the procedures of SECTION 2.19 shall apply), and regardless of whether the
conditions precedent set forth in this Agreement to the making of Committed
Loans are then satisfied or the aggregate amount of such Committed Loans is not
in the minimum or integral amount otherwise required hereunder, each Lender
shall make the proceeds of its Committed Loan available to the Administrative
Agent for the account of the Swing Line Lender at the Administrative Agent's
Payment Office prior to 12:00 noon (Chicago time) in immediately available funds
on the Business Day next succeeding the date such notice is given. The proceeds
of such Committed Loans shall be immediately applied to repay the outstanding
Swing Line Loans. All Committed Loans made pursuant to this SECTION 2.18 shall
be Base Rate Committed Loans (but, subject to the other provisions of this
Agreement, may be converted to Offshore Rate Loans).
2.19 PARTICIPATIONS IN SWING LINE LOANS. (a) If an event described in
SUBSECTION 9.1(f) or (g) exists (or for any reason the Lenders may not make
Committed Loans pursuant to SECTION 2.18), each Lender will, upon notice from
the Administrative Agent, purchase from the Swing Line Lender (and the Swing
Line Lender will sell to each Lender) an undivided participation interest in all
outstanding Swing Line Loans in an amount equal to its Pro Rata Share of the
outstanding principal amount of the Swing Line Loans (and each Lender will
immediately transfer to the Administrative Agent, for the account of the Swing
Line Lender, in immediately available funds, the amount of its participation).
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(b) Whenever, at any time after the Swing Line Lender has received
payment for any Lender's participation interest in the Swing Line Loans pursuant
to SUBSECTION 2.19(a), the Swing Line Lender receives any payment on account
thereof, the Swing Line Lender will distribute to the Administrative Agent for
the account of such Lender its participation interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participation interest was outstanding and
funded) in like funds as received; PROVIDED, HOWEVER, that in the event that
such payment received by the Swing Line Lender is required to be returned, such
Lender will return to the Administrative Agent for the account of the Swing Line
Lender any portion thereof previously distributed by the Swing Line Lender to it
in like funds as such payment is required to be returned by the Swing Line
Lender.
2.20 PARTICIPATION OBLIGATIONS UNCONDITIONAL. (a) Each Lender's
obligation to make Committed Loans pursuant to SECTION 2.18 and/or to purchase
participation interests in Swing Line Loans pursuant to SECTION 2.19 shall be
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including (a) any set-off, counterclaim, recoupment, defense or
other right which such Lender may have against the Swing Line Lender, the
Company or any other Person for any reason whatsoever; (b) the occurrence or
continuance of an Event of Default or Unmatured Event of Default; (c) any
adverse change in the condition (financial or otherwise) of the Company or any
other Person; (d) any breach of this Agreement or any other Loan Document by the
Company or any other Person; (e) any inability of the Company to satisfy the
conditions precedent to borrowing set forth in this Agreement on the date upon
which any such Loan is to be made or any participation interest therein is to be
purchased; or (f) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.
(b) Notwithstanding the provisions of SUBSECTION 2.20(a), no Lender
shall be required to make any Committed Loan to the Company to refund a Swing
Line Loan pursuant to SECTION 2.18 or to purchase a participation interest in a
Swing Line Loan pursuant to SECTION 2.19 if, prior to the making by the Swing
Line Lender of such Swing Line Loan, the Swing Line Lender received written
notice from any Lender specifying that such Lender believed in good faith that
one or more of the conditions precedent to the making of such Swing Line Loan
were not satisfied and, in fact, such conditions precedent were not satisfied at
the time of the making of such Swing Line Loan; PROVIDED that the obligation of
such Lender to make such Committed Loans and to purchase such participation
interests shall be reinstated upon the earlier to occur of (i) the date on which
such Lender notifies the Swing Line Lender that its prior notice has been
withdrawn and (ii) the date on which all
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conditions precedent to the making of such Swing Line Loan have been satisfied
(or waived by the Required Lenders or all Lenders, as applicable).
2.21 CONDITIONS TO SWING LINE LOANS. Notwithstanding any other
provision of this Agreement, the Swing Line Lender shall not be obligated to
make any Swing Line Loan if an Event of Default or Unmatured Event of Default
exists or would result therefrom.
ARTICLE III
THE LETTERS OF CREDIT
3.1 THE LETTER OF CREDIT SUBFACILITY. (a) On the terms and conditions
set forth herein (i) each Issuing Lender agrees, (A) from time to time on any
Business Day during the period from the Effective Date to the date which is
seven Business Days prior to Termination Date to Issue standby Letters of Credit
for the account of the Company, and to amend or renew standby Letters of Credit
previously issued by it, in accordance with SUBSECTIONS 3.2(c) and 3.2(d), and
(B) to honor properly drawn drafts under the Letters of Credit issued by it; and
(ii) the Lenders severally agree to participate in standby Letters of Credit
Issued for the account of the Company; provided that no Issuing Lender shall be
obligated to Issue, and (subject to SECTION 3.2(b)) no Lender shall be obligated
to participate in, any Letter of Credit if as of the date of Issuance of such
Letter of Credit (the "ISSUANCE DATE") (1) the Total Outstandings exceed the
combined Commitments, (2) the Effective Amount of all L/C Obligations would
exceed the L/C Commitment MINUS the "Effective Amount" of all "L/C Obligations"
under (and as defined in) the Other Credit Agreement or (3) the participation of
any Lender in the Effective Amount of all L/C Obligations plus the participation
of such Lender in the principal amount of all outstanding Swing Line Loans plus
the outstanding principal amount of the Committed Loans of such Lender would
exceed such Lender's Commitment. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Company's ability to obtain Letters of
Credit shall be fully revolving, and, accordingly, the Company may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit which
have expired or which have been drawn upon and reimbursed.
(b) No Issuing Lender shall be under any obligation to Issue
any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain such Issuing Lender from
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Issuing such Letter of Credit, or any Requirement of Law applicable to
such Issuing Lender or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction
over such Issuing Lender shall prohibit, or request that such Issuing
Lender refrain from, the Issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Issuing
Lender with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which such Issuing Lender is not otherwise
compensated hereunder) not in effect on the Effective Date, or shall
impose upon such Issuing Lender any unreimbursed loss, cost or expense
which was not applicable on the Effective Date and which such Issuing
Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it (it being understood that the
applicable Issuing Lender shall promptly notify the Company and the
Administrative Agent of any of the foregoing events or circumstances);
(ii) such Issuing Lender has received written notice
from any Lender, the Administrative Agent or the Company, on or prior
to the Business Day immediately preceding the requested date of
Issuance of such Letter of Credit, that one or more of the applicable
conditions contained in ARTICLE V is not then satisfied;
(iii) the expiry date of such requested Letter of
Credit is after the earlier of the seventh Business Day prior to the
Termination Date or the eighteen month anniversary of its issuance
(subject to periodic extensions for periods not to exceed one year),
unless all of the Lenders have approved such expiry date in writing; or
(iv) such Letter of Credit does not provide for
drafts, or is not otherwise in form and substance acceptable to such
Issuing Lender, or the Issuance of a Letter of Credit shall violate any
applicable policies of such Issuing Lender;
(v) such Letter of Credit is denominated in a
currency other than Dollars.
3.2 ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT. (a) Each
Letter of Credit shall be issued upon the irrevocable request of the Company
received by the applicable Issuing Lender at least one Business Day (or such
shorter time as the applicable Issuing Lender may agree in a particular instance
in its sole discretion) prior to the proposed date of issuance. Each such
request for issuance of a Letter of Credit shall either (x) be by facsimile,
confirmed immediately (by messenger or overnight courier) in an original
writing, in the form of an L/C Application, or (y) be made electronically
pursuant to procedures agreed upon between the Company and the applicable
Issuing Lender
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and, in each case, shall specify in form and detail satisfactory to such Issuing
Lender: (i) the face amount of the Letter of Credit; (ii) the expiry date of the
Letter of Credit; (iii) the name and address of the beneficiary thereof; (iv)
the documents to be presented by the beneficiary of the Letter of Credit in case
of any drawing thereunder; (v) the full text of any certificate to be presented
by the beneficiary in case of any drawing thereunder; and (vi) such other
matters as such Issuing Lender may require.
(b) Promptly upon receipt of any L/C Application or L/C
Amendment Application, the applicable Issuing Lender will notify the
Administrative Agent of its receipt thereof and of the proposed amount and term
of the requested Letter of Credit. Unless the applicable Issuing Lender has
received on or before the Business Day immediately preceding the date such
Issuing Lender is to issue a requested Letter of Credit, (A) notice from the
Administrative Agent directing such Issuing Lender not to issue such Letter of
Credit because such issuance is not then permitted under SUBSECTION 3.1(a) as a
result of the limitations set forth in CLAUSES (1) through (3) thereof or (B) a
notice described in SUBSECTION 3.1(b)(ii), then, subject to the terms and
conditions hereof, such Issuing Lender shall, on the requested date, issue a
Letter of Credit for the account of the Company in accordance with such Issuing
Lender's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding
and prior to seven Business Days prior to the Termination Date, the applicable
Issuing Lender will, upon the request of the Company received by such Issuing
Lender at least one Business Day (or such shorter time as the applicable Issuing
Lender may agree in a particular instance in its sole discretion) prior to the
proposed date of amendment, amend any Letter of Credit issued by it. Each such
request for amendment of a Letter of Credit shall either (x) be made by
facsimile, confirmed immediately (by messenger or overnight courier) in an
original writing, made in the form of an L/C Amendment Application or (y) be
made electronically pursuant to procedures agreed upon between the Company the
applicable Issuing Lender and, in each case, shall specify in form and detail
satisfactory to such Issuing Lender: (i) the Letter of Credit to be amended;
(ii) the proposed date of amendment of such Letter of Credit (which shall be a
Business Day); (iii) the nature of the proposed amendment; and (iv) such other
matters as such Issuing Lender may require. No Issuing Lender shall have any
obligation to amend any Letter of Credit if: (A) such Issuing Lender would have
no obligation at such time to issue such Letter of Credit in its amended form
under the terms of this Agreement; or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit.
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(d) The Issuing Lenders and the Lenders agree that, while a
Letter of Credit is outstanding and prior to seven Business Days prior to the
Termination Date, at the option of the Company and upon the request of the
Company received by the applicable Issuing Lender at least one Business Day (or
such shorter time as the applicable Issuing Lender may agree in a particular
instance in its sole discretion) prior to the proposed date of notification of
renewal, the applicable Issuing Lender shall be entitled to authorize the
automatic renewal of any Letter of Credit issued by it. Each such request for
renewal of a Letter of Credit shall either (x) be made by facsimile, confirmed
immediately in an original writing, in the form of an L/C Amendment Application,
or (y) be made electronically pursuant to procedures agreed upon between the
Company the applicable Issuing Lender and, in each case, shall specify in form
and detail satisfactory to such Issuing Lender: (i) the Letter of Credit to be
renewed; (ii) the proposed date of notification of renewal of such Letter of
Credit (which shall be a Business Day); (iii) the revised expiry date of such
Letter of Credit (which, unless all Lenders otherwise consent in writing, shall
be at least seven Business Days prior to the Termination Date); and (iv) such
other matters as such Issuing Lender may require. No Issuing Lender shall be
under any obligation to renew any Letter of Credit if: (A) such Issuing Lender
would have no obligation at such time to issue or amend such Letter of Credit in
its renewed form under the terms of this Agreement; or (B) the beneficiary of
such Letter of Credit does not accept the proposed renewal of such Letter of
Credit. If any outstanding Letter of Credit shall provide that it shall be
automatically renewed unless the beneficiary thereof receives notice from the
applicable Issuing Lender that such Letter of Credit shall not be renewed, and
if at the time of renewal such Issuing Lender would be entitled to authorize the
automatic renewal of such Letter of Credit in accordance with this SUBSECTION
3.2(d) upon the request of the Company but such Issuing Lender shall not have
received any L/C Amendment Application from the Company with respect to such
renewal or other written direction by the Company with respect thereto, such
Issuing Lender shall nonetheless be permitted to allow such Letter of Credit to
renew, and the Company and the Lenders hereby authorize such renewal, and,
accordingly, such Issuing Lender shall be deemed to have received an L/C
Amendment Application from the Company requesting such renewal.
