Exhibit 10.1
[EXECUTION COPY]
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PUBLISHED CUSIP NUMBER____________
CREDIT AGREEMENT
DATED AS OF APRIL 29, 2005
AMONG
SYNAGRO TECHNOLOGIES, INC.,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT, SWING LINE LENDER AND L/C ISSUER,
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
AS SYNDICATION AGENT,
AND
CIBC WORLD MARKETS CORP.,
AS DOCUMENTATION AGENT
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BANC OF AMERICA SECURITIES LLC,
▇▇▇▇▇▇ BROTHERS INC.
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Defined Terms..........................................................................1
Section 1.02 Other Interpretative Provisions.......................................................40
Section 1.03 Accounting Terms and Determinations...................................................41
Section 1.04 Rounding..............................................................................42
Section 1.05 Times of Day..........................................................................42
Section 1.06 Letter of Credit Amounts..............................................................42
Section 1.07 Classes and Types of Borrowings.......................................................42
ARTICLE II
THE CREDIT FACILITIES
Section 2.01 Commitments to Lend...................................................................42
Section 2.02 Notice of Borrowings..................................................................45
Section 2.03 Notice to Lenders; Funding of Loans...................................................46
Section 2.04 Evidence of Loans.....................................................................48
Section 2.05 Letters of Credit.....................................................................49
Section 2.06 Interest..............................................................................60
Section 2.07 Extension and Conversion..............................................................61
Section 2.08 Maturity of Loans.....................................................................62
Section 2.09 Prepayments...........................................................................62
Section 2.10 Adjustment of Commitments.............................................................65
Section 2.11 Fees..................................................................................67
Section 2.12 Pro-rata Treatment....................................................................68
Section 2.13 Sharing of Payments by Lenders........................................................69
Section 2.14 Payments Generally; Administrative Agent's Clawback...................................69
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01 Taxes.................................................................................71
Section 3.02 Illegality............................................................................73
Section 3.03 Inability to Determine Rates..........................................................73
Section 3.04 Increased Costs and Reduced Return; Capital Adequacy..................................74
Section 3.05 Compensation for Losses...............................................................75
Section 3.06 Base Rate Loans Substituted for Affected Eurodollar Loans.............................75
Section 3.07 Mitigation Obligations; Replacement of Lenders........................................76
Section 3.08 Survival..............................................................................76
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01 Conditions to Initial Credit Extension................................................76
Section 4.02 Conditions to All Credit Extensions...................................................82
Section 4.03 Conditions Precedent to Facilities Increase...........................................82
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01 Existence, Qualification and Power; Compliance with Laws..............................84
Section 5.02 Authorization; No Contravention.......................................................84
Section 5.03 Governmental Authorization; Other Consents............................................84
Section 5.04 Binding Effect........................................................................84
Section 5.05 Financial Condition; No Material Adverse Effect.......................................84
Section 5.06 Litigation............................................................................85
Section 5.07 No Default............................................................................86
Section 5.08 Ownership of Property; Liens..........................................................86
Section 5.09 Environmental Compliance..............................................................86
Section 5.10 Insurance.............................................................................86
Section 5.11 Taxes.................................................................................86
Section 5.12 ERISA; Foreign Pension Plans; Employee Benefit Arrangements...........................86
Section 5.13 Subsidiaries; Equity Interests........................................................88
Section 5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act........88
Section 5.15 Disclosure............................................................................89
Section 5.16 Compliance with Law...................................................................89
Section 5.17 Intellectual Property.................................................................89
Section 5.18 Purpose of Loans and Letters of Credit................................................89
Section 5.19 Solvency..............................................................................90
Section 5.20 Collateral Documents..................................................................90
ARTICLE VI
AFFIRMATIVE COVENANTS
Section 6.01 Financial Statements..................................................................90
Section 6.02 Certificates; Other Information.......................................................91
Section 6.03 Notices...............................................................................94
Section 6.04 Payment of Obligations................................................................95
Section 6.05 Preservation of Existence Etc.........................................................95
Section 6.06 Maintenance of Properties.............................................................95
Section 6.07 Maintenance of Insurance; Certain Proceeds............................................96
Section 6.08 Compliance with Laws..................................................................96
Section 6.09 Books and Records; Lender Meeting.....................................................97
Section 6.10 Inspection Rights.....................................................................97
Section 6.11 Use of Proceeds.......................................................................97
Section 6.12 Additional Loan Parties; Additional Security..........................................97
Section 6.13 Interest Rate Protection Agreements..................................................100
Section 6.14 Project Subsidiaries.................................................................100
ARTICLE VII
NEGATIVE COVENANTS
Section 7.01 Limitation on Indebtedness...........................................................101
Section 7.02 Restriction on Liens.................................................................104
Section 7.03 Nature of Business...................................................................106
Section 7.04 Consolidation, Merger and Dissolution................................................106
Section 7.05 Asset Dispositions...................................................................107
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Section 7.06 Investments..........................................................................109
Section 7.07 Restricted Payments, etc.............................................................112
Section 7.08 Prepayments of Indebtedness, etc.....................................................113
Section 7.09 Transactions with Affiliates.........................................................113
Section 7.10 Fiscal Year; Organizational and Other Documents......................................114
Section 7.11 Restrictions with Respect to Intercorporate Transfers................................114
Section 7.12 Limitations on Certain Activities....................................................115
Section 7.13 Sale and Leaseback Transactions......................................................115
Section 7.14 Additional Negative Pledges..........................................................115
Section 7.15 Impairment of Security Interests.....................................................116
Section 7.16 Financial Covenants..................................................................116
Section 7.17 No Other "Designated Senior Debt"....................................................117
ARTICLE VIII
DEFAULTS
Section 8.01 Events of Default....................................................................117
Section 8.02 Acceleration; Remedies...............................................................120
Section 8.03 Allocation of Payments After Event of Default........................................120
ARTICLE IX
AGENCY PROVISIONS
Section 9.01 Appointment and Authority............................................................123
Section 9.02 Rights as a Lender...................................................................123
Section 9.03 Exculpatory Provisions...............................................................123
Section 9.04 Reliance by Administrative Agent.....................................................124
Section 9.05 Delegation of Duties.................................................................124
Section 9.06 Resignation of Administrative Agent..................................................124
Section 9.07 Non-Reliance on Administrative Agent and Other Lenders...............................125
Section 9.08 No Other Duties, Etc.................................................................125
Section 9.09 Administrative Agent May File Proofs of Claim........................................125
Section 9.10 Collateral and Guaranty Matters......................................................126
Section 9.11 Related Obligations..................................................................126
Section 9.12 Agents' Fees; Joint Lead Arrangers Fees..............................................127
ARTICLE X
MISCELLANEOUS
Section 10.01 Amendments, Etc......................................................................127
Section 10.02 Notices; Effectiveness; Electronic Communication.....................................129
Section 10.03 No Waiver; Cumulative Remedies.......................................................130
Section 10.04 Expenses; Indemnity; Damage Waiver...................................................131
Section 10.05 Payments Set Aside...................................................................132
Section 10.06 Successors and Assigns...............................................................133
Section 10.07 Treatment of Certain Information; Confidentiality....................................136
Section 10.08 Right of Setoff......................................................................137
Section 10.09 Interest Rate Limitation.............................................................137
Section 10.10 Counterparts; Integration; Effectiveness.............................................138
Section 10.11 Survival of Representations and Warranties...........................................138
Section 10.12 Severability.........................................................................138
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Section 10.13 Replacement of Lenders...............................................................138
Section 10.14 Governing Law; Jurisdiction Etc......................................................139
Section 10.15 Waiver of Jury Trial.................................................................140
Section 10.16 USA Patriot Act Notice; Lenders' Compliance Certification............................140
Section 10.17 Judgment Currency....................................................................141
Section 10.18 Conflict.............................................................................142
SCHEDULES:
Schedule 1.01A - Refinanced Agreements
Schedule 1.01B - Identified Capital Expenditures
Schedule 1.01C - Project Subsidiaries
Schedule 1.01D - Scheduled Capital Expenditures
Schedule 1.01E - Synthetic Lease Obligations
Schedule 2.01 Lenders and Commitments
Schedule 2.05 - Existing Letters of Credit
Schedule 4.01(i) - Mortgaged Properties
Schedule 5.03 - Required Consents, Authorizations, Notices and Filings
Schedule 5.05 - Certain Liabilities
Schedule 5.06 - Litigation
Schedule 5.12 - ERISA
Schedule 5.13 - Subsidiaries
Schedule 5.16 - Compliance with Law
Schedule 5.17 - Intellectual Property
Schedule 5.20 - Mortgage Recordings
Schedule 7.01 - Indebtedness
Schedule 7.02 - Existing Liens
Schedule 7.06 - Existing Investments
Schedule 7.09 - Transactions with Affiliates
Schedule 10.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS:
Exhibit A-1 - Form of Notice of Borrowing
Exhibit A-2 - Form of Notice of Extension/Conversion
Exhibit A-3 - Form of Letter of Credit Request
Exhibit A-4 - Form of Swing Line Loan Request
Exhibit B-1 - Form of Revolving Note
Exhibit B-2 - Form of Term B Closing Date Note
Exhibit B-3 - Form of Term B Delayed Draw Note
Exhibit B-4 - Form of Swing Line Note
Exhibit C - Form of Assignment and Assumption
Exhibit D Form of Compliance Certificate
Exhibit E - Form of Opinion of Special Local Counsel for the Company and the
Other Loan Parties (Real Property Collateral)
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Exhibit F - Form of Subsidiary Guaranty
Exhibit G-1 - Form of Security Agreement
Exhibit G-2 Form of Pledge Agreement
Exhibit G-3 - Form of Perfection Certificate
Exhibit G-4 - Form of Mortgage
Exhibit H - Form of Intercompany Note
Exhibit I - Form of Intercompany Note Subordination Provisions
Exhibit J - Form of Loan Party Accession Agreement
Exhibit K - Form of OFAC/Anti-Terrorism Compliance Certificate
Exhibit L - Form of Solvency Certificate
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CREDIT AGREEMENT
This
Credit Agreement (this "AGREEMENT") is entered into as of April
29, 2005 among SYNAGRO TECHNOLOGIES, INC., a Delaware corporation (the
"COMPANY), each lender from time to time party hereto (collectively, the
"LENDERS" and individually, a "LENDER"), BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer, ▇▇▇▇▇▇ COMMERCIAL PAPER
INC., as Syndication Agent, and CIBC WORLD MARKETS CORP., as Documentation
Agent.
The Company has requested the Lenders to provide credit facilities to
the Company in the aggregate principal amount of $305,000,000, subject to
increase as provided herein, for the purposes described herein. The Lenders are
willing to make the requested credit facilities available on the terms and
conditions set forth herein. Accordingly, in consideration of the mutual
covenants and agreements herein contained, the parties hereto covenant and agree
as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings set forth below:
"ACCESSION AGREEMENT" means a Loan Party Accession Agreement,
substantially in the form of EXHIBIT J hereto, executed and delivered by an
Additional Subsidiary Guarantor after the Closing Date in accordance with
SECTION 6.12(a) or (d).
"ADDITIONAL COLLATERAL DOCUMENTS" has the meaning specified in SECTION
6.12(b).
"ADDITIONAL LETTER OF CREDIT" means any letter of credit issued
hereunder by a L/C Issuer on or after the Closing Date.
"ADDITIONAL SUBSIDIARY GUARANTOR" means each Person that becomes a
Subsidiary Guarantor after the Closing Date by execution of an Accession
Agreement as provided in SECTION 6.12.
"ADJUSTED EURODOLLAR RATE" means, for the Interest Period for each
Eurodollar Loan comprising part of the same Group, the quotient obtained
(expressed as a decimal, carried out to five decimal places) by dividing (i) the
applicable Eurodollar Rate for such Interest Period by (ii) 1.00 minus the
Eurodollar Reserve Percentage.
"ADMINISTRATIVE AGENT" means Bank of America, N.A. in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's
address and, as appropriate, account as set forth on SCHEDULE 10.02, or such
other address or account as the Administrative Agent may from time to time
notify the Company and the Lenders pursuant to SECTION 10.02.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"AGENT" means the Administrative Agent, the Syndication Agent, the
Documentation Agent or the Collateral Agent and any successors and assigns in
such capacity, and "AGENTS" means any two or more of them.
"AGGREGATE COMMITMENTS" means the Commitments of all the Lenders.
"AGREEMENT" means this
Credit Agreement, as amended, modified or
supplemented from time to time.
"APPLICABLE MARGIN" means, (i) with respect to Term B Loans, 2.25% per
annum for Eurodollar Loans and 1.25% per annum for Base Rate Loans, and (ii) for
purposes of calculating (A) the applicable interest rate for any day for any
Revolving Loan or any Swing Line Loan, (B) the applicable rate of the Revolving
Commitment Fee for any day for purposes of SECTION 2.11(a) or (C) the applicable
rate of the Letter of Credit Fee for any day for purposes of SECTION 2.11(b)(i),
the applicable percentage set forth below corresponding to the Leverage Ratio as
of the most recent Calculation Date:
Applicable Applicable Applicable
Margin Margin Margin
for for Base for Revolving
Pricing Leverage Eurodollar Rate Commitment Letter of
Level Ratio Loans Loans Fees Credit Fee
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I GREATER THAN OR 2.75% 1.75% .500% 2.75%
EQUAL TO 4.00 to
1.0
II LESS THAN 4.00 to 2.50% 1.50% .500% 2.50%
1.0 but
GREATER THAN OR
EQUAL TO 3.25 to
1.0
III LESS THAN 3.25 to 2.25% 1.25% .500% 2.25%
1.0 but
GREATER THAN OR
EQUAL TO 2.75 to
1.0
IV LESS THAN 2.75 to 2.00% 1.00% .500% 2.00%
1.0 but
GREATER THAN OR
EQUAL TO 2.25 to
1.0
V LESS THAN 2.25 to 1.75% 0.75% .375% 1.75%
1.0
Each Applicable Margin shall be determined and adjusted quarterly on the date
(each a "CALCULATION DATE") five Business Days after the earlier of the actual
delivery date by which the Company provides, or the required delivery date by
which the Company is required to provide, the consolidated financial information
required by SECTION 6.01(a) or (b), as applicable, and the Compliance
Certificate required by SECTION 6.02(a) for the fiscal quarter or year of the
Company most recently ended prior to the Calculation Date; PROVIDED, HOWEVER,
that: (i) each initial Applicable Margin shall be based on Pricing Level I (as
shown above) and shall remain at Pricing Level I until the first Calculation
Date occurring after the end of the first full fiscal quarter of the Company
subsequent to the Closing Date and, thereafter, each Applicable Margin shall be
based on the Pricing Level (as shown above) corresponding to the Leverage Ratio
as of the last day of the most recently ended fiscal quarter or year of the
Company preceding the applicable Calculation Date; and (ii) if the Company fails
to provide the consolidated financial information required by SECTION 6.01(a) or
(b), as applicable, or the Compliance Certificate required by SECTION 6.02(a)
for the most recently ended fiscal quarter or year of the Company preceding any
applicable Calculation Date, each Applicable Margin from such Calculation Date
shall be based on Pricing Level I (as shown above) until such time as such
consolidated financial information and an appropriate officer's certificate is
provided, whereupon each Applicable Margin shall be based on the Pricing Level
(as shown above) corresponding to the Leverage Ratio as of the last day of the
most recently ended fiscal quarter or year of the Company preceding such
Calculation Date. Each Applicable Margin shall be effective from one Calculation
Date until the next Calculation Date. Any adjustment in the Applicable Margins
shall be applicable to all Loans and Letters of Credit then existing or
subsequently made or issued.
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"APPLICABLE PERCENTAGE" means (i) with respect to Loans or Commitments
of one Class of any Lender at any time, its Revolving Commitment Percentage,
Term B Closing Date Commitment Percentage or Term B Delayed Draw Commitment
Percentage, as applicable, or (ii) with respect to the Loans or Commitments of
all Classes of a Lender at any time, the percentage (carried out to the ninth
decimal place) of the Aggregate Commitments represented by such Lender's
Commitments of all Classes at such time. If the Commitments of each Lender have
been terminated pursuant to SECTION 8.02 or if the Aggregate Commitments have
expired, then the Applicable Percentage of each Lender shall be determined based
on the Applicable Percentage of such Lender most recently in effect, giving
effect to any subsequent assignments. The initial Applicable Percentage of each
Lender of each Class and for all Classes is set forth opposite the name of such
Lender on SCHEDULE 2.01 opposite the Commitments of the applicable Class or
under the caption "Aggregate Commitment Percentage", as applicable, or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.
"APPLICABLE PREPAYMENT PERCENTAGE" means at any date (i) 75% if the
Leverage Ratio as of the last day of the most recent fiscal year of the Company
equals or exceeds 3.50 to 1.0, (ii) 50% if such Leverage Ratio is less than 3.50
to 1.0 but equals or exceeds 3.00 to 1.0, (iii) 25% if such Leverage Ratio is
less than 3.00 to 1.0 but equals or exceeds 2.50 to 1.0 and (iv) 0% if such
Leverage Ratio is less than 2.50 to 1.0.
"APPROVED FUND" means with respect to any Lender any Fund that is
administered or managed by (i) a Lender, (ii) an Affiliate of such Lender or
(iii) an entity that administers or manages such Lender.
"ASSET DISPOSITION" means any sale, (including any Sale/Leaseback
Transaction, whether or not involving a Capital Lease), lease (as lessor),
transfer or other disposition (including any such transaction effected by way of
merger or consolidation and including any sale or other disposition by any Group
Company of Equity Interests of a Subsidiary, but excluding any sale or other
disposition by way of Casualty or Condemnation) by any Group Company of any
asset. For avoidance of doubt, an Equity Issuance by any Person shall not
constitute an Asset Disposition by that Person.
"ASSIGNEE GROUP" means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by SECTION 10.06(b), and accepted by the Administrative
Agent, in substantially in the form of EXHIBIT C hereto or any other form
approved by the Administrative Agent.
"ATTRIBUTABLE INDEBTEDNESS" means, at any date, (i) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP
and (ii) in respect of any Synthetic Lease Obligation of any Person, except
those leases set forth on SCHEDULE 1.01E, the capitalized or principal amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease or other agreement were accounted for as a Capital Lease.
"AUDITED FINANCIAL STATEMENTS" means the audited consolidated balance
sheet of the Company and its Consolidated Subsidiaries for the fiscal year ended
December 31, 2004, and the related consolidated statements of operations,
stockholders' equity and cash flows for such fiscal year of the Company and its
Consolidated Subsidiaries, including the notes thereto.
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"AUTO-EXTENSION LETTER OF CREDIT" has the meaning specified in SECTION
2.05(d).
"AVAILABLE CASH" means, for any Reference Period for the Company and
its Subsidiaries (determined on a consolidated basis, without duplication for
such Reference Period), the sum (which may be negative) of:
(i) Consolidated EBITDA for such Reference Period; PLUS
(ii) to the extent not included in Consolidated EBITDA for
such Reference Period and not required to be utilized in connection with a
repayment or prepayment of the Loans made or to be made pursuant to SECTION
2.09(b)(ii), all cash gains attributable to Asset Dispositions out of the
ordinary course of business, if any, of the Company and its Consolidated
Subsidiaries during such period; PLUS
(iii) to the extent not included in determining Consolidated
EBITDA for such Reference Period, (A) the cash amount realized in respect
of extraordinary or non-recurring gains during such Reference Period and
(B) cash received during such Reference Period on account of non-cash gains
or non-cash income excluded from Consolidated EBITDA in any period prior to
such Reference Period; MINUS
(iv) the aggregate amount (without duplication) of: (A) Cash
Interest Expense for such Reference Period (excluding that portion of the
Project Non-Recourse Debt Service Amount for such period attributable to
Consolidated Interest Expense); (B) Consolidated Scheduled Debt Payments
made during such Reference Period (excluding that portion of the Project
Non-Recourse Debt Service Amount for such period attributable to scheduled
amortization of indebtedness); (C) voluntary prepayments of Consolidated
Funded Indebtedness during such period; PROVIDED that (x) such prepayments
are otherwise permitted hereunder and (y) if such Indebtedness consists of
a revolving line of credit, the commitments under such line of credit are
permanently reduced by the amount of such prepayment; (D) mandatory
prepayments of the Loans made pursuant to SECTION 2.09(b)(iv) during such
Reference Period and mandatory prepayments of all other Consolidated Funded
Indebtedness during such Reference Period (other than mandatory prepayments
from or with the proceeds of any Qualifying Equity Issuance, Debt Issuance
(exclusive of Revolving Loans), Asset Disposition not included in the
determination of Consolidated Net Income for the applicable period (except
to the extent that any gain therefrom is included pursuant to CLAUSE (ii)
above in the determination of Available Cash for such Reference Period) or
Casualty Event); (E) Consolidated Capital Expenditures made during such
Reference Period (excluding (x) any to the extent financed, directly or
indirectly, with the proceeds of any Qualifying Equity Issuance, Debt
Issuance (exclusive of Revolving Loans), Asset Disposition not included in
the determination of Consolidated Net Income for the applicable period
(except to the extent that any gain therefrom is included pursuant to
CLAUSE (ii) above in the determination of Available Cash for such Reference
Period) or Casualty Event and (y) Scheduled Capital Expenditures); (F)
Taxes paid in cash for such Reference Period; (G) cash payments during such
Reference Period for Permitted Business Acquisitions (excluding any to the
extent financed, directly or indirectly, with (x) the proceeds of any
Qualifying Equity Issuance, Debt Issuance (exclusive of Revolving Loans) or
Asset Disposition not included in the determination of Consolidated Net
Income for the applicable period (except to the extent that any gain
therefrom is included pursuant to CLAUSE (ii) above in the determination of
Available Cash for such Reference Period) or (y) Cumulative Distributable
Cash not used to pay dividends on capital stock under SECTION 7.07(iii))
and (H) cash payments during such Reference Period for Investments (other
than Exempt Investments); MINUS
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(v) all cash extraordinary or cash non-recurring losses, if
any, during such Reference Period (whether or not accrued in such period);
MINUS
(vi) without duplication of any amount deducted under CLAUSE
(v) of the definition of "Consolidated EBITDA", all payments made in cash
during such Reference Period on account of non-cash losses or non-cash
charges expensed during or prior to such Reference Period; MINUS
(vii) cash earn-out payments during such Reference Period to
sellers of assets acquired in Permitted Business Acquisitions.
"AVAILABLE EQUITY ISSUANCE AMOUNT" means at any date the Net Cash
Proceeds of one or more Qualifying Equity Issuances occurring during the period
from but not including the Closing Date to the date of determination remaining
after the aggregate amount of such Net Cash Proceeds which have been applied for
any purpose specified in CLAUSE (ii) of the definition of "Qualifying Equity
Issuance".
"AVAILABILITY PERIOD" means the period from and including the Closing
Date to the earliest of (i) the Revolving Termination Date, (ii) the date of the
termination of the Commitments pursuant to SECTION 2.10 and (iii) the date of
termination of the commitment of each Lender to make Loans and of the obligation
of the L/C Issuer to make L/C Credit Extensions pursuant to SECTION 8.02(a).
"BANK OF AMERICA" means Bank of America, N.A., a national banking
association, and its successors.
"BANK SECRECY ACT" means the Financial Recordkeeping and Reporting of
Currency and Foreign Transactions Act of 1970, 31 U.S.C. 1051, et seq., as the
same may be amended, supplemented, modified, replaced or otherwise in effect
from time to time.
"BASE RATE" means, for any day, a fluctuating rate per annum equal to
the higher of (i) the Federal Funds Rate plus 1/2 of 1% and (ii) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate". The "prime rate" is a rate set by Bank of
America based upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"BASE RATE LOAN" means a Loan that bears interest based on the Base
Rate.
"BORROWING" has the meaning specified in SECTION 1.07.
"BUSINESS ACQUISITION" means the acquisition by the Company or one or
more of its Subsidiaries of all (other than Nominal Shares) of the Equity
Interests of, or all (or any division, line of business or any substantial part
for which audited financial statements or other financial information reasonably
satisfactory to the Administrative Agent is available) or substantially all of
the assets or property of, another Person.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where the Administrative Agent's Office or the
Company's chief executive office is located, except that (i) when used in
SECTION 2.05 with respect to any action taken by or with respect to any L/C
Issuer, the term
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"BUSINESS DAY" shall not include any day on which commercial banks are
authorized to close under the Laws of, or are in fact closed in, the
jurisdiction where such L/C Issuer's Lending Office is located, and (ii) if such
day relates to a borrowing of, a payment or prepayment of principal of or
interest on, or the Interest Period for, a Eurodollar Loan, or a notice by the
Company with respect to any such borrowing, payment, prepayment or Interest
Period, such day shall also be a day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market.
"CAPITAL LEASE" of any Person means any lease of (or other arrangement
conveying the right to use) property (whether real, personal or mixed) by such
Person as lessee which would, in accordance with GAAP, be required to be
accounted for as a capital lease on the balance sheet of such Person.
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person, all
obligations of such Person as lessee under Capital Leases, in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"CASH COLLATERALIZE" means to pledge and deposit with or deliver to
the Collateral Agent, for the benefit of the L/C Issuers and the Revolving
Lenders, as collateral for the L/C Obligations, cash, Cash Equivalents or
deposit balances pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and the L/C Issuers.
"CASH EQUIVALENTS" means, at any time:
(i) any evidence of debt, maturing not more than one year
after such time, issued or guaranteed by the United States of America or
any agency thereof;
(ii) commercial paper, maturing not more than one year from
the date of issue, or demand notes issued by any domestic corporation not
an Affiliate of the Company, in each case (unless issued by a Lender of its
holding company) rated at least A-1 by S&P or P-1 by ▇▇▇▇▇'▇;
(iii) any certificate of deposit (or time deposits represented
by such certificate of deposit), eurodollar time deposit or bankers'
acceptance, maturing not more than one year after such time, or overnight
Federal funds transactions with a member of the Federal Reserve System that
are issued or sold by a commercial banking institution that is organized
under the Laws of the United States, any State thereof or the District of
Columbia, any foreign bank or its branches or agencies (fully protected
against currency fluctuations) and has a combined capital and surplus and
undivided profits of not less than $500,000,000;
(iv) any repurchase agreement entered into with any Lender (or
other commercial banking institution of the stature referred to in CLAUSE
(iii) above) which (A) is secured by a fully perfected security interest in
any obligation of the type described in any of CLAUSES (i) through (iii)
above and (B) has a market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase obligation of such
Lender (or other commercial banking institution) thereunder;
(v) investments in short-term asset management accounts
offered by any Lender (or other commercial banking institution of the
stature referred to in clause (iii) above) for the purpose of investing in
loans to any corporation (other than the Company or an Affiliate of the
Company), state or municipality, in each case organized under the laws of
any state of the United States or of the District of Columbia; and
- 6 -
(vi) shares of any money market fund that (A) has 95% of its
assets invested continuously in the types of investments referred to in
clause (i) through (v) above, (B) has net assets in excess of $500,000 and
(C) is rated at least "A-1" by S&P or "P-1" by ▇▇▇▇▇'▇.
"CASH INTEREST EXPENSE" means, for any period, for the Company and its
Subsidiaries determined on a consolidated basis without duplication in
accordance with GAAP, the excess of (i) Consolidated Interest Expense minus (ii)
in each case to the extent included in the determination of Consolidated
Interest Expense for such period, (A) all non-cash amounts attributable to
amortization of financing costs paid in such period (including deferred
Transaction Expenses and other non-cash interest expense, including, without
limitation, the amount of debt discount and debt issuance cost amortized,
charges relating to write-ups or write-downs in the book or carrying value of
existing Funded Indebtedness, interest payable in evidences of Indebtedness or
by addition to the principal of the related Indebtedness) or to amortization of
debt discounts or accrued interest payable in kind for such period and (B) all
amounts attributable to the premium required to be paid upon the early repayment
of the Subordinated Notes and to the write-off of deferred financing costs
associated with the termination of the Existing
Credit Agreement and the
repayment of other short-term Indebtedness of the Company outstanding under one
or more Refinanced Agreements.
"CASH MANAGEMENT OBLIGATION" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person in respect
of treasury management services to, for the benefit of or otherwise in respect
of any Person (including intraday credit, Automated Clearing House (ACH)
services, foreign exchange services, daylight overdrafts and zero balance
arrangements) provided by any Lender or its Affiliates, including obligations
for the payment of agreed interest and reasonable, fees, charges, expenses and
disbursements in connection therewith.
"CASUALTY" means any casualty, damage, destruction or other similar
loss with respect to real or personal property or improvements.
"CASUALTY INSURANCE POLICY" means any insurance policy maintained by
any Group Company covering losses with respect to Casualties.
"CHANGE IN LAW" means the occurrence, after the date of this
Agreement, of any of the following: (i) the adoption or taking effect of any
law, rule, regulation or treaty; (ii) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof by any
Governmental Authority; or (iii) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any
Governmental Authority.
"CHANGE OF CONTROL" means (i) any "person" or "group" (within the
meaning of Section 13(d) or 14(d) of the Exchange Act) other than a member of
the Sponsor Group has become the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all securities that any such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time, but excluding any pledgee of pledged shares so long as such pledgee has
not foreclosed on such pledged shares), by way of merger, consolidation or
otherwise, of more than the greater of (x) 35% or more of the Voting Securities
of the Company on a fully-diluted basis after giving effect to the conversion
and exercise of all outstanding Equity Equivalents (whether or not such
securities are then currently convertible or exercisable but solely to the
extent freely exercisable) or (y) the Voting Securities of the Company
(determined as set forth in CLAUSE (x) above) owned, directly or indirectly, by
the Sponsor Group or (ii) the occupation of a majority of the seats (other than
vacant seats) on the Board of Directors of the Company by Persons who were not
(A) nominated by at least a majority of the Board of Directors of the
- 7 -
Company, (B) appointed by directors so nominated or (C) designated or nominated
by the Sponsor Group.
"CLASS" has the meaning specified in SECTION 1.07.
"CLOSING DATE" means the date when this Agreement becomes effective
and the first Credit Extension occurs in accordance with SECTIONS 4.01 and 4.02.
"CODE" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
"COLLATERAL" means all of the property which is subject or is
purported to be subject to the Liens granted by the Collateral Documents.
"COLLATERAL AGENT" means Bank of America, N.A., in its capacity as
collateral agent for the Finance Parties under the Collateral Documents, and its
successor or successors in such capacity.
"COLLATERAL DOCUMENTS" means, collectively, the Security Agreement,
the Pledge Agreement, the Depositary Bank Agreements, each Mortgage, any
Additional Collateral Documents, any additional pledges, security agreements,
patent, trademark or copyright filings or mortgages required to be delivered
pursuant to the Finance Documents and any instruments of assignment, control
agreements, lockbox letters or other instruments or agreements executed pursuant
to the foregoing.
"COMMITMENT" means (i) with respect to each Lender, its Revolving
Commitment, Term B Closing Date Commitment and/or Term B Delayed Draw
Commitment, as and to the extent applicable, (ii) with respect to each L/C
Issuer, its L/C Commitment and (iii) with respect to the Swing Line Lender, the
Swing Line Commitment, in each case as set forth on SCHEDULE 2.01 or in the
applicable Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as its Commitment of the applicable Class, as any
such amount may be adjusted from time to time in accordance with this Agreement.
"COMMITMENT FEES" has the meaning specified in SECTION 2.11(a).
"COMPANY" means Synagro Technologies, Inc., a Delaware corporation,
and its successors.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of EXHIBIT D hereto.
"CONDEMNATION" means any taking by a Governmental Authority of
property or assets, or any part thereof or interest therein, for public or
quasi-public use under the power of eminent domain, by reason of any public
improvement or condemnation or in any other manner.
"CONDEMNATION AWARD" means all proceeds of any Condemnation or
transfer in lieu thereof.
"CONSOLIDATED ADJUSTED WORKING CAPITAL" means at any date the excess
of (i) Consolidated Current Assets (excluding cash and Cash Equivalents
classified as such in accordance with GAAP) over (ii) Consolidated Current
Liabilities (excluding the current portion of any Consolidated Funded
Indebtedness).
- 8 -
"CONSOLIDATED CAPITAL EXPENDITURES" means for any period the aggregate
amount of all expenditures (whether paid in cash or other consideration or
accrued as a liability) that would, in accordance with GAAP, be included as
additions to property, plant and equipment and other capital expenditures of the
Company and its Consolidated Subsidiaries for such period, excluding interest
capitalized during construction, as the same are or would be set forth in a
consolidated statement of cash flows of the Company and its Consolidated
Subsidiaries for such period (including the amount of assets leased under any
Capital Lease), but excluding (to the extent that they would otherwise be
included) (i) any such expenditures made for the replacement or restoration of
assets to the extent paid for by any Casualty Insurance Policy or Condemnation
Award with respect to the asset or assets being replaced or restored to the
extent such expenditures are permitted under the Loan Documents and (ii) Interim
Purchase Transactions.
"CONSOLIDATED CURRENT ASSETS" means at any date the consolidated
current assets of the Company and its Consolidated Subsidiaries determined as of
such date.
"CONSOLIDATED CURRENT LIABILITIES" means at any date the consolidated
current liabilities of the Company and its Consolidated Subsidiaries determined
as of such date.
"CONSOLIDATED EBITDA" means for any period the sum of:
(i) Consolidated Net Income for such period; PLUS
(ii) to the extent not otherwise included in the determination
of Consolidated Net Income for such period, all proceeds of business
interruption insurance policies, if any, received by the Company or any
Consolidated Subsidiary during such period; PLUS
(iii) without duplication, those amounts which, in the
determination of Consolidated Net Income for such period, have been
deducted for (A) Consolidated Interest Expense, (B) lease expense in
respect of Synthetic Lease Obligations and Sale/Leaseback Transactions
accounted for as Operating Leases under GAAP, (C) provisions for Federal,
state, local and foreign income, value added and similar Taxes, (D)
depreciation, amortization (including, without limitation, amortization of
goodwill and other intangible assets), impairment of goodwill and other
non-cash charges or expenses (excluding any such non-cash charge or expense
to the extent that it represents amortization of a prepaid cash expense
that was paid in a prior period), (E) unrealized losses on financial
derivatives recognized in accordance with SFAS No. 133, (F) non-cash
compensation expense, or other non-cash expenses or charges, arising from
the granting of stock options, the granting of stock appreciation rights
and similar arrangements (including any strike price reductions for
dividends paid, repricing, amendment, modification, substitution or change
of any such stock option, stock appreciation rights or similar
arrangements), (G) one-time, non-cash, purchase accounting adjustments, (H)
any financial advisory fees, accounting fees, legal fees and other similar
advisory and consulting fees and out-of-pocket costs and expenses of the
Company and its Subsidiaries incurred as a result of the Transaction
(including transaction bonuses, the premium required to be paid upon the
early repayment of the Subordinated Notes and the write-off of option
repurchases, deferred financing costs, previous debt and equity issuance
costs and the fair value adjustment on the Subordinated Notes), (I) the
amount of (x) any expense to the extent that a corresponding amount is
received in cash by a Group Company from a Person other than the Company or
any Subsidiary of the Company under any agreement providing for
reimbursement of such expense or (y) any expenses with respect to liability
or casualty events, business interruption or product recalls, to the extent
covered by insurance (it being understood that if the amount received in
cash under any such agreement in any period exceeds the amount of expense
paid during such period such excess
- 9 -
amounts received may be carried forward and applied against expenses in
future periods), (J) financial advisory fees, accounting fees, legal fees
and other similar advisory and consulting fees and related out-of-pocket
expenses of the Company and its Consolidated Subsidiaries incurred as a
result of Permitted Business Acquisitions after the Closing Date to the
extent not exceeding $10,000,000 in the aggregate during such period, (K)
non-recurring cash charges resulting from severance, integration and other
adjustments made as a result of Permitted Business Acquisitions, PROVIDED
that the amounts referred to in this CLAUSE (K) reported in any fiscal year
ending after December 31, 2004 shall not, in the aggregate, exceed
$5,000,000 and (L) extraordinary or non-recurring losses (including those
arising from permitted Asset Dispositions (other than sales in the ordinary
course of business) and Casualties); MINUS
(iv) without duplication, any amount which, in the
determination of Consolidated Net Income for such period, has been included
for or in respect of (A) interest income, if any, exceeding the amount of
offsetting interest expense in the determination of Consolidated Interest
Expense for such period, (B) unrealized gains on financial derivatives
recognized in accordance with SFAS No. 133, (C) extraordinary or
nonrecurring gains (including those arising from permitted Asset
Dispositions (other than sales in the ordinary course of business) and
Casualties) and (D) any non-cash income or non-cash gains, all as
determined in accordance with GAAP; MINUS
(v) the aggregate amount of cash payments made during such
period in respect of any non-cash accrual, reserve or other non-cash charge
or expense recognized in a prior period in respect of cash charges or
expenses anticipated at the time in respect of a future period which were
added to Consolidated Net Income to determine Consolidated EBITDA for such
prior period and which do not otherwise reduce Consolidated Net Income for
the current period; MINUS
(vi) the Project Non-Recourse Debt Service Amount.
For purposes of calculating Consolidated EBITDA for any period of four
consecutive fiscal quarters (each, a "TEST PERIOD") pursuant to any
determination of the Leverage Ratio, the Interest Coverage Ratio or the Fixed
Charge Coverage Ratio, if during such Test Period (or in the case of pro-forma
calculations, during the period from the last day of such Test Period to and
including the date as of which such calculation is made) any Group Company shall
have made an Asset Disposition or a Permitted Business Acquisition, Consolidated
EBITDA for such Test Period shall be calculated after giving effect thereto on a
Pro-Forma Basis, giving effect to projected or anticipated cost savings
permitted or required by Regulations S-K or S-X under the Securities Act or
otherwise agreed to by the Administrative Agent in its reasonable discretion.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum of (i)
Cash Interest Expense plus (ii) Consolidated Scheduled Debt Payments for such
period, in each case excluding that attributable to Project Non-Recourse Debt.
"CONSOLIDATED FUNDED INDEBTEDNESS" means at any date the Funded
Indebtedness of the Company and its Consolidated Subsidiaries as of such date,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INDEBTEDNESS" means at any date the Indebtedness of the
Company and its Consolidated Subsidiaries, determined on a consolidated basis as
of such date.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the total
interest expense, whether paid or accrued and whether or not capitalized,
(including, without limitation, amortization of
- 10 -
debt issuance costs and original issue discount, interest capitalized during
construction, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments under Capital Leases
and the implied interest component of Synthetic Leases (regardless of whether
accounted for as interest expense under GAAP), all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptances and net costs (included in interest expense) in respect of Swap
Obligations constituting interest rate swaps, collars, caps or other
arrangements requiring payments contingent upon interest rates of the Company
and its Consolidated Subsidiaries), net of interest income, in each case
determined on a consolidated basis for such period; PROVIDED that any interest
on Indebtedness of another Person that is guaranteed by the Company or any of
its Consolidated Subsidiaries or secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) a
Lien on, or payable out of the proceeds of the sale of or production from,
assets of the Company or any of its Consolidated Subsidiaries (whether or not
such guarantee or Lien is called upon) shall be included.
"CONSOLIDATED NET INCOME" means, for any period, the net income (or
net loss) after taxes and before dividends of the Company and its Consolidated
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP; PROVIDED that there shall be excluded from the calculation of
Consolidated Net Income for any period (i) the income (or loss) of (A) any
Project Subsidiary and (B) any Person in which any other Person (other than the
Company or any of its Wholly-Owned Subsidiaries which is not a Project
Subsidiary) has an ownership interest, except to the extent in the case of each
of CLAUSES (A) and (B) that dividends or distributions on capital stock of such
Project Subsidiary or other Person are declared and made to the Company or such
Wholly-Owned Subsidiary which is not a Project Subsidiary during such period for
the amount of such Project Subsidiary's or other Person's accrued net income (or
net loss) (as evidenced by a copy of the resolutions attached to the Compliance
Certificate delivered with the financial statements for such period pursuant to
SECTION 6.02), (ii) the income (or loss) of any Person accrued prior to the date
it becomes a Consolidated Subsidiary of the Company or is merged with or into or
consolidated with the Company or any of its Consolidated Subsidiaries or that
Person's assets are acquired by the Company or any of its Consolidated
Subsidiaries, except as provided in the definitions of "CONSOLIDATED EBITDA" and
"PRO-FORMA BASIS" herein and (iii) the income of any Subsidiary of the Company
to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary.
"CONSOLIDATED SCHEDULED DEBT PAYMENTS" means, for any period, the sum
of all regularly scheduled payments of principal on the Loans and all other
Consolidated Funded Indebtedness (including, without limitation, the principal
component of Capital Lease Obligations, Purchase Money Indebtedness and
Synthetic Lease Obligations (regardless of whether accounted for as indebtedness
under GAAP) paid or payable during such period), but excluding payments due on
Revolving Loans and Swing Line Loans during such period; PROVIDED that
Consolidated Scheduled Debt Payments for any period shall not include voluntary
prepayments of Consolidated Funded Indebtedness, mandatory prepayments of the
Term Loans pursuant to SECTION 2.09(b) or other mandatory prepayments (other
than by virtue of scheduled amortization) of Consolidated Funded Indebtedness
(but Consolidated Scheduled Debt Payments for a period shall be adjusted to
reflect the effect on scheduled payments of principal for such period of the
application of any prepayments of Consolidated Funded Indebtedness during or
preceding such period).
"CONSOLIDATED SUBSIDIARY" means with respect to any Person at any date
any Subsidiary of such Person the accounts of which would be consolidated with
those of such Person in its consolidated financial statements if such statements
were prepared as of such date in accordance with GAAP.
- 11 -
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"CREDIT EXTENSION" means a Borrowing or an L/C Credit Extension.
"CUMULATIVE DISTRIBUTABLE CASH" means, for the Company and its
Consolidated Subsidiaries as of any date of determination, the sum of:
(i) the amount of one regularly-scheduled dividend payment
(or, if the first such dividend payment is paid from the Company's excess
cash referred to in the second sentence of SECTION 4.01(f) following the
consummation of the Transaction on the Closing Date, such dividend payment
and one additional regularly scheduled dividend payment) to be made during
the period commencing on the Business Day immediately following the Closing
Date through the date of delivery pursuant to SECTION 6.01 of the financial
statements for the first full fiscal quarter of the Company following the
Closing Date in accordance with the "Dividend Policy and Restrictions"
section of the Registration Statement; PLUS
(ii) Available Cash for the Reference Period most recently
ended prior to such date; MINUS
(iii) the aggregate amount of dividends paid during the period
commencing on the Business Day after the Closing Date through the last day
of such Reference Period of the type described in SECTION 7.07(ii) to
Persons other than the Company or a Consolidated Subsidiary and of the type
described in SECTION 7.07(iii); MINUS
(iv) without duplication of amounts attributable to
Consolidated Capital Expenditures which have been deducted pursuant to
CLAUSE (iv)(E) of the definition of Available Cash for the Reference Period
most recently ended prior to such date, the aggregate amounts paid by the
Company and its Consolidated Subsidiaries during the period commencing on
the Closing Date through the last day of the Reference Period most recently
ended prior to such date in respect of Permitted Business Acquisitions
financed with Cumulative Distributable Cash which is not used to pay
dividends of the type described in SECTION 7.07(iii).
"DEBT EQUIVALENTS" of any Person means (i) any Equity Interest of such
Person which by its terms (or by the terms of any security for which it is
convertible or for which it is exchangeable or exercisable), or upon the
happening of any event or otherwise (including an event which would constitute a
Change of Control), (A) matures or is mandatorily redeemable or subject to any
mandatory repurchase requirement, pursuant to a sinking fund or otherwise or (B)
is convertible into or exchangeable for Indebtedness or Debt Equivalents, in
each case in whole or in part, on or prior to the 90 day anniversary of the
later of the Revolving Termination Date or the Term Maturity Date and (ii) if
such Person is a Subsidiary of the Company but not a Subsidiary Guarantor, any
Preferred Stock of such Person; PROVIDED, HOWEVER, that any Equity Interests
that would not constitute Debt Equivalents but for provisions thereof giving
holders thereof (or the holders of any security into or for which such Equity
Interests is convertible, exchangeable or exercisable) the right to require the
issuer thereof to redeem such Equity Interests upon the occurrence of a Change
of Control or an Asset Disposition occurring prior to the 180th day after the
Maturity Date shall not constitute Debt Equivalents if such Equity Interests
provide that the
- 12 -
issuer thereof will not redeem any such Equity Interests pursuant to such
provisions prior to the payment in full of the Obligations (other than
contingent indemnity obligations).
"DEBT ISSUANCE" means the issuance by any Group Company of any
Indebtedness.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"DEFAULT" means any condition or event that constitutes an Event of
Default or that, with the giving of notice, the passage of applicable cure
periods, or both pursuant to ARTICLE VIII, would be an Event of Default.
"DEFAULT RATE" means (i) when used with respect to Senior Credit
Obligations other than Letter of Credit Fees, an interest rate equal to (A) the
Base Rate plus (B) the Applicable Margin applicable to Revolving Base Rate Loans
plus (C) 2.00% per annum; PROVIDED, HOWEVER, that with respect to a Eurodollar
Loan, the Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Margin) otherwise applicable to such Loan plus 2.00%
per annum, and (ii) when used with respect to Letter of Credit Fees, a rate
equal to (A) the Applicable Margin applicable to Revolving Eurodollar Loans plus
(B) 2.00% per annum.
"DEFAULTING LENDER" means any Lender that (i) has failed to make a
Loan or purchase a Participation Interest in a Swing Line Loan or an L/C
Obligation required pursuant to the terms of this Agreement within one Business
Day of the date required to be funded by it hereunder, (ii) has otherwise failed
to pay to the Administrative Agent or any Lender any other amount required to be
paid by it hereunder or any other Loan Document within one Business Day of the
date when due, unless the subject of a good faith dispute or (iii) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"DEPOSITARY BANK AGREEMENT" means an agreement between a Loan Party
and any bank or other depositary institution, substantially in the form of
EXHIBIT D to the Security Agreement, as the same may be amended, modified or
supplemented from time to time.
"DOLLARS" and "$" means lawful money of the United States of America.
"DOMESTIC SUBSIDIARY" means with respect to any Person each Subsidiary
of such Person that is organized under the laws of the United States or any
political subdivision thereof, and "DOMESTIC SUBSIDIARIES" means any two or more
of them.
"ELIGIBLE ASSIGNEE" means (i) a Lender, (ii) an Affiliate of a Lender,
(iii) an Approved Fund and (iv) any other Person (other than a natural person)
approved by (A) the Administrative Agent, (B) in the case of any assignment of a
Revolving Commitment, the L/C Issuers and the Swing Line Lender and (C) unless
an Event of Default has occurred and is continuing at the time any assignment is
effected pursuant to SECTION 10.06(b), the Company (each such approval not to be
unreasonably withheld or delayed); PROVIDED that notwithstanding the foregoing,
"ELIGIBLE ASSIGNEE" shall not include the Company or any of the Company's
Affiliates or Subsidiaries.
"EMPLOYEE BENEFIT ARRANGEMENTS" means in any jurisdiction the material
benefit schemes or arrangements in respect of any employees or past employees
operated by any Group Company or in which any Group Company participates and
which provide benefits on retirement, ill-health,
- 13 -
injury, death or voluntary withdrawal from or termination of employment,
including termination indemnity payments and life assurance and post-retirement
medical benefits, other than Plans and Foreign Pension Plans.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and
foreign statutes, Laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of remediation, fines, penalties or
indemnities), of any Group Company directly or indirectly resulting from or
based on (i) violation of any Environmental Law, (ii) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Material, (iii) exposure to any Hazardous Material, (iv) the release or
threatened release of any Hazardous Material into the environment or (v) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"EQUITY EQUIVALENTS" means with respect to any Person any rights,
warrants, options, convertible securities, exchangeable securities, indebtedness
or other rights, in each case exercisable for or convertible or exchangeable
into, directly or indirectly, Equity Interests of such Person or securities
exercisable for or convertible or exchangeable into Equity Interests of such
Person, whether at the time of issuance or upon the passage of time or the
occurrence of some future event.
"EQUITY INTERESTS" means all shares of capital stock, partnership
interests (whether general or limited), limited liability company membership
interests, beneficial interests in a trust and any other interest or
participation that confers on a Person the right to receive a share of profits
or losses, or distributions of assets, of an issuing Person, but excluding any
debt securities convertible into such Equity Interests.
"EQUITY ISSUANCE" means (i) any sale or issuance by any Group Company
to any Person other than the Company or a Subsidiary of the Company of any
Equity Interests or any Equity Equivalents (other than any such Equity
Equivalents that constitute Indebtedness) and (ii) the receipt by any Group
Company of any cash capital contributions, whether or not paid in connection
with any issuance of Equity Interests of any Group Company, from any Person
other than the Company or a Subsidiary of the Company.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulation promulgated thereunder.
"ERISA AFFILIATE" means each entity that is a member of a "controlled
group of corporations," under "common control" or an "affiliated service group"
with a Group Company within the meaning of Section 414(b), (c) or (m) of the
Code, or required to be aggregated with a Group Company under Section 414(o) of
the Code or is under "common control" with a Group Company, within the meaning
of Section 4001(a)(14) of ERISA.
"ERISA EVENT" means:
(i) a reportable event as defined in Section 4043 of ERISA
and the regulations issued under such Section with respect to a Plan,
excluding, however, such events as
- 14 -
to which the PBGC by regulation has waived the requirement of Section
4043(a) of ERISA that it be notified within 30 days of the occurrence of
such event;
(ii) the requirements of Section 4043(b) of ERISA apply with
respect to a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of any Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days;
(iii) the failure to meet the minimum funding standard of
Section 412 of the Code with respect to any Plan (whether or not waived in
accordance with Section 412(d) of the Code), the application for a minimum
funding waiver under Section 303 of ERISA with respect to any Plan, the
failure to make by its due date a required installment under Section 412(m)
of the Code with respect to any Plan or the failure to make any required
contribution to a Multiemployer Plan;
(iv) (A) the incurrence of any material liability by a Group
Company pursuant to Title I of ERISA or to the penalty or excise tax
provisions of the Code relating to employee benefit plans (as defined in
Section 3 of ERISA), or the occurrence or existence of any event,
transaction or condition that could reasonably be expected to result in the
incurrence of any such material liability by a Group Company pursuant to
Title I of ERISA or to such penalty or excise tax provisions of the Code;
or (B) the incurrence of any material liability by a Group Company or an
ERISA Affiliate pursuant to Title IV of ERISA or the occurrence or
existence of any event, transaction or condition that could reasonably be
expected to result in the incurrence of any such material liability or
imposition of any lien on any of the rights, properties or assets of a
Group Company or any ERISA Affiliate pursuant to Title IV of ERISA or to
Section 401(a)(29) or 412 of the Code;
(v) the provision by the administrator of any Plan of a
notice pursuant to Section 4041(a)(2) of ERISA (or the reasonable
expectation of such provision of notice) of intent to terminate such Plan
in a distress termination described in Section 4041(c) of ERISA, the
institution by the PBGC of proceedings to terminate any Plan or the
occurrence of any event or condition which could reasonably be expected to
constitute grounds under ERISA for the termination of a Plan by the PBGC,
or the appointment of a trustee by the PBGC to administer any Plan;
(vi) the withdrawal of a Group Company or ERISA Affiliate in a
complete or partial withdrawal (within the meaning of Section 4203 and 4205
of ERISA) from any Multiemployer Plan if there is any potential material
liability therefor, or the receipt by a Group Company or ERISA Affiliate of
notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA;
(vii) the imposition of material liability (or the reasonable
expectation thereof) on a Group Company or ERISA Affiliate pursuant to
Section 4062, 4063, 4064 or 4069 of ERISA or by reason of the application
of Section 4212(c) of ERISA;
(viii) the assertion of a material claim (other than routine
claims for benefits) against any Plan other than a Multiemployer Plan or
the assets thereof, or against a Group Company or ERISA Affiliate in
connection with any Plan;
- 15 -
(ix) the receipt from the United States Internal Revenue
Service of notice of the failure of any Plan (or any Employee Benefit
Arrangement intended to be qualified under Section 401(a) of the Code) to
qualify under Section 401(a) of the Code, or the failure of any trust
forming part of any Plan to qualify for exemption from taxation under
Section 501(a) of the Code, and, with respect to Multiemployer Plans,
notice thereof to any Group Company; and
(x) the establishment or amendment by a Group Company of any
Welfare Plan that provides post-employment welfare benefits in a manner
that would reasonably be expected to result in a Material Adverse Effect.
"EURODOLLAR LOAN" means at any date a Loan which bears interest at a
rate based on the Eurodollar Rate.
"EURODOLLAR RATE" means, for any Interest Period with respect to any
Eurodollar Loan, the rate per annum equal to British Bankers Association LIBOR
Rate ("BBA LIBOR"), as published by Reuters (or other commercially available
source providing quotations of BBA LIBOR as designated by the Administrative
Agent from time to time), at approximately 11:00 A.M. (London time) two Business
Days prior to the commencement of such Interest Period for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason,
then the "EURODOLLAR RATE" for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 A.M. (London
time) two Business days prior to the commencement of such Interest Period.
"EURODOLLAR RESERVE PERCENTAGE" means for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any other entity succeeding to the functions
currently performed thereby) for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to "Eurocurrency
liabilities"). The Adjusted Eurodollar Rate for each outstanding Eurodollar Loan
shall be adjusted automatically on and as of the effective date of any change in
the Eurodollar Reserve Percentage.
"EVENT OF DEFAULT" has the meaning specified in SECTION 8.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, any L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Company hereunder, (i) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its Lending Office is located, (ii) any branch profits taxes
imposed by the United States or any similar tax imposed by any other
jurisdiction in which the Company is located and (iii) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Company under
SECTION 10.13), any withholding tax that is imposed on amounts payable to such
Foreign
- 16 -
Lender at the time such Foreign Lender becomes a party hereto (or designates a
new Lending Office) or is attributable to such Foreign Lender's failure or
inability (other than as a result of a Change in Law) to comply with SECTION
3.01(e), except to the extent that such Foreign Lender (or its assignor, if any)
was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Company with respect to such
withholding tax pursuant to SECTION 3.01(a).
"EXEMPT INVESTMENTS" means (i) any Investment made pursuant to SECTION
7.06(a)(ii) through (xi), (xiii) through (xv), (xviii) and (xix) and (ii) any
Investment made pursuant to SECTION 7.06(a)(xi) in a Loan Party.
"EXISTING
CREDIT AGREEMENT" means the Third Amended and Restated
Credit Agreement dated as of May 8, 2002, as amended by the First Amendment
dated as of December 6, 2002, the Second Amendment dated as of April 4, 2003,
the Third Amendment dated as of May 6, 2003 and the Fourth Amendment dated as of
March 9, 2004, among the Company, the various financial institutions from time
to time party thereto, Bank of America, as Administrative Agent, issuing bank
and Swing Line Bank and Banc of America Securities LLC, as Lead Arranger and
Book Manager.
"EXISTING INDEBTEDNESS" has the meaning specified in SECTION 7.01(i).
"EXISTING LETTERS OF CREDIT" means the letters of credit issued before
the Closing Date and described by date of issuance, letter of credit number,
undrawn amount, name of beneficiary and date of expiry on SCHEDULE 2.05 hereto,
and "EXISTING LETTER OF CREDIT" means any one of them.
"FACILITIES INCREASE" has the meaning specified in SECTION 2.10(a).
"FACILITIES INCREASE DATE(s)" has the meaning specified in SECTION
2.10(a).
"FAILED LOAN" has the meaning specified in SECTION 2.03(d).
"FEDERAL FUNDS RATE" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of
New York on the Business Day
next succeeding such day; PROVIDED that (i) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (ii) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America, N.A. on such day on such transactions as determined by the
Administrative Agent.
"FEE LETTER" means the letter agreement dated January 27, 2005 among
the Joint Lead Arrangers and the Company.
"FINANCE DOCUMENT" means (i) each Loan Document and (ii) each Swap
Agreement between one or more Loan Parties and a Swap Creditor evidencing Swap
Obligations permitted hereunder, and "FINANCE DOCUMENTS" means all of them,
collectively.
"FINANCE OBLIGATIONS" means, at any date, (i) all Senior Credit
Obligations, (ii) all Swap Obligations of a Loan Party permitted hereunder owed
or owing to any Swap Creditor and (iii) all Cash Management Obligations owing to
a Lender or one or more of its Affiliates.
- 17 -
"FINANCE PARTY" means each Lender, the Swing Line Lender, each L/C
Issuer, each Swap Creditor, each Agent and each Indemnitee and their respective
successors and assigns, and "FINANCE PARTIES" means any two or more of them,
collectively.
"FIXED CHARGE COVERAGE RATIO" means, for any period, the ratio of (i)
Consolidated EBITDA LESS the aggregate amount of Consolidated Capital
Expenditures for such period (exclusive of the portion thereof financed with (A)
any Indebtedness, (B) any Qualifying Equity Issuance, (C) the Net Cash Proceeds
of Asset Dispositions received during such period that are not required to be
applied to repay Loans or cash collateralize L/C Obligations pursuant to SECTION
2.09(b)(ii) or (D) in the case of Consolidated Capital Expenditures of Project
Subsidiaries, the portion thereof not exceeding, in the aggregate for all
Project Subsidiaries, the amount financed with Investments permitted under
SECTION 7.06(a)(xvii)) LESS the aggregate amount of Taxes paid in cash during
such period to (ii) Consolidated Fixed Charges for such period.
"FOREIGN CASH EQUIVALENTS" means:
(i) securities issued or fully guaranteed by the United
Kingdom or any instrumentality thereof (as long as that the full faith and
credit of the United Kingdom is pledged in support of those securities);
(ii) certificates of deposit, eurodollar time deposits,
overnight bank deposits and bankers' acceptances of any foreign bank, or
its branches or agencies (fully protected against currency fluctuations)
that, at the time of acquisition, are rated at least "A-1" by S&P or "P-1"
by ▇▇▇▇▇'▇, and (ii) certificates of deposit, eurodollar time deposits,
banker's acceptances and overnight bank deposits, in each case of any
non-U.S. commercial bank having capital and surplus in excess of
$500,000,000 and a Thomson BankWatch Rating of at least "B";
(iii) repurchase obligations with a term of not more than seven
days with respect to securities of the types described in CLAUSE (i) or
(ii) with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of
$500,000,000 in which the Company or one or more of its Subsidiaries shall
have a perfected first priority security interest (subject to no other
Liens) and having, on the date of purchase thereof, a fair market value of
at least 100% of the amount of the repurchase obligations;
(iv) investments in short-term asset management accounts
offered by any Lender (or other commercial banking institution of the
stature referred to in clause (ii) above) for the purpose of investing in
loans to any corporation (other than the Company or an Affiliate of the
Company), in each case organized under the laws of the United Kingdom; and
(v) shares of any money market fund that (A) has at least 95%
of its assets invested continuously in the types of investments referred to
in CLAUSES (i) through (iv) above, (B) has net assets in excess of $500,000
and (C) is rated at least "A-1" by S&P or "P-1" by ▇▇▇▇▇'▇.
"FOREIGN LENDER" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Company is a resident for tax
purposes. For purposes of this definition, the United States, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"FOREIGN PENSION PLAN" means any material plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States by any Group Company
primarily for the benefit of employees of any Group Company residing outside the
- 18 -
United States, which plan, fund or other similar program provides, or results
in, retirement income, a deferral of income in contemplation of retirement or
payments to be made upon termination of employment, and which plan is not
subject to ERISA or the Code.
"FOREIGN SUBSIDIARY" means with respect to any Person any Subsidiary
of such Person that is not a Domestic Subsidiary of such Person.
"FUND" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"FUNDED INDEBTEDNESS" means, with respect to any Person and without
duplication, (i) all Indebtedness of such Person of the types referred to in
CLAUSES (i), (ii), (iii), (v), and (vii) of the definition of "Indebtedness" in
this SECTION 1.01, (ii) all Indebtedness of others of the type referred to in
CLAUSE (i) above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) a Lien on, or payable
out of the proceeds of production from, any property or asset of such Person,
whether or not the obligations secured thereby have been assumed by such Person,
(iii) all Guaranty Obligations of such Person with respect to Indebtedness of
others of the type referred to in CLAUSE (i) above and (iv) all Indebtedness of
the type referred to in CLAUSE (i) above of any other Person (including any
partnership in which such Person is a general partner and any unincorporated
joint venture in which such Person is a joint venturer) to the extent such
Person would be liable therefor under any applicable law or any agreement or
instrument by virtue of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person shall not be liable therefor.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board, the Public Company Accounting Oversight Board and the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or such other principles as may be approved
by a significant segment of the accounting profession in the United States, that
are applicable to the circumstances as of the date of determination,
consistently applied.
"GOVERNMENTAL AUTHORITY" means the government of the United States or
any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central bank).
"GROUP COMPANY" means any of the Company or its respective
Subsidiaries (regardless of whether or not consolidated with the Company for
purposes of GAAP), and "GROUP COMPANIES" means all of them, collectively.
"GROUP COMPANY MATERIALS" has the meaning specified in SECTION
6.02(k).
"GROUP" means at any time a group of Loans consisting of (i) all Loans
which are Base Rate Loans at such time or (ii) all Loans which are Eurodollar
Loans having the same Interest Period at such time; PROVIDED that, if a Loan of
any particular Lender is converted to or made as a Base Rate Loan pursuant to
ARTICLE III, such Loan shall be included in the same Group or Group of Loans
from time to time as it would have been had it not been so converted or made.