(e) Each Issuing Lender may, at its election (or as required
by the Administrative Agent at the direction of the Required Lenders), deliver
any notice of termination or other communication to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be a date not later than seven Business Days
prior to the Termination Date.
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(f) This Agreement shall control in the event of any conflict
with any L/C-Related Document (other than any Letter of Credit).
(g) Each Issuing Lender will deliver to the Administrative
Agent, concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of such Letter of Credit or of such
amendment or renewal. Promptly after its receipt thereof, the Administrative
Agent will notify each Lender of the Issuance of such Letter of Credit.
3.3 RISK PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS.
(a) On the Effective Date, the Existing Letters of Credit
shall be deemed to be Letters of Credit outstanding hereunder and on the
Effective Date, the Company shall assume all obligations of an applicant with
respect thereto. Immediately upon the Issuance of each Letter of Credit (or on
the Effective Date in the case of each Existing Letter of Credit), each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the applicable Issuing Lender a participation in such Letter of
Credit and each drawing thereunder in an amount equal to the product of (i) such
Lender's Pro Rata Share times (ii) the maximum amount available to be drawn
under such Letter of Credit and the amount of such drawing, respectively. For
purposes of SECTION 2.1, each Issuance of a Letter of Credit shall be deemed to
utilize the Commitment of each Lender by an amount equal to the amount of such
participation.
(b) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the applicable Issuing
Lender will promptly notify the Company and the Administrative Agent. The
Company shall (subject, if applicable, to its right to obtain Base Rate
Committed Loans as provided below) reimburse the applicable Issuing Lender prior
to 11:00 a.m. (Chicago time) on each date that any amount is paid by such
Issuing Lender under any Letter of Credit (each such date, an "HONOR DATE") in
an amount equal to the amount so paid by such Issuing Lender; provided that, to
the extent that any Issuing Lender accepts a drawing under a Letter of Credit
after 11:00 a.m. (Chicago time), the Company will not be obligated to reimburse
such Issuing Lender until the next Business Day and the "Honor Date" for such
Letter of Credit shall be such next Business Day. If the Company fails to
reimburse an Issuing Lender for the full amount of any drawing under any Letter
of Credit by 11:00 a.m. (Chicago time) on the Honor Date, such Issuing Lender
will promptly notify the Administrative Agent and the Administrative Agent will
promptly notify each Lender thereof, and the Company shall be deemed to have
requested that
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Base Rate Committed Loans be made by the Lenders to be disbursed on the Honor
Date under such Letter of Credit, subject to the amount of the unutilized
portion of the combined Commitments and subject to the conditions set forth in
SECTION 5.2 other than SECTION 5.2(a). Any notice given by an Issuing Lender or
the Administrative Agent pursuant to this SUBSECTION 3.3(b) may be oral if
immediately confirmed in writing (including by facsimile); PROVIDED that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(c) Each Lender shall upon any notice pursuant to SUBSECTION
3.3(b) make available to the Administrative Agent for the account of the
applicable Issuing Lender an amount in Dollars and in immediately available
funds equal to its Pro Rata Share of the amount of the drawing, whereupon the
Lenders shall (subject to SUBSECTION 3.3(d)) each be deemed to have made a
Committed Loan consisting of a Base Rate Committed Loan to the Company in such
amount (it being understood that the requirements for the minimum aggregate
amount of a Borrowing of Base Rate Committed Loans shall not be applicable to
Loans made pursuant to this SUBSECTION 3.3(c)). If any Lender so notified fails
to make available to the Administrative Agent for the account of the applicable
Issuing Lender the amount of such Lender's Pro Rata Share of the amount of such
drawing by no later than 1:00 p.m. (Chicago time) on the Honor Date, then
interest shall accrue on such Lender's obligation to make such payment, from the
Honor Date to the date such Lender makes such payment, at a rate per annum equal
to the Federal Funds Rate in effect from time to time during such period. The
Administrative Agent will promptly give notice of the occurrence of the Honor
Date, but failure of the Administrative Agent to give any such notice on the
Honor Date or in sufficient time to enable any Lender to effect such payment on
such date shall not relieve such Lender from its obligations under this SECTION
3.3.
(d) With respect to any unreimbursed drawing that is not
converted into Base Rate Committed Loans in whole or in part, because of the
Company's failure to satisfy the conditions set forth in SECTION 5.2 (other than
SUBSECTION 5.2(a) which need not be satisfied) or for any other reason, the
Company shall be deemed to have incurred from the applicable Issuing Lender an
L/C Borrowing in the amount of such drawing, which L/C Borrowing shall be due
and payable on demand and shall bear interest (payable on demand) at a rate per
annum equal to the Base Rate plus 2%, and each Lender's payment to such Issuing
Lender pursuant to SUBSECTION 3.3(c) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from
such Lender in satisfaction of its participation obligation under this SECTION
3.3.
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(e) Each Lender's obligation in accordance with this Agreement
to make the Committed Loans or L/C Advances, as contemplated by this SECTION
3.3, as a result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to any Issuing Lender and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
applicable Issuing Lender, the Company or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of an Event of Default, an
Unmatured Event of Default or a Material Adverse Effect; or (iii) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing including the failure of the Issuing Lender to give any notice
required hereunder; PROVIDED that each Lender's obligation to make Committed
Loans under this SECTION 3.3 is subject to the conditions set forth in SECTION
5.2 (other than SUBSECTION 5.2(a)).
3.4 REPAYMENT OF PARTICIPATIONS. (a) Upon (and only upon) receipt by
the Administrative Agent for the account of an Issuing Lender of immediately
available funds from the Company (i) in reimbursement of any payment made by
such Issuing Lender under a Letter of Credit with respect to which any Lender
has paid the Administrative Agent for the account of such Issuing Lender for
such Lender's participation in such Letter of Credit pursuant to SECTION 3.3 or
(ii) in payment of interest thereon, the Administrative Agent will pay to each
Lender, in the same funds as those received by the Administrative Agent for the
account of such Issuing Lender, the amount of such Lender's Pro Rata Share of
such funds, and such Issuing Lender shall receive the amount of the Pro Rata
Share of such funds of any Lender that did not so pay the Administrative Agent
for the account of such Issuing Lender.
(b) If the Administrative Agent or an Issuing Lender is
required at any time to return to the Company, or to a trustee, receiver,
liquidator or custodian, or to any official in any Insolvency Proceeding, any
portion of any payment made by the Company to the Administrative Agent for the
account of an Issuing Lender pursuant to SUBSECTION 3.4(a) in reimbursement of a
payment made under a Letter of Credit or interest or fee thereon, each Lender
shall, on demand of the Administrative Agent, forthwith return to the
Administrative Agent or the applicable Issuing Lender the amount of its Pro Rata
Share of any amount so returned by the Administrative Agent or such Issuing
Lender plus interest thereon from the date such demand is made to the date such
amount is returned by such Lender to the Administrative Agent or such Issuing
Lender, at a rate per annum equal to the Federal Funds Rate in effect from time
to time.
3.5 ROLE OF THE ISSUING LENDERS. (a) Each Lender and the
Company agree that, in paying any drawing under a Letter of
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Credit, the applicable Issuing Lender shall not have any responsibility to
obtain any document (other than any sight draft and certificate expressly
required by such Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document.
(b) No Issuing Lender or Administrative Agent-Related Person,
nor any of their respective correspondents, participants or assignees, shall be
liable to any Lender for: (i) any action taken or omitted in connection herewith
at the request or with the approval of the Lenders (including the Required
Lenders, as applicable); (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; PROVIDED that this assumption is not intended to, and shall not,
preclude the Company's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. No Issuing
Lender or Administrative Agent-Related Person, nor any of their respective
correspondents, participants or assignees, shall be liable or responsible for
any of the matters described in CLAUSES (i) through (vii) of SECTION 3.6;
PROVIDED that, anything in such clauses to the contrary notwithstanding, the
Company may have a claim against an Issuing Lender, and such Issuing Lender may
be liable to the Company, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Company which
the Company proves were caused by such Issuing Lender's willful misconduct or
gross negligence or such Issuing Lender's willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of
such Letter of Credit. In furtherance and not in limitation of the foregoing:
(i) an Issuing Lender may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary; and (ii) no Issuing Lender shall be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
3.6 OBLIGATIONS ABSOLUTE. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the applicable Issuing
Lender for a drawing under a Letter of Credit, and to repay any L/C Borrowing
and any drawing under a Letter of Credit converted into Committed Loans, shall
be
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unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement and each such other L/C-Related Document under all
circumstances, including the following:
(i) any lack of validity or enforceability of
this Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the obligations of
the Company in respect of any Letter of Credit;
(iii) the existence of any breach of contract or
other dispute between the Company and any beneficiary or the existence
of any claim, set-off, defense or other right that the Company may have
at any time against any beneficiary or any transferee of any Letter of
Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the applicable Issuing Lender or any other
Person, whether in connection with this Agreement, the transactions
contemplated hereby or by any L/C-Related Document or any unrelated
transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit;
(v) any payment by an Issuing Lender under any Letter
of Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by an Issuing Lender under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
any Letter of Credit, including any arising in connection with any
Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations
of the Company in respect of any Letter of Credit;
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise
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constitute a defense available to, or a discharge of, the
Company or a guarantor;
(viii) any use which may be made of the Letter of
Credit or any acts or omissions of the users of any Letter of Credit;
(ix) any particular conditions stipulated in the
documents or superimposed thereon;
(x) any failure of any instrument to bear any
reference or adequate reference to any Letter of Credit or the failure
of any negotiating bank to endorse any draft or other instrument in
connection with any Letter of Credit or the failure of any Person to
note the amount of any draft on the reverse of any Letter of Credit or
to surrender or take up any Letter Credit or to send forward documents
apart from drafts as required by the terms of any Letter of Credit
(each of which provisions, if contained in any Letter of Credit itself,
it is agreed may be waived by the Issuing Lender);
(xi) any error, omission, interruption or delay in
transmission or delivery of any message or advise in connection with
any Letter of Credit whether transmitted by courier, mail, cable,
telex, telegraph, wireless, any other telecommunications or otherwise
and despite any cipher or code which may be employed; or
(xii) any non-documentary conditions that may be
stated in this Agreement or any Letter of Credit.
3.7 CASH COLLATERAL PLEDGE. If any Letter of Credit remains outstanding
and partially or wholly undrawn as of the Termination Date, then the Company
shall immediately Cash Collateralize the L/C Obligations in an amount equal to
the maximum amount then available to be drawn under all Letters of Credit.
3.8 LETTER OF CREDIT FEES. (a) The Company shall pay to the
Administrative Agent for the account of each Lender a letter of credit fee with
respect to each Letter of Credit equal to the L/C Fee Rate (plus, upon notice
from the Administrative Agent (acting at the request or with the consent of the
Required Lenders) during the existence of an Event of Default, and for so long
as such Event of Default shall continue, 2%) per annum of the average daily
maximum amount available to be drawn on such Letter of Credit, computed on a
quarterly basis in arrears on the last Business Day of each calendar quarter and
on the Termination Date (or such later date on which such Letter of Credit shall
expire or be fully drawn).
(b) The letter of credit fees payable under SUBSECTION 3.8(a)
shall be due and payable quarterly in arrears on the last
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Business Day of each calendar quarter during which Letters of Credit are
outstanding, commencing on the first such quarterly date to occur after the
Closing Date, through the Termination Date (or such later date upon which all
outstanding Letters of Credit shall expire or be fully drawn), with the final
payment to be made on the Termination Date (or such later date).
(c) The Company shall pay to each Issuing Lender a letter of
credit fronting fee at such times and in such amounts as are mutually agreed to
from time to time by the Company and such Issuing Lender.
(d) The Company shall pay to each Issuing Lender from time to
time on demand the normal issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of such Issuing Lender relating to
letters of credit as from time to time in effect.
3.9 UNIFORM CUSTOMS AND PRACTICE. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce
("UCP") most recently at the time of issuance of any Letter of Credit shall
(unless otherwise expressly provided in such Letter of Credit) apply to such
Letter of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 TAXES. (a) Any and all payments by the Company to each Lender or
the Administrative Agent under this Agreement and any other Loan Document shall
be made free and clear of, and without deduction or withholding for, any Taxes.
In addition, the Company shall pay all Other Taxes and Further Taxes.
(b) If the Company shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary
so that, after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums
payable under this Section), such Lender or the Administrative Agent,
as the case may be, receives and retains an amount equal to the sum it
would have received and retained had no such deductions or withholdings
been made;
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(ii) the Company shall make such deductions and
withholdings; and
(iii) the Company shall pay the full amount deducted
or withheld to the relevant taxing authority or other authority in
accordance with applicable law.
(c) The Company agrees to indemnify and hold harmless each
Lender and the Administrative Agent for the full amount of Taxes, Other Taxes
and Further Taxes in the amount that such Lender specifies as necessary to
preserve the after-tax yield such Lender would have received if such Taxes,
Other Taxes or Further Taxes had not been imposed, and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom or with
respect thereto, whether or not such Taxes, Other Taxes or Further Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within 30 days after the date such Lender or the Administrative Agent makes
written demand therefor.
(d) Within 30 days after the date of any payment by the
Company of any Taxes, Other Taxes or Further Taxes, the Company shall furnish
each applicable Lender and the Administrative Agent the original or a certified
copy of a receipt evidencing payment thereof, or other evidence of payment
satisfactory to such Lender and the Administrative Agent.
(e) Notwithstanding the foregoing provisions of this SECTION
4.1, (i) if any Lender fails to notify the Company of any event or circumstance
which will entitle such Lender to compensation pursuant to this SECTION 4.1
within 60 days after such Lender obtains knowledge of such event or
circumstance, then such Lender shall not be entitled to compensation from the
Company for any amount arising prior to the date which is 60 days before the
date on which such Lender notifies the Company of such event or circumstance;
and (ii) the Company shall not be required to pay an additional amount to, or to
indemnify, any Lender pursuant to this SECTION 4.1 to the extent that (x) the
obligation to withhold or pay such amount existed on the Initial Date (as
defined below) or (y) the obligation to withhold or pay such amount would not
have arisen but for the failure of such Lender to comply with the provisions of
SECTION 10.10 of this Agreement. For purposes of CLAUSE (ii) of the foregoing
sentence "Initial Date" means (A) in the case of any Lender that is a signatory
hereto, the date of this Agreement, (B) in the case of any Person which
subsequently becomes a Lender hereunder, the date of the applicable Assignment
and Acceptance, and (C) in the case of any Participant, the date on which it
becomes a Participant.
4.2 ILLEGALITY. (a) If any Lender reasonably determines
that the introduction of any Requirement of Law, or any change in
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any Requirement of Law, or in the interpretation or administration of any
Requirement of Law, has made it unlawful, or that any central bank or other
Governmental Authority has asserted that it is unlawful, for such Lender or its
applicable Lending Office to make Offshore Rate Committed Loans, then, on notice
thereof by such Lender to the Company through the Administrative Agent, any
obligation of such Lender to make Offshore Rate Committed Loans shall be
suspended until such Lender notifies the Administrative Agent and the Company
that the circumstances giving rise to such determination no longer exist.
(b) If a Lender reasonably determines that it is unlawful to
maintain any Offshore Rate Committed Loan, the Company shall, upon its receipt
of notice of such fact and demand from such Lender (with a copy to the
Administrative Agent), prepay in full such Offshore Rate Committed Loan of such
Lender together with interest accrued thereon and amounts required under SECTION
4.4, either on the last day of the Interest Period thereof, if such Lender may
lawfully continue to maintain such Offshore Rate Committed Loan to such day, or
immediately, if such Lender may not lawfully continue to maintain such Offshore
Rate Committed Loan. If the Company is required to so prepay any Offshore Rate
Committed Loan, then concurrently with such prepayment, the Company shall borrow
from the affected Lender, in the amount of such repayment, a Base Rate Committed
Loan.
(c) If the obligation of any Lender to make or maintain
Offshore Rate Committed Loans has been so terminated or suspended, all Loans
which would otherwise be made by such Lender as Offshore Rate Committed Loans
shall be instead Base Rate Committed Loans.
4.3 INCREASED COSTS AND REDUCTION OF RETURN. (a) If any Lender
reasonably determines that, due to either (i) the introduction of or any change
(other than any change by way of imposition of or increase in reserve
requirements included in the calculation of the Offshore Rate) after the date
hereof in or in the interpretation of any law or regulation or (ii) compliance
by such Lender with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) adopted, issued
or delivered after the date hereof, there shall be any increase in the cost to
such Lender (excluding any Taxes, Other Taxes, Further Taxes or taxes imposed on
or measured by the net income of such Lender) of agreeing to make or making,
funding or maintaining any Offshore Rate Committed Loan or participating in any
Letter of Credit, or, in the case of an Issuing Lender, any increase in the cost
to such Issuing Lender of agreeing to issue, issuing or maintaining any Letter
of Credit or of agreeing to make or making, funding or maintaining any unpaid
drawing under any Letter of Credit, then the Company shall be liable for, and
shall from time to time, upon demand (with a copy of such demand to be sent to
the Administrative Agent), pay
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to the Administrative Agent for the account of such Lender, additional amounts
as are sufficient to compensate such Lender for such increased cost.
(b) If any Lender shall have reasonably determined that (i)
the introduction after the date hereof of any Capital Adequacy Regulation, (ii)
any change after the date hereof in any Capital Adequacy Regulation, (iii) any
change after the date hereof in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv) compliance by
such Lender (or its Lending Office) or any corporation controlling such Lender
with any Capital Adequacy Regulation (excluding any Capital Adequacy Regulation
as in effect on the date hereof) affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
desired return on capital) reasonably determines that the amount of such capital
is increased as a consequence of its Commitment, Loans or obligations under this
Agreement, then, upon demand of such Lender to the Company through the
Administrative Agent, the Company shall pay to such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender for such increase.
(c) Notwithstanding the foregoing provisions of this SECTION
4.3, if any Lender fails to notify the Company of any event or circumstance
which will entitle such Lender to compensation pursuant to this SECTION 4.3
within 60 days after such Lender obtains knowledge of such event or
circumstance, then such Lender shall not be entitled to compensation from the
Company for any amount arising prior to the date which is 60 days before the
date on which such Lender notifies the Company of such event or circumstance.
4.4 FUNDING LOSSES. The Company shall reimburse each Lender and hold
each Lender harmless from any loss or expense which the Lender may sustain or
incur as a consequence of:
(a) the failure of the Company to borrow, continue or convert
a Loan after the Company has given (or is deemed to have given) a Notice of
Committed Borrowing or a Notice of Conversion/Continuation or has accepted a
Competitive Bid for such Loan;
(b) the failure of the Company to make any prepayment in
accordance with any notice delivered under SECTION 2.8;
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(c) the prepayment (including after acceleration thereof) of
an Offshore Rate Committed Loan or a Bid Loan on a day that is not the last day
of the relevant Interest Period; or
(d) the automatic conversion under SUBSECTION 2.4(a) of any
Offshore Rate Committed Loan to a Base Rate Committed Loan on a day that is not
the last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or Bid Loans or from
fees payable to terminate the deposits from which such funds were obtained. For
purposes of calculating amounts payable by the Company to the Lenders under this
Section and under SUBSECTION 4.3(a), each Offshore Rate Committed Loan made by a
Lender (and each related reserve, special deposit or similar requirement) shall
be conclusively deemed to have been funded at the LIBOR used in determining the
Offshore Rate for such Offshore Rate Committed Loan by a matching deposit or
other borrowing in the interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such Offshore Rate Committed Loan is in
fact so funded.
4.5 INABILITY TO DETERMINE RATES. If (a) the Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
determining the Offshore Rate for any requested Interest Period with respect to
a proposed Offshore Rate Committed Loan, or (b) the Required Lenders determine
that the Offshore Rate applicable pursuant to SUBSECTION 2.10(a) for any
requested Interest Period with respect to a proposed Offshore Rate Committed
Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Loan, the Administrative Agent will promptly so notify the Company and each
Lender. Thereafter, the obligation of the Lenders to make or maintain Offshore
Rate Committed Loans hereunder shall be suspended until the Administrative Agent
(upon the instruction of the Required Lenders in the case of CLAUSE (b)) revokes
such notice in writing. Upon receipt of such notice, the Company may revoke any
Notice of Committed Borrowing or Notice of Conversion/Continuation then
submitted by it. If the Company does not revoke such Notice, the Lenders shall
make, convert or continue the Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the Company, but such Loans
shall be made, converted or continued as Base Rate Committed Loans instead of
Offshore Rate Committed Loan.
4.6 CERTIFICATES OF LENDERS. Any Lender claiming reimbursement or
compensation under this ARTICLE IV shall deliver to the Company (with a copy to
the Administrative Agent) a certificate setting forth in reasonable detail the
amount payable to such Lender hereunder and the manner in which such amount has
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been calculated, and such certificate shall be conclusive and binding on the
Company in the absence of manifest error.
4.7 MITIGATION. Each Lender shall promptly notify the Company and the
Administrative Agent of any event of which it has knowledge which will result
in, and will use reasonable commercial efforts available to it (and not, in such
Lender's good faith judgment, otherwise disadvantageous to such Lender) to
mitigate or avoid, (i) any obligation of the Company to pay any amount pursuant
to SECTION 4.1 or 4.3 or (ii) the occurrence of any circumstance of the nature
described in SECTION 4.2 or 4.5. Without limiting the foregoing, each Lender
will designate a different Lending Office if such designation will avoid (or
reduce the cost to the Company of) any event described in CLAUSE (I) or (II) of
the preceding sentence and such designation will not, in such Lender's good
faith judgment, be otherwise disadvantageous to such Lender.
4.8 SUBSTITUTION OF LENDERS. Upon the receipt by the Company from any
Lender of a claim for compensation under SECTION 4.1 or 4.3 or a notice of the
type described in SECTION 4.2, the Company may: (i) designate a replacement bank
or financial institution satisfactory to the Company (a "REPLACEMENT LENDER") to
acquire and assume all or a ratable part of all of such affected Lender's Loans
and Commitment; and/or (ii) request one or more of the other Lenders to acquire
and assume all or part of such affected Lender's Loans and Commitment. Any
designation of a Replacement Lender under CLAUSE (I) shall be subject to the
prior written consent of the Administrative Agent (which consent shall not be
unreasonably withheld).