- 19 -
"GUARANTY" means the Guaranty, substantially in the form of EXHIBIT F
hereto, by the Subsidiary Guarantors in favor of the Administrative Agent, as
the same may be amended, modified or supplemented from time to time.
"GUARANTY OBLIGATION" means, with respect to any Person, without
duplication, any obligation (other than endorsements in the ordinary course of
business of negotiable instruments for deposit or collection) guarantying,
intended to guaranty, or having the economic effect of guarantying, any
Indebtedness of any other Person in any manner, whether direct or indirect, and
including, without limitation, any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or any property constituting security therefor,
(ii) to advance or provide funds or other credit support for the payment or
purchase of such Indebtedness or obligation or to maintain working capital,
solvency or other balance sheet condition of such other Person (including,
without limitation, maintenance agreements, support agreements, comfort letters,
take or pay arrangements, put agreements, performance guaranties or similar
agreements or arrangements) for the benefit of the holder of Indebtedness of
such other Person, (iii) to lease or purchase property, securities or services
primarily for the purpose of assuring the owner of such Indebtedness or (iv) to
otherwise assure or hold harmless the owner of such Indebtedness against loss in
respect thereof. The amount of any Guaranty Obligation hereunder shall (subject
to any limitations set forth therein) be deemed to be an amount equal to the
outstanding principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Guaranty Obligation is made.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants or
environmental contaminants, including petroleum or petroleum distillates,
asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas
and all other substances or wastes regulated pursuant to any Environment Law
because of their hazardous or deleterious properties.
"HONOR DATE" has the meaning specified in SECTION 2.05(f).
"INDEBTEDNESS" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(i) all obligations of such Person for borrowed money;
(ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(iii) all obligations of such Person under conditional sale or
other title retention agreements relating to property purchased by such
Person to the extent of the value of such property (other than customary
reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business);
(iv) all obligations, other than intercompany items, of such
Person to pay the deferred purchase price of property or services (other
than trade accounts payable and accrued expenses arising in the ordinary
course of business and due within six months of the incurrence thereof);
(v) the Attributable Indebtedness of such Person in respect
of Capital Lease Obligations, Sale/Leaseback Transactions and Synthetic
Lease Obligations (regardless of whether accounted for as indebtedness
under GAAP);
- 20 -
(vi) all obligations, contingent or otherwise, of such Person
to reimburse any bank or other Person in respect of amounts paid under a
letter of credit, bankers' acceptance or similar instrument;
(vii) all obligations of the types specified in CLAUSES (i)
THROUGH (vi) above of others secured by (or for which the holder of such
obligations has an existing right, contingent or otherwise, to be secured
by) a Lien on, or payable out of the proceeds of production from, any
property or asset of such Person, whether or not such obligation is assumed
by such Person; PROVIDED that the amount of any Indebtedness of others that
constitutes Indebtedness of such Person solely by reason of this CLAUSE
(vii) shall not for purposes of this Agreement exceed the greater of the
book value or the fair market value of the properties or assets subject to
such Lien and, for the avoidance of doubt, excluding any Performance
Guaranty;
(viii) all Guaranty Obligations of such Person;
(ix) all Debt Equivalents of such Person; and
(x) the Indebtedness of any other Person (including any
partnership in which such Person is a general partner and any
unincorporated joint venture in which such Person is a joint venturer) to
the extent such Person would be liable therefor under applicable Law or any
agreement or instrument (excluding for the avoidance of doubt any
Performance Guaranty) by virtue of such Person's ownership interest in or
other relationship with such entity, except to the extent the terms of such
Indebtedness provide that such person shall not be liable therefor;
PROVIDED that (i) Indebtedness shall not include (A) deferred compensation
arrangements, (B) earn-out obligations until matured or earned, (C) non-compete
or consulting obligations incurred in connection with Permitted Business
Acquisitions or (D) deemed Indebtedness pursuant to FASB 133 or 150 and (ii) the
amount of any Limited Recourse Indebtedness of any Person shall be equal to the
lesser of (A) the aggregate principal amount of such Limited Recourse
Indebtedness for which such Person provides credit support of any kind
(including any undertaking agreement or instrument that would constitute
Indebtedness), is directly or indirectly liable as a guarantor or otherwise or
is the lender and (B) the fair market value of any assets securing such
Indebtedness or to which such Indebtedness is otherwise recourse.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITEE" has the meaning specified in SECTION 10.04(b).
"INSURANCE PROCEEDS" means all insurance proceeds (other than business
interruption insurance proceeds), damages, awards, claims and rights of action
with respect to any Casualty.
"INTELLECTUAL PROPERTY" has the meaning set forth in the Security
Agreement.
"INTERCOMPANY NOTE" means a promissory note contemplated by SECTION
7.06(a)(xi) or (xii), substantially in the form of EXHIBIT H hereto, and
"INTERCOMPANY NOTES" means any two or more of them.
"INTEREST COVERAGE RATIO" means for any period the ratio of (i)
Consolidated EBITDA to (ii) Cash Interest Expense (excluding that in respect of
Project Non-Recourse Debt) for such period.
- 21 -
"INTEREST PAYMENT DATE" means (i) as to Base Rate Loans, the last
Business Day of each March, June, September and December and the Maturity Date
for Loans of the applicable Class and (ii) as to Eurodollar Loans, the last day
of each applicable Interest Period and the Maturity Date for Loans of the
applicable Class, and in addition where the applicable Interest Period for a
Eurodollar Loan is greater than three months, then also the respective dates
that fall every three months after the beginning of such Interest Period.
"INTEREST PERIOD" means with respect to each Eurodollar Loan, a period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in the applicable Notice of
Extension/Conversion and ending one, two, three or six (or, if deposits of such
duration are available in the London interbank eurodollar market to all of the
Lenders having Commitments on Loans of the applicable Class, nine or twelve)
months thereafter, as the Company may elect in the applicable notice; PROVIDED
that:
(i) any Interest Period which would otherwise end on a day
which is not a Business Day shall, subject to CLAUSE (iv) below, be
extended to the next succeeding Business Day unless such Business Day falls
in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day;
(ii) any Interest Period which 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 a calendar month;
(iii) if so provided in written notice to the Company by the
Administrative Agent at the direction of the Required Lenders, no Interest
Period in excess of one month may be selected at any time when an Event of
Default is then in existence; and
(iv) no Interest Period may be selected which would end after
the Maturity Date for Loans of the applicable Class.
"INTERIM PURCHASE TRANSACTION" means a transaction in which any Group
Company facilitates the acquisition of equipment intended to be leased by
temporarily purchasing such equipment and then selling such equipment to the
proposed lessor within 365 days of the purchase.
"INVESTMENT" in any Person means (i) the acquisition (whether for
cash, property, services, assumption of Indebtedness, securities or otherwise)
of assets (other than inventory, machinery, equipment and other assets in the
ordinary course of business), Equity Interests, Equity Equivalents, Debt
Equivalents, Indebtedness or other securities of such Person, (ii) any deposit
with, or advance, loan or other extension of credit to or for the benefit of
such Person (other than deposits made in connection with Operating Leases or the
purchase of equipment or inventory, each in the ordinary course of business) or
(iii) any other capital contribution to such Person, including by way of
Guaranty Obligations of any obligation of such Person, any support for a letter
of credit issued on behalf of such Person incurred for the benefit of such
Person. For the purposes of ARTICLE VII, the outstanding amount of any
Investment by any Person in another Person shall be calculated as the excess of
(i) the initial amount of such Investment (including the fair market value of
all property transferred by such Person as part of such Investment) over (ii)
the sum of (A) all returns of principal or capital thereof received by the
investing Person on or prior to such time (including returns of principal or
capital in the form of cash dividends, cash distributions and cash repayments of
Indebtedness) and (B) all liabilities of the investing Person constituting all
or a part of the initial amount of such Investment expressly transferred prior
to such time in connection with the sale or disposition of such Investment, but
only to the extent the investing Person is fully released of such liabilities by
such transfer.
- 22 -
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"LAWS" means, collectively, all applicable international, foreign,
Federal, state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directives, requests,
licenses, authorizations and permits issued by any Governmental Authority.
"L/C BORROWING" means a Revolving Borrowing made pursuant to SECTION
2.05(f)(iv) and (v) to refinance Unreimbursed Amounts in respect of drawn
Letters of Credit.
"L/C CASH COLLATERAL ACCOUNT" has the meaning specified in the
Security Agreement.
"L/C COMMITMENT" means the commitment of one or more L/C Issuers to
issue Letters of Credit in an aggregate face amount at any one time outstanding
(together with the amounts of any unreimbursed drawings thereon) of up to the
L/C Sublimit.
"L/C CREDIT EXTENSION" means, with respect to any Letter of Credit,
the issuance thereof or extension of the expiry date thereof, or the increase of
the amount thereof.
"L/C DISBURSEMENT" means a payment or disbursement made by an L/C
Issuer pursuant to a Letter of Credit.
"L/C DOCUMENTS" means, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor and any agreements, instruments, Guarantee
Obligations or other documents (whether general in application or applicable
only to such Letter of Credit) governing or providing for (i) the rights and
obligations of the parties concerned or at risk or (ii) any collateral security
for such obligations.
"L/C ISSUER" means (i) Bank of America, in its capacity as issuer of
Letters of Credit under SECTION 2.05(b), and its successor or successors in such
capacity, (ii) each Lender listed in SCHEDULE 2.05 hereto as the issuer of an
Existing Letter of Credit and (iii) any other Lender which the Company shall
have designated as an "L/C ISSUER" by notice to the Administrative Agent.
"L/C OBLIGATIONS" means at any time, the sum of (i) the maximum amount
which is, or at any time thereafter may become, available to be drawn under
Letters of Credit then outstanding, assuming compliance with all requirements
for drawings referred to in such Letters of Credit plus (ii) the aggregate
amount of all Unreimbursed Amounts not then paid by the Company as provided in
SECTION 2.05(f)(ii), (iii), (iv) OR (v) to the applicable L/C Issuers in respect
of drawings under Letters of Credit, including any portion of any such
obligation to which a Lender has become subrogated pursuant to SECTION
2.05(f)(vi). For all purposes of this Agreement and all other Loan Documents, if
on any date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of
the ISP, such Letter of Credit shall be deemed to be "outstanding" in the amount
so remaining available to be drawn.
"L/C SUBLIMIT" means an amount equal to $50,000,000. The L/C Sublimit
is a part of, and not in addition to, the Revolving Committed Amount.
- 23 -
"LENDER" means each bank or other lending institution listed on
SCHEDULE 2.01, each Eligible Assignee that becomes a Lender pursuant to SECTION
10.06(b) and their respective successors and shall include, as the context may
require, the Swing Line Lender in such capacity and each L/C Issuer in such
capacity.
"LENDING OFFICE" means (i) with respect to any Lender and for each
Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of such
Lender) designated for such Type of Loan in such Lender's Administrative
Questionnaire or in any applicable Assignment and Assumption pursuant to which
such Lender became a Lender hereunder or such other office of such Lender (or of
an Affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Company as the office by which its Loans of such
Type are to be made and maintained and (ii) with respect to any L/C Issuer and
for each Letter of Credit, the "Lending Office" of such L/C Issuer (or of an
Affiliate of such L/C Issuer) designated on the signature pages hereto or such
other office of such L/C Issuer (or of an Affiliate of such L/C Issuer) as such
L/C Issuer may from time to time specify to the Administrative Agent and the
Company as the office by which its Letters of Credit are to be issued and
maintained.
"LETTER OF CREDIT" means an Existing Letter of Credit or an Additional
Letter of Credit, and "LETTERS OF CREDIT" means any combination of the
foregoing.
"LETTER OF CREDIT EXPIRATION DATE" means the day that is seven days
prior to the Revolving Termination Date then in effect (or, if such day is not a
Business Day, the next preceding Business Day).
"LETTER OF CREDIT FEE" has the meaning specified in SECTION
2.11(b)(i).
"LETTER OF CREDIT REQUEST" has the meaning specified in SECTION
2.05(d).
"LEVERAGE RATIO" means on any day the ratio of (i) Consolidated Funded
Indebtedness (excluding Project Non-Recourse Debt) as of the last day of the
fiscal quarter of the Company ending on, or most recently preceding, such date
to (ii) Consolidated EBITDA for the four consecutive fiscal quarters of the
Company ended on, or most recently preceding, such day.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge, or preference, priority or other security interest or preferential
arrangement in the nature of a security interest of any kind or nature
whatsoever (including any conditional sale or other title retention agreement,
any easement, right of way or other encumbrance on title to Real Property, and
any financing lease having substantially the same economic effect as any of the
foregoing). Solely for the avoidance of doubt, the filing of a Uniform
Commercial Code financing statement that is a protective lease filing in respect
of an operating lease that does not constitute a security interest in the leased
property or otherwise give rise to a Lien does not constitute a Lien solely on
account of being filed in a public office.
"LIMITED RECOURSE INDEBTEDNESS" means with respect to any Person,
Indebtedness to the extent: (i) such Person (A) provides no credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (B) is not directly or indirectly liable as a
guarantor or otherwise or (C) does not constitute the lender; and (ii) no
default with respect thereto would permit upon notice, lapse of time or both any
holder of any other Indebtedness (other than the Loans or the Notes) of such
Person to declare a default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity and includes
without limitation Project Non-Recourse Debt.
- 24 -
"LOAN" means a Revolving Loan, a Term B Closing Date Loan, a Term B
Delayed Draw Loan or a Swing Line Loan (or a portion of any Revolving Loans,
Term B Closing Date Loans, Term B Delayed Draw Loans or Swing Line Loans),
individually or collectively as appropriate; PROVIDED that, if any such loan or
loans (or portions thereof) are combined or subdivided pursuant to a Notice of
Extension/Conversion, the term "LOAN" shall refer to the combined principal
amount resulting from such combination or to each of the separate principal
amounts resulting from such subdivision, as the case may be.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Guaranty, the
Collateral Documents, the Perfection Certificate, each Accession Agreement and
each L/C Document, collectively, and all other related agreements and documents
to which the Agent or Lenders are party issued or delivered hereunder or
thereunder or pursuant hereto or thereto, in each case as the same may be
amended, modified or supplemented from time to time.
"LOAN PARTY" means each of the Company and each Subsidiary Guarantor,
and "LOAN PARTIES" means any combination of the foregoing.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U.
"MATERIAL ADVERSE EFFECT" means (i) any material adverse effect upon
the business, assets, liabilities (actual or contingent), operations, properties
or financial condition of the Company and its Subsidiaries, taken as a whole or
(ii) a material impairment of the rights and benefits of the Lenders under the
Loan Documents, taken as a whole.
"MATURITY DATE" means (i) as to Revolving Loans and Swing Line Loans,
the Revolving Termination Date and (ii) as to Term B Loans, the Term Maturity
Date.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Service, Inc., a Delaware
corporation, and its successors or, absent any such successor, such nationally
recognized statistical rating organization as the Company and the Administrative
Agent may select.
"MORTGAGE" means, in the case of owned real property interests, a
mortgage or deed of trust, substantially in the form of, or otherwise
substantially identical in substance to, the provisions of EXHIBIT G-4 hereto,
among any Loan Party, the Collateral Agent and one or more trustees, as the same
may be amended, modified or supplemented from time to time.
"MORTGAGE POLICIES" has the meaning specified in SECTION 4.01(i)
hereto.
"MORTGAGED PROPERTIES" means the real property interests of the
Company and its Subsidiaries described in SCHEDULE 4.01(i) hereto.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 3(37) or 4001(a)(3) of ERISA.
"NET CASH PROCEEDS" means:
(i) with respect to any Asset Disposition (other than an
Asset Disposition permitted under clauses (i) through (xvii), (xviii)(B),
(xix), (xx) and (xxii) of SECTION 7.05 or consisting of a lease where one
or more Group Companies is acting as lessor entered into in the ordinary
course of business), Casualty or Condemnation, (A) the gross amount of all
cash proceeds (including cash Insurance Proceeds and cash Condemnation
Awards in the case of any
- 25 -
Casualty or Condemnation, except to the extent and for so long as such
Insurance Proceeds or Condemnation Awards constitute Reinvestment Funds)
actually paid to or actually received by any Group Company in respect of
such Asset Disposition, Casualty or Condemnation (including any cash
proceeds received as income or other proceeds of any noncash proceeds of
any Asset Disposition, Casualty or Condemnation as and when received), less
(B) the sum of (1) the amount, if any, of all taxes and customary fees,
legal fees, brokerage fees, commissions, costs and other expenses (other
than those payable to any Group Company or to Affiliates of any Group
Company except for those payable on terms and conditions as favorable to
the applicable Group Company as would be obtainable by it in a comparable
arms'-length transaction with an independent, unrelated third party) that
are incurred in connection with such Asset Disposition, Casualty or
Condemnation and are payable by any Group Company, but only to the extent
not already deducted in arriving at the amount referred to in CLAUSE (i)(A)
above, (2) appropriate amounts that must be set aside as a reserve in
accordance with GAAP against any indemnities, liabilities (contingent or
otherwise) associated with such Asset Disposition, Casualty or
Condemnation, (3) if applicable, the amount of any Indebtedness secured by
a Permitted Lien that has been repaid or refinanced in accordance with its
terms with the proceeds of such Asset Disposition, Casualty or
Condemnation; and (4) any payments to be made by any Group Company as
agreed between such Group Company and the purchaser of any assets subject
to an Asset Disposition, Casualty or Condemnation in connection therewith;
and
(ii) with respect to any Equity Issuance or Debt Issuance, the
gross amount of cash proceeds paid to or received by any Group Company in
respect of such Equity Issuance or Debt Issuance as the case may be
(including cash proceeds subsequently as and when received at any time in
respect of such Equity Issuance or Debt Issuance from non-cash
consideration initially received or otherwise), net of underwriting
discounts and commissions or placement fees, investment banking fees, legal
fees, consulting fees, accounting fees and other customary fees and
expenses directly incurred by any Group Company in connection therewith
(other than those payable to any Group Company or any Affiliate of any
Group Company except for those payable on terms and conditions as favorable
to the applicable Group Company as would be obtainable by it in a
comparable arms'-length transaction with an independent, unrelated third
party).
"NOMINAL SHARES" means (i) for any Subsidiary of the Company that is
not a Domestic Subsidiary, nominal issuances of Equity Interests in an aggregate
amount not to exceed 1.0% of the Equity Interests or Equity Equivalents of such
Subsidiary on a fully-diluted basis and (ii) in any case, director's qualifying
shares, in each case to the extent such issuances are required by applicable
law.
"NON-PROJECT SUBSIDIARY" means at any date a Subsidiary of the Company
which is not a Project Subsidiary.
"NOTE" means a Revolving Note, a Term B Closing Date Note, a Term B
Delayed Draw Note or a Swing Line Note, and "NOTES" means any combination of the
foregoing.
"NOTICE OF BORROWING" means a request by the Company for a Borrowing,
substantially in the form of EXHIBIT A-1 hereto.
"NOTICE OF EXTENSION/CONVERSION" has the meaning specified in SECTION
2.07.
"OPERATING LEASE" means, as applied to any Person, a lease (including
leases which may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) by such Person as lessee which is not a
Capital Lease.
- 26 -
"ORGANIZATION DOCUMENTS" means, (i) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(ii) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (iii) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"OTHER TAXES" means all present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies arising from
any payment made hereunder or under any other Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.
"PAID IN FULL" and "PAYMENT IN FULL" means, with respect to any
Finance Obligation, the occurrence of all of the foregoing: (i) with respect to
such Finance Obligations other than (A) contingent indemnification obligations,
Swap Obligations and Cash Management Obligations not then due and payable and
(B) to the extent covered by clause (ii) below, obligations with respect to
undrawn Letters of Credit, payment in full thereof in cash (or otherwise to the
written satisfaction of the Finance Parties owed such Finance Obligations), (ii)
with respect to any undrawn Letter of Credit, the obligations under which are
included in such Finance Obligations, (A) the cancellation thereof and payment
in full of all resulting Finance Obligations pursuant to clause (i) above or (B)
the receipt of cash collateral (or a backstop letter of credit in respect
thereof on terms acceptable to the applicable L/C Issuer and the Administrative
Agent) in an amount at least equal to 102% of the L/C Obligations for such
Letter of Credit and (iii) if such Finance Obligations consist of all the Senior
Credit Obligations under or in respect of the Revolving Commitments or the Term
B Commitments, termination of all Commitments and all other obligations of the
Lenders in respect of such Commitments under the Loan Documents.
"PARTICIPANT" has the meaning specified in SECTION 10.06(d).
"PARTICIPATION INTEREST" means a Credit Extension by a Lender by way
of a purchase of a participation interest in Letters of Credit or L/C
Obligations as provided in SECTION 2.05(a) or (e), in Swing Line Loans as
provided in SECTION 2.01(e)(vi) or in any Loans as provided in SECTION 2.13.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any entity succeeding to any or
all of its functions under ERISA.
"PERFECTION CERTIFICATE" means with respect to the Loan Parties the
certificate, substantially in the form of EXHIBIT G-3 to this Agreement,
completed and supplemented with the schedules and attachments contemplated
thereby to the reasonable satisfaction of the Collateral Agent and duly executed
by a Responsible Officer of the Company, as amended and updated from time to
time by an Accession Agreement pursuant to SECTION 6.12.
"PERFORMANCE GUARANTY" means the obligation of any Group Company that
is not a Project Subsidiary to perform the contractual obligations of a Project
Subsidiary to operate or maintain any facility (but not to pay Indebtedness) or
to provide surety for such services.
"PERMIT" means any license, permit, franchise, right or privilege,
certificate of authority or order, or any waiver of the foregoing, issued or
issuable by any Governmental Authority.
- 27 -
"PERMITTED BUSINESS ACQUISITION" means a Business Acquisition;
PROVIDED that:
(i) the Equity Interests or property or assets acquired in
such acquisition relate to a line of business similar to the business of
the Company or any of its Subsidiaries engaged in on the Closing Date or
reasonably related, ancillary or complementary thereto but do not
constitute or comprise a Project Subsidiary unless the acquiring Person is
a Project Subsidiary;
(ii) the representations and warranties made by the Loan
Parties in each Loan Document shall be true and correct in all material
respects at and as of the date of such acquisition (as if made on such date
after giving effect to such acquisition), except to the extent such
representations and warranties expressly relate to an earlier date (in
which case such representations and warranties shall be true and correct in
all material respects at and as of such earlier date);
(iii) within 30 days after (or such later date as may be agreed
to by the Administrative Agent, in its sole discretion) the date of the
consummation of such Business Acquisition, each applicable Loan Party and
the acquired entity and its Subsidiaries shall have executed and delivered
to the Administrative Agent or the Collateral Agent, as applicable, all
items in respect of the Equity Interests or property or assets acquired in
such acquisition (and/or the seller thereof) required to be delivered by
SECTION 6.12;
(iv) in the case of an acquisition of the Equity Interests of
another Person, (A) except in the case of the incorporation of a new
Subsidiary, the board of directors (or other comparable governing body) of
such other Person shall have duly approved such acquisition and (B) the
Equity Interests acquired shall constitute all (other than Nominal Shares)
of the total Equity Interests of the issuer thereof;
(v) no Event of Default shall have occurred and be continuing
immediately before or immediately after giving effect to such acquisition,
and the Company shall have delivered to the Administrative Agent a
Pro-Forma Compliance Certificate demonstrating that, upon giving effect to
such acquisition on a Pro-Forma Basis, the Company shall be in compliance
with all of the financial covenants specified in SECTION 7.16(a) and (b)
hereof as of the last day of the most recent period of four consecutive
fiscal quarters of the Company for which financial statements are required
to be delivered pursuant to SECTION 6.01(a) or (b) which precedes or ends
on the date of such acquisition; and
(vi) the aggregate consideration (including cash, earn-out
payments, assumption of indebtedness and non-cash consideration) for all
such acquisitions occurring after the Closing Date, to the extent not
funded from Cumulative Distributable Cash under SECTION 7.07(iv) or with
the Net Cash Proceeds of one or more Qualifying Equity Issuances not
utilized for any other purpose specified in CLAUSE (ii) of the definition
of "QUALIFYING EQUITY ISSUANCE", shall not exceed $75,000,000 in the
aggregate for all such Business Acquisitions.
"PERMITTED ENCUMBRANCES" means (i) those liens, encumbrances and other
matters affecting title to any Mortgaged Property listed in the Mortgage
Policies in respect thereof and found, on the date of delivery of such Mortgage
Policies to the Collateral Agent in accordance with the terms hereof, reasonably
acceptable by the Collateral Agent, (ii) zoning, building codes, land use and
other similar Laws and municipal ordinances which are not violated in any
material respect by the existing improvements and the present use by the
mortgagor of the Premises (as defined in the respective
- 28 -
Mortgage) and (iii) such other items to which the Collateral Agent may consent
(such consent not to be unreasonably withheld).
"PERMITTED JOINT VENTURE" means a joint venture, in the form of a
corporation, limited liability company, business trust, joint venture,
association, company or partnership, entered into by the Company or any of its
Subsidiaries which (i) is engaged in a line of business related, ancillary or
complementary to those engaged in by the Company and its Subsidiaries, (ii) is
not a Project Subsidiary and (iii) limits the exposure of the Company and its
Subsidiaries for the liabilities thereof to (A) the Investments of the Company
and its Subsidiaries therein permitted under SECTION 7.06(a)(xvii) and (B) any
Indebtedness of any Permitted Joint Venture or any Guaranty Obligations by the
Company or any of its Subsidiaries in respect of such Indebtedness, which
Indebtedness or Guaranty Obligations are permitted at the time under SECTION
7.01.
"PERMITTED LIENS" has the meaning specified in SECTION 7.02.
"PERMITTED REFINANCING" means, with respect to any Person, any
modification, refinancing, refunding, renewal or extension of any Indebtedness
of such Person; PROVIDED that (i) the principal amount (or accreted value, if
applicable) thereof does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so modified, refinanced, refunded, renewed or
extended except by an amount equal to a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such
modification, refinancing, refunding, renewal or extension and by an amount
equal to any existing commitments unutilized thereunder or as otherwise
permitted pursuant to SECTION 7.01, (ii) if the Indebtedness being modified,
refinanced, refunded, renewed or extended is subordinated in right of payment to
the Senior Credit Obligations, such modification, refinancing, refunding,
renewal or extension is subordinated in right of payment to the Senior Credit
Obligations on terms at least as favorable on the whole to the Lenders as those
contained in the documentation governing the Indebtedness being modified,
refinanced, refunded, renewed or extended, (iii) the terms and conditions
(including, if applicable, as to collateral) of any such modified, refinanced,
refunded, renewed or extended Indebtedness are not on the whole materially less
favorable to the Loan Parties or the Lenders than the terms and conditions of
the Indebtedness being modified, refinanced, refunded, renewed or extended, (iv)
such modification, refinancing, refunding, renewal or extension is incurred by
the Person who is the obligor on the Indebtedness being modified, refinanced,
refunded, renewed or extended, and (v) at the time thereof, no Default shall
have occurred and be continuing.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PLAN" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code maintained by or contributed to by any Group Company or any ERISA
Affiliate, including a Multiemployer Plan.
"PLATFORM" has the meaning specified in SECTION 6.02(k).
"PLEDGE AGREEMENT" means the Pledge Agreement, substantially in the
form of EXHIBIT G-2 hereto, dated as of the date hereof among the Company, the
Subsidiary Guarantors and the Collateral Agent, as the same may be amended,
modified or supplemented from time to time.
"PLEDGED COLLATERAL" has the meaning specified in the Pledge
Agreement.
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"PRE-COMMITMENT INFORMATION" means, taken as an entirety, (i)
information with respect to the Company and its Subsidiaries contained in the
Confidential Information Memorandum dated February 2005 and (ii) the
Registration Statement.
"PREFERRED STOCK" means, as applied to the Equity Interests of a
Person, Equity Interests of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over the Equity Interests of any other class of such
Person.
"PREPAYMENT ACCOUNT" has the meaning specified in SECTION
2.09(b)(viii).
"PRIMARY EQUITY OFFERING" means the underwritten public offering by
the Company of Equity Interests of the Company on substantially the terms
described in the Registration Statement.
"PRO-FORMA BASIS" means, for purposes of calculating compliance of any
transaction with any provision hereof which refers to a Pro-Forma Basis, that
the transaction in question shall be deemed to have occurred as of the first day
of the most recent period of four consecutive fiscal quarters of the Company
which precedes or ends on the date of such transaction and with respect to which
the Administrative Agent has received the financial information for the Company
and its Consolidated Subsidiaries required under SECTION 6.01(a) or (b), as
applicable, and the Compliance Certificate required by SECTION 6.02(a) for such
period. In connection with any calculation of the financial covenants set forth
in SECTION 7.16 upon giving effect to a transaction on a "Pro-Forma Basis", (i)
any Indebtedness incurred by the Company or any of its Subsidiaries in
connection with such transaction (or any other transaction which occurred during
the relevant four fiscal quarter period) shall be deemed to have been incurred
or repaid as the case may be as of the first day of the relevant four
fiscal-quarter period, (ii) if such Indebtedness has a floating or formula rate,
then the rate of interest for such Indebtedness for the applicable period for
purposes of the calculations contemplated by this definition shall be determined
by utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of such calculations and (iii) income
statement items (whether positive or negative) attributable to all property
acquired in such transaction or to the Investment comprising such transaction,
as applicable, shall be included as if such transaction has occurred as of the
first day of the relevant four-fiscal-quarter period, after giving effect to
cost savings reasonably acceptable to the Administrative Agent, (iv) such other
pro-forma adjustments which would be permitted or required by Regulations S-K
and S-X under the Securities Act shall be taken into account and (v) such other
adjustments as may be reasonably agreed between the Company and the
Administrative Agent shall be taken into account.
"PRO-FORMA COMPLIANCE CERTIFICATE" means a certificate of a
Responsible Officer or chief accounting officer of the Company delivered to the
Administrative Agent in connection with any "transaction" for which a
calculation on a "Pro-Forma Basis is permitted or required hereunder and
containing reasonably detailed calculations demonstrating, upon giving effect to
the applicable transaction on a Pro-Forma Basis, compliance, as applicable, with
the Leverage Ratio, the Interest Coverage Ratio and the Fixed Charge Coverage
Ratio, as applicable, as of the last day of the most recent period of four
consecutive fiscal quarters of the Company which precedes or ends on the date of
the applicable transaction and with respect to which the Administrative Agent
shall have received the consolidated financial information for the Company and
its Consolidated Subsidiaries required under SECTION 6.01(a) or (b), as
applicable, and the Compliance Certificate required by SECTION 6.02(a) for such
period.