4.9 SURVIVAL. The agreements and obligations of the Company in this
ARTICLE IV shall survive the termination of this Agreement and the payment of
all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS TO EFFECTIVENESS. This Agreement shall become effective
on the date (the "EFFECTIVE DATE") on which the Administrative Agent shall have
received (i) evidence satisfactory to the Lenders that the Company has completed
the IPO, (ii) evidence satisfactory to the Administrative Agent that the Company
has paid all fees and other amounts then payable under SUBSECTION 2.11(a) and
(ii) all of the following, in form and substance satisfactory to the
Administrative Agent and each Lender, and (except for the Notes) in sufficient
copies for each Lender:
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(a) AGREEMENT AND NOTES. This Agreement and the Notes executed
by each party hereto and thereto.
(b) RESOLUTIONS; INCUMBENCY.
(i) Copies of the resolutions of the board of
directors of the Company authorizing the execution and delivery of the
Loan Documents and the consummation of the transactions contemplated
hereby, certified as of the Effective Date by the Secretary or an
Assistant Secretary of such Person; and
(ii) a certificate of the Secretary or Assistant
Secretary of the Company certifying the names and true signatures of
the officers, employees or authorized agents of the Company authorized
to execute and deliver the Loan Documents and to deliver Notices of
Borrowing, Notices of Conversion/Continuation, Competitive Bid
Requests, Notices of Swing Line Loans, Compliance Certificates, L/C
Applications, L/C Amendment Applications and similar documents.
(c) ORGANIZATION DOCUMENTS. The articles or certificate of
incorporation and the bylaws of the Company as in effect on the Effective Date,
certified by the Secretary or Assistant Secretary of the Company as of the
Effective Date.
(d) LEGAL OPINIONS. An opinion of ▇▇▇▇▇, ▇▇▇▇▇, P.A., counsel
to the Company, substantially in the form of EXHIBIT G and an opinion of ▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Administrative Agent, substantially in the form of
EXHIBIT K.
(e) PAYMENT OF FEES. Evidence of payment by the Company of all
accrued and unpaid fees, costs and expenses to the extent then due and payable
hereunder on the Effective Date, together with Attorney Costs of BofA to the
extent invoiced prior to or on the Effective Date, plus such additional amounts
of Attorney Costs as shall constitute BofA's reasonable estimate of Attorney
Costs incurred or to be incurred by it through the closing proceedings (provided
that such estimate shall not thereafter preclude final settling of accounts
between the Company and BofA), including any such costs, fees and expenses
arising under or referenced in SECTIONS 2.11 and 11.4.
(f) CERTIFICATE. A certificate signed by a Responsible
Officer, dated as of the Effective Date, stating that:
(i) the representations and warranties contained in
ARTICLE VI are true and correct on and as of such date, as though made
on and as of such date;
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(ii) no Event of Default or Unmatured Event of
Default exists or would result from the effectiveness of this
Agreement; and
(iii) since March 31, 1998, no event or circumstance
has occurred that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(g) OTHER DOCUMENTS. Such other approvals, opinions,
documents or materials as the Administrative Agent or any Lender
may reasonably request.
5.2 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender
to make any Loan to be made by it (including the obligation of the Swing Line
Lender to make any Swing Line Loan) and the obligation of any Issuing Lender to
Issue any Letter of Credit is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Issuance Date:
(a) NOTICE, APPLICATION. The Administrative Agent shall have
received a Notice of Committed Borrowing or notice of the acceptance by the
Company of one or more Competitive Bids or the Swing Line Lender and the
Administrative Agent shall have received a Notice of Swing Line Loan or, in the
case of the Issuance of any Letter of Credit, the applicable Issuing Lender and
the Administrative Agent shall have received an L/C Application or L/C Amendment
Application, as required under SECTION 3.2.
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in ARTICLE VI (excluding SUBSECTION 6.11(b) shall
be true and correct in all material respects on and of such Borrowing Date or
Issuance Date with the same effect as if made on and as of such Borrowing Date
or Issuance Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and correct
as of such earlier date).
(c) NO EXISTING DEFAULT. No Event of Default or Unmatured
Event of Default shall exist or shall result from such Borrowing, Swing Line
Loan or Issuance.
Each Notice of Committed Borrowing, notice of acceptance of a Competitive Bid,
Notice of Swing Line Loan, L/C Application and L/C Amendment Application
submitted by the Company hereunder shall constitute a representation and
warranty by the Company that, as of the date of each such notice and as of the
relevant Borrowing Date or Issuance Date, as applicable, the conditions in this
SECTION 5.2 are satisfied.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and
each Lender that:
6.1 CORPORATE EXISTENCE AND POWER. The Company and each of its
Subsidiaries:
(a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals (i) to own its assets and to carry on its
business and (ii) to execute, deliver and perform its obligations under the Loan
Documents to which it is a party;
(c) is duly qualified to do business in each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in SUBCLAUSE (b)(i), CLAUSE (c) or CLAUSE (d),
to the extent that the failure to do so could not reasonably be expected to have
a Material Adverse Effect.
6.2 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution, delivery
and performance by the Company of each Loan Document to which such Person is
party have been duly authorized by all necessary corporate action, and do not
and will not:
(a) contravene the terms of any of such Person's
Organization Documents;
(b) conflict with or result in any breach or contravention of,
or the creation of any Lien under, any document evidencing any material
Contractual Obligation to which such Person or any of its Subsidiaries is a
party or any order, injunction, writ or decree of any Governmental Authority to
which such Person or any of its Subsidiaries or any of its or their property is
subject; or
(c) violate any Requirement of Law.
6.3 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization or other action by, or notice to, or filing with, any Governmental
Authority (other than any of the foregoing which has been obtained or made and
is in full force
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and effect) is necessary or required in connection with the execution, delivery
or performance by, or enforcement against, the Company of the Agreement or any
other Loan Document.
6.4 BINDING EFFECT. This Agreement and each other Loan Document
constitute the legal, valid and binding obligations of the Company, to the
extent such Person is a party thereto, enforceable against such Person in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
6.5 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the best knowledge of the Company, threatened, at law,
in equity, in arbitration or before any Governmental Authority, against the
Company or any Subsidiary or any of their respective properties; (a) which
purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby or thereby; or (b) as to which there
exists a reasonable likelihood of an adverse determination, which determination
would reasonably be expected to have a material adverse effect on the ability of
the Company to pay and perform the Obligations. No injunction, writ, temporary
restraining order or other order of any nature has been issued by any court or
other Governmental Authority purporting to enjoin or restrain the execution,
delivery or performance of this Agreement or any other Loan Document, or
directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
6.6 NO DEFAULT. No Event of Default or Unmatured Event of Default
exists or would result from the incurring of any Obligations by the Company. As
of the Effective Date, neither the Company nor any Subsidiary is in default
under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, could reasonably be expected to
have a Material Adverse Effect.
6.7 ERISA COMPLIANCE. Except as specifically disclosed in SCHEDULE 6.7:
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state law (or,
in the case of an Acquired Plan, can be brought into such compliance without any
material fine, penalty or other liability). Except for Acquired Plans with
respect to which the failure to have received a qualification letter would not
result in any material fine, penalty or other liability, each Plan which is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS (or will be submitted for a determination
letter
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within the applicable remedial amendment period), and to the best knowledge of
the Company, nothing has occurred which would cause the loss of such
qualification. The Company and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code (except for
contributions to Acquired Plans not made prior to the respective Plan
Acquisition Dates and which do not in the aggregate exceed $1,000,000 for any
Acquired Plan), and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
(b) There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan which
has resulted or could reasonably be expected to result in a Material Adverse
Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected
to occur; (ii) no contribution failure has occurred with respect to a Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA; (iii) no
Pension Plan has any Unfunded Pension Liability; (iv) neither the Company nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (v) neither the Company nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA
with respect to a Multiemployer Plan; and (vi) neither the Company nor any ERISA
Affiliate has engaged in a transaction that could be subject to Section 4069 or
4212(c) of ERISA.
6.8 USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the Loans will
be used solely for the purposes set forth in and permitted by SECTION 7.12 and
SECTION 8.8. Neither the Company nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
6.9 TITLE TO PROPERTIES. The Company and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. As of the Effective Date, the
property of the Company and its Subsidiaries is subject to no Liens, other than
Permitted Liens.
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6.10 TAXES. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or
any Subsidiary that would, if made, have a Material Adverse Effect.
6.11 FINANCIAL CONDITION. (a)(1) The audited consolidated financial
statements of the Company and its Subsidiaries dated December 31, 1997, and the
related consolidated statements of income or operations, shareholders' equity
and cash flows for the fiscal year ended on that date, and (2) the unaudited
interim consolidated financial statements of the Company and its Subsidiaries
dated March 31, 1998, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for the fiscal quarter ended on
that date:
(i) were prepared in accordance with GAAP
consistently applied throughout the periods covered thereby, except as
otherwise expressly noted therein (subject, in the case of the
unaudited interim statements, to the absence of footnotes and to
ordinary, good faith year-end audit adjustments);
(ii) fairly present (subject, in the case of the
unaudited interim statements, to ordinary, good faith year-end audit
adjustments) the financial condition of the Company and its
Subsidiaries as of the dates thereof and the results of operations for
the periods covered thereby; and
(iii) show all material indebtedness and other
liabilities, absolute or contingent, of the Company and its
consolidated Subsidiaries as of the dates thereof, including
liabilities for taxes and material Contingent Obligations.
(b) Since December 31, 1997, there has been no Material
Adverse Effect.
6.12 ENVIRONMENTAL MATTERS. The Company conducts in the ordinary course
of business a review of the effect of existing Environmental Laws and existing
Environmental Claims on its business, operations and properties, and as a result
thereof the Company has reasonably concluded that, except as specifically
disclosed in SCHEDULE 6.12, such Environmental Laws and Environmental Claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
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6.13 REGULATED ENTITIES. None of the Company, any Person controlling
the Company, or any Subsidiary is an "Investment Company" within the meaning of
the Investment Company Act of 1940. The Company is not subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
6.14 NO BURDENSOME RESTRICTIONS. Neither the Company nor any Subsidiary
is a party to or bound by any Contractual Obligation, or subject to any
restriction in any Organization Document or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect.
6.15 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. The Company or
its Subsidiaries own or are licensed or otherwise have the right to use all of
the material patents, trademarks, service marks, trade names, copyrights,
contractual franchises, authorizations and other rights that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person, except to the extent failure to own,
license or otherwise have the right to use any such item, or any such conflict,
could not reasonably be expected to have a Material Adverse Effect. To the best
knowledge of the Company, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Company or any Subsidiary, and which is
material to the business or operations of the Company and its Subsidiaries,
infringes upon any rights held by any other Person (excluding infringements
which could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect).
6.16 SUBSIDIARIES. As of the Effective Date, the Company has no
Subsidiaries other than those specifically disclosed in PART (a) of SCHEDULE
6.16 and has no equity investments in any other corporation or entity other than
those specifically disclosed in PART (b) of SCHEDULE 6.16.
6.17 INSURANCE. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies (or are
self-insured) in such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or such Subsidiary operates.
6.18 YEAR 2000 PROBLEM. The Company and its Subsidiaries have reviewed
the areas within their business and operations which could be adversely affected
by, and have developed programs to address on a timely basis, the "Year 2000
Problem" (that is,
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the risk that computer applications used by the Company may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999). Based on such review and
programs, the Company reasonably believes that the "Year 2000 Problem" will not
result in a Material Adverse Effect.