"PROJECT NON-RECOURSE DEBT" means Indebtedness of a Project Subsidiary
if: (i) incurred to finance the development, operation or purchase of a facility
or other asset developed, owned or purchased by such Project Subsidiary in
compliance with the terms of its organizational documents; (ii) none of the
Company or any of its Subsidiaries (other than the applicable Project Subsidiary
which is the
- 30 -
issuer thereof) (A) provides any credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness, but
excluding the amount of any permitted investment by the Company or a Subsidiary
in such Project Subsidiary), (B) is directly or indirectly liable as a guarantor
of such indebtedness (whether by virtue of a Guaranty Obligation or otherwise)
or would be subject to a claim by any holder of such indebtedness in a
bankruptcy or insolvency proceeding of the Company or any of its Subsidiaries
(other than the applicable Project Subsidiary which is the issuer thereof) and
(C) constitutes the lender; and (iii) no default with respect thereto would
permit upon notice, lapse of time or both the holder of such indebtedness or any
holder of any other indebtedness (other than the Loans or the Notes) of the
Company or any of its Subsidiaries (other than the applicable Project
Subsidiary) to declare a default on such other indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity.
"PROJECT NON-RECOURSE DEBT SERVICE AMOUNT" means for any period, the
aggregate amount of principal, premium, if any, and Consolidated Interest
Expense paid or payable in such period in respect of Project Non-Recourse Debt.
"PROJECT SUBSIDIARY" means a Consolidated Subsidiary of the Company
(i) (A) which has no indebtedness other than Project Non-Recourse Debt, (B)
which holds no indebtedness of, or direct or indirect equity interest in, the
Company of any Subsidiary other than equity interests in another Project
Subsidiary and (C) in which any Investment by the Company or any Subsidiary
constituted a permitted investment at the time made, (ii) which is a direct or
indirect Subsidiary of a Project Subsidiary or (iii) that is in existence as of
the Closing Date and set forth on SCHEDULE 1.01C.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness of the Company or any
of its Subsidiaries incurred for the purpose of financing all or any part of the
purchase price or cost of construction or improvement of property used in the
business of the Company or such Subsidiary.
"QUALIFYING EQUITY ISSUANCE" means any issuance of Equity Interests by
the Company or any receipt by the Company of a capital contribution if: (i)
after giving effect thereto, no Change of Control shall have occurred; and (ii)
the Net Cash Proceeds thereof shall be used (without duplication) (A) to make
Consolidated Capital Expenditures, (B) to make Permitted Business Acquisitions
in excess of the amounts allowed under CLAUSE (vi) of the definition of
"PERMITTED BUSINESS ACQUISITION, (C) to make Investments contemplated by, but in
excess of the amounts allowed under, SECTION 7.06(a)(xvi) or SECTION
7.06(a)(xx), (D) to repay Indebtedness of the Company and its Subsidiaries and
(E) to make Restricted Payments contemplated by SECTION 7.07(iv).
"REAL PROPERTY" means, with respect to any Person, all of the right,
title and interest of such Person in and to land, improvements and fixtures.
"REFERENCE PERIOD" means, at any date, the period commencing on the
first day of the first full fiscal quarter after the Closing Date and ending on
the last day of the last fiscal quarter for which a Compliance Certificate
pursuant to SECTION 6.02(a) has been delivered by the Company prior to such
date.
"REFINANCED AGREEMENTS" means the Existing
Credit Agreement, the
Subordinated Notes and those other instruments, documents and agreements listed
on SCHEDULE 1.01A.
"REFUNDED SWING LINE LOAN" has the meaning specified in SECTION
2.01(e)(iii).
"REGISTER" has the meaning specified in SECTION 10.06(c).
- 31 -
"REGISTRATION STATEMENT" means the Registration Statement on Form S-1
(File No. 333-122351) filed on January 27, 2005 by the Company with the SEC in
accordance with the Securities Act , as amended, with respect to the shares of
common stock of the Company to be offered in the Primary Equity Offering and the
Secondary Equity Offering.
"REGULATION D, O, T, U OR X" means Regulation D, O, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System as
amended, or any successor regulation.
"REINVESTMENT FUNDS" means, with respect to any Net Cash Proceeds of
Insurance Proceeds or any Condemnation Award in respect of the single event or
series of related events giving rise thereto, that portion of such funds as
shall, according to a certificate of a Responsible Officer of the Company
delivered to the Administrative Agent within 30 days after the occurrence of the
Casualty or Condemnation giving rise thereto, be reinvested or committed to be
reinvested pursuant to a binding contract within 365 days after the occurrence
of the Casualty or Condemnation giving rise thereto in the repair, restoration
or replacement of the properties that were the subject of such Casualty or
Condemnation; PROVIDED that (i) pending such reinvestment, the entire amount of
such proceeds shall be deposited in an account that is subject to a Depository
Bank Agreement and (ii) no Event of Default shall have occurred and be
continuing or, if the Company or one or more of its Subsidiaries shall have then
entered into one or more continuing agreements with a Person not an Affiliate of
any of them for the repair, restoration or replacement of the properties that
were the subject of such Casualty or Condemnation, none of the Administrative
Agent or the Collateral Agent shall have commenced any action or proceeding to
exercise or seek to exercise an right or remedy with respect to any Collateral
(including any action of foreclosure, enforcement, collection or execution or by
and proceeding under any Debtor Relief Law with respect to any Loan Party).
"RELATED PARTIES" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"REQUIRED LENDERS" means, at any date of determination, Lenders whose
aggregate Credit Exposure (as hereinafter defined) constitutes more than 50% of
the Credit Exposure of all Lenders at such time; PROVIDED, HOWEVER, that if any
Lender shall be a Defaulting Lender at such time then there shall be excluded
from the determination of Required Lenders such Lender and the aggregate
principal amount of Credit Exposure of such Lender at such time. For purposes of
the preceding sentence, the term "CREDIT EXPOSURE" as applied to each Lender
shall mean (i) at any time prior to the termination of the Commitments of the
applicable Class the sum of (A) the Revolving Commitment Percentage of such
Lender multiplied by the Revolving Committed Amount plus (B) the Term B Closing
Date Commitment Percentage of such Lender multiplied by the aggregate principal
amount of the Term B Closing Date Loans outstanding at such time plus (C) the
Term B Delayed Draw Commitment Percentage of such Lender multiplied by the
aggregate principal amount of the Term B Delayed Draw Committed Amount, and (ii)
at any time after the termination of the Commitments of the applicable Class,
the sum of (A) the principal balance of the outstanding Loans of such Lender
plus (B) such Lender's Participation Interests in all L/C Obligations and Swing
Line Loans.
"REQUIRED REVOLVING LENDERS" means Lenders whose aggregate Revolving
Credit Exposure (as hereinafter defined) constitutes more than 50% of the
Revolving Credit Exposure of all Lenders at such time; PROVIDED, HOWEVER, that
if any Lender shall be a Defaulting Lender at such time then there shall be
excluded from the determination of Required Revolving Lenders such Lender and
the aggregate principal amount of Revolving Credit Exposure of such Lender at
such time. For purposes of the preceding sentence, the term "REVOLVING CREDIT
EXPOSURE" as applied to each Lender shall mean (i) at any time prior to the
termination of the Revolving Commitments, the Revolving Commitment Percentage
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of such Lender multiplied by the Revolving Committed Amount, and (ii) at any
time after the termination of the Revolving Commitments, the sum of (A) the
principal balance of the outstanding Revolving Loans of such Lender plus (B)
such Lender's Participation Interests in all L/C Obligations and Swing Line
Loans.
"RESPONSIBLE OFFICER" means the chief executive officer, president,
senior vice president, vice president, chief financial officer, treasurer,
assistant treasurer, secretary or assistant secretary of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution
(whether in cash, securities or other property), direct or indirect, on account
of any class of Equity Interests or Equity Equivalents of any Group Company, now
or hereafter outstanding, (ii) any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation, termination or
similar payment, purchase or other acquisition for value, direct or indirect, of
any class of Equity Interests or Equity Equivalents of any Group Company, now or
hereafter outstanding and (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire any
class of Equity Interests or Equity Equivalents of any Group Company, now or
hereafter outstanding.
"REVOLVING BORROWING" means a Borrowing comprised of Revolving Loans
and identified as such in the Notice of Borrowing with respect thereto.
"REVOLVING COMMITMENT" means, with respect to any Lender, the
commitment of such Lender, in an aggregate principal amount at any time
outstanding of up to such Lender's Revolving Commitment Percentage of the
Revolving Committed Amount, (i) to make Revolving Loans in accordance with the
provisions of SECTION 2.01(a), (ii) to purchase Participation Interests in Swing
Line Loans in accordance with the provisions of SECTION 2.01(e) and (iii) to
purchase Participation Interests in Letters of Credit in accordance with the
provisions of SECTION 2.05(e).
"REVOLVING COMMITMENT FEE" has the meaning specified in SECTION
2.11(a).
"REVOLVING COMMITMENT PERCENTAGE" means, for each Lender, the
percentage (carried out to the ninth decimal place) identified as its Revolving
Commitment Percentage on SCHEDULE 2.01 hereto, as such percentage may be
modified in connection with any assignment made in accordance with the
provisions of SECTION 10.06(b).
"REVOLVING COMMITTED AMOUNT" means $95,000,000 or such lesser or
greater amount to which the Revolving Committed Amount may be adjusted pursuant
to SECTION 2.10.
"REVOLVING LENDER" means each Lender identified in SCHEDULE 2.01 as
having a Revolving Commitment and each Eligible Assignee which acquires a
Revolving Commitment or Revolving Loan pursuant to SECTION 10.06(b) and their
respective successors.
"REVOLVING LOAN" means a Loan made under SECTION 2.01(a).
"REVOLVING NOTE" means a promissory note, substantially in the form of
EXHIBIT B-1 hereto, evidencing the obligation of the Company to repay
outstanding Revolving Loans, as such note may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
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"REVOLVING OUTSTANDINGS" means at any date the aggregate outstanding
principal amount of all Revolving Loans and Swing Line Loans plus the aggregate
outstanding amount of all L/C Obligations.
"REVOLVING TERMINATION DATE" means the fifth anniversary of the
Closing Date (or, if such day is not a Business Day, the next Business Day) or
such earlier date upon which the Revolving Commitments shall have been
terminated in their entirety in accordance with this Agreement.
"SALE/LEASEBACK TRANSACTION" means, other than any Interim Purchase
Transaction, any direct or indirect arrangement with any Person or to which any
such Person is a party providing for the leasing to the Company or any of its
Subsidiaries of any property, whether owned by the Company or any of its
Subsidiaries as of the Closing Date or later acquired, which has been or is to
be sold or transferred by the Company or any of its Subsidiaries to such Person
or to any other Person from whom funds have been, or are to be, advanced by such
Person on the security of such property.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., a
New York corporation, and its successors or, absent any such
successor, such nationally recognized statistical rating organization as the
Company and the Administrative Agent may select.
"SCHEDULED CAPITAL EXPENDITURES" means those Consolidated Capital
Expenditures for the purposes specified and not exceeding the respective amounts
set forth on SCHEDULE 1.01D.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"SECONDARY OFFERING" means the underwritten public offering by the
selling stockholders of Equity Interests of the Company on substantially the
terms described in the Registration Statement
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SECURITY AGREEMENT" means the Security Agreement, substantially in
the form of EXHIBIT G-1 hereto, dated as of the date hereof among the Company,
the Subsidiary Guarantors and the Collateral Agent, as the same may be amended,
modified or supplemented from time to time.
"SENIOR CREDIT OBLIGATIONS" means, with respect to each Loan Party,
without duplication:
(i) in the case of the Company, all principal of and interest
(including, without limitation, any interest which accrues after the
commencement of any proceeding under any Debtor Relief Law with respect to
the Company, whether or not allowed or allowable as a claim in any such
proceeding) on any Loan or L/C Obligation under, or any Note issued
pursuant to, this Agreement or any other Loan Document;
(ii) all fees, expenses, indemnification obligations and other
amounts of whatever nature now or hereafter payable by such Loan Party
(including, without limitation, any amounts which accrue after the
commencement of any proceeding under any Debtor Relief Law with respect to
such Loan Party, whether or not allowed or allowable as a claim in any such
proceeding) pursuant to this Agreement or any other Loan Document;
(iii) all expenses of the Agents as to which one or more of the
Agents have a right to reimbursement by such Loan Party under SECTION
10.04(a) of this Agreement or under
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any other similar provision of any other Loan Document, including, without
limitation, any and all sums advanced by the Collateral Agent to preserve
the Collateral or preserve its security interests in the Collateral to the
extent permitted under any Loan Document or applicable Law;
(iv) all amounts paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement by such Loan Party under SECTION
10.04(b) of this Agreement or under any other similar provision of any
other Loan Document; and
(v) in the case of each Subsidiary Guarantor, all amounts now
or hereafter payable by such Subsidiary Guarantor and all other obligations
or liabilities now existing or hereafter arising or incurred (including,
without limitation, any amounts which accrue after the commencement of any
proceeding under any Debtor Relief Law with respect the Company or such
Subsidiary Guarantor, whether or not allowed or allowable as a claim in any
such proceeding) on the part of such Subsidiary Guarantor pursuant to this
Agreement, the Guaranty or any other Loan Document;
together in each case with all renewals, modifications, consolidations or
extensions thereof.
"SENIOR CREDIT PARTY" means each Lender (including any Affiliate in
respect of any Cash Management Obligations), each L/C Issuer, the Administrative
Agent, the Collateral Agent and each Indemnitee and their respective successors
and assigns, and "SENIOR CREDIT PARTIES" means any two or more of them,
collectively.
"SOLVENT" means, with respect to any Person as of a particular date,
that on such date (i) such Person is able generally to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business, (ii) the value of the assets of such Person (both at
fair value and present fair saleable value) is greater than the total amount of
liabilities (including contingent and unliquidated liabilities) and (iii) such
Person does not have unreasonably small capital. In computing the amount of
contingent or unliquidated liabilities at any time, such liabilities shall be
computed at the amount that, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability (in each case as interpreted in accordance
with fraudulent conveyance, bankruptcy, insolvency and similar laws and other
applicable Law).
"SPONSOR" means GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC, and its successors, GTCR
Capital Partners, L.P., GTCR Partners VIII, L.P., GTCR Fund VIII, L.P., GTCR
Fund VIII-B, L.P. and GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, LLC, together with each of their
respective Sponsor Approved Funds.
"SPONSOR APPROVED FUNDS" means with respect to any Person, any Fund
that is administered or managed by (i) such Person, (ii) an Affiliate of such
Person or (iii) an entity that administers or manages such Person.
"SPONSOR GROUP" means the Sponsor and any of its Subsidiaries or
Affiliates other than Affiliates that are operating companies or Controlled by
operating companies.
"SUBORDINATED INDEBTEDNESS" of any Person means all unsecured
Indebtedness (i) the principal of which by its terms is not required to be
repaid, in whole or in part, before the 90 day anniversary of the later of the
Revolving Termination Date or the Term Maturity Date, (ii) is subordinated in
right of payment to such Person's indebtedness, obligations and liabilities to
the Senior Credit Parties under the Loan Documents pursuant to payment and
subordination provisions reasonably satisfactory in form and substance to the
Administrative Agent and (iii) is issued pursuant to credit documents having
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covenants, subordination provisions and events of default that are taken as a
whole in no event materially less favorable, including with respect to rights of
acceleration, to such Person than the terms hereof or are otherwise reasonably
satisfactory in form and substance to the Administrative Agent.
"SUBORDINATED NOTES" means $150,000,000 aggregate principal amount of
the Company's 9-1/2% Senior Subordinated Notes due 2009 issued pursuant to the
Indenture dated as of April 17, 2002 between the Company and ▇▇▇▇▇ Fargo bank,
National Association, as Trustee.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association or other business entity of
which (i) if a corporation, more than 50% of the total voting power of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a partnership,
limited liability company, association or business entity other than a
corporation, more than 50% of the partnership or other similar ownership
interests thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have more than 50%
ownership interest in a partnership, limited liability company, association or
other business entity if such Person or Persons shall be allocated more than 50%
of partnership, association or other business entity gains or losses or shall be
or control the managing director, manager or a general partner of such
partnership, association or other business entity. Unless otherwise specified,
all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of the Company.
"SUBSIDIARY GUARANTOR" means each Subsidiary of the Company on the
Closing Date (other than (i) Project Subsidiaries except to the extent not
prohibited by the terms of the instruments governing any Project Non-Recourse
Debt of such Project Subsidiary, (ii) Foreign Subsidiaries and (iii) those
Subsidiaries having limited or negligible assets as of the Closing Date which
are to be merged into, or liquidated or dissolved and their residual assets
distributed to, one or more Loan Parties within 90 days after the Closing Date
pursuant to the Company's reorganization plan disclosed to the Administrative
Agent prior to the Closing Date) that becomes a party to the Guaranty after the
Closing Date by execution of an Accession Agreement, and "SUBSIDIARY GUARANTORS"
means any two or more of them.
"SWAP AGREEMENT" means (i) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement and (ii) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement or any other master agreement (any such master
agreement, together with any related schedules, a "MASTER AGREEMENT"), including
any such obligations or liabilities under any Master Agreement.
"SWAP CREDITOR" means any Lender or any Affiliate of any Lender from
time to time party to one or more Swap Agreements permitted hereunder with a
Loan Party (even if any such Lender for any reason ceases after the execution of
such agreement to be a Lender hereunder), and its successors and assigns, and
"SWAP CREDITORS" means any two or more of them, collectively.
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"SWAP OBLIGATIONS" of any Person means all obligations (including,
without limitation, any amounts which accrue after the commencement of any
bankruptcy or insolvency proceeding with respect to such Person, whether or not
allowed or allowable as a claim under any proceeding under any Debtor Relief
Law) of such Person in respect of any Swap Agreement, excluding any amounts
which such Person is entitled to set-off against its obligations under
applicable Law.
"SWAP TERMINATION VALUE" means, at any date and in respect of any one
or more Swap Agreements, after taking into account the effect of any legally
enforceable netting agreements relating to such Swap Agreements, (i) for any
date on or after the date such Swap Agreements have been closed out and
termination value(s) determined in accordance therewith, such termination
value(s), and (ii) for any date prior to the date referenced in CLAUSE (i), the
amount(s) determined as the ▇▇▇▇-to-market value(s) for such Swap Agreements, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Agreements (which may
include any Lender).
"SWING LINE COMMITMENT" means the agreement of the Swing Line Lender
to make Loans pursuant to SECTION 2.01(e). The Swing Line Commitment is a part
of, and not in addition to, the Revolving Committed Amount.
"SWING LINE COMMITTED AMOUNT" means $10,000,000, as such Swing Line
Committed Amount may be reduced pursuant to SECTION 2.10.
"SWING LINE LENDER" means Bank of America, N.A., in its capacity as
the Swing Line Lender under SECTION 2.01(e), and its successor or successors in
such capacity.
"SWING LINE LOAN" means a Base Rate Loan made by the Swing Line Lender
pursuant to SECTION 2.01(e), and "SWING LINE LOANS" means any two or more of
such Base Rate Loans.
"SWING LINE LOAN REQUEST" has the meaning specified in SECTION
2.02(b).
"SWING LINE NOTE" means a promissory note, substantially in the form
of EXHIBIT B-4 hereto, evidencing the obligation of the Company to repay
outstanding Swing Line Loans, as such note may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"SWING LINE TERMINATION DATE" means the earlier of (i) the fifth
anniversary of the Closing Date (or, if such day is not a Business Day, the next
preceding Business Day) or such earlier date upon which the Revolving
Commitments shall have been terminated in their entirety in accordance with this
Agreement and (ii) the date on which the Swing Line Commitment is terminated in
its entirety in accordance with this Agreement.
"SYNDICATION DATE" means the earlier of (i) the date which is 90 days
after the Closing Date and (ii) the date on which the Administrative Agent
determines in its sole discretion (and notifies the Company) that the primary
syndication (and the resulting addition of Lenders pursuant to SECTION 10.06(b))
has been completed.
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of a Person
(incurred (i) for all purposes of this Agreement other than SECTION 8.01(e)(i)
and the term Indebtedness as used therein, after the Closing Date or incurred on
or before the Closing Date if not included on SCHEDULE 1.01E or (ii) for
purposes of SECTION 8.01(e)(i) before, on or after the Closing Date) under (i) a
so-called synthetic, off-balance sheet or tax retention lease or (ii) an
agreement for the use or possession of property creating obligations that do not
appear on the balance sheet of such Person but which, upon the insolvency or
- 37 -
bankruptcy of such Person, would be characterized as the indebtedness of such
person (without regard to accounting treatment).
"TAXES" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"TERM B CLOSING DATE BORROWING" means a Borrowing comprised of Term B
Closing Date Loans and identified as such in the Notice of Borrowing with
respect thereto.
"TERM B CLOSING DATE COMMITMENT" means, with respect to any Lender,
the commitment of such Lender to make a Term B Closing Date Loan on the Closing
Date in a principal amount equal to such Lender's Term B Closing Date Commitment
Percentage of the Term B Closing Date Committed Amount.
"TERM B CLOSING DATE COMMITMENT PERCENTAGE" means, for each Lender,
the percentage (carried out to the ninth decimal place) identified as its Term B
Closing Date Commitment Percentage on SCHEDULE 2.01, as such percentage may be
(i) reduced pursuant to SECTION 2.10(b) and (ii) modified in connection with any
Assignment and Assumption made in accordance with the provisions of SECTION
10.06(b).
"TERM B CLOSING DATE COMMITTED AMOUNT" means $180,000,000.
"TERM B CLOSING DATE LENDER" means each Lender identified on SCHEDULE
2.01 as having a Term B Closing Date Commitment and each Eligible Assignee which
acquires a Term B Closing Date Loan pursuant to SECTION 10.06(b) and their
respective successors.
"TERM B CLOSING DATE LOAN" means a Loan made to the Company under
SECTION 2.01(b).
"TERM B CLOSING DATE NOTE" means a promissory note, substantially in
the form of EXHIBIT B-2 hereto, evidencing the obligation of the Company to
repay outstanding Term B Closing Date Loans, as such note may be amended,
modified or supplemented from time to time.
"TERM B DELAYED DRAW BORROWING" means a Borrowing comprised of Term B
Delayed Draw Loans and identified as such in the Notice of Borrowing with
respect thereto.
"TERM B DELAYED DRAW COMMITMENT" means, with respect to any Lender,
(i) the commitment of such Lender to make a Term B Delayed Draw Loans in an
aggregate principal amount not exceeding such Lender's Term B Delayed Draw
Commitment Percentage of the Term B Delayed Draw Committed Amount and (ii) any
commitment of such Lender that is included as part of a Facilities Increase to
make Term B Delayed Draw Loans on any Facilities Increase Date.
"TERM B DELAYED DRAW COMMITMENT FEE" has the meaning specified in
SECTION 2.11(a).
"TERM B DELAYED DRAW COMMITMENT PERCENTAGE" means, for each Lender,
the percentage (carried out to the ninth decimal place) identified as its Term B
Delayed Draw Commitment Percentage on SCHEDULE 2.01, as such percentage may be
(i) adjusted pursuant to SECTION 2.10(b) and (ii) modified in connection with
any assignment made in accordance with the provisions of SECTION 10.06(b).
"TERM B DELAYED DRAW COMMITTED AMOUNT" means $30,000,000.
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"TERM B DELAYED DRAW LENDER" means each Lender identified on SCHEDULE
2.01 as having a Term B Delayed Draw Commitment and each Eligible Assignee which
acquires a Term B Delayed Draw Loan pursuant to SECTION 10.06(b) and their
respective successors.
"TERM B DELAYED DRAW LOAN" means a Loan made under SECTION 2.01(c).
"TERM B DELAYED DRAW NOTE" means a promissory note, substantially in
the form of EXHIBIT B-3 hereto, evidencing the obligation of the Company to
repay outstanding Term B Delayed Draw Loans, as such note may be amended,
modified or supplemented from time to time.
"TERM B DELAYED DRAW TERMINATION DATE" has the meaning specified in
SECTION 2.01(c).
"TERM B COMMITMENT" means, with respect to any Term B Lender, its Term
B Closing Date Commitment or its Term B Delayed Draw Commitment", as applicable.
"TERM B LENDER" means a Term B Closing Date Lender or a Term B Delayed
Draw Lender, and "TERM B LENDERS" means any two or more of them, collectively.
"TERM B LOAN" means a Term B Closing Date Loan or a Term B Delayed
Draw Loan, and "TERM B LOANS" means any two or more of them, collectively.
"TERM LOANS" means the Term B Loans and any Loans made pursuant to a
Facilities Increase that are not Revolving Loans.
"TERM MATURITY DATE" means the seventh anniversary of the Closing Date
(or if such day is not a Business Day, the next preceding Business Day).
"THRESHOLD AMOUNT" means $10,000,000.
"TITLE INSURANCE COMPANY" has the meaning specified in SECTION
4.01(i).
"TRANSACTION" means the Primary Equity Offering, the Credit Extensions
to occur on the Closing Date, the repayment of all Indebtedness and other
obligations under the Refinanced Agreements and the other events contemplated
hereby and thereby to occur on the Closing Date.
"TRANSACTION EXPENSES" means costs and expenses associated with the
Transaction and any costs and expenses incurred after the date hereof associated
with any securities offering, investment or acquisition permitted hereunder
(whether or not such offering, investment or acquisition is consummated).
"TYPE" has the meaning specified in SECTION 1.07.
"UCP" means the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce.
"UNFUNDED LIABILITIES" means, except as otherwise provided in SECTION
5.12(a)(i)(B), (i) with respect to each Plan, the amount (if any) by which the
present value of all nonforfeitable benefits under each Plan exceeds the current
value of such Plan's assets allocable to such benefits, all determined in
accordance with the respective most recent valuations for such Plan using
applicable PBGC plan termination actuarial assumptions (the terms "present
value" and "current value" shall have the same meanings specified in Section 3
of ERISA) and (ii) with respect to each Foreign Pension Plan, the amount
- 39 -
(if any) by which the present value of all nonforfeitable benefits under each
Foreign Pension Plan exceeds the current value of such Foreign Pension Plan's
assets allocable to such benefits, all determined in accordance with the
respective most recent valuations for such Plan using the most recent actuarial
assumptions and methods being used by the Foreign Pension Plan's actuaries for
financial reporting under applicable accounting and reporting standards.
"UNITED STATES" means the United States of America, including each of
the States and the District of Columbia, but excluding its territories and
possessions.
"U.S. PATRIOT ACT" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (Title III of Pub. L. 107-56 (signed into Law October 26, 2001)), as the
same may be amended, supplemented, modified, replaced or otherwise in effect
from time to time.
"UNREIMBURSED AMOUNT" has the meaning specified in SECTION
2.05(f)(iv).
"UNUSED REVOLVING COMMITMENT AMOUNT" means, for any period, the amount
by which (i) the then applicable Revolving Committed Amount exceeds (ii) the
daily average sum for such period of (A) the aggregate principal amount of all
outstanding Revolving Loans plus (B) the aggregate amount of all outstanding L/C
Obligations. For the avoidance of doubt, no deduction shall be made on account
of outstanding Swing Line Loans in calculating the Unused Revolving Commitment
Amount.
"VOTING SECURITIES" means Equity Interests of any Person having
ordinary power to vote in the election of members of the board of directors,
managers, trustees or other controlling Persons of such Person (irrespective of
whether, at the time, Equity Interests of any other class or classes of such
Person shall have or might have voting power by reason of the happening of any
contingency).
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing: (i) the sum
of the products obtained by multiplying (A) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (B) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by (ii) the then outstanding principal
amount of such Indebtedness.
"WELFARE PLAN" means a "welfare plan" as such term is defined in
Section 3(1) of ERISA.
"WHOLLY-OWNED SUBSIDIARY" means, with respect to any Person at any
date, any Subsidiary of such Person all of the shares of capital stock or other
ownership interests of which (other than Nominal Shares) are at the time
directly or indirectly owned by such Person.
SECTION 1.02 OTHER INTERPRETATIVE PROVISIONS. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "INCLUDE," "INCLUDES" and "INCLUDING" shall be deemed to
be followed by the phrase "without limitation." The word "WILL" shall be
construed to have the same meaning and effect as the word "SHALL." Unless the
context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments,
- 40 -
supplements or modifications set forth herein or in any other Loan Document),
(ii) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (iii) the words "HEREIN," "HEREOF" and
"HEREUNDER," and words of similar import when used in any Loan Document shall be
construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in
which such references appear, (v) any reference to any Law shall include all
statutory and regulatory provisions consolidating, amending, replacing or
interpreting such Law and any reference to any law or regulation shall, unless
otherwise specified, refer to such Law or regulation as amended, modified or
supplemented from time to time and (vi) the words "ASSET" and "PROPERTY" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
(b) In the computation of periods of time from a specified date to a
later specified date, the word "FROM" means "FROM AND INCLUDING," the words "TO"
and "UNTIL" each mean "TO BUT EXCLUDING" and the word "THROUGH means "TO AND
INCLUDING."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
SECTION 1.03 ACCOUNTING TERMS AND DETERMINATIONS. Except as otherwise
expressly provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Lenders hereunder shall be
prepared, in accordance with GAAP; PROVIDED that FASB 133 and 150 shall be
ignored for all purposes of this Agreement. All financial statements delivered
to the Lenders hereunder shall be accompanied by a statement from the Company
that GAAP has not changed since the most recent financial statements delivered
by the Company to the Lenders or if GAAP has changed describing such changes in
detail and explaining how such changes affect the financial statements. All
calculations made for the purposes of determining compliance with this Agreement
shall (except as otherwise expressly provided herein) be made by application of
GAAP applied on a basis consistent (except discretionary changes with which the
independent auditors concur or which are required to resolve non-compliance with
GAAP) with the most recent annual or quarterly financial statements delivered
pursuant to SECTION 6.01 (or, prior to the delivery of the first financial
statements pursuant to SECTION 6.01, consistent with the financial statements
described in SECTION 5.05(a) (but without giving effect to any deviations from
GAAP disclosed therein)); PROVIDED, HOWEVER, that (i) if (A) the Company shall
object to determining such compliance on such basis at the time of delivery of
such financial statements due to any change in GAAP or the rules promulgated
with respect thereto or (B) either the Administrative Agent or the Required
Lenders shall so object in writing within 30 days after delivery of such
financial statements (or after the Lenders have been informed of the change in
GAAP affecting such financial statements, if later), then such calculations
shall be made on a basis consistent with the most recent financial statements
delivered by the Company to the Lenders as to which no such objection shall have
been made, and the Company shall provide to the Administrative Agent and the
Lenders financial statements and other documents required under this Agreement
or as reasonably requested hereunder setting forth a reconciliation between
calculations made before and after giving effect to such change in GAAP or (ii)
if requested by the Company, the Administrative Agent or the Required Lenders,
if any change in GAAP or the rules promulgated with respect thereto from those
used in the preparation of the most recent annual or quarterly financial
statements delivered pursuant to SECTION 6.01 (or, prior to the delivery of the
first financial statements pursuant to SECTION 6.01, the financial statements
described in SECTION 5.05(a) (but without giving effect to any deviations from
GAAP disclosed therein) results in a change in any of the financial calculations
required by SECTION 7.16 or otherwise specified in ARTICLE VII (including in
each case all related
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definitions specified in SECTION 1.01) that would not have resulted had such
accounting change not occurred, the parties hereto agree to enter into good
faith negotiations in order to amend such provisions so as equitably to reflect
such change such that the criteria for evaluation compliance with such covenants
shall be the same after such changes as if such change had not been made.