6.19 FULL DISCLOSURE. The representations and warranties made by the
Company and its Subsidiaries in the Loan Documents as of the date such
representations and warranties are made or deemed made, and the statements
contained in any exhibit, report, statement or certificate furnished by or on
behalf of the Company or any Subsidiary in connection with the Loan Documents,
taken as a whole, do not contain any untrue statement of a material fact or omit
any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are
made, not misleading in any material respect as of the time when made or
delivered.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
7.1 FINANCIAL STATEMENTS. The Company shall deliver to the
Administrative Agent, in form and detail satisfactory to the Administrative
Agent and the Required Lenders, with sufficient copies for each Lender:
(a) as soon as available, but not later than 120 days after
the end of each fiscal year, a copy of the audited consolidated balance sheet of
the Company and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, and accompanied by the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP or another nationally-recognized independent public accounting firm
("INDEPENDENT AUDITOR"), which opinion (i) shall state that such consolidated
financial statements present fairly the Company's consolidated financial
position for the periods indicated in conformity with GAAP and (ii) shall not be
qualified or limited because of a restricted or limited examination by the
Independent Auditor of any material portion of the Company's or any Subsidiary's
records; and
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(b) as soon as available, but not later than 60 days after the
end of each of the first three fiscal quarters of each fiscal year (commencing
with the fiscal quarter ending September 30, 1998), a copy of the unaudited
consolidated balance sheet of the Company and its Subsidiaries as of the end of
such quarter and the related consolidated statements of income, shareholders'
equity and cash flows for the period commencing on the first day and ending on
the last day of such quarter, and certified by a Responsible Officer as fairly
presenting, in accordance with GAAP (subject to the absence of footnotes and to
ordinary, good faith year-end audit adjustments), the financial position and the
results of operations of the Company and its Subsidiaries as of such date and
for such period.
7.2 CERTIFICATES; OTHER INFORMATION. The Company shall furnish to the
Administrative Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements
referred to in SUBSECTIONS 7.1(a) and (b), a Compliance Certificate executed by
a Responsible Officer;
(b) promptly after their becoming available, copies of all
financial statements and reports that the Company sends to its shareholders, and
copies of all financial statements and regular, periodic or special reports
(including Forms 10K, 10Q and 8K) that the Company or any Subsidiary may make
to, or file with, the SEC;
(c) promptly after their becoming available, any management
letter or other material communication regarding the "Year 2000" exposure or
programs of the Company and its Subsidiaries; and
(d) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
7.3 NOTICES. The Company shall promptly (or, in the case of any event
described in CLAUSE (c)(ii) below, not less than 10 days prior to the occurrence
of such event) notify the Administrative Agent and each Lender:
(a) of the occurrence of any Event of Default or
Unmatured Event of Default known to the Company;
(b) of any of the following matters that has resulted or is
reasonably expected to result in a Material Adverse Effect: (i) breach or
non-performance of, or any default under, a Contractual Obligation of the
Company or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension
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between the Company or any Subsidiary and any Governmental Authority; or (iii)
the commencement of, or any material development in, any litigation or
proceeding affecting the Company or any Subsidiary, including pursuant to any
applicable Environmental Laws;
(c) of the occurrence of any of the following events known to
the Company which affect the Company or any ERISA Affiliate, and deliver to the
Administrative Agent and each Lender a copy of any notice with respect to such
event that is filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Company or any ERISA Affiliate with respect to
such event:
(i) an ERISA Event;
(ii) a contribution failure with respect to a Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA;
(iii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(iv) the adoption of, or the commencement of
contributions to, any Pension Plan by the Company or any ERISA
Affiliate; or
(v) the adoption of any amendment to a Pension Plan
if such amendment results in a material increase in contributions or
Unfunded Pension Liability; and
(d) of any material change in accounting policies or financial
reporting practices by the Company and its consolidated Subsidiaries.
Each notice under this Section shall be accompanied by a
written statement by a Responsible Officer setting forth details of the
occurrence referred to therein, and stating what action the Company or any
affected Subsidiary proposes to take with respect thereto. Each notice under
SUBSECTION 7.3(a) shall describe with particularity any and all clauses or
provisions of this Agreement or any other Loan Document that have been breached
or violated.
7.4 PRESERVATION OF CORPORATE EXISTENCE, ETC. The Company shall, and
shall cause each Subsidiary to (provided that nothing in this SECTION 7.4 shall
prevent the voluntary liquidation, dissolution or winding up, not under any
bankruptcy or insolvency law, of any Subsidiary so long as no Event of Default
exists and no Event of Default or Unmatured Event of Default will result
therefrom):
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(a) preserve and maintain in full force and effect its
existence and good standing under the laws of its jurisdiction of
organization;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business (except
in connection with transactions permitted by SECTION 8.4 and sales of assets
permitted by SECTION 8.3);
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
7.5 MAINTENANCE OF PROPERTY. The Company shall, and shall cause each
Subsidiary to, maintain and preserve all its property which is used or useful in
its business in good working order and condition, ordinary wear and tear
excepted, except to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect.
7.6 INSURANCE. The Company shall, and shall cause each Subsidiary to,
maintain, with financially sound and reputable independent insurers (or pursuant
to a self-insurance program), insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons.
7.7 PAYMENT OF OBLIGATIONS. The Company shall, and shall cause each
Subsidiary to, pay and discharge, as the same shall become due and payable, all
their respective material obligations and liabilities, including: (a) all
material tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets and (b) all material claims which, if unpaid, would
by law become a Lien upon its property, UNLESS, in each case, the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary.
7.8 COMPLIANCE WITH LAWS. The Company shall, and shall cause each
Subsidiary to, comply with all Requirements of Law of any Governmental Authority
having jurisdiction over it or its business (including the Federal Fair Labor
Standards Act) the non-compliance with which might have a Material Adverse
Effect.
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7.9 COMPLIANCE WITH ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code, it being understood that any
non-compliance with CLAUSE (a), (b) or (c) with respect to an Acquired Plan
existing on the Plan Acquisition Date for such Acquired Plan shall not
constitute a violation of this SECTION 7.9 so long as (i) the Company is
diligently proceeding to remedy such non-compliance and (ii) such non-compliance
will not result in any material fine, penalty or other liability.
7.10 INSPECTION OF PROPERTY AND BOOKS AND RECORDS. The Company shall,
and shall cause each Subsidiary to, maintain proper books of record and account,
in which full, true and correct entries (sufficient to permit the preparation of
consolidated financial statements in conformity with GAAP) shall be made of all
financial transactions and matters involving the assets and business of the
Company and such Subsidiary. The Company shall permit, and shall cause each
Subsidiary to permit, the Administrative Agent, any Lender or their respective
representatives (in each case at such Person's own expense unless an Event of
Default exists), upon reasonable notice at any reasonable time during normal
business hours and from time to time at the request of the Administrative Agent
or the relevant Lender, to visit and inspect the properties of the Company or
any Subsidiary (and, if (i) any Unmatured Event of Default exists and has been
continuing for 15 days or (ii) any Event of Default exists to examine their
respective corporate, financial and operating records, and make copies thereof
or abstracts therefrom), and to discuss the affairs, finances and accounts of
the Company or any Subsidiary with the appropriate officers, employees or
authorized agents of the Company or such Subsidiary.
7.11 ENVIRONMENTAL LAWS. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
material compliance with all material Environmental Laws. Without limiting the
foregoing, the Company shall, and shall cause each Subsidiary to, (i) maintain
all material operating permits for all landfills now owned or hereafter
acquired; and (ii) dispose of hazardous waste only at licensed disposal
facilities operating, to the best of the Company's or the applicable
Subsidiary's knowledge after reasonable inquiry, in material compliance with all
material Environmental Laws.
7.12 USE OF PROCEEDS. The Company shall use the proceeds of the Loans
for working capital and other general corporate purposes (including
Acquisitions) not in contravention of any
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Requirement of Law or of any Loan Document; PROVIDED that the Company shall not
use the proceeds of any Loan to make any Acquisition if the Board of Directors
of the Person to be acquired has not approved such Acquisition.
7.13 EXTINGUISHMENT OF CERTAIN OBLIGATIONS. The Company shall, within
60 days after the consummation of the IPO, repay, or cause to be repaid, all
Indebtedness outstanding on the date of consummation of the IPO that the Company
or any Subsidiary of the Company owes to Republic Industries, Inc. or to any
Subsidiary of Republic Industries, Inc. that is not also a Subsidiary of the
Company.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
8.1 FINANCIAL CONDITION COVENANTS.
(a) MINIMUM CONSOLIDATED SHAREHOLDER'S EQUITY. The Company
shall not permit its Consolidated Shareholder's Equity as of the last day of any
fiscal quarter to be less than the sum of (i) $850,000,000 plus (ii) 50% of
Cumulative Consolidated Net Income.
(b) MAXIMUM TOTAL DEBT TO EBITDA RATIO. The Company shall not
permit, as of the last day of any fiscal quarter (beginning with the fiscal
quarter ending September 30, 1998), the Total Debt to EBITDA Ratio for the
Computation Period ending on such day to be greater than 3.25 to 1.
8.2 LIMITATION ON LIENS. The Company shall not, and shall not suffer or
permit any Subsidiary to, directly or indirectly, make, create, incur, assume or
suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following ("PERMITTED
LIENS"):
(a) any Lien existing on the Effective Date and set forth in
SCHEDULE 8.2, and any extension, renewal or replacement of any such Lien so long
as the principal amount secured thereby is not increased and the scope of the
property subject to such Lien is not extended;
(b) Liens imposed by law for taxes, assessments or
charges of any Governmental Authority for claims not yet due or
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which are being contested in good faith by appropriate proceedings diligently
pursued and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or created
in the ordinary course of business and in existence less than 120 days from the
date of creation thereof for amounts not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained in accordance with
GAAP;
(d) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation;
(e) Liens on the property of the Company or any Subsidiary
securing (i) the non-delinquent performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, (ii) surety bonds (excluding
appeal bonds and other bonds posted in connection with court proceedings or
judgments) and (iii) other non-delinquent obligations of a like nature in each
case incurred in the ordinary course of business, provided all such Liens in the
aggregate would not (even if enforced) cause a Material Adverse Effect;
(f) Liens consisting of judgment or judicial attachment liens
and liens securing contingent obligations on appeal bonds and other bonds posted
in connection with court proceedings or judgments, provided that (i) in the case
of judgment and judicial attachment liens, the enforcement of such Liens is
effectively stayed and (ii) all such liens in the aggregate at any time
outstanding for the Company and its Subsidiaries do not exceed $50,000,000;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, individually or
in the aggregate, do not materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
businesses of the Company and its Subsidiaries;
(h) Liens securing obligations in respect of Capital Leases on
assets subject to such leases, provided that such Capital Leases are otherwise
permitted hereunder;
(i) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar rights
and remedies as to deposit accounts or
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other funds maintained with a creditor depository institution; PROVIDED that (i)
such deposit account is not a dedicated cash collateral account and is not
subject to restrictions against access by the Company in excess of those set
forth by regulations promulgated by the FRB, and (ii) such deposit account is
not intended by the Company or any Subsidiary to provide collateral to the
depository institution; and
(j) other Liens, in addition to those permitted by CLAUSES (a)
through (h), securing Indebtedness or arising in connection with Securitization
Transactions; PROVIDED that the sum (without duplication) of all such
Indebtedness, plus the aggregate investment or claim held at any time by all
purchasers, assignees or other transferees of (or of interests in) receivables
and other rights to payment in all Securitization Transactions, shall not at any
time exceed in the aggregate 20% of Consolidated Tangible Assets.