SECTION 1.04 ROUNDING. Any financial ratios required to be maintained
by any Group Company pursuant to this Agreement shall be calculated by dividing
the appropriate component by the other component, carrying the result to one
place more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
SECTION 1.05 TIMES OF DAY. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).
SECTION 1.06 LETTER OF CREDIT AMOUNTS. Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall be deemed to be the
stated amount of such Letter of Credit in effect at such time; PROVIDED,
HOWEVER, that with respect to any Letter of Credit that, by its terms or the
terms of any L/C Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit,
from and after the stated date of such increase, shall be deemed to be the
stated amount of such Letter of Credit after giving effect to such applicable
increase.
SECTION 1.07 CLASSES AND TYPES OF BORROWINGS. The term "BORROWING"
denotes the aggregation of Loans of one or more Lenders made to the Company
pursuant to ARTICLE II on the same date, all of which Loans are of the same
Class and Type (subject to ARTICLE III) and, except in the case of Base Rate
Loans, have the same initial Interest Period. Loans hereunder are distinguished
by "Class" and "Type". The "CLASS" of a Loan (or of a Commitment to make such a
Loan or of a Borrowing comprised of such Loans) refers to whether such Loan is a
Revolving Loan, a Term B Closing Date Loan or a Term B Delayed Draw Loan. The
"TYPE" of a Loan refers to whether such Loan is a Eurodollar Loan or a Base Rate
Loan. Identification of a Loan (or a Borrowing) by both Class and Type (e.g., a
"TERM B CLOSING DATE EURODOLLAR LOAN") indicates that such Loan is a Loan of
both such Class and such Type (e.g., both a Term B Closing Date Loan and a
Eurodollar Loan) or that such Borrowing is comprised of such Loans.
ARTICLE II
THE CREDIT FACILITIES
SECTION 2.01 COMMITMENTS TO LEND.
(a) REVOLVING LOANS. Subject to the terms and conditions set forth
herein, each Revolving Lender severally agrees to make Revolving Loans to the
Company pursuant to this SECTION 2.01(a) from time to time during the
Availability Period in amounts such that its Revolving Outstandings shall not
exceed (after giving effect to all Revolving Loans repaid, all reimbursements of
L/C Disbursements made, and all Refunded Swing Line Loans paid concurrently with
the making of any Revolving Loans) its Revolving Commitment; PROVIDED that,
immediately after giving effect to each such Revolving Loan, (i) the aggregate
Revolving Outstandings shall not exceed the Revolving Committed Amount and (ii)
with respect to each Revolving Lender individually, such Lender's outstanding
Revolving Loans plus its (other than the Swing Line Lender's in its capacity as
such) Participation Interests in outstanding Swing Line Loans plus its
Participation Interests in outstanding L/C Obligations shall not exceed such
Lender's Revolving Commitment Percentage of the Revolving Committed Amount. Each
Revolving Borrowing comprised of Eurodollar Loans shall be in an aggregate
principal amount of $500,000 or any larger multiple of $100,000, and each
Revolving Borrowing comprised of Base Rate Loans shall be in an aggregate
principal amount of $500,000 or any larger multiple of $100,000 (except
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that any such Borrowing may be in the aggregate amount of the unused Revolving
Commitments and any L/C Borrowing may be in the aggregate amount of any
outstanding Unreimbursed Amounts owed to one or more L/C Issuers as provided in
SECTION 2.05(f)(iv)) and shall be made from the several Revolving Lenders
ratably in proportion to their respective Revolving Commitments. Within the
foregoing limits, the Company may borrow under this SECTION 2.01(a), repay, or,
to the extent permitted by SECTION 2.09, prepay, Revolving Loans and reborrow
under THIS SECTION 2.01(a).
(b) TERM B CLOSING DATE LOANS. Subject to the terms and conditions
set forth herein, each Term B Closing Date Lender severally agrees to make a
Term B Closing Date Loan to the Company on the Closing Date in a principal
amount not exceeding its Term B Closing Date Commitment. The Term B Closing Date
Borrowing shall be made from the several Term B Closing Date Lenders ratably in
proportion to their respective Term B Closing Date Commitments. The Term B
Closing Date Commitments are not revolving in nature, and amounts repaid or
prepaid prior to the Term Maturity Date may not be reborrowed.
(c) TERM B DELAYED DRAW LOANS. Subject to the terms and conditions
set forth herein, each Term B Delayed Draw Lender severally agrees to make a
Term B Delayed Draw Loan to the Company on one date as requested by the Company
pursuant to SECTION 2.02 in the period commencing on the Closing Date and ending
on the date numerically corresponding to the Closing Date in the calendar month
which is six months after the Closing Date (the "TERM B DELAYED DRAW TERMINATION
DATE") in a principal amount not exceeding its Term B Delayed Draw Commitment.
The Term B Delayed Draw Borrowing shall be made from the several Term B Delayed
Draw Lenders ratably in proportion to their respective Term B Delayed Draw
Commitments. The Term B Delayed Draw Commitments are not revolving in nature,
and amounts repaid or prepaid prior to the Term Maturity Date may not be
reborrowed.
(d) FACILITIES INCREASE TERM LOANS. Each Term B Lender (or Affiliate
or Approved Fund thereof) or Eligible Assignee having, in its sole discretion,
committed to a Facilities Increase pursuant to SECTION 2.10(a) shall agree as
part of such commitment that, on the Facilities Increase Date for such
Facilities Increase in the aggregate Term B Commitments, on the terms and
subject to the conditions set forth in its commitment therefor or otherwise
agreed to as part of such commitment or set forth in this Agreement as amended
in connection with such Facilities Increase, such Term B Lender (or Affiliate or
Approved Fund thereof) or Eligible Assignee will make a Term B Loan of the
applicable Class to the Company on the Facilities Increase Date for such
Facilities Increase in a principal amount not to exceed such commitment to such
Facilities Increase.
(e) SWING LINE LOANS.
(i) Subject to the terms and conditions set forth herein, the
Swing Line Lender agrees, in reliance upon the agreements of the other
Revolving Lenders set forth in this SUBSECTION (e), to make a portion of
the Revolving Commitments available to the Company from time to time during
the Availability Period by making Swing Line Loans to the Company in
Dollars (each such loan, a "SWING LINE LOAN" and, collectively, the "SWING
LINE LOANS"); PROVIDED that (A) the aggregate principal amount of the Swing
Line Loans outstanding at any one time shall not exceed the Swing Line
Committed Amount, (B) with regard to each Lender individually (other than
the Swing Line Lender in its capacity as such), such Lender's outstanding
Revolving Loans plus its Participation Interests in outstanding Swing Line
Loans plus its Participation Interests in outstanding L/C Obligations shall
not at any time exceed such Lender's Revolving Commitment Percentage of the
Revolving Committed Amount, (C) with regard to the Revolving Lenders
collectively, the sum of the aggregate principal amount of Swing Line Loans
outstanding plus the aggregate amount of Revolving Loans outstanding plus
the aggregate
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amount of L/C Obligations outstanding shall not exceed the Revolving
Committed Amount and (D) the Swing Line Committed Amount shall not exceed
the aggregate of the Revolving Commitments then in effect. Swing Line Loans
shall be made and maintained as Base Rate Loans and may be repaid and
reborrowed in accordance with the provisions hereof prior to the Swing Line
Termination Date. Swing Line Loans may be made notwithstanding the fact
that such Swing Line Loans, when aggregated with the Swing Line Lender's
other Revolving Outstandings, exceeds its Revolving Commitment. The
proceeds of a Swing Line Borrowing may not be used, in whole or in part, to
refund any prior Swing Line Borrowing.
(ii) The principal amount of all Swing Line Loans shall be due
and payable on the earliest of (A) the maturity date agreed to by the Swing
Line Lender and the Company with respect to such Swing Line Loan; (B) the
Swing Line Termination Date, (C) the occurrence of any proceeding with
respect to the Company under any Debtor Relief Law or (D) the acceleration
of any Loan or the termination of the Revolving Commitments pursuant to
SECTION 8.02.
(iii) With respect to any Swing Line Loans that have not been
voluntarily prepaid by the Company or paid by the Company when due under
CLAUSE (ii) above, the Swing Line Lender (by request to the Administrative
Agent) or the Administrative Agent at any time may, on one Business Day's
notice, require each Revolving Lender, including the Swing Line Lender, and
each such Lender hereby agrees, subject to the provisions of this SECTION
2.01(e), to make a Revolving Loan (which shall be initially funded as a
Base Rate Loan) in an amount equal to such Lender's Revolving Commitment
Percentage of the amount of the Swing Line Loans (the "REFUNDED SWING LINE
LOANS") outstanding on the date notice is given.
(iv) In the case of Revolving Loans made by Lenders other than
the Swing Line Lender under CLAUSE (iii) above, each such Revolving Lender
shall make the amount of its Revolving Loan available to the Administrative
Agent, in same day funds, at the Administrative Agent's Office, not later
than 1:00 P.M. on the Business Day next succeeding the date such notice is
given. The proceeds of such Revolving Loans shall be immediately delivered
to the Swing Line Lender (and not to the Company) and applied to repay the
Refunded Swing Line Loans. On the day such Revolving Loans are made, the
Swing Line Lender's Revolving Commitment Percentage of the Refunded Swing
Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan
made by the Swing Line Lender and such portion of the Swing Line Loans
deemed to be so paid shall no longer be outstanding as Swing Line Loans and
shall instead be outstanding as Revolving Loans. The Company authorizes the
Administrative Agent and the Swing Line Lender to charge the Company's
account with the Administrative Agent (up to the amount available in such
account) in order to pay immediately to the Swing Line Lender the amount of
such Refunded Swing Line Loans to the extent amounts received from the
Revolving Lenders, including amounts deemed to be received from the Swing
Line Lender, are not sufficient to repay in full such Refunded Swing Line
Loans. If any portion of any such amount paid (or deemed to be paid) to the
Swing Line Lender should be recovered by or on behalf of the Company from
the Swing Line Lender in bankruptcy, by assignment for the benefit of
creditors or otherwise, the loss of the amount so recovered shall be
ratably shared among all Revolving Lenders in the manner contemplated by
SECTION 2.13.
(v) A copy of each notice given by the Swing Line Lender
pursuant to this SECTION 2.01(e) shall be promptly delivered by the Swing
Line Lender to the Administrative Agent and the Company. Upon the making of
a Revolving Loan by a Revolving Lender pursuant to this SECTION 2.01(e),
the amount so funded shall no longer be owed in respect of its
Participation Interest in the related Refunded Swing Line Loans.
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(vi) If as a result of any proceeding under any Debtor Relief
Law, Revolving Loans are not made pursuant to this SECTION 2.01(e)
sufficient to repay any amounts owed to the Swing Line Lender as a result
of a nonpayment of outstanding Swing Line Loans, each Revolving Lender
agrees to purchase, and shall be deemed to have purchased, a participation
in such outstanding Swing Line Loans in an amount equal to its Revolving
Commitment Percentage of the unpaid amount together with accrued interest
thereon. Upon one Business Day's notice from the Swing Line Lender, each
Revolving Lender shall deliver to the Swing Line Lender an amount equal to
its respective Participation Interest in such Swing Line Loans in same day
funds at the office of the Swing Line Lender specified or referred to in
SECTION 10.02. In order to evidence such Participation Interest each
Revolving Lender agrees to enter into a participation agreement at the
request of the Swing Line Lender in form and substance reasonably
satisfactory to all parties. In the event any Revolving Lender fails to
make available to the Swing Line Lender the amount of such Revolving
Lender's Participation Interest as provided in this SECTION 2.01(e)(vi),
the Swing Line Lender shall be entitled to recover such amount on demand
from such Revolving Lender together with interest at the customary rate set
by the Swing Line Lender for correction of errors among banks in
New York
City for one Business Day and thereafter at the Base Rate plus the then
Applicable Margin for Base Rate Loans.
(vii) Each Revolving Lender's obligation to make Revolving
Loans pursuant to CLAUSE (iv) above and to purchase Participation Interests
in outstanding Swing Line Loans pursuant to CLAUSE (vi) above shall be
absolute and unconditional and shall not be affected by any circumstance,
including (without limitation) (i) any set-off, counterclaim, recoupment,
defense or other right which such Revolving Lender or any other Person may
have against the Swing Line Lender, the Company or any other Loan Party,
(ii) the occurrence or continuance of a Default or an Event of Default or
the termination or reduction in the amount of the Revolving Commitments
after any such Swing Line Loans were made, (iii) any adverse change in the
condition (financial or otherwise) of the Company or any other Person, (iv)
any breach of this Agreement or any other Finance Document by the Company
or any other Lender, (v) whether any condition specified in ARTICLE IV is
then satisfied or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the forgoing. If such Lender
does not pay such amount forthwith upon the Swing Line Lender's demand
therefor, and until such time as such Lender makes the required payment,
the Swing Line Lender shall be deemed to continue to have outstanding Swing
Line Loans in the amount of such unpaid Participation Interest for all
purposes of the Finance Documents other than those provisions requiring the
other Lenders to purchase a participation therein. Further, such Lender
shall be deemed to have assigned any and all payments made of principal and
interest on its Loans, and any other amounts due to it hereunder to the
Swing Line Lender to fund Swing Line Loans in the amount of the
Participation Interest in Swing Line Loans that such Lender failed to
purchase pursuant to this SECTION 2.01(e)(vii) until such amount has been
purchased (as a result of such assignment or otherwise).
SECTION 2.02 NOTICE OF BORROWINGS.
(a) BORROWINGS OTHER THAN SWING LINE LOANS. Except in the case of
Swing Line Loans and L/C Borrowings, the Company shall give the Administrative
Agent a Notice of Borrowing not later than 12:00 P.M. on (i) the date of the
proposed Base Rate Borrowing, which shall be a Business Day and (ii) the third
Business Day before each Eurodollar Borrowing (unless the Company wishes to
request an Interest Period for such Borrowing other than one, two, three or six
months in duration as provided in the definition of "INTEREST PERIOD", in which
case on the fourth Business Day before each such Eurodollar Borrowing),
specifying:
(i) the date of such Borrowing, which shall be a Business
Day;
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(ii) the aggregate amount of such Borrowing;
(iii) the Class and initial Type of the Loans comprising such
Borrowing; and
(iv) in the case of a Eurodollar Borrowing, the duration of
the initial Interest Period applicable thereto, subject to the provisions
of the definition of Interest Period and to SECTION 2.06(a); and
(v) the location (which must be in the United States) and
number of the Company's account to which funds are to be disbursed, which
shall comply with the requirements of SECTION 2.03.
If the duration of the initial Interest Period is not specified with respect to
any requested Eurodollar Borrowing, then the Company shall be deemed to have
selected an initial Interest Period of one month, subject to the provisions of
the definition of Interest Period and to SECTION 2.06(a).
(b) SWING LINE BORROWINGS. The Company shall request a Swing Line
Loan by written notice (or telephone notice promptly confirmed in writing)
substantially in the form of EXHIBIT A-4 hereto (a "SWING LINE LOAN REQUEST") to
the Swing Line Lender and the Administrative Agent not later than 3:00 P.M. on
the Business Day of the requested Swing Line Loan. Each such notice shall be
irrevocable and shall specify (i) that a Swing Line Loan is requested, (ii) the
date of the requested Swing Line Loan (which shall be a Business Day) and (iii)
the principal amount of the Swing Line Loan requested. Each Swing Line Loan
shall be made as a Base Rate Loan and, subject to SECTION 2.01(e)(ii), shall
have such maturity date as agreed to by the Swing Line Lender and the Company
upon receipt by the Swing Line Lender of the Swing Line Loan Request from the
Company.
(c) L/C BORROWINGS. Each L/C Borrowing shall be made as specified in
SECTION 2.05(f)(iv) without the necessity of a Notice of Borrowing.
SECTION 2.03 NOTICE TO LENDERS; FUNDING OF LOANS.
(a) NOTICE TO LENDERS. If the Company has requested an Interest
Period of other than one, two, three or six months in duration, the
Administrative Agent shall give prompt notice of such request to the Lenders and
determine whether the requested Interest Period is acceptable to all of them.
Not later than 11:00 A.M. on the third Business Day before the requested date of
such a Eurodollar Borrowing, the Administrative Agent shall notify the Company
(which notice may be by telephone) whether or not the requested interest Period
has been consented to by all the Lenders. Upon receipt of a Notice of Borrowing,
the Administrative Agent shall promptly notify each Lender of such Lender's
ratable share (if any) of the Borrowing referred to therein, and such Notice of
Borrowing shall not thereafter be revocable by the Company.
(b) FUNDING OF LOANS.
(i) Not later than 1:00 P.M. on the date of each Borrowing
(other than a Swing Line Borrowing and a L/C Borrowing), each Lender
participating therein shall make available its share of such Borrowing, in
Federal or other immediately available funds, to the Administrative Agent
at the Administrative Agent's Office. Unless the Administrative Agent
determines that any applicable condition specified in ARTICLE IV has not
been satisfied, the Administrative Agent shall make the funds so received
available to the Company in like funds as received by the Administrative
Agent either by (i) crediting the account of the Company on the books of
Bank of America with the amount of such funds or (ii) wire transfer of such
funds, in
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each case in accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the Company in the applicable
Notice of Borrowing or, if a Borrowing shall not occur on such date because
any condition precedent herein shall not have been met, promptly return the
amounts received from the Lenders in like funds, without interest.
(ii) Not later than 3:00 P.M. on the date of each Swing Line
Borrowing, the Swing Line Lender shall, unless the Administrative Agent
shall have notified the Swing Line Lender that any applicable condition
specified in ARTICLE IV has not been satisfied, make available the amount
of such Swing Line Borrowing, in Federal or other immediately available
funds, to the Company at the Swing Line Lender's address referred to in
SECTION 10.02.
(iii) Not later than 1:00 P.M. on the date of each L/C
Borrowing, each Revolving Lender shall make available its share of such
Borrowing, in Federal or other immediately available funds, to the
Administrative Agent at the Administrative Agent's Office. Unless the
Administrative Agent determines that any applicable condition specified in
ARTICLE IV has not been satisfied (other than the delivery of a Notice of
Borrowing), the Administrative Agent shall remit the funds so received to
the L/C Issuer which has issued Letters of Credit having outstanding
Unreimbursed Amounts as contemplated by SECTION 2.05(f)(v).
(c) FUNDING BY THE ADMINISTRATIVE AGENT IN ANTICIPATION OF AMOUNTS
DUE FROM THE LENDERS. Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available to the Administrative Agent on the date of such Borrowing in
accordance with SUBSECTION (b) of this SECTION 2.03, and the Administrative
Agent may, in reliance upon such assumption, make available to the Company on
such date a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Company severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Company but excluding
the date of payment to the Administrative Agent, at (i) in the case of a payment
to be made by such Lender, the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation and (ii) in the case of a payment to be made by the
Company, the interest rate applicable thereto pursuant to SECTION 2.06. If the
Company and such Lender shall pay such interest to the Administrative Agent for
the same or an overlapping period, the Administrative Agent shall promptly remit
to the Company the amount of such interest paid by the Company for such period.
If such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender's Loan included in
such Borrowing. Any payment by the Company shall be without prejudice to any
claim the Company may have against a Lender that shall have failed to make such
payment to the Administrative Agent. A notice of the Administrative Agent to a
Lender or the Company with respect to any amount owing under this SUBSECTION (c)
shall be conclusive, absent manifest error.
(d) FAILED LOANS. If any Lender shall fail to make any Loan (a
"FAILED LOAN") which such Lender is otherwise obligated hereunder to make to the
Company on the date of Borrowing thereof, and the Administrative Agent shall not
have received notice from the Company or such Lender that any condition
precedent to the making of the Failed Loan has not been satisfied, then, until
such Lender shall have made or be deemed to have made (pursuant to the last
sentence of this SUBSECTION (d)) the Failed Loan in full or the Administrative
Agent shall have received notice from the Company or such Lender that any
condition precedent to the making of the Failed Loan was not satisfied at the
time the Failed Loan was to have been made, whenever the Administrative Agent
shall receive any amount from the
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Company for the account of such Lender, (i) the amount so received (up to the
amount of such Failed Loan) will, upon receipt by the Administrative Agent, be
deemed to have been paid to the Lender in satisfaction of the obligation for
which paid, without actual disbursement of such amount to the Lender, (ii) the
Lender will be deemed to have made the same amount available to the
Administrative Agent for disbursement as a Loan to the Company (up to the amount
of such Failed Loan) and (iii) the Administrative Agent will disburse such
amount (up to the amount of the Failed Loan) to the Company or, if the
Administrative Agent has previously made such amount available to the Company on
behalf of such Lender pursuant to the provisions hereof, reimburse itself (up to
the amount of the amount made available to the Company); PROVIDED, HOWEVER, that
the Administrative Agent shall have no obligation to disburse any such amount to
the Company or otherwise apply it or deem it applied as provided herein unless
the Administrative Agent shall have determined in its sole discretion that to so
disburse such amount will not violate any Law, rule, regulation or requirement
applicable to the Administrative Agent. Upon any such disbursement by the
Administrative Agent, such Lender shall be deemed to have made a Base Rate Loan
of the same Class as the Failed Loan to the Company in satisfaction, to the
extent thereof, of such Lender's obligation to make the Failed Loan.
SECTION 2.04 EVIDENCE OF LOANS.
(a) LENDER AND ADMINISTRATIVE AGENT ACCOUNTS; NOTES. The Credit
Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Credit Extensions made by the Lenders to the Company and
the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Company hereunder to pay any amount owing with respect to the Senior Credit
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Company shall execute and
deliver to such Lender (through the Administrative Agent) a single Revolving
Note, Term B Closing Date Note or Term B Delayed Draw Note, as applicable, in
each case, substantially in the form of EXHIBIT ▇-▇, ▇-▇ or B-3, as applicable,
payable to the order of such Lender for the account of its Lending Office in an
amount equal to the aggregate unpaid principal amount of such Lender's
Revolving, Term B Closing Date, or Term B Delayed Draw Loans, as applicable,
which shall evidence such Lender's Loans in addition to such accounts or
records. If requested by the Swing Line Lender, the Swing Line Loans shall be
evidenced by a single Swing Line Note, substantially in the form of EXHIBIT B-4,
payable to the order of the Swing Line Lender in an amount equal to the
aggregate unpaid principal amount of the Swing Line Loans. Each Lender having
one or more Notes shall record the date, amount, Class and Type of each Loan
made by it and the date and amount of each payment of principal made by the
Company with respect thereto, and may, if such Lender so elects in connection
with any transfer or enforcement of any Note, endorse on the reverse side or on
the schedule, if any, forming a part thereof appropriate notations to evidence
the foregoing information with respect to each outstanding Loan evidenced
thereby; PROVIDED that the failure of any Lender to make any such recordation or
endorsement or any error in any such recordation or endorsement shall not affect
the obligations of the Company hereunder or under any such Note. Each Lender is
hereby irrevocably authorized by the Company so to endorse each of its Notes and
to attach to and make a part of each of its Notes a continuation of any such
schedule as and when required.
(b) CERTAIN PARTICIPATION INTERESTS. In addition to the accounts and
records referred to in SUBSECTION (a) above, each Lender and the Administrative
Agent shall maintain in accordance with its usual practice accounts or records
evidencing purchases and sales by such Lender of Participation Interests in
Letters of Credit and Swing Line Loans. In the event of any conflict between the
accounts
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and records maintained by the Administrative Agent and the accounts and records
of any Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.
SECTION 2.05 LETTERS OF CREDIT.
(a) EXISTING LETTERS OF CREDIT. On the Closing Date, each L/C Issuer
that has issued an Existing Letter of Credit shall be deemed, without further
action by any party hereto, to have sold to each Revolving Lender, and each such
Revolving Lender shall be deemed, without further action by any party hereto, to
have purchased from each such L/C Issuer, without recourse or warranty, an
undivided participation interest in such Existing Letter of Credit and the
related L/C Obligations in the proportion its Revolving Commitment Percentage
bears to the Revolving Committed Amount (although any fronting fee payable under
SECTION 2.11 shall be payable directly to the Administrative Agent for the
accounting of each applicable L/C Issuer, and the Lenders (other than the
applicable L/C Issuer) shall have no right to receive any portion of such
fronting fee) and any security therefore or guaranty pertaining thereto. On and
after the Closing Date, each Existing Letter of Credit shall constitute a Letter
of Credit for all purposes hereof.
(b) ADDITIONAL LETTERS OF CREDIT. Subject to the terms and conditions
set forth herein, (i) each L/C Issuer agrees, in reliance upon the agreements of
the other Revolving Lenders set forth in this SECTION 2.05, (A) from time to
time on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue standby Letters of Credit for the
account, and upon the request, of the Company (or jointly for the account of the
Company and any Subsidiary that is not a Project Subsidiary) and in support of
obligations of the Company or one or more of its Subsidiaries (other than any
Project Subsidiary) (including, (x) obligations in respect of and in lieu of
deposits or security guarantees in the ordinary course of business, (y) to
provide support for performance, payment or appeal bonds, indemnity obligations
or other surety, including, without limitation, workers compensation insurance
and (z) for such other general corporate purposes as the L/C Issuer may agree in
its reasonable discretion), and to amend or extend Letters of Credit previously
issued by it, in accordance with SUBSECTION (d) below, and (B) to honor drawings
under its Letters of Credit, and (ii) each Revolving Lender severally agrees to
participate in Letters of Credit issued for the account of the Company or its
Subsidiaries and any drawing thereunder in accordance with the provisions of
SUBSECTION (f) below; PROVIDED that, immediately after each Letter of Credit is
issued, (i) the aggregate amount of the L/C Obligations shall not exceed the L/C
Sublimit, (ii) the Revolving Outstandings shall not exceed the Revolving
Committed Amount and (iii) with respect to each individual Revolving Lender, the
aggregate outstanding principal amount of the Revolving Lender's Revolving Loans
plus its Participation Interests in outstanding L/C Obligations plus its (other
than the Swing Line Lender's) Participation Interests in outstanding Swing Line
Loans shall not exceed such Revolving Lender's Revolving Commitment Percentage
of the Revolving Committed Amount. Each request by the Company or a Subsidiary
for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Company and such Subsidiary that the issuance or amendment
of such Letter of Credit complies with the conditions set forth in the proviso
to the preceding sentence. Within the foregoing limits, and subject to the terms
and conditions hereof, the Company's ability to obtain Letters of Credit shall
be fully revolving, and accordingly the Company may, during the period specified
in CLAUSE (i)(A) above, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed.
(c) CERTAIN LIMITATIONS ON ISSUANCES OF LETTERS OF CREDIT.
(i) No L/C Issuer shall issue any Letter of Credit, if (A)
subject to SUBSECTION (d) below with respect to Auto-Extension Letters of
Credit, the expiry date of such requested Letter of Credit would occur more
than twelve months after the date of issuance or last
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extension, unless the Required Revolving Lenders have approved such expiry
date or (B) the expiry date of such requested letter of Credit would occur
after the Letter of Credit Expiration Date, unless all the Lenders have
approved such expiry date or (C) such Letter of Credit is to be used for
any purpose other than for its general corporate purposes unless the
Required Revolving Lenders have consented thereto.
(ii) No L/C Issuer shall be under any obligation to issue any
Additional Letter of Credit if: (A) any order, judgment or decree of any
Governmental Authority shall by its terms purport to enjoin or restrain the
L/C Issuer from issuing such Additional Letter of Credit, or any Law
applicable to such L/C Issuer or any request or directive (whether or not
having a force of Law) from any Governmental Authority with jurisdiction
over such L/C Issuer shall prohibit, or request that such L/C Issuer
refrain from, the issuance of letters of credit generally or such
Additional Letter of Credit in particular or shall impose upon such L/C
Issuer with respect to such Additional Letter of Credit any restriction,
reserve or capital requirement (for which such L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall impose
upon such L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which such L/C Issuer in good ▇▇▇▇▇
▇▇▇▇▇ material to it; (B) the issuance of such Additional Letter of Credit
shall violate any Laws or one or more policies of such L/C Issuer; (C)
except as otherwise reasonably agreed by the Administrative Agent and the
applicable L/C Issuer, such Letter of Credit is in an initial face amount
less than $100,000; (D) such Letter of Credit is to be denominated in a
currency other than Dollars; or (E) a default of any Revolving Lender's
obligations to fund under SUBSECTION (f)(iv) or (vi) below exists or any
Revolving Lender is at such time a Defaulting Lender hereunder, unless the
L/C Issuer has entered into satisfactory arrangements with the Company or
such Revolving Lender to eliminate the L/C issuer's risk with respect to
such Revolving Lender.
(iii) No L/C issuer shall amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(iv) No L/C issuer shall be under any obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at such
time to issue such Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.
(v) Each L/C Issuer shall act on behalf of the Revolving
Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith, and each L/C issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent in ARTICLE
IX with respect to any acts taken or omissions suffered by such L/C issuer
in connection with Letters of Credit issued by it or proposed to be issued
by it and the L/C Documents pertaining to such Letters of Credit as fully
as if the term "Administrative Agent" as used in ARTICLE IX included such
L/C Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to such L/C Issuer.
(d) PROCEDURES FOR ISSUANCE AND AMENDMENT OF LETTERS OF CREDIT;
AUTO-EXTENSION LETTERS OF CREDIT.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Company delivered to the applicable
L/C Issuer (with a copy to the Administrative Agent) substantially in the
form of EXHIBIT A-3 hereto (a "LETTER OF CREDIT REQUEST"), appropriately
completed and signed by a Responsible Officer of the Company. Such
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Letter of Credit Request must be received by the L/C Issuer and the
Administrative Agent not later than 2:00 P.M. at least two Business Days
(or such later date and time as the Administrative Agent and the L/C issuer
may agree in a particular instance in their sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Request shall specify in form and detail reasonably
satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any certificate to
be presented by such beneficiary in case of any drawing thereunder; and (G)
such other matters as the L/C Issuer may require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit
Request shall specify in form and detail satisfactory to the L/C Issuer:
(A) the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may require. If
requested by the applicable L/C Issuer, the Company shall also submit a
letter of credit application on such L/C Issuer's standard form in
connection with any request for the issuance or amendment of a Letter of
Credit. Additionally, the Company shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any L/C
Documents, as the L/C Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Request,
the L/C Issuer will confirm with the Administrative Agent (by telephone or
in writing) that the Administrative Agent has received a copy of such
Letter of Credit Request from the Company and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Unless the L/C Issuer
has received written notice from any Revolving Lender, the Administrative
Agent or any Loan Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one
or more applicable conditions contained in ARTICLE IV shall not then be
satisfied, then, subject to the terms and conditions thereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the
account of the Company (or jointly for the account of the Company and the
applicable Subsidiary) or enter into the applicable amendment, as the case
may be, in each case in accordance with the L/C Issuer's usual and
customary business practices.
(iii) If the Company so requests in any applicable Letter of
Credit Request, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic extension provisions
(each, an "AUTO-EXTENSION LETTER OF CREDIT"); PROVIDED that any such
Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any
such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the "NON-EXTENSION NOTICE
DATE") in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the L/C Issuer,
the Company shall not be required to make a specific request to the L/C
Issuer for any such extension. Once an Auto-Extension Letter of Credit has
been issued, the Revolving Lenders shall be deemed to have authorized (but
may not require) the L/C Issuer to permit the extension of such Letter of
Credit at any time to a date not later than the Letter of Credit Expiration
Date; PROVIDED, HOWEVER, that the L/C Issuer shall not permit any such
extension if (A) the L/C Issuer has determined that it would not be
permitted, or would have no obligation, at such time to issue such Letter
of Credit in its revised form (as extended) under the terms hereof (by
reason of the provisions of SUBSECTION (c)(i) or (ii) above or otherwise)
or (B) it has received notice (which may be by telephone or in writing) on
or before the day that is five Business Days before the Non-Extension
Notice Date (x) from the Administrative Agent that the Required Revolving
Lenders have elected not to permit such
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extension or (y) from the Administrative Agent, any Revolving Lender or any
Loan Party that one or more of the applicable conditions specified in
SECTION 4.02 is not then satisfied, and in each such case directing the L/C
issuer not to permit such extension.
(iv) If the Company so requests in any applicable Letter of
Credit Request, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that permits the automatic reinstatement
of all or a portion of the stated amount thereof after any drawing
thereunder (each, an "AUTO-REINSTATEMENT LETTER OF CREDIT"). Unless
otherwise directed by the L/C Issuer, the Company shall not be required to
make a specific request to the L/C Issuer to permit such reinstatement.
Once an Auto-Reinstatement Letter of Credit has been issued, except as
provided in the following sentence, the Revolving Lenders shall be deemed
to have authorized (but may not require) the L/C Issuer to reinstate all or
a portion of the stated amount thereof in accordance with the provisions of
such Letter of Credit. Notwithstanding the foregoing, if such
Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to
reinstate all or any portion of the stated amount thereof after a drawing
thereunder by giving notice of such non-reinstatement within a specified
number of days after such drawing (the "NON-REINSTATEMENT DEADLINE"), the
L/C issuer shall not permit such reinstatement if it has received a notice
(which may be by telephone or in writing) on or before the day that is five
Business Days before the Non-Reinstatement Deadline (A) from the
Administrative Agent that the Required Revolving Lenders have elected not
to permit such reinstatement or (B) from the Administrative Agent, any
Revolving Lender or the Company that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied (treating such
reinstatement as an L/C Credit Extension for purposes of this clause) and,
in each case, directing the L/C issuer not to permit such reinstatement.
(v) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also deliver to
the Company and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(e) PURCHASE AND SALE OF LETTER OF CREDIT PARTICIPATIONS. Immediately
upon the issuance by an L/C Issuer of an Additional Letter of Credit, such L/C
Issuer shall be deemed, without further action by any party hereto, to have sold
to each Revolving Lender, and each Revolving Lender shall be deemed, without
further action by any party hereto, to have purchased from such L/C Issuer,
without recourse or warranty, an undivided participation interest in such Letter
of Credit and the related L/C Obligations in the proportion its Revolving
Commitment Percentage bears to the Revolving Committed Amount (although any
fronting fee payable under SECTION 2.11 shall be payable directly to the
Administrative Agent for the account of the applicable L/C Issuer, and the
Lenders (other than such L/C Issuer) shall have no right to receive any portion
of any such fronting fee) and any security therefor or guaranty pertaining
thereto. Upon any change in the Revolving Commitments pursuant to SECTION 10.06,
there shall be an automatic adjustment to the Participation Interests in all
outstanding Letters of Credit (including all Existing Letters of Credit, if any)
and all L/C Obligations to reflect the adjusted Revolving Commitments of the
assigning and assignee Lenders or of all Lenders having Revolving Commitments,
as the case may be.
(f) DRAWINGS AND REIMBURSEMENTS; FUNDING OF PARTICIPATIONS.
(i) Upon receipt from the beneficiary of any Letter of Credit
of any notice of a drawing under such Letter of Credit, the applicable L/C
Issuer shall notify the Company and the Administrative Agent thereof and
shall determine in accordance with the terms of such Letter of Credit
whether such drawing should be honored. If the L/C Issuer determines that
any such
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drawing shall be honored, such L/C Issuer shall make available to such
beneficiary in accordance with the terms of such Letter of Credit the
amount of the drawing and shall notify the Company and the Administrative
Agent as to the amount to be paid as a result of such drawing and the
payment date (each such date, an "HONOR DATE").
(ii) The Company shall be irrevocably and unconditionally
obligated forthwith to reimburse each L/C Issuer for any amounts paid by
such L/C Issuer upon any drawing under any Letter of Credit, together with
any and all reasonable charges and expenses which the L/C Issuer may pay or
incur relative to such drawing. Such reimbursement payment shall be due and
payable (i) at or before 11:00 A.M. on the date the Honor Date if the L/C
Issuer notifies the Company of such drawing at or before 10:00 A.M. on the
Honor Date or (ii) at or before 10:00 A.M. on the next succeeding Business
Day if such notice is given after 10:00 A.M. on the Honor Date; PROVIDED
that no payment otherwise required by this sentence to be made by the
Company at or before 1:00 P.M. on any day shall be overdue hereunder if
arrangements for such payment satisfactory to the applicable L/C Issuer, in
its reasonable discretion, shall have been made by the Company at or before
1:00 P.M. on such day and such payment is actually made at or before 3:00
P.M. on such day. In addition, the Company agrees to pay to the L/C Issuer
interest, payable on demand, on any and all amounts not paid by the Company
to the L/C Issuer when due under this SUBSECTION (f)(ii), for each day from
and including the date when such amount becomes due to but excluding the
date such amount is paid in full, whether before or after judgment, at a
rate per annum equal to the Default Rate. Each reimbursement and other
payment to be made by the Company pursuant to this CLAUSE (ii) shall be
made to the L/C Issuer in Federal or other funds immediately available to
it at its address referred to in SECTION 10.02.
(iii) Subject to the satisfaction of all applicable conditions
set forth in ARTICLE IV, the Company may, at its option, utilize the Swing
Line Commitment or the Revolving Commitments, or make other arrangements
for payment satisfactory to the L/C Issuer, for the reimbursement of all
L/C Disbursements as required by CLAUSE (ii) above.
(iv) With respect to any L/C Disbursements that have not been
reimbursed by the Company when due under CLAUSES (ii) and (iii) above (an
"UNREIMBURSED AMOUNT"), the applicable L/C Issuer shall notify the
Administrative Agent and the Administrative Agent shall in turn promptly
notify each Revolving Lender of the Honor Date, the amount of the
Unreimbursed Amount and the amount of such Revolving Lender's pro-rata
share thereof such Revolving Lender's pro-rata share of such unreimbursed
L/C Disbursement (determined by the proportion its Revolving Commitment
Percentage bears to the aggregate Revolving Committed Amount). In such
event, the Company shall be deemed to have requested a Borrowing (a "L/C
BORROWING") of Revolving Base Rate Loans to be disbursed on the Honor Date
in an aggregate amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in SECTION 2.01(a), but subject to the
amount of the unutilized portion of the Revolving Commitments and the
conditions set forth in SECTION 4.02 (other than the delivery of a Notice
of Borrowing), and each such Revolving Lender hereby agrees to make a
Revolving Loan (which shall be initially funded as a Base Rate Loan) in an
amount equal to such Lender's Revolving Commitment Percentage of the
Unreimbursed Amount outstanding on the date notice is given. Any such
notice given by a L/C Issuer or the Administrative Agent given pursuant to
this CLAUSE (iv) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.
(v) Each Revolving Lender (including any Revolving Lender
acting as L/C Issuer in respect of any Unreimbursed Amount) shall, upon any
notice from the Administrative Agent pursuant to CLAUSE (iv) above, make
the amount of its Revolving Loan available to the
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Administrative Agent, in Dollars in Federal or other immediately available
funds same day funds, at the Administrative Agent's Office, not later than
1:00 P.M. on the Business Day specified in such notice, whereupon, subject
to CLAUSE (vi) below, each Revolving Lender that so makes funds available
shall be deemed to have made a Revolving Base Rate Loan to the Company in
such amount. The Administrative Agent shall remit the funds so received to
the applicable L/C Issuer.
(vi) With respect to any Unreimbursed Amount that is not fully
refinanced by a L/C Borrowing pursuant to CLAUSES (iv) and (v) above
because the conditions set forth in SECTION 4.02 cannot be satisfied or for
any other reason, the L/C Issuer shall promptly notify the Administrative
Agent, and the Administrative Agent shall promptly notify each Revolving
Lender (other than the relevant L/C Issuer), and each such Revolving Lender
shall promptly and unconditionally pay to the Administrative Agent, for the
account of such L/C Issuer, such Revolving Lender's pro-rata share of such
Unreimbursed Amount (determined by the proportion its Revolving Commitment
Percentage bears to the aggregate Revolving Committed Amount) in Dollars in
Federal or other immediately available funds. Such payment from the
Revolving Lenders shall be due (i) at or before 1:00 P.M. on the date the
Administrative Agent so notifies a Revolving Lender, if such notice is
given at or before 10:00 A.M. on such date or (ii) at or before 10:00 A.M.
on the next succeeding Business Day, together with interest on such amount
for each day from and including the date of such drawing to but excluding
the day such payment is due from such Revolving Lender at the Federal Funds
Rate for such day (which funds the Administrative Agent shall promptly
remit to the applicable L/C Issuer). Each payment by a Revolving Lender to
the Administrative Agent for the account of an L/C Issuer in respect of an
Unreimbursed Amount shall constitute a payment in respect of its
Participation Interest in related Letter of Credit purchased pursuant to
SUBSECTION (e) above. The failure of any Revolving Lender to make available
to the Administrative Agent for the account of an L/C Issuer its pro-rata
share of any Unreimbursed Amount shall not relieve any other Revolving
Lender of its obligation hereunder to make available to the Administrative
Agent for the account of such L/C Issuer its pro-rata share of any payment
made under any Letter of Credit on the date required, as specified above,
but no such Lender shall be responsible for the failure of any other Lender
to make available to the Administrative Agent for the account of the L/C
Issuer such other Lender's pro-rata share of any such payment. Upon payment
in full of all amounts payable by a Lender under this CLAUSE (vi), such
Lender shall be subrogated to the rights of the L/C Issuer against the
Company to the extent of such Lender's pro-rata share of the related L/C
Obligation so paid (including interest accrued thereon).
(vii) Each Revolving Lender's obligation to make Revolving
Loans pursuant to CLAUSE (iv) above and to make payments in respect of its
Participation Interests in Unreimbursed Amounts pursuant to CLAUSE (vi)
above shall be absolute and unconditional and shall not be affected by any
circumstance, including: (A) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the L/C Issuer, the
Company or any other Person for any reason whatsoever; (B) the occurrence
or continuance of a Default; or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; PROVIDED,
HOWEVER, that each Revolving Lender's obligation to make Revolving Loans as
a part of a L/C Borrowing pursuant to CLAUSE (iv) above is subject to the
conditions set forth in SECTION 4.02 (other than delivery by the Company of
a Notice of Borrowing). No such making by a Revolving Lender of a Revolving
Loan or a payment by a Revolving Lender of an amount in respect of its
Participation Interest in Unreimbursed Amounts shall relieve or otherwise
impair the obligation of the Company to reimburse the L/C issuer for the
amount of any payment made by the L/C Issuer under any Letter of Credit,
together with interest as provided herein.
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(viii) If any Revolving Lender fails to make available to the
Administrative Agent for the account of an L/C Issuer any amount required
to be paid by such Revolving Lender pursuant to the foregoing provisions of
this SUBSECTION (f) by the time specified therefor, the applicable L/C
Issuer shall be entitled to recover from such Revolving Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date
on which such payment is immediately available to the applicable L/C Issuer
at a rate per annum equal to the Federal Funds Rate for such day. Any
payment made by any Lender after 3:00 P.M. on any Business Day shall be
deemed for purposes of the preceding sentence to have been made on the next
succeeding Business Day A certificate of the applicable L/C Issuer
submitted to any Revolving Lender (through the Administrative Agent) with
respect to any amounts owing under this CLAUSE (viii) shall be conclusive
absent manifest error.
(g) REPAYMENT OF FUNDED PARTICIPATIONS IN RESPECT OF DRAWN LETTERS OF
CREDIT.
(i) Whenever the Administrative Agent receives a payment of
an L/C Obligation as to which the Administrative Agent has received for the
account of an L/C Issuer any payments from the Revolving Lenders pursuant
to SUBSECTION (f) above (whether directly from the Company or otherwise,
including proceeds of cash collateral applied thereto by the Administrative
Agent), the Administrative Agent shall promptly pay to each Revolving
Lender which has paid its pro-rata share thereof an amount equal to such
Lender's pro-rata share of the amount thereof (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which
the payments from the Revolving Lenders were received) in the same funds as
those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of an L/C issuer pursuant to CLAUSE (i) above is required to be
returned under any of the circumstances described in SECTION 10.05
(including pursuant to any settlement entered into by the L/C issuer in its
discretion), each Revolving Lender shall pay to the Administrative Agent
for the account of such L/C Issuer its pro-rata share thereof (determined
by the proportion its Revolving Commitment Percentage bears to the
aggregate Revolving Committed Amount) on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such
amount is returned by such Revolving Lender, at a rate per annum equal to
the Federal Funds Rate for such day.
(h) OBLIGATIONS ABSOLUTE. The obligations of the Company under
SECTION 2.05(f)(i) and 2.05(f)(ii) above shall be absolute (subject to the right
to bring subsequent claims subject to the limitations set forth in SECTION
2.05(n)(v)), unconditional and shall be performed strictly in accordance with
the terms of this Agreement, ISP and UCP, as applicable, under all circumstances
whatsoever, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement or any other Loan Document;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of this Agreement, any Letter of Credit
or any other Loan Document;
(iii) the use which may be made of the Letter of Credit by, or
any acts or omission of, a beneficiary of a Letter of Credit (or any Person
for whom the beneficiary may be acting);
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(iv) the existence of any claim, counterclaim, set-off,
defense or other rights that the Company or any Subsidiary may have at any
time against a beneficiary or any transferee of a Letter of Credit (or any
Person for whom the beneficiary or transferee may be acting), any L/C
Issuer or any other Person, whether in connection with this Agreement or
any Letter of Credit or any document related hereto or thereto or any
unrelated transaction;
(v) any draft, demand, certificate, statement or any other
document presented under a 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 whatsoever, or any loss or delay
in the transmission or otherwise of any document required in order to make
a drawing under such Letter of Credit;
(vi) any payment by the L/C Issuer under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(vii) any payment made by the L/C Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law; or
(viii) any other act or omission to act or delay of any kind by
any L/C Issuer or any other Person or any other event or circumstance
whatsoever that might, but for the provisions of this SUBSECTION (viii),
constitute a legal or equitable discharge of the Company's obligations
hereunder.
The Company shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Company's instructions or other irregularity, the Company
will promptly notify the L/C Issuer. The Company shall be conclusively deemed to
have waived any such claim against the L/C Issuer and its correspondents unless
such notice is given as aforesaid.
(i) ROLE OF L/C ISSUERS; RELIANCE. Each Revolving Lender and the
Company agree that, in determining whether to pay under any Letter of Credit,
the relevant L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any
such document. None of the L/C Issuers, the Agents or their Related Parties nor
any of the respective correspondents, participants or assignees of the L/C
Issuer shall be liable to any Lender for: (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or 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 document or instrument related
to any Letter of Credit or Letter of Credit Request. 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, HOWEVER, 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. None of the L/C Issuers, the Agents or any of their Related
Parties, nor any of the respective correspondents, participants or assignees of
the L/C Issuer, shall be liable or responsible for any of the matters described
in CLAUSES (i) through (viii) of SUBSECTION (h) of this SECTION 2.05; PROVIDED,
HOWEVER, that anything in such clauses to the contrary notwithstanding, the
Company may have a claim against the L/C Issuer, and the L/C Issuer
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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 the L/C Issuer's willful
misconduct or gross negligence or the L/C Issuer's willful failure to pay under
any Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C
Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(j) CASH COLLATERAL. If the Company is required pursuant to the terms
of this Agreement or any other Loan Document to Cash Collateralize any L/C
Obligations, the Company shall deposit in an account (which may be the L/C Cash
Collateral Account under the Security Agreement) with the Collateral Agent an
amount in cash equal to 102% of such L/C Obligations. Such deposit shall be held
by the Collateral Agent as collateral for the payment and performance of the L/C
Obligations. The Collateral Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. The Collateral
Agent will, at the request of the Company, invest amounts deposited in such
account in Cash Equivalents; PROVIDED, HOWEVER, that (i) the Collateral Agent
shall not be required to make any investment that, in its sole judgment, would
require or cause the Collateral Agent to be in, or would result in any,
violation of any Law, (ii) such Cash Equivalents shall be subjected to a first
priority perfected security interest in favor of the Collateral Agent and (iii)
if an Event of Default shall have occurred and be continuing, the selection of
such Cash Equivalents shall be in the sole discretion of the Collateral Agent.
The Company shall indemnify the Collateral Agent for any losses relating to such
investments in Cash Equivalents. Other than any interest or profits earned on
such investments, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account for the benefit of the
Company, subject to the provisions contained in this SECTION 2.05(j). Moneys in
such account shall be applied by the Collateral Agent to reimburse the L/C
Issuers immediately for drawings under the applicable Letters of Credit and, if
the maturity of the Loans has been accelerated, to satisfy the L/C Obligations.
If the Company is required to provide an amount of cash collateral hereunder as
a result of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Company within three Business Days after all
Events of Default have been cured or waived. If the Company is required to
provide an amount of cash collateral hereunder pursuant to SECTION 2.08(a) or
2.09(b)(i), such amount (to the extent not applied as aforesaid) shall be
returned to the Company upon demand; PROVIDED that, after giving effect to such
return, (i) the aggregate Revolving Outstandings would not exceed the Revolving
Committed Amount and (ii) no Event of Default shall have occurred and be
continuing. If the Company is required to deposit an amount of cash collateral
hereunder pursuant to SECTION 2.09(b)(ii), (iii), (iv) or (v) interest or
profits thereon (to the extent not applied as aforesaid) shall be returned to
the Company after the full amount of such deposit has been applied by the
Collateral Agent to reimburse the L/C Issuer for drawings under Letters of
Credit. The Company hereby pledges and assigns to the Collateral Agent, for its
benefit and the benefit of the Finance Parties, the cash collateral account
established hereunder (and all monies and investments held therein) to secure
the Senior Credit Obligations.
(k) APPLICABILITY OF ISP AND UCP. Unless otherwise expressly agreed
by the L/C Issuer and the Company when a Letter of Credit is issued (including
any such agreement applicable to an Existing Letter of Credit), (i) the rules of
the ISP shall apply to each Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each
commercial Letter of Credit.
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(l) CONFLICT WITH L/C DOCUMENTS. In the event of any conflict
between this Agreement and any L/C Document, this Agreement shall govern.
(m) LETTERS OF CREDIT ISSUED FOR SUBSIDIARIES. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Company shall be
obligated to reimburse the applicable L/C Issuer hereunder for any and all
drawings under such Letter of Credit. The Company hereby acknowledges that the
issuance of Letters of Credit for the account of Subsidiaries inures to the
benefit of the Company, and that the Company's business derives benefits from
the businesses of such Subsidiaries.
(n) INDEMNIFICATION OF L/C ISSUERS.
(i) In addition to its other obligations under this
Agreement, the Company hereby agrees to protect, indemnify, pay and save
each L/C Issuer harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable out-of-pocket fees, charges and disbursements of counsel) that
such L/C Issuer may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any Letter of Credit or (B) the failure of
such L/C Issuer to honor a drawing under a Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any present or future
de jure or de facto government or Governmental Authority (all such acts or
omissions, herein called "GOVERNMENT ACTS").
(ii) As between the Company and each L/C Issuer, the Company
shall assume all risks of the acts or omissions of or the misuse of any
Letter of Credit by the beneficiary thereof. The L/C Issuer shall not be
responsible for: (A) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any document submitted by any party in connection with
the application for and issuance of any Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (B) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, that may prove to be invalid or ineffective
for any reason; (C) failure of the beneficiary of a Letter of Credit to
comply fully with conditions required in order to draw upon a Letter of
Credit; (D) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (E) errors in interpretation of technical
terms; (F) any loss or delay in the transmission or otherwise of any
documents required in order to make a drawing under a Letter of Credit or
of the proceeds thereof; and (G) any consequences arising from causes
beyond the control of the L/C Issuer, including, without limitation, any
Government Acts. None of the above shall affect, impair, or prevent the
vesting of the L/C Issuer's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by
an L/C Issuer, under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith, shall not put the
L/C Issuer under any resulting liability to the Company or any other Loan
Party. It is the intention of the parties that this Agreement shall be
construed and applied to protect and indemnify the L/C Issuers against any
and all risks involved in the issuance of any Letter of Credit, all of
which risks are hereby assumed by the Loan Parties, including, without
limitation, any and all risks, whether rightful or wrongful, of any present
or future Government Acts. The L/C Issuers shall not, in any way, be liable
for any failure by the L/C Issuers or anyone else to pay any drawing under
any Letter of Credit as a result of any Government Acts or any other cause
beyond the control of the L/C Issuers.
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(iv) Nothing in this SUBSECTION (n) is intended to limit the
reimbursement obligation of the Company contained in this SECTION 2.05. The
obligations of the Company under this SUBSECTION (n) shall survive the
termination of this Agreement. No act or omission of any current or prior
beneficiary of a Letter of Credit shall in any way affect or impair the
rights of any L/C Issuer to enforce any right, power or benefit under this
Agreement.
(v) Notwithstanding anything to the contrary contained in
this SUBSECTION (n), the Company shall have no obligation to indemnify any
L/C Issuer in respect of any liability incurred by the L/C Issuer arising
solely out of the gross negligence or willful misconduct of the L/C Issuer,
as determined by a court of competent jurisdiction. Nothing in this
Agreement shall relieve any L/C Issuer of any liability to the Company in
respect of any action taken by the L/C Issuer which action constitutes
gross negligence, bad faith or willful misconduct of the L/C Issuer or a
violation of, or failure to comply with, the ISP, the UCP or Uniform
Commercial Code, as applicable, as determined by a court of competent
jurisdiction.
(o) RESIGNATION OF AN L/C ISSUER. An L/C Issuer may resign at any
time by giving 60 days' notice to the Administrative Agent, the Revolving
Lenders and the Company; PROVIDED, HOWEVER, that any such resignation shall not
affect the rights or obligations of the L/C Issuer with respect to Letters of
Credit issued by it prior to such resignation. Upon any such resignation, the
Company shall (within 60 days after such notice of resignation) either appoint a
successor or terminate the unutilized L/C Commitment of such L/C Issuer;
PROVIDED, HOWEVER, that, if the Company elects to terminate such unutilized L/C
Commitment, the Company may at any time thereafter that the Revolving
Commitments are in effect reinstate such L/C Commitment in connection with the
appointment of another L/C Issuer. Upon the acceptance of any appointment as an
L/C Issuer hereunder by a successor L/C Issuer, such successor shall succeed to
and become vested with all the interests, rights and obligations of the retiring
L/C Issuer and the retiring L/C Issuer shall be discharged from its obligations
to issue Additional Letters of Credit hereunder. The acceptance of any
appointment as L/C Issuer hereunder by a successor L/C Issuer shall be evidenced
by an agreement entered into by such successor, in a form reasonably
satisfactory to the Company and the Administrative Agent, and, from and after
the effective date of such agreement, (i) such successor shall be a party hereto
and have all the rights and obligations of an L/C Issuer under this Agreement
and the other Loan Documents and (ii) references herein and in the other Loan
Documents to the "L/C Issuer" shall be deemed to refer to such successor or to
any previous L/C Issuer, or to such successor and all previous L/C Issuers, as
the context shall require. After the resignation of an L/C Issuer hereunder the
retiring L/C Issuer shall remain a party hereto and shall continue to have all
the rights and obligations of an L/C Issuer under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation, but shall not be required to issue additional Letters of Credit.
(p) REPORTING. Each L/C Issuer will report in writing to the
Administrative Agent (i) on the first Business Day of each week, the aggregate
face amount of Letters of Credit issued by it and outstanding as of the last
Business Day of the preceding week, (ii) on or prior to each Business Day on
which such L/C Issuer expects to issue, amend, renew or extend any Letter of
Credit, the date of such issuance or amendment, and the aggregate face amount of
Letters of Credit to be issued, amended, renewed or extended by it and
outstanding after giving effect to such issuance, amendment, renewal or
extension (and such L/C Issuer shall advise the Administrative Agent on such
Business Day whether such issuance, amendment, renewal or extension occurred and
whether the amount thereof changed), (iii) on each Business Day on which such
L/C Issuer makes any L/C Disbursement, the date and amount of such L/C
Disbursement and (iv) on any Business Day on which the Company fails to
reimburse an L/C Disbursement required to be reimbursed to such L/C Issuer on
such day, the date and amount of such failure.
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SECTION 2.06 INTEREST.
(a) RATE OPTIONS APPLICABLE TO LOANS. Each Borrowing made prior to
the Syndication Date shall be comprised of Base Rate Loans or (except in the
case of Swing Line Loans, which shall be made and maintained as Base Rate Loans,
and L/C Borrowings, which shall be made initially as Base Rate Loans) Eurodollar
Loans with a one-month Interest Period (ending on the same date), as the Company
may request pursuant to SECTION 2.02. Each Borrowing made on or after the
Syndication Date shall be comprised of Base Rate Loans or (except in the case of
Swing Line Loans, which shall be made and maintained as Base Rate Loans)
Eurodollar Loans, as the Company may request pursuant to SECTION 2.02.
Borrowings of more than one Type may be outstanding at the same time; PROVIDED,
HOWEVER, that the Company may not request any Borrowing that, if made, would
result in an aggregate of more than ten separate Groups of Eurodollar Loans
being outstanding hereunder at any one time. For this purpose, Loans having
different Interest Periods, regardless of whether commencing on the same date,
shall be considered separate Groups. Interest hereunder shall be due and payable
in accordance with the terms hereof before and after judgment and before and
after the commencement of any proceeding under any Debtor Relief Law.
(b) RATES APPLICABLE TO LOANS. Subject to the provisions of
SUBSECTION (c) below, (i) each Eurodollar Loan of a Class shall bear interest on
the outstanding principal amount thereof for each Interest Period applicable
thereto at a rate per annum equal to the sum of the Adjusted Eurodollar Rate for
such Interest Period plus the then Applicable Margin for such Class, (ii) each
Base Rate Loan of a Class shall bear interest on the outstanding principal
amount thereof for each day from the date such Loan is made as, or converted
into, a Base Rate Loan until it becomes due or is converted into a Loan of any
other Type, at a rate per annum equal to the Base Rate for such day plus the
then Applicable Margin for such Class and (iii) each Swing Line Loan shall bear
interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the then
Applicable Margin for Revolving Loans.
(c) ADDITIONAL INTEREST.
(i) If any amount of principal of any Loan is not paid when
due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
(ii) Upon the request of the Required Lenders, while any Event
of Default under Section 8.01(a) or (f) has occurred and is continuing, the
Company shall pay interest on the principal amount of all then outstanding
Senior Credit Obligations at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iii) Accrued and unpaid interest on past due amounts
(including interest on past due interest) shall be due and payable upon
demand.
(d) INTEREST PAYMENTS. Interest on each Loan shall be due and payable
in arrears on each Interest Payment Date applicable thereto and at such other
times as may be specified herein. Interest hereunder shall be due and payable in
accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.
(e) DETERMINATION AND NOTICE OF INTEREST RATES. The Administrative
Agent shall promptly notify the Company and the Lenders of the interest rate
applicable to any Interest Period for Eurodollar Loans upon determination of
such interest rate. At any time when Base Rate Loans are
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outstanding, the Administrative Agent shall notify the Company and the Lenders
of any change in Bank of America's prime rate used in determining the Base Rate
promptly following the public announcement of such change. Any notice with
respect to Eurodollar Loans shall, without the necessity of the Administrative
Agent so stating in such notice, be subject to the provisions of the definition
of "Applicable Margin" providing for adjustments in the Applicable Margin
applicable to such Loans after the beginning of the Interest Period applicable
thereto.
SECTION 2.07 EXTENSION AND CONVERSION.
(a) CONTINUATION AND CONVERSION OPTIONS. The Loans included in each
Borrowing shall bear interest initially at the type of rate allowed by SECTION
2.06 and as specified by the Company in the applicable Notice of Borrowing.
Thereafter, the Company shall have the option, on any Business Day, to elect to
change or continue the type of interest rate borne by each Group of Loans
(subject in each case to the provisions of ARTICLE III and SUBSECTION 2.07(d)),
as follows:
(i) if such Loans are Base Rate Loans, the Company may elect
to convert such Loans to Eurodollar Loans as of any Business Day; and
(ii) if such Loans are Eurodollar Loans, the Company may elect
to convert such Loans to Base Rate Loans or elect to continue such Loans as
Eurodollar Loans for an additional Interest Period, subject to SECTION 3.05
in the case of any such conversion or continuation effective on any day
other than the last day of the then current Interest Period applicable to
such Loans.
Each such election shall be made by delivering a notice, substantially in the
form of EXHIBIT A-2 hereto (a "NOTICE OF EXTENSION/CONVERSION") (which may be by
telephone if promptly confirmed in writing, which notice shall not thereafter be
revocable by the Company, to the Administrative Agent not later than 12:00 Noon
on the third Business Day before the conversion or continuation selected in such
notice is to be effective. A Notice of Extension/Conversion may, if it so
specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; PROVIDED that (i) such portion is allocated ratably
among the Loans comprising such Group and (ii) the portion to which such Notice
of Borrowing applies, and the remaining portion to which it does not apply, are
each $500,000 or any larger multiple of $100,000.
(b) CONTENTS OF NOTICE OF EXTENSION/CONVERSION. Each Notice of
Extension/Conversion shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the applicable
clause of SUBSECTION 2.07(a) above;
(iii) if the Loans comprising such Group are to be converted,
the new Type of Loans and, if the Loans being converted are to be
Eurodollar Loans, the duration of the next succeeding Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as Eurodollar Loans for
an additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of the term "Interest Period". If
no Notice of Extension/Conversion is timely received prior to
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the end of an Interest Period for any Group of Eurodollar Loans, the Company
shall be deemed to have elected that such Group be converted to Base Rate Loans
as of the last day of such Interest Period.