8.3 DISPOSITION OF ASSETS. The Company shall not, and shall not permit
any Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer
or otherwise dispose of (whether in one or a series of transactions) any
property (including accounts and notes receivable, with or without recourse) or
enter into any agreement to do any of the foregoing (including any
sale-leaseback), except:
(a) dispositions of inventory, or used, worn-out or
surplus equipment, all in the ordinary course of business;
(b) the sale, assignment or other transfer of accounts
receivable, lease receivables or other rights to payment pursuant to any
Securitization Transaction; and
(c) dispositions not otherwise permitted hereunder which are
made for fair market value; PROVIDED that (i) at the time of any such
disposition, no Event of Default shall exist or shall result from such
disposition and (ii) the aggregate value of all assets so disposed of by the
Company and its Subsidiaries in any one-year period (calculated as of the date
of any such disposition) shall not exceed 20% of Consolidated Tangible Assets as
of the last day of the most recently ended fiscal quarter.
8.4 CONSOLIDATIONS AND MERGERS. The Company shall not, and shall not
permit any Subsidiary to, merge, consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any other Person, except:
(a) any Subsidiary may merge with the Company, provided that
the Company shall be the continuing or surviving corporation, or with any one or
more Subsidiaries, provided that
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if any transaction shall be between a Subsidiary and a
Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be the
continuing or surviving corporation;
(b) any Subsidiary may sell all or substantially all
of its assets (upon voluntary liquidation or otherwise) to the
Company or another Wholly-Owned Subsidiary; and
(c) any merger, consolidation or disposition in connection
with a transaction permitted by SECTION 8.3 or an Acquisition permitted by
SECTION 8.5.
8.5 LOANS AND INVESTMENTS. The Company shall not, and shall not permit
any Subsidiary to, purchase or acquire, or make any commitment to purchase or
acquire, any capital stock, equity interest or obligations or other securities
of, or any interest in, any Person, or make or commit to make any Acquisition,
or make or commit to make any advance, loan, extension of credit or capital
contribution to or any other investment in any Person (including any Affiliate
of the Company)(any of the foregoing an "INVESTMENT"), except for:
(a) Investments held by the Company or any Subsidiary
in the form of cash equivalents or short term marketable
securities;
(b) extensions of credit in the nature of accounts receivable
or notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(c) extensions of credit by the Company to any of its
Subsidiaries or by any of its Subsidiaries to the Company or
another Subsidiary;
(d) Investments incurred in order to consummate Acquisitions
not otherwise prohibited herein, PROVIDED that no Event of Default or (except in
the case of an Acquisition where the only consideration given by the Company or
any Subsidiary is stock of the Company) Unmatured Event of Default exists or
will result therefrom;
(e) Investments (other than extensions of credit) in
Subsidiaries;
(f) Investments in Swap Contracts in the ordinary course of
business and not for speculative purposes;
(g) pledges or deposits required in the ordinary course of
business in connection with workmen's compensation, unemployment insurance and
other social security legislation;
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(h) advances, loans or extensions of credit to suppliers in
the ordinary course of business by the Company and its Subsidiaries;
(i) advances, loans or extensions of credit in the
ordinary course of business by the Company and its Subsidiaries
to employees of the Company and its Subsidiaries;
(j) repurchases by the Company of its common stock to
the extent permitted by SECTION 8.9;
(k) loans to an employee stock ownership plan established by
the Company, the proceeds of which are used solely to purchase stock of the
Company; and
(l) other Investments, in addition those permitted by CLAUSES
(a) through (k) above, not at any time exceeding in the aggregate 20% of
Consolidated Tangible Assets.
8.6 LIMITATION ON SUBSIDIARY INDEBTEDNESS. The Company shall not permit
the sum of the aggregate amount of all Indebtedness of Subsidiaries (excluding
the existing Indebtedness listed on SCHEDULE 8.6 and extensions, renewals and
refinancings thereof so long as the principal amount thereof is not increased)
to exceed 20% of Consolidated Tangible Assets.
8.7 TRANSACTIONS WITH AFFILIATES. The Company shall not, and shall not
permit any Subsidiary to, enter into any transaction with any Affiliate of the
Company (other than the Company or a Subsidiary), except upon fair and
reasonable terms no less favorable to the Company or such Subsidiary than would
obtain in a comparable arm's-length transaction with a Person not an Affiliate
of the Company or such Subsidiary.
8.8 USE OF PROCEEDS. The Company shall not, and shall not permit any
Subsidiary to, use any portion of the Loan proceeds or any Letter of Credit,
directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or
otherwise refinance indebtedness of the Company or others incurred to purchase
or carry Margin Stock or (iii) to extend credit for the purpose of purchasing or
carrying any Margin Stock.
8.9 RESTRICTED PAYMENTS. The Company shall not (i) declare or make any
dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of its capital
stock or (ii) purchase, redeem or otherwise acquire for value, or permit any
Subsidiary to purchase or otherwise acquire for value, any shares of the
Company's capital stock or any warrants, rights or options to acquire such
shares, now or hereafter outstanding, except that:
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(a) the Company may declare and make dividend payments
or other distributions payable solely in its common stock;
(b) the Company may purchase, redeem or otherwise acquire
shares of its common stock or warrants or options to acquire any such shares
with the proceeds received from the substantially concurrent issue of new shares
of its common stock; and
(c) so long as no Event of Default or Unmatured Event of
Default exists or would result therefrom, the Company may (x) declare and pay
cash dividends to its stockholders; and (y) purchase, redeem or otherwise
acquire shares of its common stock or warrants or options to acquire such
shares, PROVIDED that so long as the Divestiture Date has not occurred, the
aggregate amount of all such purchases, redemptions and other acquisitions on or
after March 31, 1998 shall not exceed 25% of Cumulative Consolidated Net Income.
8.10 ERISA. The Company shall not, and shall not permit any of its
ERISA Affiliates to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
could reasonably be expected to result in liability of the Company in an
aggregate amount in excess of $15,000,000; or (b) engage in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
8.11 CHANGE IN BUSINESS. The Company shall not, and shall not permit
any Subsidiary to, engage in any material line of business other than those
lines of business carried on by the Company and its Subsidiaries on the date
hereof and lines of business complementary thereto; PROVIDED that in no event
will the Company permit a material portion of the business of the Company and
its Subsidiaries, taken as a whole, to involve or relate to hazardous waste.
8.12 ACCOUNTING CHANGES. The Company shall not, and shall not permit
any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP.
ARTICLE IX
EVENTS OF DEFAULT
9.1 EVENT OF DEFAULT. Any of the following shall constitute an "Event
of Default":
(a) NON-PAYMENT. The Company fails to pay, (i) when
and as required to be paid herein, any amount of principal of any
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Loan or of the principal amount of any L/C Obligation, or (ii) within five days
after the same becomes due, any interest, fee or any other amount payable
hereunder or under any other Loan Document.
(b) REPRESENTATION OR WARRANTY. Any representation or warranty
by the Company or any Subsidiary made or deemed made herein or in any other Loan
Document, or which is contained in any certificate, document or financial or
other statement by the Company, any Subsidiary or any Responsible Officer
furnished at any time under this Agreement or under any other Loan Document, is
incorrect in any material respect on or as of the date made or deemed made.
(c) SPECIFIC DEFAULTS. The Company fails to perform
or observe any term, covenant or agreement contained in any of
SUBSECTION 7.3(a) or ARTICLE VIII.
(d) OTHER DEFAULTS. The Company fails to perform or observe
any other term or covenant contained in this Agreement or any other Loan
Document, and such failure shall continue unremedied for a period of 30 days
after the date upon which written notice thereof is given to the Company by the
Administrative Agent or any Lender.
(e) CROSS-DEFAULT. (i) The Company or any Subsidiary (A) fails
to make any payment of Material Financial Obligations when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise, but
after giving effect to any applicable grace or cure period); or (B) fails to
perform or observe any other condition or covenant, or any other event shall
occur or condition shall exist, under one or more agreements or instruments
relating to Material Financial Obligations, if the effect of such failure, event
or condition (after giving effect to any applicable grace or cure period) is to
cause (or require), or to permit the holder or holders of such Material
Financial Obligations or the beneficiary or beneficiaries of such Material
Financial Obligations (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause (or require), such Material Financial
Obligations to become due and payable (or to be purchased, repurchased, defeased
or cash collaterized) prior to the stated maturity thereof.
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. The Company or any
Subsidiary (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing; PROVIDED that the
foregoing shall not apply to the
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voluntary liquidation, dissolution or winding up of a Subsidiary
permitted by SECTION 7.4.
(g) INVOLUNTARY PROCEEDINGS. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Subsidiary, or any
writ, judgment, warrant of attachment, execution or similar process is issued or
levied against a substantial part of the Company's or any Subsidiary's
properties, and such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded, within 60 days after commencement, filing or
levy; (ii) the Company or any Subsidiary admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding with
respect to the Company or such Subsidiary; or (iii) the Company or any
Subsidiary acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property or business.
(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Company under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$5,000,000; (ii) a contribution failure shall occur with respect to a Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA; or (iii)
the Company or any ERISA Affiliate shall fail to pay when due, after the
expiration of any applicable grace period (or any period during which (x) the
Company is permitted to contest its obligation to make such payment without
incurring any liability (other than interest) or penalty and (y) the Company is
contesting such obligation in good faith and by appropriate proceedings), any
installment payment with respect to its withdrawal liability under Section 4201
of ERISA or any contribution obligation under Section 4243 of ERISA, in each
case under a Multiemployer Plan in an aggregate amount in excess of $5,000,000.
(i) JUDGMENTS. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against the
Company or any Subsidiary involving in the aggregate a liability (to the extent
not covered by insurance as to which the insurer does not dispute coverage) as
to any single or related series of transactions, incidents or conditions of
$25,000,000 or more, and the same shall remain unvacated and unstayed pending
appeal for a period of 25 days after the entry thereof.
(j) CHANGE OF CONTROL. Any Change of Control occurs.
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9.2 REMEDIES. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
(a) declare the commitment of each Lender to make Loans
(including the commitment of the Swing Line Lender to make Swing Line Loans) and
any obligation of each Issuing Lender to Issue Letters of Credit to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate amount
that is or at any time thereafter may become available for drawing under all
outstanding Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letters of Credit) to be immediately due
and payable, and declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Lenders all other
rights and remedies available to it and the Lenders under the Loan Documents or
applicable law;
PROVIDED, HOWEVER, that upon the occurrence of any event specified in SUBSECTION
(f) or (g) of SECTION 9.1 (in the case of CLAUSE (i) of SUBSECTION (g), upon the
expiration of the 60-day period mentioned therein), the obligation of each
Lender to make Loans and any obligation of each Issuing Lender to Issue Letters
of Credit shall automatically terminate and the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Administrative
Agent, the Issuing Lender or any other Lender. The Administrative Agent shall
promptly notify the Company of any declaration described in CLAUSE (a) or (b) of
the preceding sentence, but failure to give any such notice shall not impair any
such declaration or result in any liability to the Administrative Agent.
9.3 RIGHTS NOT EXCLUSIVE. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
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ARTICLE X
THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT AND AUTHORIZATION; "ADMINISTRATIVE AGENT". (a) Each
Lender hereby irrevocably (subject to SECTION 10.9) appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" in this Agreement with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) Each Issuing Lender shall act on behalf of the Lenders
with respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for such Issuing Lender with
respect thereto; PROVIDED, HOWEVER, that each Issuing Lender shall have all of
the benefits and immunities (i) provided to the Administrative Agent in this
ARTICLE X with respect to any acts taken or omissions suffered by such Issuing
Lender in connection with Letters of Credit Issued by it or proposed to be
Issued by it and the application and agreements for letters of credit pertaining
to the Letters of Credit as fully as if the term "Administrative Agent", as used
in this ARTICLE X, included such Issuing Lender with respect to such acts or
omissions, and (ii) as additionally provided in this Agreement with respect to
such Issuing Lender.