(c) NOTIFICATION TO LENDERS. Upon receipt of a Notice of
Extension/Conversion from the Company pursuant to SUBSECTION 2.07(a) above, the
Administrative Agent shall promptly notify each Lender of the contents thereof.
(d) LIMITATION ON CONVERSION/CONTINUATION OPTIONS. The Company shall
not be entitled to elect to convert any Loans to, or continue any Loans for an
additional Interest Period as, Eurodollar Loans if the aggregate principal
amount of any Group of Eurodollar Loans created or continued as a result of such
election would be less than $500,000. If an Event of Default shall have occurred
and be continuing when the Company delivers notice of such election to the
Administrative Agent the Company shall not be entitled to elect to convert any
Eurodollar Loans to, or continue any Eurodollar Loans for an additional Interest
Period as, Eurodollar Loans having an Interest Period in excess of one month.
SECTION 2.08 MATURITY OF LOANS.
(a) MATURITY OF REVOLVING LOANS. The Revolving Loans shall mature on
the Revolving Termination Date, and any Revolving Loans, Swing Line Loans and
L/C Obligations then outstanding (together with accrued interest thereon and
fees in respect thereof) shall be due and payable on such date.
(b) MATURITY OF TERM B LOANS. The Term B Loans shall mature on the
Term Maturity Date, and any Term B Loans then outstanding (together with accrued
interest thereon) shall be due and payable on such date.
SECTION 2.09 PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS. The Company shall have the right
voluntarily to prepay Revolving Loans and Term Loans in whole or in part from
time to time, subject to SECTION 3.05 but otherwise without premium or penalty;
PROVIDED, HOWEVER, that (i) each partial prepayment of Revolving Loans and Term
Loans shall be in a minimum principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof, in the case of Eurodollar Loans, and $500,000 or a
whole multiple of $100,000 in excess thereof, in the case of Base Rate Loans and
(ii) the Company shall have given prior written or telecopy notice (or telephone
notice promptly confirmed by written or telecopy notice) to the Administrative
Agent, in the case of any Revolving Loan which is a Base Rate Loan by 11:00 A.M.
on the date of prepayment and, in the case of any other Loan, by 11:00 A.M., at
least three Business Days prior to the date of prepayment. Each notice of
prepayment shall specify the prepayment date, the principal amount to be
prepaid, whether the Loan to be prepaid is a Revolving Loan, Term B Closing Date
Loan or Term B Delayed Draw Loan, whether the Loan to be prepaid is a Eurodollar
Loan or a Base Rate Loan and, in the case of a Eurodollar Loan, the Interest
Period of such Loan. The Administrative Agent will promptly notify each Lender
of its receipt of each such notice, and of the amount of such Lender's pro-rata
share, if any, thereof. 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 as specified therein. Subject to the foregoing, amounts
prepaid under this SECTION 2.09(a) shall be applied as the Company may elect;
PROVIDED that if the Company fails to specify the application of a voluntary
prepayment, then such prepayment shall be applied first to Revolving Loans, then
to Swing Line Loans, then ratably to the Term B Closing Date Loans and the Term
B Delayed Draw Loans, in each case first to Base Rate Loans and then to
Eurodollar Loans in direct order of Interest Period. All prepayments of
Eurodollar Loans under this SECTION 2.09(a) shall be accompanied by accrued
interest on the principal
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amount being prepaid to the date of payment, together with any additional
amounts required pursuant to SECTION 3.05.
The Company may, upon notice to the Swing Line Lender (with a copy to
the Administrative Agent), at any time or from time to time, voluntarily prepay
Swing line Loans in whole or in part without premium or penalty; PROVIDED that
(i) such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 1:00 P.M. on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by
the 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.
(b) MANDATORY PREPAYMENTS.
(i) REVOLVING COMMITTED AMOUNT. If on any date the aggregate
Revolving Outstandings exceed the Revolving Committed Amount, the Company
shall repay, and there shall become due and payable (together with accrued
interest thereon), on such date an aggregate principal amount of Swing Line
Loans equal to such excess. If the outstanding Swing Line Loans have been
repaid in full, the Company shall prepay, and there shall become due and
payable (together with accrued interest thereon), Revolving Loans in such
amounts as are necessary so that, after giving effect to the repayment of
the Swing Line Loans and the repayment of Revolving Loans, the aggregate
Revolving Outstandings do not exceed the Revolving Committed Amount. If the
outstanding Revolving Loans and Swing Line Loans have been repaid in full,
the Company shall Cash Collateralize L/C Obligations so that, after giving
effect to the repayment of Swing Line Loans and Revolving Loans and the
Cash Collateralization of L/C Obligations pursuant to this SUBSECTION (i),
the aggregate Revolving Outstandings does not exceed the Revolving
Committed Amount. In determining the aggregate Revolving Outstandings for
purposes of this Agreement, L/C Obligations shall be reduced to the extent
that they are Cash Collateralized as contemplated by this SUBSECTION (i).
Each prepayment of Revolving Loans required pursuant to this SUBSECTION (i)
shall be applied ratably among outstanding Revolving Loans based on the
respective amounts of principal then outstanding. Each Cash
Collateralization of L/C Obligations required by this SUBSECTION (i) shall
be applied ratably among L/C Obligations based on the respective amounts
thereof then outstanding.
(ii) ASSET DISPOSITIONS, CASUALTIES AND CONDEMNATIONS, ETC.
Within five Business Days after receipt by any Group Company of Net Cash
Proceeds from any Asset Disposition (other than any Asset Disposition
permitted under CLAUSES (i) through (xvii), (xviii)(B), (xix), (xx) and
(xxii) of SECTION 7.05), Casualty or Condemnation, the Company shall prepay
the Loans and/or Cash Collateralize or pay the L/C Obligations in an
aggregate amount equal to 100% of the Net Cash Proceeds of such Asset
Disposition, Casualty or Condemnation; PROVIDED, that no such prepayment
caused by the receipt of Net Cash Proceeds from any Asset Disposition,
Casualty or Condemnation shall be required to the extent that the sum of
such Net Cash Proceeds and all other Net Cash Proceeds from Asset
Dispositions, Casualty or Condemnations occurring after the Closing Date
and during any fiscal year does not exceed $5,000,000 (it being understood
that a prepayment shall only be required of such excess).
(iii) DEBT ISSUANCES. Within five Business Days after receipt
by any Group Company of Net Cash Proceeds from any Debt Issuance (other
than any Debt Issuance permitted pursuant to SECTION 7.01 of this
Agreement), the Company shall prepay the Loans and/or Cash Collateralize
the L/C Obligations in an aggregate amount equal to 100% of the Net Cash
Proceeds of such Debt Issuance.
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(iv) PAYMENTS IN RESPECT OF CERTAIN ANNUAL INCREASES IN
CUMULATIVE DISTRIBUTABLE CASH. Within 120 days after the end of each fiscal
year of the Company (commencing with the fiscal year ending December 31,
2006), the Company shall prepay the Loans and/or Cash Collateralize or pay
the L/C Obligations in an amount equal to the Applicable Prepayment
Percentage of any increase in the amount of Adjusted Cumulative
Distributable Cash for the Reference Period ending on the last day of such
fiscal year over the amount of Adjusted Cumulative Distributable Cash on
the last day of the fiscal year next preceding such fiscal year (it being
understood that the determination of the amount referred to in CLAUSE (i)
of the definition of "Cumulative Distributable Cash" in SECTION 1.01 shall
not be deemed to be an increase in, or part of, Cumulative Distributable
Cash for purposes hereof). As used in this CLAUSE (iv), the term "ADJUSTED
CUMULATIVE DISTRIBUTABLE CASH" means, for any Reference Period, Cumulative
Distributable Cash for such Reference Period as adjusted (i) by adding the
decrease, if any, in Consolidated Adjusted Working Capital from the first
day to the last day of such period, or (ii) by deducting the increase, if
any, in Consolidated Adjusted Working Capital from the first day to the
last day of such period.
(v) PAYMENTS IN RESPECT OF SUBORDINATED INDEBTEDNESS.
Immediately upon receipt by the Administrative Agent or any Lender of any
amount so payable pursuant to the subordination provision of any
Indebtedness of the Company or any of its Subsidiaries that is subordinate
to the Senior Credit Obligations, all proceeds thereof shall be applied as
set forth in CLAUSE (vi)(B) below.
(vi) APPLICATION OF MANDATORY PREPAYMENTS. All amounts
required to be paid pursuant to this SECTION 2.09(b) shall be applied as
follows:
(A) with respect to all amounts paid pursuant to
SECTION 2.09(b)(i), first to Revolving Loans, second to Swing Line
Loans and third to Cash Collateralize L/C Obligations; and
(B) with respect to all amounts paid pursuant to
SECTION 2.09(b)(ii), (iii), (iv), or (v) (1) first, pro-rata to the
Term Loans and (2) second, to (x) to Swing Line Loans (but without a
corresponding reduction in the Revolving Committed Amount or the Swing
Line Committed Amount), (y) then to Revolving Loans (but without a
corresponding reduction in the Revolving Committed Amount), and (z)
then to Cash Collateralize L/C Obligations.
(vii) ORDER OF APPLICATIONS. All amounts allocated to Revolving
Outstandings as provided in this SECTION 2.09(b) shall be applied, first,
to Swing Line Loans, second, after all Swing Line Loans have been repaid,
to Revolving Loans, and third, after all Revolving Loans have been repaid,
to Cash Collateralize or pay the L/C Obligations; PROVIDED that any balance
of such amounts remaining after all L/C Obligations have been Cash
Collateralized shall be applied pro-rata to the Term Loans. Within the
parameters of the applications set forth above, prepayments shall be
applied first to Base Rate Loans and then, subject to SUBSECTION (viii)
below, to Eurodollar Loans in direct order of Interest Period maturities.
All prepayments of Eurodollar Loans under this SECTION 2.09(b) shall be
subject to SECTION 3.05. All prepayments under this SECTION 2.09(b) shall
be accompanied by accrued interest on the principal amount being prepaid to
the date of payment.
(viii) PREPAYMENT ACCOUNTS. Amounts to be applied as provided in
SUBSECTION (vi) above to the prepayment of Loans of any Class shall be
applied first to reduce outstanding Base Rate Loans of such Class. Any
amounts remaining after each such application
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shall, at the option of the Company, be applied to prepay Eurodollar Loans
of such Class immediately and/or shall be deposited in a separate
Prepayment Account (as defined below) for the Loans of such Class. The
Administrative Agent shall apply any cash deposited in the Prepayment
Account for any Class of Loans, upon withdrawal by the Collateral Agent, to
prepay Eurodollar Loans of such Class on the last day of their respective
Interest Periods (or, at the direction of the Company, on any earlier date)
until all outstanding Loans of such Class have been prepaid or until all
the allocable cash on deposit in the Prepayment Account for such Class has
been exhausted. For purposes of this Agreement, the term "PREPAYMENT
ACCOUNT" for any Class of Loans shall mean an account (which may include
the Prepayment Account established under the Security Agreement)
established by the Company with the Collateral Agent and over which the
Collateral Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal for application in accordance with this
SUBSECTION (viii). The Collateral Agent will, at the request of the
Company, invest amounts on deposit in the Prepayment Account for any Class
of Loans in Cash Equivalents that mature prior to the last day of the
applicable Interest Periods of the Eurodollar Loans of such Class to be
prepaid; PROVIDED, HOWEVER, that (i) the Collateral Agent shall not be
required to make any investment that, in its sole judgment, would require
or cause the Collateral Agent to be in, or would result in any, violation
of any Law, (ii) such Cash Equivalents shall be subjected to a first
priority perfected security interest in favor of the Collateral Agent and
(iii) if any Event of Default shall have occurred and be continuing, the
selection of such Cash Equivalents shall be in the sole discretion of the
Collateral Agent. The Company shall indemnify the Collateral Agent for any
losses relating to such investments in Cash Equivalents so that the amount
available to prepay Eurodollar Loans on the last day of the applicable
Interest Periods is not less than the amount that would have been available
had no investments been made pursuant thereto. Other than any interest or
profits earned on such investments, the Prepayment Accounts shall not bear
interest. Interest or profits, if any, on the investments in any Prepayment
Account shall accumulate in such Prepayment Account until all outstanding
Loans of any applicable Class with respect to which amounts have been
deposited in the Prepayment Accounts have been prepaid in full, at which
time so much thereof as is not required to make payment of the Senior
Credit Obligations which have become due and payable (whether by scheduled
maturity, acceleration or otherwise) shall be withdrawn by the Collateral
Agent on the next Business Day following the day on which the Collateral
Agent considers the funds deposited therein to be collected funds and
disbursed to the Company or its order. If the maturity of the Loans has
been accelerated pursuant to SECTION 8.02, the Administrative Agent may, in
its sole discretion, cause the Collateral Agent to withdraw amounts on
deposit in the Prepayment Account for any Class of Loans and apply such
funds to satisfy any of the Senior Credit Obligations related to such Class
of Loans.
(c) NOTICE. The Company shall give to the Administrative Agent and
the Lenders at least three Business Days' prior written or telecopy notice of
each and every event or occurrence requiring a prepayment under SECTION
2.09(b)(ii) or (iii) including the amount of Net Cash Proceeds expected to be
received therefrom and the expected schedule for receiving such proceeds.
SECTION 2.10 ADJUSTMENT OF COMMITMENTS.
(a) OPTIONAL INCREASE OF REVOLVING AND TERM B COMMITMENTS.
(i) The Company shall have the right to give the
Administrative Agent, after the Closing Date, a Facilities Increase Notice
to request an increase (each a "FACILITIES INCREASE") in the aggregate
Revolving Credit Commitments or the disbursement of additional Term B Loans
in excess of the Term B Loans previously disbursed, in a principal amount
not to exceed $75,000,000 in the aggregate for all such requests or
pursuant to a new tranche of term loans;
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PROVIDED, HOWEVER, that (A) no Facilities Increase in the Revolving Credit
Commitments shall be effective later than one year prior to the Revolving
Termination Date, (B) no Facilities Increase in the Term B Commitments or
that is a new tranche of term loans shall be effective later than three
years prior to the Term Maturity Date, (C) no Facilities Increase shall be
effective earlier than 10 days after the delivery of the Facilities
Increase Notice to the Administrative Agent in respect of such Facilities
Increase and (D) no more than three Facilities Increases shall be made.
(ii) The Administrative Agent shall promptly notify each
Lender of the proposed Facilities Increase and of the proposed terms and
conditions therefor agreed between the Company and the Administrative
Agent. Each such Lender (and each of their Affiliates and Approved Funds)
may, in its sole discretion, commit to participate in such Facilities
Increase by forwarding its commitment to the Administrative Agent therefor
in form and substance satisfactory to the Administrative Agent within 10
days of receipt of such notice. The Administrative Agent shall allocate, in
its sole discretion but in amounts not to exceed for each such Lender the
commitment received from such Lender, Affiliate or Approved Fund, the
Commitments to be made as part of the Facilities Increase to the Lenders
from which it has received such written commitments. If the Administrative
Agent does not receive sufficient commitments from existing Lenders or
their Affiliates or Approved Funds, it may, after consultation with the
Company, allocate to Eligible Assignees any excess of the proposed amount
of such Facilities Increase agreed with the Company over the aggregate
amounts of the commitments received from existing Lenders.
(iii) Each Facilities Increase shall become effective on a date
agreed by the Company and the Administrative Agent (each a "FACILITIES
INCREASE DATE"), which shall be in any case on or after the date of
satisfaction of the conditions precedent set forth in SECTION 4.03 and
following notice to the Lenders and the Company of such effectiveness. Once
a Facilities Increase becomes effective, the Administrative Agent shall
record in the Register all applicable additional information in respect of
such Facilities Increase.
(iv) On the Facilities Increase Date for any Facilities
Increase in the Revolving Credit Commitments, each Lender participating in
such Facilities Increase shall purchase from each existing Revolving Lender
having Revolving Loans outstanding on such Facilities Increase Date,
without recourse or warranty, an undivided participation interest in such
outstanding Revolving Loans in the proportion its Revolving Commitment
Percentage bears to the Revolving Committed Amount (after giving effect to
such Facilities Increase) so as to ensure that, on the Facilities Increase
Date after giving effect to such Facilities Increase, each Revolving Lender
is owed no more than its proportionate share of the Revolving Loans
outstanding on such Facilities Increase Date.
(v) From and after the Facilities Increase Date, the term
"LENDERS", as used herein, shall include all Eligible Assignees which
become Lenders pursuant to this SECTION 2.10(a).
This SUBSECTION (a) shall supercede any provisions of SECTION 2.12 or 10.01 to
the contrary.
(b) OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS (PRO-RATA). The
Company may from time to time permanently reduce or terminate the Revolving
Committed Amount in whole or in part (in minimum aggregate amounts of $2,000,000
or any whole multiple of $500,000 in excess thereof (or, if less, the full
remaining amount of the then applicable Revolving Committed Amount)) upon five
Business Days' prior written or telecopy notice to the Administrative Agent;
PROVIDED, HOWEVER, that no such termination or reduction shall be made which
would cause the Revolving Outstandings to exceed the
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Revolving Committed Amount as so reduced, unless, concurrently with such
termination or reduction, the Revolving Loans are repaid (and, after the
Revolving Loans have been paid in full, the Swing Line Loans are repaid and,
after the Swing Line Loans have been paid in full, the L/C Obligations are Cash
Collateralized) to the extent necessary to eliminate such excess. The
Administrative Agent shall promptly notify each affected Lender of the receipt
by the Administrative Agent of any notice from the Company pursuant to this
SECTION 2.10(b). Any partial reduction of the Revolving Committed Amount
pursuant to this SECTION 2.10(b) shall be applied to the Revolving Commitments
of the Lenders pro-rata based upon their respective Revolving Commitment
Percentages. The Company shall pay to the Administrative Agent for the account
of the Lenders in accordance with the terms of SECTION 2.11, on the date of each
termination or reduction of the Revolving Committed Amount, any fees accrued
through the date of such termination or reduction on the amount of the Revolving
Committed Amount so terminated or reduced.
(c) TERMINATION. The Revolving Commitments of the Lenders and the L/C
Commitments of the L/C Issuers shall terminate automatically on the Revolving
Termination Date. The Swing Line Commitment of the Swing Line Lender shall
terminate automatically on the Swing Line Termination Date. The Term B Closing
Date Commitments of the Lenders shall terminate automatically immediately after
the making of the Term Loans on the Closing Date. The Term B Delayed Draw
Commitments of the Lenders shall terminate automatically on the Term B Delayed
Draw Termination Date.
(d) GENERAL. The Company shall pay to the Administrative Agent for
the account of the Lenders in accordance with the terms of SECTION 2.11, on the
date of each termination or reduction of the Revolving Committed Amount, the
Revolving Commitment Fee accrued through the date of such termination or
reduction on the amount of the Revolving Committed Amount so terminated or
reduced.
SECTION 2.11 FEES.
(a) COMMITMENT FEES. The Company shall pay to the Administrative
Agent for the account of each Revolving Lender a fee (the "REVOLVING COMMITMENT
FEE") on such Lender's Revolving Commitment Percentage of the daily Unused
Revolving Committed Amount, computed at a per annum rate for each day at a rate
equal to the then applicable rate per annum set forth under the caption
"Applicable Margin for Revolving Commitment Fees" in the table in the definition
of "Applicable Margin" in SECTION 1.01. The Company shall pay to the
Administrative Agent for the account of each Term B Delayed Draw Lender a fee
(the "TERM B DELAYED DRAW COMMITMENT FEE" and, together with the Revolving
Commitment Fee, the "COMMITMENT FEES") equal to 0.75% per annum on such Lender's
Term B Delayed Draw Commitment Percentage of the unfunded Term B Delayed Draw
Committed Amount. The Commitment Fees shall commence to accrue on the Closing
Date and shall be due and payable in arrears on the last Business Day of each
March, June, September and December (and any date that the Revolving Committed
Amount is reduced as provided in SECTION 2.10(b) or the Term B Delayed Draw
Commitment Amount is reduced and the Revolving Termination Date and the Term B
Delayed Draw Termination Date) for the quarter or portion thereof ending on each
such date, beginning with the first of such dates to occur after the Closing
Date.
(b) LETTER OF CREDIT FEES.
(i) LETTER OF CREDIT ISSUANCE FEE. The Company shall pay to
the Administrative Agent for the account of each Revolving Lender a fee
(the "LETTER OF CREDIT FEE") on such Lender's Revolving Commitment
Percentage of the average daily maximum amount available to be drawn under
each such Letter of Credit (whether or not such maximum amount is then in
effect under such Letter of Credit) computed at a per annum rate for each
day from the date of issuance to the date of expiration equal to the
Applicable Margin for Letter of Credit Fees
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in effect from time to time. The Letter of Credit Fee will be computed on a
quarterly basis in arrears and shall be due and payable on the first
Business Day after the end of each fiscal quarter, commencing with the
first of such dates to occur after the date of issuance of such Letter of
Credit, and on the Letter of Credit Expiration Date and thereafter on
demand.
(ii) FRONTING FEES. The Company shall pay directly to each L/C
Issuer for its own account a fronting fee in the amount equal to 1/8 of 1%
per annum (or such lesser amount agreed to with such L/C Issuer) on the
daily maximum amount available to be drawn thereunder (whether or not such
maximum amount is then in effect under such Letter of Credit). Such
fronting fee shall be computed on a quarterly basis in arrears and without
duplication of any similar fronting fee which may then be in effect or
which have previously been paid with respect to any Existing Letter of
Credit and shall be due and payable on the first Business Day after the end
of each fiscal quarter, commencing with the first such date after the
issuance of such Letter of Credit, and on the Letter of Credit Expiration
Date and thereafter on demand.
(iii) L/C ISSUER FEES. In addition to the Letter of Credit Fee
payable pursuant to CLAUSE (i) above and any fronting fees payable pursuant
to CLAUSE (ii) above, the Company promises to pay to the L/C Issuer for its
own account without sharing by the other Lenders the letter of credit
fronting and negotiation fees agreed to by the Company and the L/C Issuer
from time to time and the customary charges from time to time of the L/C
Issuer with respect to the issuance (but excluding the issuance of any
Existing Letter of Credit), amendment, transfer, administration,
cancellation and conversion of, and drawings under, such Letters of Credit
(collectively, the "L/C ISSUER FEES"). L/C Issuer Fees are due when earned
and payable on demand and are nonrefundable.
(iv) COMPUTATION OF CERTAIN FEES AFTER DEFAULT. Upon the
occurrence and during the continuance of an Event of Default and after the
imposition of the Default Rate pursuant to SECTION 2.06(c)(ii), the Letter
of Credit Fee payable under SUBSECTION (i) above shall be computed at a
rate per annum equal to the Default Rate.
(c) OTHER FEES. The Company shall pay to the Joint Lead Arrangers and
the Administrative Agent for their own respective accounts fees in the amounts
and at the times specified in the Fee Letter. Such fees shall be fully earned
when paid and shall not be refundable for any reason whatsoever. The Company
shall pay to the Lenders such fees as shall have been separately agreed upon in
writing in the amounts and at the times so specified. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.
SECTION 2.12 PRO-RATA TREATMENT. Except to the extent otherwise
provided herein:
(a) LOANS. Each Borrowing, each payment or prepayment of principal of
or interest on any Loan, each payment of fees (other than the L/C Issuer Fees
retained by an L/C Issuer for its own account and the administrative fees
retained by the Agents for their own account), each reduction of the Revolving
Committed Amount and each conversion or continuation of any Loan, shall be
allocated pro-rata among the relevant Lenders in accordance with the respective
Revolving Commitment Percentages, Term B Closing Date Commitment Percentages and
Term B Delayed Draw Commitment Percentages, as applicable, of such Lenders (or,
if the Commitments of such Lenders have expired or been terminated, in
accordance with the respective principal amounts of the outstanding Loans of the
applicable Class and Participation Interests of such Lenders); PROVIDED that, in
the event any amount paid to any Lender pursuant to this SUBSECTION (a) is
rescinded or must otherwise be returned by the Administrative Agent, each Lender
shall, upon the request of the Administrative Agent, repay to the Administrative
Agent the amount so paid to such Lender, with interest for the period commencing
on the date such payment is
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returned by the Administrative Agent until the date the Administrative Agent
receives such repayment at a rate per annum equal to the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
(b) LETTERS OF CREDIT. Each payment of L/C Obligations shall be
allocated to each Revolving Lender pro-rata in accordance with its Revolving
Commitment Percentage; PROVIDED that, if any Revolving Lender shall have failed
to pay its applicable pro-rata share of any L/C Disbursement as required under
SECTION 2.05(f)(iv) or (vi), then any amount to which such Revolving Lender
would otherwise be entitled pursuant to this SUBSECTION (b) shall instead be
payable to the L/C Issuer.
SECTION 2.13 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of the Loans made by it, or of
its Participation Interests in L/C Obligations or in Swing Line Loans held by it
resulting in such Lender's receiving payment of a proportion of the aggregate
amount of such Loans or such Participation Interests and accrued interest
thereon greater than its pro-rata share thereof as provided herein, then the
Lender receiving such greater proportion shall (i) notify the Administrative
Agent of such fact, and (ii) purchase (for cash at face value) participations in
the Loans and subparticipations in the Participation Interests in L/C
Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans and other amounts
owing thereon; PROVIDED that:
(i) if any such participations or subparticipations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be rescinded and
the purchase price restored to the extent of such recovery, without
interest; and
(ii) the provisions of this Section shall not be construed to
apply to (A) any payment made by the Company pursuant to and in accordance
with the express terms of this Agreement or (B) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in
any of its Loans or subparticipations in Participation Interests in L/C
Obligations or Swing Line Loans to any assignee or participant, other than
to the Company or any Subsidiary thereof (as to which the provisions of
this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable Law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
SECTION 2.14 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) PAYMENTS BY THE COMPANY. All payments to be made by the Company
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff. Each payment of principal of and interest on Loans, L/C
Obligations and fees hereunder (other than fees payable directly to the L/C
Issuers) shall be paid not later than 3:00 P.M. on the date when due, in Federal
or other funds immediately available to the Administrative Agent at the account
designated by it by notice to the Company. Payments received after 3:00 P.M.
shall be deemed to have been received on the next Business Day, and any
applicable interest or fee shall continue to accrue. The Administrative Agent
may in its sole discretion, distribute such payments to the applicable Lenders
on the date of receipt thereof, if such payment is received prior to 3:00 P.M.;
otherwise the Administrative Agent may, in its sole discretion, distribute such
payment to the applicable Lenders on the date of receipt thereof or on the
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immediately succeeding Business Day. Whenever any payment hereunder shall be due
on a day which is not a Business Day, the date for payment thereof shall be
extended to the next succeeding Business Day (and such extension of time shall
be reflected in computing interest or fees, as the case may be), unless (in the
case of Eurodollar Loans) such Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Business
Day. If the date for any payment of principal is extended by operation of Law or
otherwise, interest thereon shall be payable for such extended time.
(b) PAYMENTS BY COMPANY; PRESUMPTION BY THE ADMINISTRATIVE AGENT.
Unless the Administrative Agent shall have received notice (which may be by
telephone if promptly confirmed in writing) from the Company prior to the date
on which any payment is due to the Lenders or any L/C Issuer hereunder that the
Company will not make such payment, the Administrative Agent may assume that the
Company has made such payment on such date in accordance herewith, and may, in
reliance upon such assumption, distribute to the Lenders or the L/C issuers, as
the case may be, the amount due. In such event, if the Company has not in fact
made such payment, then each of the Lenders or the L/C issuers, as the case may
be, severally agrees to repay to the Administrative Agent forthwith on demand
the amount so distributed to such Lender or L/C issuer, in immediately available
funds with interest thereon, for each day from and including the date such
amount is distributed to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation. A notice of the Administrative Agent to any Lender with respect to
any amount owing under this SUBSECTION (b) shall be conclusive, absent manifest
error.
(c) FAILURE TO SATISFY CONDITIONS PRECEDENT. If any Lender makes
available to the Administrative Agent funds for any Loan to be made by such
Lender as provided in the foregoing provisions of this ARTICLE II, and such
funds are not made available to the Company by the Administrative Agent because
the conditions to the applicable Credit Extension set forth in ARTICLE IV are
not satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender without interest.
(d) OBLIGATIONS OF LENDERS SEVERAL. The obligations of the Lenders
hereunder to make Loans and to purchase Participation Interests in Letters of
Credit and Swing Line Loans are several and not joint. The failure of any Lender
to make a Loan required to be made by it as part of any Borrowing hereunder or
to fund a Participation Interest shall not relieve any other Lender of its
obligation, if any, hereunder to make any Loan on the date of such Borrowing or
fund any such Participation Interest, 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
such date of Borrowing or fund its Participation Interest.
(e) FUNDING SOURCE. Nothing herein shall be deemed to obligate any
Lender to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
(f) COMPUTATIONS. All computations of interest for Base Rate Loans
when the Base Rate is determined by Bank of America's "prime rate" shall be made
on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the basis
of a 360-day year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis of a 365-day
year). Interest shall accrue on each Loan for the day on which Loan is made (or
converted or continued), and shall not accrue on a Loan, or any portion thereof,
for the day on which the Loan or such portion is paid, provided that any Loan
that is repaid on the same day on which it is made (or continued or converted)
shall, subject to SUBSECTION (a) above, bear interest for one day. Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.
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ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
SECTION 3.01 TAXES.
(a) PAYMENTS FREE OF TAXES. Any and all payments by or on account of
any obligation of the Company hereunder or under any other Loan Document shall
be made free and clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes, PROVIDED that if the Company shall be required
by applicable Law to deduct any Indemnified Taxes (including any Other Taxes)
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
L/C Issuer, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Company shall make such
deductions and (iii) the Company shall timely pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable Law.
(b) PAYMENT OF OTHER TAXES BY THE COMPANY. Without limiting the
provisions of SUBSECTION (a) above, the Company shall timely pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable Law.
(c) INDEMNIFICATION BY THE COMPANY. The Company shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority; PROVIDED that if the
Company reasonably believes that such taxes were not correctly or legally
asserted, the Administrative Agent or such Lender, as the case may be, will use
reasonable efforts to cooperate with the Company to obtain a refund of such
taxes so long as such efforts would not, in the sole determination of the
Administrative Agent or such Lender, as the case may be, result in any
additional costs, expenses or risks or be otherwise disadvantageous to it. A
certificate as to the amount of such payment or liability delivered to the
Company by a Lender or the L/C Issuer (with a copy to the Administrative Agent),
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
L/C Issuer, shall be conclusive absent manifest error.
(d) EVIDENCE OF PAYMENTS. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Company to a Governmental Authority, the
Company shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) STATUS OF LENDERS. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the Law of the jurisdiction
in which the Company is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Company (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Company or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable Law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Company or the Administrative Agent,
shall deliver such other documentation prescribed by applicable Law or
reasonably requested by the Company or the Administrative Agent as
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will enable the Company or the Administrative Agent to determine whether or not
such Lender is subject to backup withholding or information reporting
requirements.