(c) The Swing Line Lender shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this ARTICLE X with
respect to any acts taken or omissions suffered by the Swing Line Lender in
connection with Swing Line
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Loans made or proposed to be made by it as fully as if the term "Administrative
Agent", as used in this ARTICLE X, included the Swing Line Lender with respect
to such acts or omissions and (ii) as additionally provided in this Agreement
with respect to the Swing Line Lender.
10.2 DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
10.3 LIABILITY OF ADMINISTRATIVE AGENT. None of the Administrative
Agent-Related Persons shall (i) be liable to any Lender for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct), or (ii) be responsible in any
manner to any of the Lenders for any recital, statement, representation or
warranty made by the Company or any Subsidiary or Affiliate of the Company, or
any officer thereof, contained in this Agreement or in any other Loan Document,
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in connection
with, this Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Company or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Administrative
Agent-Related Person shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Company or any of the Company's
Subsidiaries or Affiliates.
10.4 RELIANCE BY ADMINISTRATIVE AGENT. (a) The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Company), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be
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indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Required Lenders and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in SECTION 5.1, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender.
10.5 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Company referring to this Agreement,
describing such Event of Default or Unmatured Event of Default and stating that
such notice is a "notice of default". If the Administrative Agent receives such
a notice, the Administrative Agent will notify the Lenders of its receipt of
such notice. The Administrative Agent shall take such action with respect to
such Event of Default or Unmatured Event of Default as may be requested by the
Required Lenders in accordance with this ARTICLE X; PROVIDED, HOWEVER, that
unless and until the Administrative Agent has received any such request, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Event of Default or
Unmatured Event of Default as it shall deem advisable or in the best interest of
the Lenders.
10.6 CREDIT DECISION. Each Lender acknowledges that none of the
Administrative Agent-Related Persons has made any representation or warranty to
it, and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Company and its Subsidiaries, shall be deemed to
constitute any representation or warranty by any Administrative Agent-Related
Person to any Lender. Each Lender represents to the Administrative Agent that it
has, independently and without reliance upon any Administrative Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other
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condition and creditworthiness of the Company and its Subsidiaries, and all
applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Company hereunder. Each Lender also represents that it will,
independently and without reliance upon any Administrative Agent-Related Person
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Lenders by the Administrative
Agent, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of any
Administrative Agent-Related Person.
10.7 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand the Administrative Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Company and without limiting the obligation of
the Company to do so), pro rata, from and against any and all Indemnified
Liabilities; PROVIDED, HOWEVER, that no Lender shall be liable for the payment
to any Administrative Agent-Related Person of any portion of the Indemnified
Liabilities resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Company. The
undertaking in this Section shall survive the termination of this Agreement, the
payment of all Obligations and the resignation or replacement of the
Administrative Agent.
10.8 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. BofA and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Company and its
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Subsidiaries and Affiliates as though BofA were not the Administrative Agent,
the Swing Line Lender or an Issuing Lender hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, BofA or its Affiliates may receive information regarding the Company
or its Affiliates (including information that may be subject to confidentiality
obligations in favor of the Company or such Subsidiary) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, BofA shall have the same rights and powers
under this Agreement as any other Lender and may exercise the same as though it
were not the Administrative Agent, the Swing Line Lender or an Issuing Lender.
10.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may, and
at the request of the Required Lenders shall, resign as Administrative Agent
upon 30 days' notice to the Lenders. If the Administrative Agent resigns under
this Agreement, the Required Lenders (with, so long as no Event of Default
exists, the consent of the Company, which shall not be unreasonably withheld or
delayed) shall appoint from among the Lenders a successor administrative agent
for the Lenders. If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Company, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this ARTICLE X and SECTIONS 11.4 and
11.5 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor administrative agent as provided for above.
Notwithstanding the foregoing, however, BofA may not be removed as the
Administrative Agent at the request of the Required Lenders unless BofA and any
applicable Affiliate thereof shall also simultaneously be replaced as "Swing
Line Lender" and as an "Issuing Lender" hereunder pursuant to documentation in
form and substance reasonably satisfactory to BofA.
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10.10 WITHHOLDING TAX. (a) If any Lender is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Lender claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Lender agrees with and in favor of the Administrative
Agent and the Company, to deliver to the Administrative Agent (with a copy to
the Company):
(i) if such Lender claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty,
properly completed IRS Forms 1001 and W-8 before the payment of any
interest in the first calendar year and before the payment of any
interest in each third succeeding calendar year during which interest
may be paid under this Agreement;
(ii) if such Lender claims that interest paid under
this Agreement is exempt from United States withholding tax because it
is effectively connected with a United States trade or business of such
Lender, two properly completed and executed copies of IRS Form 4224
before the payment of any interest is due in the first taxable year of
such Lender and in each succeeding taxable year of such Lender during
which interest may be paid under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a condition to
exemption from, or reduction of, United States withholding tax.
Each such Lender agrees to promptly notify the Administrative Agent and the
Company of any change in circumstances which would modify or render invalid any
claimed exemption or reduction.
(b) If any Lender claiming exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Obligations owed to such Lender, such Lender agrees to notify the
Administrative Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Company to such Lender. To the extent of
such percentage amount, the Administrative Agent will treat such Lender's IRS
Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Administrative Agent grants a
participation in all or part of the Obligations owed to such Lender, such Lender
agrees to undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
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(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Lender an amount equivalent to the applicable withholding tax after
taking into account such reduction. If the forms or other documentation required
by SUBSECTION (a) of this Section are not delivered to the Administrative Agent,
then the Administrative Agent may withhold from any interest payment to such
Lender not providing such forms or other documentation an amount equivalent to
the applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Administrative
Agent or the Company did not properly withhold tax from amounts paid to or for
the account of any Lender because such Lender failed to notify the
Administrative Agent or the Company of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective) such Lender
shall indemnify the Administrative Agent and the Company fully for all amounts
paid, directly or indirectly, by the Administrative Agent or the Company as tax
or otherwise, including penalties and interest, and including any taxes imposed
by any jurisdiction on the amounts payable to the Administrative Agent or the
Company under this Section, together with all costs and expenses (including
Attorney Costs). The obligation of the Lenders under this subsection shall
survive the payment of all Obligations and the resignation or replacement of the
Administrative Agent.
10.11 DOCUMENTATION AGENTS. None of the Lenders identified on the
facing page or signature pages of this Agreement or any related document as a
"Documentation Agent" shall 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 the Lenders so
identified as a "Documentation Agent" shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
ARTICLE XI
MISCELLANEOUS
11.1 AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required Lenders
(or
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by the Administrative Agent at the written request of the Required Lenders) and
the Company and acknowledged by the Administrative Agent, and then any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED that no such waiver, amendment or
consent shall increase or extend the Commitment of any Lender without the
written consent of such Lender; and PROVIDED, FURTHER, that no such waiver,
amendment or consent shall, unless in writing and signed by all Lenders and the
Company and acknowledged by the Administrative Agent, do any of the following:
(a) reinstate any Commitment terminated pursuant to
SECTION 9.2;
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other Loan
Document;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan, or reduce any fees (other than the fees referred to in
SUBSECTION 2.11(a) or SUBSECTIONS 3.8(c) and (d)) or other amounts payable
hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Lenders
or any of them to take any action hereunder; or
(e) amend this Section, or SECTION 2.15, or any
provision herein providing for consent or other action by all
Lenders;
and PROVIDED, FURTHER, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable Issuing Lender in addition to the Required
Lenders or all Lenders, as the case may be, affect the rights or duties of such
Issuing Lender under this Agreement or any L/C-Related Document relating to any
Letter of Credit Issued or to be Issued by it, (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Required Lenders or all Lenders, as the case may be, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document and (iii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Required Lenders or all
Lenders, as the case may be, affect the rights or duties of the Swing Line
Lender under this Agreement or any other Loan Document.
11.2 NOTICES. (a) All notices, requests, consents,
approvals, waivers and other communications shall be in writing
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(including, unless the context expressly otherwise provides, by facsimile
transmission, provided that any matter transmitted by the Company by facsimile
(i) shall be immediately confirmed by a telephone call to the recipient at the
number specified on SCHEDULE 11.2, and (ii) shall be followed promptly by
delivery of a hard copy original thereof) and mailed, faxed or delivered, to the
address or facsimile number specified for notices on SCHEDULE 11.2 or (x) in the
case of the Company or the Administrative Agent, to such other address as shall
be designated by such party in a written notice to the other parties and (y) in
the case of any other party, at such other address as shall be designated by
such party in a written notice to the Company and the Administrative Agent;
PROVIDED that, if agreed by any Issuing Lender, notices to such Issuing Lender
by the Company pursuant to ARTICLE III may be transmitted electronically to such
Issuing Lender.
(b) All such notices, requests, consents, approvals, waivers
and communications shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or transmitted in
legible form by facsimile machine, respectively, or if mailed, upon the third
Business Day after the date deposited into the U.S. mail, certified or
registered mail, return receipt requested or if delivered, upon delivery; except
that notices pursuant to ARTICLE II, III or X to the Administrative Agent or the
Swing Line Lender, as the case may be, shall not be effective until actually
received by the Administrative Agent or the Swing Line Lender, as the case may
be, and notices pursuant to ARTICLE III to the applicable Issuing Lender shall
not be effective until actually received by such Issuing Lender at the address
specified for such "Issuing Lender" on SCHEDULE 11.2.
(c) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Company. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Company to give such notice and the Administrative
Agent and the Lenders shall not have any liability to the Company or any other
Person on account of any action taken or not taken by the Administrative Agent
or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Company to repay the Loans and L/C Obligations shall not be
affected in any way or to any extent by any failure by the Administrative Agent
and the Lenders to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Administrative Agent and the Lenders of a
confirmation which is at variance with the terms understood by the
Administrative Agent and the Lenders to be contained in the telephonic or
facsimile notice.
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11.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
11.4 COSTS AND EXPENSES. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Administrative
Agent, Swing Line Lender and an Issuing Lender) and BRS within five Business
Days after demand (subject to SUBSECTION 5.1(e)) for all reasonable costs and
expenses incurred by BofA (including in its capacity as Administrative Agent,
Swing Line Lender and an Issuing Lender) and BRS in connection with the
negotiation, preparation, delivery, documentation and execution of, and any
amendment, supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any other Loan Document and any other document
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including Attorney Costs incurred
by BofA (including in its capacity as Administrative Agent, Swing Line Lender
and an Issuing Lender) and BRS with respect thereto; and
(b) pay or reimburse the Administrative Agent, BRS and each
Lender within five Business Days after demand for all reasonable costs and
expenses (including Attorney Costs) incurred by them in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies
under this Agreement or any other Loan Document (including in connection with
any "workout" or restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding).
11.5 COMPANY INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify, defend and
hold the Administrative Agent-Related Persons and each Lender and each of their
respective officers, directors, employees, counsel, agents and attorneys-in-fact
(each an "INDEMNIFIED PERSON") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses and disbursements (including Attorney Costs) of any
kind or nature whatsoever which may at any time (including at any time following
repayment of the Loans, the termination of the Letters of Credit and the
termination, resignation or replacement of the Administrative Agent or
replacement of any Lender) be imposed on, incurred by or asserted against any
such Person in any way relating to or arising out of this Agreement or any
document contemplated by or
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referred to herein, or the transactions contemplated hereby, or any action taken
or omitted by any such Person under or in connection with any of the foregoing,
including with respect to any investigation, litigation or proceeding (including
any Insolvency Proceeding or appellate proceeding) related to or arising out of
this Agreement or the Loans or Letters of Credit or the use of the proceeds
thereof, whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "INDEMNIFIED LIABILITIES"); PROVIDED that the
Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities resulting solely from the gross negligence or
willful misconduct of such Indemnified Person. The agreements in this Section
shall survive the termination of this Agreement and the payment of all other
Obligations.
11.6 PAYMENTS SET ASIDE. To the extent that the Company makes a payment
to the Administrative Agent or the Lenders, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, a receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its pro rata
share of any amount so recovered from or repaid by the Administrative Agent.
11.7 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent and each Lender.
11.8 ASSIGNMENTS, PARTICIPATIONS, ETC. (a) Any Lender may, with the
written consent of the Company (which consent shall not be required during the
existence of an Event of Default), and the Administrative Agent (such consents
not to be unreasonably withheld or delayed), at any time assign and delegate to
one or more Eligible Assignees (provided that no written consent of the Company
or the Administrative Agent shall be required in connection with any assignment
and delegation by a Lender to an Eligible Assignee that is an Affiliate of such
Lender) (each an "ASSIGNEE") all, or any ratable part of all, of the Committed
Loans, the Commitments, the L/C Obligations and the other rights and obligations
of such Lender hereunder, in a minimum amount of
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$10,000,000 (or, if less, the amount of such Lender's Commitment); PROVIDED,
HOWEVER, that the Company and the Administrative Agent may continue to deal
solely and directly with such Lender in connection with the interest so assigned
to an Assignee until (i) written notice of such assignment, together with
payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Company and the Administrative Agent by
such Lender and the Assignee; (ii) such Lender and its Assignee shall have
delivered to the Company and the Administrative Agent an Assignment and
Acceptance in the form of EXHIBIT J ("ASSIGNMENT AND ACCEPTANCE") together with
any Note or Notes subject to such assignment and (iii) such Lender or the
Assignee has paid to the Administrative Agent a processing fee in the amount of
$3,500.
(b) From and after the date that the Administrative Agent
notifies the assignor Lender that it has received and provided its consent (and,
to the extent required, received the consent of the Company) with respect to an
executed Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the rights and obligations of a
Lender under the Loan Documents, and (ii) the assignor Lender shall, to the
extent that rights and obligations hereunder and under the other Loan Documents
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Loan Documents.
(c) As soon as practicable after the effectiveness of any
Assignment and Acceptance pursuant to SUBSECTION 11.8(a)), the Company shall,
upon request, execute and deliver to the Administrative Agent a new Note
evidencing the applicable Assignee's assigned Loans and Commitment. Immediately
upon the effectiveness of any Assignment and Acceptance, this Agreement shall be
deemed to be amended to the extent, but only to the extent, necessary to reflect
the addition of the Assignee and/or the resulting adjustment of the Commitments
arising therefrom.
(d) Any Lender may at any time sell to one or more commercial
banks or other Persons not Affiliates of the Company (a "PARTICIPANT")
participating interests in any Loans, the Commitment of such Lender and the
other interests of such Lender (the "originating Lender") hereunder and under
the other Loan Documents; PROVIDED, HOWEVER, that (i) the originating Lender's
obligations under this Agreement shall remain unchanged, (ii) the originating
Lender shall remain solely responsible for the performance of such obligations,
(iii) the Company, each Issuing Lender, the Swing Line Lender and the
Administrative Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
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obligations under this Agreement and the other Loan Documents, and (iv) no
Lender shall transfer or grant any participating interest under which a
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document, except to the extent
such amendment, consent or waiver would require unanimous consent of the Lenders
as described in the FIRST PROVISO to SECTION 11.1. In the case of any such
participation, the Participant shall be entitled to the benefit of SECTIONS 4.1,
4.3, 4.4 and 11.5 as though it were also a Lender hereunder (provided that no
Participant shall be entitled to any greater amount pursuant to such Sections
than the originating Lender would have been entitled to receive if no such
participation had been sold), and if amounts outstanding under this Agreement
are due and unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of set-off in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement.
(e) Notwithstanding any other provision in this Agreement, any
Lender may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and any Note held by
it in favor of any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve
Bank may enforce such pledge or security interest in any manner permitted under
applicable law.
11.9 CONFIDENTIALITY. Each Lender agrees to take, and to cause its
Affiliates to take, normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential" or
"secret" by the Company and provided to it by the Company or any Subsidiary, or
by the Administrative Agent on the Company's or such Subsidiary's behalf, under
this Agreement or any other Loan Document, and neither such Lender nor any of
its Affiliates shall use any such information other than in connection with or
in enforcement of this Agreement and the other Loan Documents or in connection
with other business now or hereafter existing or contemplated with the Company
or any Subsidiary; except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure by such
Lender, or (ii) was or becomes available on a non-confidential basis from a
source other than the Company, provided that such source is not bound by a
confidentiality agreement with the Company or any Subsidiary known to such
Lender; PROVIDED, HOWEVER, that any Lender may disclose such information (A) at
the request or pursuant to any requirement of any Governmental Authority to
which such Lender is subject or in connection with an examination of such Lender
by any such authority; (B) pursuant to subpoena or other court
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process; (C) when required to do so in accordance with the provisions of any
applicable Requirement of Law; (D) to the extent reasonably required in
connection with any litigation or proceeding to which the Administrative Agent
or any Lender or any of their respective Affiliates may be party; (E) to the
extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document; (F) to such Lender's independent
auditors and other professional advisors; (G) to any Participant or Assignee,
actual or potential, provided that such Person agrees in writing to keep such
information confidential to the same extent required of the Lenders hereunder;
(H) as to any Lender or any of its Affiliates, as expressly permitted under the
terms of any other document or agreement regarding confidentiality to which the
Company or any Subsidiary is party or is deemed party with such Lender or such
Affiliate; and (I) to its Affiliates.
11.10 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, if any Event of Default exists, each Lender is authorized at
any time and from time to time, without prior notice to the Company, any such
notice being expressly waived by the Company to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by, and other indebtedness at any
time owing by, such Lender to or for the credit or the account of the Company
against any and all Obligations owing to such Lender, now or hereafter existing,
irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Agreement or any other Loan Document and although
such Obligations may be contingent or unmatured. Each Lender agrees promptly to
notify the Company and the Administrative Agent after any such set-off and
application made by such Lender; PROVIDED, HOWEVER, that the failure to give
such notice shall not affect the validity of such set-off and application.
11.11 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each Lender
shall notify the Administrative Agent in writing of any change in the address to
which notices to such Lender should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
11.12 COUNTERPARTS. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of which taken together shall be deemed to constitute but one
and the same instrument.
11.13 SEVERABILITY. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the
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legality or enforceability of the remaining provisions of this Agreement or any
instrument or agreement required hereunder.
11.14 NO THIRD PARTIES BENEFITED. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Lenders, the
Administrative Agent and the Administrative Agent-Related Persons and the
Indemnified Persons, and their permitted successors and assigns, and no other
Person shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement or any of
the other Loan Documents.
11.15 GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH OF THE COMPANY,
THE ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS EACH WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
11.16 WAIVER OF JURY TRIAL. THE COMPANY, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY ADMINISTRATIVE AGENT-RELATED
PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE COMPANY, THE LENDERS AND THE ADMINISTRATIVE AGENT EACH
AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION
AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN
PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS OR ANY PROVISION HEREOF OR
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THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENT, RENEWAL,
SUPPLEMENT OR MODIFICATION TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.17 ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents (and any agreement relating to fees referred in SUBSECTION 2.11(a)),
embodies the entire agreement and understanding among the Company, the Lenders
and the Administrative Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
REPUBLIC SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President and Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Managing Director
--------------------------------------
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, as Swing Line
Lender, as an Issuing Lender
and as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Managing Director
--------------------------------------
THE CHASE MANHATTAN BANK,
as Documentation Agent and
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Title: Vice President
--------------------------------------
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THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent, as an
Issuing Lender and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Title: Managing Director
--------------------------------------
NATIONSBANK, N.A.,
as Documentation Agent and as a
Lender
By: /s/ [Illegible]
-----------------------------------------
Title: Senior Vice President
--------------------------------------
ABN-AMRO BANK, NV,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Title: Group Vice President
--------------------------------------
BANCA DI ROMA,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Title: Vice President
--------------------------------------
BANKBOSTON, N.A.,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
--------------------------------------
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BANK OF NEW YORK,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
--------------------------------------
BANKERS TRUST COMPANY,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
--------------------------------------
CIBC, INC.,
as a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------------
Title: Executive Director,
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp, As Agent
--------------------------------------
CITIBANK, N.A.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
--------------------------------------
COMMERZBANK AKTIENGESELLSCHAFT,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Title: SVP & Manager
--------------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
--------------------------------------
▇-▇
▇▇
▇▇▇▇▇▇▇▇ BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCH
as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
--------------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: Director
--------------------------------------
FIRST AMERICAN NATIONAL BANK,
as a Lender
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Title: Assistant Vice President
--------------------------------------
FIRST UNION NATIONAL BANK,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Title: Senior Vice President
--------------------------------------
FLEET BANK, N.A.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
--------------------------------------
SUNTRUST BANK, SOUTH,
as a Lender
By: /s/ [Illegible]
-----------------------------------------
Title: Vice President
--------------------------------------
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▇▇▇▇▇ FARGO BANK,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
--------------------------------------
WESTDEUTSCHE LANDESBANK,
GIROZENTRALE, New York Branch
as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
--------------------------------------
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Title: Associate
--------------------------------------
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SCHEDULE 1.1
PRICING SCHEDULE
The Applicable Margin, the Facility Fee Rate and the L/C Fee Rate,
respectively, shall be determined in accordance with the table below and the
other provisions of this SCHEDULE 1.1.
=====================================================================================
LEVEL I Level II Level III Level IV Level V
-------------------------------------------------------------------------------------
Applicable Margin 0.325% 0.350% 0.375% 0.425% 0.500%
-------------------------------------------------------------------------------------
Facility Fee Rate 0.125% 0.150% 0.175% 0.200% 0.250%
-------------------------------------------------------------------------------------
L/C Fee Rate 0.325% 0.350% 0.375% 0.425% 0.500%
=====================================================================================
LEVEL I applies when the Total Debt to EBITDA Ratio is less than 1.00
to 1.0.
LEVEL II applies when the Total Debt to EBITDA Ratio is equal to or
greater than 1.00 to 1.0 but less than 1.75 to 1.0.
LEVEL III applies when the Total Debt to EBITDA Ratio is equal to or
greater than 1.75 to 1.0 but less than 2.50 to 1.0.
LEVEL IV applies when the Total Debt to EBITDA Ratio is equal to or
greater than 2.50 to 1.0 but less than 3.00 to 1.0.
LEVEL V applies when the Total Debt to EBITDA Ratio is equal to or
greater than 3.00 to 1.0.
The applicable Level shall be adjusted, to the extent applicable, 60
days (or, in the case of the last fiscal quarter of any year, 120 days) after
the end of each fiscal quarter, based on the Total Debt to EBITDA Ratio as of
the last day of such fiscal quarter; PROVIDED that if the Company fails to
deliver the financial statements required by SUBSECTION 7.1(a) or 7.1(b), as
applicable, and the related Compliance Certificate required by SUBSECTION 7.2(a)
by the 60th day (or, if applicable, the 120th day) after any fiscal quarter,
Level V shall apply until such financial statements and Compliance Certificate
are delivered. Notwithstanding the foregoing, Level I shall apply from the
Effective Date until November 30, 1998.