Without limiting the generality of the foregoing, in the event that
the Company is resident for tax purposes in the United States, any Foreign
Lender shall deliver to the Company and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on
which such Foreign Lender becomes a Lender under this Agreement (and from time
to time thereafter upon the request of the Company or the Administrative Agent,
but only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form
W-8BEN claiming eligibility for benefits of an income tax treaty to which
the United States is a party;
(ii) duly completed copies of Internal Revenue Service
Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under section 881(c) of the Code, (A)
a certificate to the effect that such Foreign Lender is not (x) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (y) a "10 percent
shareholder" of the Company within the meaning of section 881(c)(3)(B) of
the Code, or (z) a "controlled foreign corporation" described in section
881(c)(3)(C) of the Code and (B) duly completed copies of Internal Revenue
Service Form W-8BEN, or
(iv) any other form prescribed by applicable Law as a basis
for claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the Company
to determine the withholding or deduction required to be made.
(f) INABILITY OF LENDER TO SUBMIT FORMS. If any Foreign Lender
determines, as a result of any change in applicable law, regulation or treaty,
or in any official application or interpretation thereof, that it is unable to
submit to the Company or the Administrative Agent any form or certificate that
such Foreign Lender is obligated to submit pursuant to subsection (e) of this
SECTION 3.01 or that such Foreign Lender is required to withdraw or cancel any
such form or certificate previously submitted or any such form or certificate
otherwise becomes ineffective or inaccurate, such Foreign Lender shall promptly
notify the Company and the Administrative Agent of such fact and the Foreign
Lender shall to that extent not obligated to provide any such form or
certificate and will be entitled to withdraw or cancel any affected form or
certificate, as applicable.
(g) If any Foreign Lender is entitled to a reduction in (and not
complete exemption from) the applicable withholding tax, the Company and the
Administrative Agent may withhold from any interest payment to such Foreign
Lender an amount equivalent to the applicable withholding tax after taking into
account such reduction. If any of the forms or other documentation required
under subsection (e) above are not delivered to the Administrative Agent as
therein required (as modified by subsection (f)), then the Company and the
Administrative Agent may withhold from any interest payment to such Foreign
Lender not providing such forms or other documentation an amount equivalent to
the applicable withholding tax.
(h) TREATMENT OF CERTAIN REFUNDS. If the Administrative Agent, any
Lender or any L/C Issuer determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Company or with respect to which the Company has paid
additional amounts pursuant to this Section, it shall pay to the Company an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional paid, by the Company under this
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Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent, such Lender or
such L/C Issuer, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund), PROVIDED that the Company, upon the request of the Administrative
Agent, such Lender or such L/C Issuer, agrees to repay the amount paid over to
the Company (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent, such Lender or
such L/C Issuer in the event the Administrative Agent, such Lender or such L/C
Issuer is required to repay such refund to such Governmental Authority. This
subsection shall not be construed to require the Administrative Agent, any
Lender or any L/C Issuer to make available its tax returns (or any other
information relating to its taxes that it deems confidential) to the Company or
any other Person.
SECTION 3.02 ILLEGALITY. If, on or after the date of this Agreement,
the adoption of any applicable Law, or any change in any applicable Law, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Lending Office) with
any request or directive (whether or not having the force of Law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for any Lender (or its Lending Office) to make, maintain or fund any
of its Eurodollar Loans and such Lender shall so notify the Administrative
Agent, the Administrative Agent shall forthwith give notice thereof to the other
Lenders and the Company, whereupon, until such Lender notifies the Company and
the Administrative Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Lender to make Eurodollar Loans, or to
convert outstanding Loans into Eurodollar Loans, shall be suspended. If such
notice is given, each Eurodollar Loan of such Lender then outstanding shall be
converted to a Base Rate Loan either (i) on the last day of the then current
Interest Period applicable to such Eurodollar Loan, if such Lender may lawfully
continue to maintain and fund such Loan to such day or (ii) immediately, if such
Lender shall determine that it may not lawfully continue to maintain and fund
such Loan to such day.
SECTION 3.03 INABILITY TO DETERMINE RATES. If on or prior to the first
day of any Interest Period for any Eurodollar Loan:
(i) the Administrative Agent determines (which determination
shall be conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
applicable Eurodollar Rate for such Interest Period; or
(ii) Lenders having 50% or more of the aggregate amount of the
Commitments advise the Administrative Agent that the Eurodollar Rate as
determined by the Administrative Agent will not adequately and fairly
reflect the cost to such Lenders of funding their Eurodollar Loans for such
Interest Period;
the Administrative Agent shall forthwith give notice thereof to the Company and
the Lenders, whereupon, until the Administrative Agent notifies the Company that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Lenders to make Eurodollar Loans, or to continue or convert
outstanding Loans as or into Eurodollar Loans, shall be suspended and (ii) each
outstanding Eurodollar Loan shall be converted into a Base Rate Loan on the last
day of the then current Interest Period applicable thereto. Unless the Company
notifies the Administrative Agent prior to 12:00 pm on the Business Day of the
date of any Eurodollar Borrowing for which a Notice of Borrowing has previously
been given that it elects not to borrow on such date, such Borrowing shall
instead be made as a Base Rate Borrowing in the same aggregate amount as the
requested Borrowing and shall bear interest for each day from and including the
first day to but excluding the last day of the Interest Period applicable
thereto at the rate applicable to Revolving Base Rate Loans for such day.
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SECTION 3.04 INCREASED COSTS AND REDUCED RETURN; CAPITAL ADEQUACY.
(a) INCREASED COSTS GENERALLY. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement against
assets held by, deposits with or for the account of, or credit extended or
participated in by, any Lender (or its Lending Office) (except any reserve
requirement which is reflected in the determination of the Adjusted
Eurodollar Rate hereunder);
(ii) subject any Lender (or its Lending Office) or L/C Issuer
to any tax of any kind whatsoever with respect to this Agreement, any
Letter of Credit, any Participation Interest in a Letter of Credit or any
Eurodollar Loan made by it, or change the basis of taxation of payments to
such Lender or L/C Issuer in respect thereof (except for Indemnified Taxes
or Other Taxes covered by SECTION 3.01 and the imposition of, or any change
in the rate of, any Excluded Tax payable by such Lender of the L/C Issuer);
(iii) impose on any Lender (or its Lending Office) or L/C
Issuer or the London interbank market any other condition, cost or expense
affecting this Agreement or Eurodollar Loans made by such Lender or any
Letter of Credit or Participation Interest therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender (or its Lending Office) of making or maintaining any Eurodollar Loan (or
of maintaining its obligation to make any such Loan), or to increase the cost to
such Lender or any L/C Issuer of participating in, issuing or maintaining any
Letter of Credit (or of maintaining its obligation to participate in or to issue
any Letter of Credit), or to reduce the amount of any sum received or receivable
by such Lender or L/C Issuer hereunder (whether of principal, interest or any
other amount) then, upon request of such Lender or L/C Issuer, the Company will
pay to such Lender or L/C Issuer, as the case may be, such additional amount or
amounts as will compensate such Lender or L/C Issuer, as the case may be, for
such additional costs incurred or reduction suffered.
(b) CAPITAL REQUIREMENTS. If any Lender or L/C Issuer determines that
any Change in Law affecting such Lender or L/C Issuer or any Lending Office of
such Lender or such Lender's or L/C Issuer's holding company, if any, regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's or such L/C Issuer's capital or on the capital of such Lender's
or such L/C Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or Participation
Interests in Letters of Credit held by, such Lender, or the Letters of Credit
issued by such L/C Issuer, to a level below that which such Lender or L/C Issuer
or such Lender's or L/C Issuer's holding company could have achieved but for
such Change in Law (taking into consideration such Lender's or L/C Issuer's
policies and the policies of such Lender's or L/C Issuer's holding company with
respect to capital adequacy), then from time to time the Company will pay to
such Lender or L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or L/C Issuer or such Lender's or L/C Issuer's
holding company for any such reduction suffered.
(c) CERTIFICATES FOR REIMBURSEMENT. A certificate of a Lender or L/C
Issuer setting forth the amount necessary to compensate such Lender or L/C
Issuer or its holding company, as the case may be, as specified in SUBSECTION
(a) or (b) of this Section and delivered to the Company shall be conclusive
absent manifest error. The Company shall pay such Lender or L/C Issuer, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
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(d) DELAYS IN REQUESTS. Failure or delay on the part of any Lender or
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or L/C Issuer's right to
demand such compensation, PROVIDED that the Company shall not be required to
compensate a Lender or L/C Issuer pursuant to the foregoing provisions of this
Section for any increased costs incurred or reductions suffered more than three
months prior to the date that such Lender or L/C Issuer, as the case may be,
notifies the Company of the Change in Law giving rise to such increased costs or
reductions and of such Lender's or L/C Issuer's intention to claim compensation
therefor (except that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the nine-month period referred to above shall
be extended to include the period of retroactive effect thereof).
SECTION 3.05 COMPENSATION FOR LOSSES. Promptly upon demand of any
Lender (with a copy to the Administrative Agent) from time to time, the Company
shall promptly compensate such Lender for and hold such Lender harmless from any
loss, cost or expense incurred by it as a result of:
(i) any continuation, conversion, payment or prepayment of
any Loan other than a Base Rate Loan on a day other than the last day of
the Interest Period for such Loan (whether voluntary, mandatory, automatic,
by reason of acceleration, or otherwise);
(ii) any failure by the Company (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the amount
notified by the Company; or
(iii) any assignment of a Eurodollar Rate Loan on a day other
than the last day of the Interest Period therefore as a result of a request
by the Company pursuant to SECTION 10.13;
excluding any loss of anticipated profits but including any loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain
such Loan or from fees payable to terminate the deposits from which such funds
were obtained. The Company shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing. A certificate (with
reasonable supporting detail) of any Lender setting forth any amount or amounts
which such Lender is entitled to receive pursuant to this SECTION 3.05 shall be
delivered to the Company and shall be conclusive absent manifest error; PROVIDED
that the Company shall not be required to compensate such Lender pursuant to
this Section for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender notifies the Company in writing of the
increased costs or reductions and of such Lender's intention to claim
compensation thereof; PROVIDED, FURTHER that, if the change in law giving rise
to such increased costs or reductions is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
For purposes of calculating amounts payable by the Company to the
Lenders under this SECTION 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or, other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.
SECTION 3.06 BASE RATE LOANS SUBSTITUTED FOR AFFECTED EURODOLLAR
LOANS. If (i) the obligation of any Lender to make, or to continue or convert
outstanding Loans as or to, Eurodollar Loans has been suspended pursuant to
SECTION 3.02 or (ii) any Lender has demanded compensation under SECTION 3.01 or
3.04 with respect to its Eurodollar Loans, and in any such case the Company
shall, by at least five Business Days' prior notice to such Lender through the
Administrative Agent, have elected that
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the provisions of this SECTION 3.06 shall apply to such Lender, then, unless and
until such Lender notifies the Company that the circumstances giving rise to
such suspension or demand for compensation no longer exist, all Loans which
would otherwise be made by such Lender as (or continued as or converted to)
Eurodollar Loans shall instead be Base Rate Loans (on which interest and
principal shall be payable contemporaneously with the related Eurodollar Loans
of the other Lenders). If such Lender notifies the Company that the
circumstances giving rise to such suspension or demand for compensation no
longer exist, the principal amount of each such Base Rate Loan shall be
converted into a Eurodollar Loan on the first day of the next succeeding
Interest Period applicable to the related Eurodollar Loans of the other Lenders.
SECTION 3.07 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) DESIGNATION OF A DIFFERENT LENDING OFFICE. If any Lender requests
compensation under SECTION 3.04, or the Company is required to pay any
additional amount to any lender or any Governmental Authority for the account of
any Lender pursuant to SECTION 3.01, or if any Lender gives a notice pursuant to
SECTION 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to SECTION 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to SECTION 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Company hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) REPLACEMENT OF LENDERS. If any Lender requests compensation under
SECTION 3.04, or if the Company is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
SECTION 3.01, the Company may replace such Lender in accordance with SECTION
10.13.
SECTION 3.08 SURVIVAL. All of the Company's obligations under this
ARTICLE III shall survive termination of the Commitments and repayment of all
other Senior Credit Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
SECTION 4.01 CONDITIONS TO INITIAL CREDIT EXTENSION. The obligation of
each L/C issuer and each Lender to make its initial Credit Extension hereunder
is subject to the satisfaction or waiver of the following conditions precedent:
(a) EXECUTED LOAN DOCUMENTS. Receipt by the Administrative Agent of
duly executed counterparts from each party thereto of: (i) this Agreement; (ii)
the Notes; (iii) the Guaranty; (iv) the Collateral Documents and (v) all other
Loan Documents, each in form and substance reasonably satisfactory to each of
the Lenders.
(b) LEGAL MATTERS. All legal matters incident to this Agreement and
the borrowings hereunder shall be reasonably satisfactory to the Administrative
Agent and to Fried ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel for the
Administrative Agent.
(c) ORGANIZATION DOCUMENTS. After giving effect to the transactions
contemplated hereby, the Administrative Agent shall have received: (i) a copy of
the Organization Documents,
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including all amendments thereto, of each Loan Party, certified as of a recent
date by the Secretary of State or other applicable Governmental Authority of its
respective jurisdiction of organization, and a certificate as to the good
standing (or comparable status) of each Loan Party from such Secretary of State,
as of a recent date; (ii) a certificate as to the good standing (or comparable
status) of each Loan Party, as of a recent date, from the Secretary of State or
other applicable authority of its respective jurisdiction of organization and
from each other state in which such Loan Party is qualified or is required to be
qualified to do business except those states wherein the failure to be qualified
to do business would not reasonably be expected to have a Material Adverse
Effect; (iii) a certificate of the Secretary or Assistant Secretary of each Loan
Party dated the Closing Date and certifying (A) that the Organization Documents
of such Loan Party have not been amended since the date of the last amendment
thereto shown on the certificate of good standing from its jurisdiction of
organization furnished pursuant to CLAUSE (ii) above; (B) that attached thereto
is a true and complete copy of the agreement of limited partnership, operating
agreement or by-laws of such Loan Party, as applicable, as in effect on the
Closing Date and at all times since a date prior to the date of the resolutions
described in CLAUSE (C) below, (C) that attached thereto is a true and complete
copy of resolutions duly adopted by the board of directors or other governing
body of such Loan Party authorizing the execution, delivery and performance of
the Loan Documents to which it is to be a party and, in the case of the Company,
the borrowings hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect; and (D) as to the
incumbency and specimen signature of each officer executing any Loan Document;
and (iv) a certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate
pursuant to CLAUSE (iii) above.
(d) OFFICER'S CERTIFICATES. The Administrative Agent shall have
received (i) a certificate, dated the Closing Date and signed by a Responsible
Officer of the Company, confirming compliance with the conditions precedent set
forth in PARAGRAPHS (b) and (c) of SECTION 4.02 and (ii) a certificate, dated
the Closing Date and signed by a Responsible Officer of each other Loan Party,
confirming compliance with the condition precedent set forth in PARAGRAPH (b) of
SECTION 4.02.
(e) OPINIONS OF COUNSEL. On the Closing Date, the Administrative
Agent shall have received:
(i) a favorable written opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP,
special counsel to the Loan Parties, addressed to the Administrative Agent,
the Collateral Agent and each Lender, dated the Closing Date, in the form
reasonably satisfactory to the Administrative Agent; and
(ii) from special local counsel to the Company and the other
Loan Parties (which counsel shall be reasonably satisfactory to the
Administrative Agent) for each jurisdiction in which a Mortgaged Property
is located, an opinion addressed to the Agents and each Lender, dated the
Closing Date, substantially in the form of EXHIBIT E hereto, with respect
to the enforceability of the form of Mortgage and sufficiency of the form
of UCC-1 financing statements or similar notices to be recorded or filed in
such jurisdiction, if applicable, and such other matters as the
Administrative Agent or the Required Lenders may reasonably request.
(f) CONSUMMATION OF THE PRIMARY EQUITY OFFERING; MINIMUM UNRESTRICTED
CASH. The Primary Equity Offering shall have been (or shall concurrently be)
consummated in accordance with applicable Law resulting in cash proceeds to the
Company (before underwriting discounts and commissions and related expenses) of
not less than $35,000,000. Immediately following the consummation of the
Transaction on the Closing Date, the amount of excess cash and Cash Equivalents
of the Company resulting from the sources and uses as set forth in the funds
flow memorandum (a copy of which shall be delivered to the Administrative Agent)
shall not be less than $6,750,000.
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(g) REFINANCING OF CERTAIN EXISTING INDEBTEDNESS; OTHER INDEBTEDNESS.
On the Closing Date, the commitments under all Refinanced Agreements shall have
been terminated, all loans outstanding thereunder shall have been or
simultaneously shall be repaid in full (other than contingent indemnification
obligations not yet due and payable), together with accrued interest thereon
(including, without limitation, any prepayment premium), all Letters of Credit
issued thereunder shall have been terminated, cash collateralized, backstopped
through the issuance of Letters of Credit hereunder or shall have become Letters
of Credit hereunder and all other amounts due and payable pursuant to each
Refinanced Agreement shall have been repaid in full, and the Administrative
Agent shall have received evidence in form, scope and substance reasonably
satisfactory to it that the matters set forth in this SUBSECTION (g) have been
or will be contemporaneously satisfied at such time. In addition, on the Closing
Date, the creditors under each Refinanced Agreement shall have terminated and
released all applicable Liens on the capital stock of and assets owned by the
Company and its Subsidiaries, and the Administrative Agent shall have received
all such releases (or copies thereof) as may have been requested by the
Administrative Agent, which releases shall be in form and substance reasonably
satisfactory to the Administrative Agent.
(h) PERFECTION OF PERSONAL PROPERTY SECURITY INTERESTS AND PLEDGES;
SEARCH REPORTS. On or prior to the Closing Date, the Collateral Agent shall have
received:
(i) the Perfection Certificate from each Loan Party;
(ii) appropriate financing statements (Form UCC-1 or such
other financing statements or similar notices as shall be required by local
Law) authenticated and authorized for filing under the Uniform Commercial
Code or other applicable local law of each jurisdiction in which the filing
of a financing statement or giving of notice may be required, or reasonably
requested by the Collateral Agent, to perfect the security interests
intended to be created by the Collateral Documents;
(iii) copies of reports from CT Corporation or another
independent search service reasonably satisfactory to the Collateral Agent
listing all effective financing statements, notices of tax, PBGC or
judgment liens or similar notices that name the Company or any other Loan
Party as debtor or seller that are filed in the jurisdictions referred to
in CLAUSE (ii) above or in any other jurisdiction having files which must
be searched in order to determine fully the existence of the Uniform
Commercial Code security interests, notices of the filing of federal tax
Liens (filed pursuant to Section 6323 of the Code), Liens of the PBGC
(filed pursuant to Section 4068 of ERISA) or judgment Liens on any
Collateral, together with copies of such financing statements, notices of
tax, PBGC or judgment Liens or similar notices (none of which shall cover
the Collateral except to the extent evidencing Permitted Liens or for which
the Collateral Agent shall have received termination statements (Form UCC-3
or such other termination statements as shall be required by local Law)
authenticated and authorized for filing);
(iv) searches of ownership of intellectual property in the
appropriate governmental offices and such patent, trademark and/or
copyright filings as may be requested by the Collateral Agent to the extent
necessary or reasonably advisable to perfect the Collateral Agent's
security interest in intellectual property Collateral;
(v) all of the Pledged Collateral, which Pledged Collateral
shall be in suitable form for transfer by delivery, or shall be accompanied
by duly executed instruments of transfer or assignment in blank, with
signatures appropriately guaranteed, accompanied in each case by any
required transfer tax stamps, all in form and substance reasonably
satisfactory to the Collateral Agent; and
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(vi) evidence of the completion of all other filings and
recordings of or with respect to the Collateral Documents and of all other
actions as may be necessary or, in the opinion of the Collateral Agent,
desirable to perfect the security interests intended to be created by the
Collateral Documents.
(i) REAL PROPERTY COLLATERAL. The Collateral Agent shall have
received (in form and substance satisfactory to the Collateral Agent):
(i) fully executed and notarized mortgages, deeds of trust or
deeds to secure debt (each a "MORTGAGE" and, collectively, the "MORTGAGES")
encumbering the fee interest of the Loan Parties in each real property
asset owned by a Loan Party set forth on SCHEDULE 4.01(i) (each a
"MORTGAGED PROPERTY" and, collectively, the "MORTGAGED PROPERTIES"),
together with such UCC-1 financing statements or similar notices as the
Collateral Agent shall reasonably deem appropriate with respect to each
such Mortgaged Property;
(ii) ALTA or other appropriate form mortgagee title insurance
policies (the "MORTGAGE POLICIES") issued by a title insurance company
satisfactory to the Collateral Agent (the "TITLE INSURANCE COMPANY"), in an
amount reasonably satisfactory to the Collateral Agent with respect to each
Mortgaged Property, which amount shall not exceed the fair market value for
each such Mortgaged Property, assuring the Collateral Agent that the
applicable Mortgages create valid and enforceable first priority mortgage
liens on the respective Mortgaged Property, free and clear of all defects
and encumbrances except Permitted Encumbrances, which Mortgage Policies
shall contain such endorsements as shall be reasonably satisfactory to the
Collateral Agent and for any other matters that the Collateral Agent may
reasonably request, and providing affirmative insurance and such
reinsurance as the Collateral Agent may reasonably request, all of the
foregoing in form and substance reasonably satisfactory to the Collateral
Agent;
(iii) maps or plats of an as-built survey of the sites of the
Mortgaged Properties certified to the Collateral Agent and the Title
Insurance Company in a manner reasonably satisfactory to them, dated a date
reasonably satisfactory to the Collateral Agent and the Title Insurance
Company by an independent professional licensed land surveyor reasonably
satisfactory to the Collateral Agent and the Title Insurance Company, which
maps or plats and the surveys on which they are based shall be sufficient
to delete any standard printed survey exception contained in the applicable
Mortgage Policy and be made in accordance with the Minimum Standard Detail
Requirements for Land Title Surveys jointly established and adopted by the
American Land Title Association and the American Congress on Surveying and
Mapping in 1999, and, without limiting the generality of the foregoing,
there shall be surveyed and shown on such maps, plats or surveys the
following: (A) the locations on such sites of all the buildings, structures
and other improvements and the established building setback lines; (B) the
lines of streets abutting the sites and width thereof; (C) all access and
other easements appurtenant to the sites necessary to use the sites; (D)
all roadways, paths, driveways, easements, encroachments and overhanging
projections and similar encumbrances affecting the site, whether recorded,
apparent from a physical inspection of the sites or otherwise known to the
surveyor; (E) any encroachments on any adjoining property by the building
structures and improvements on the sites; and (F) if the site is described
as being on a filed map, a legend relating the survey to said map;
(iv) if requested by the Collateral Agent, copies of all
recorded documents listed as exceptions to title or otherwise referred to
in the mortgaged properties;
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(v) certification from a registered engineer or land surveyor
in a form reasonably satisfactory to the Collateral Agent or other evidence
acceptable to the Collateral Agent that none of the improvements on the
Mortgaged Properties are located within any area designated by the Director
of the Federal Emergency Management Agency as a "special flood hazard" area
or if any improvements on the Mortgaged Properties are located within a
"special flood hazard" area, evidence of a flood insurance policy (if such
insurance is required by applicable Law) from a company and in an amount
satisfactory to the Collateral Agent for the applicable portion of the
premises, naming the Collateral Agent, for the benefit of the Lenders, as
mortgagee; and
(vi) evidence reasonably satisfactory to the Collateral Agent
that each of the Mortgaged Properties, and the uses of the Mortgaged
Properties, are in compliance in all material respects with all applicable
Laws.
(j) EVIDENCE OF INSURANCE. Receipt by the Collateral Agent of copies
of insurance policies or certificates of insurance of the Loan Parties and their
Subsidiaries evidencing liability and casualty insurance meeting the
requirements set forth in the Loan Documents, including, but not limited to,
naming the Collateral Agent as additional insured or loss payee, as applicable,
on behalf of the Lenders.
(k) CONSENTS AND APPROVALS. On the Closing Date, all necessary
governmental (domestic or foreign), regulatory and material third party
approvals (including, without limitation, with respect to license agreements
relating to intellectual property) in connection with the transactions
contemplated hereby and otherwise referred to herein or therein shall have been
obtained and remain in full force and effect, and all applicable waiting and
appeal periods shall have expired, in each case without any action being taken
by any competent authority which have or could have a reasonable likelihood of
restraining, preventing or imposing materially burdensome conditions on such
transactions or impose, in the reasonable judgment of the Administrative Agent,
materially burdensome conditions upon the consummation of such transactions.
(l) SOLVENCY CERTIFICATE. On or prior to the Closing Date, the
Company shall have delivered or caused to be delivered to the Administrative
Agent a solvency certificate from a Responsible Officer or chief accounting
officer of the Company, substantially in the form of EXHIBIT L hereto, setting
forth the conclusions that, after giving effect to the Transaction and the
consummation of all financings contemplated herein, the Loan Parties (on a
consolidated basis) are solvent, together with copies of any solvency or
appraisal report, if any, prepared by any third party in connection with any
aspect of the Transaction.
(m) FINANCIAL INFORMATION. The Joint Lead Arrangers shall have
received: (i) pro-forma financial statements as to the Company and its
Consolidated Subsidiaries giving effect to the transactions contemplated hereby
to occur on or prior to the Closing Date, which in each case, shall be
reasonably satisfactory in form and substance to the Joint Lead Arrangers, (ii)
forecasts prepared by management of the Company, each in form reasonably
satisfactory to the Joint Lead Arrangers, of balance sheets, income statements
and cash flow statements on a quarterly basis for the first year following the
Closing Date and on an annual basis for each of the following five years; (iii)
evidence satisfactory to the Joint Lead Arrangers that (A) the Consolidated
EBITDA of the Company and its Consolidated Subsidiaries for the twelve-month
period ending as of March 31, 2005 was not less than $62,000,000 and (B) the
pro-forma Leverage Ratio of the Company and its Consolidated Subsidiaries as of
March 31, 2005 (which pro forma ratio shall be calculated reflecting the
transactions contemplated to occur on or prior to the Closing Date on a
Pro-Forma Basis (assuming a full draw of the Term B Delayed Draw Loans as of the
Closing Date)) was not greater than 3.70 to 1.0; and (iv) written certifications
that
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would have been required as of the preceding fiscal quarter from the chief
executive officer and chief financial officer of the Company that would be
required by Section 906 and Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
(n) MATERIAL ADVERSE EFFECT. The Joint Lead Arrangers shall be
satisfied that the representations contained in the Commitment Letter dated
January 25, 2005 among the Company and the Joint Lead Arrangers with respect to
the Information and the Projections (as defined therein) shall be correct in all
material respects on the Closing Date. In addition: (i) there shall have been no
change, occurrence or development since December 31, 2004 and no action, suit,
investigation or proceeding shall be pending or, to the knowledge of any of the
Company or any of its Subsidiaries, threatened that in any case, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; (ii) there shall be no action, suit, investigation or
proceeding pending or, to the knowledge of any of the Loan Parties, threatened
that seeks to restrain or enjoin the Transaction; and (iii) none of the Joint
Lead Arrangers shall have become aware after the date hereof of any information
or any event, occurrence or development (including with respect to the
Pre-Commitment Information), in each case relating to the Loan Parties or the
Transaction, that, in the good faith judgment of the Joint Lead Arrangers, is
inconsistent in a material and adverse manner with any information disclosed to
them prior to February 25, 2005 and which could reasonably be expected to have a
Material Adverse Effect
(o) RATINGS. The Loans shall have received debt ratings from each of
▇▇▇▇▇'▇ and S&P.
(p) PAYMENT OF FEES. All costs, fees and expenses due to the
Administrative Agent, the Collateral Agent and the Lenders on or before the
Closing Date shall have been paid.
(q) COUNSEL FEES. The Company shall have paid directly to Fried,
Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent, all
fees, charges and disbursements of counsel to the Administrative Agent to the
extent invoiced prior to or on the Closing Date, plus to the extent submitted in
writing to the Company prior to or on the Closing Date such additional amounts
of fees, charges and disbursements as shall constitute its reasonable written
estimate of such fees, charges and disbursements incurred or to be incurred by
it prior to or on the Closing Date (PROVIDED that such estimate shall not
thereafter preclude a final settling of accounts between the Companies and such
counsel).
(r) REVOLVING USAGE. After giving effect to all Credit Extensions
occurring on the Closing Date, (i) the aggregate unpaid principal amount of the
Revolving Loans on the Closing Date shall not exceed $10,000,000 (except to the
extent necessary to cover any shortfall in the aggregate principal amount of
Term B Closing Date Loans as a result of any issuance thereof with original
issue discount) and (ii) the aggregate face amount of all Existing Letters of
Credit and additional Letters of Credit issued on the Closing Date shall not
exceed $40,000,000.
(s) OFAC/ANTI-TERRORISM COMPLIANCE CERTIFICATE. The Administrative
Agent shall have received a certificate substantially in the form of EXHIBIT K
hereto, dated the Closing Date and signed by a Responsible Officer of the
Company, certifying as to the matters set forth in EXHIBIT K.
The documents referred to in this SECTION 4.01 shall be delivered to
the Administrative Agent no later than the Closing Date. The certificates and
opinions referred to in this SECTION 4.01 shall be dated the Closing Date.
Without limiting the generality of the provisions of SECTION 9.04, for
purposes of determining compliance with the conditions specified in this SECTION
4.01, each Lender that has signed
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this Agreement shall be deemed to have consented to, approved or accepted or to
be satisfied with, or waived each document or other matter required thereunder
to be consented to or approved by or acceptable or satisfactory to a Lender
unless the Administrative Agent shall have received notice from such Lender
prior to the proposed Closing Date specifying its objection thereto.
Promptly after the Closing Date occurs, the Administrative Agent shall
notify the Company and the Lenders of the Closing Date, and such notice shall be
conclusive and binding on all parties hereto. If the Closing Date does not occur
before 5:00 P.M. on June 30, 2005, the Commitments shall terminate at the close
of business on such date.
SECTION 4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of
any Lender to make a Loan on the occasion of any Borrowing, and the obligation
of any L/C Issuer to issue (or renew or extend the term of) any Letter of
Credit, is subject to the satisfaction or waiver of the following conditions:
(a) NOTICE. The Company shall have delivered (i) in the case of any
Revolving Loan or Term B Delayed Draw Loan, to the Administrative Agent, an
appropriate Notice of Borrowing, duly executed and completed, by the time
specified in, and otherwise as permitted by, SECTION 2.02, (ii) in the case of
any Letter of Credit, to the L/C Issuer, an appropriate Letter of Credit Request
duly executed and completed in accordance with the provisions of SECTION 2.05,
and (iii) in the case of any Swing Line Loan, to the Swing Line Lender, a Swing
Line Loan Request, duly executed and completed, by the time specified in SECTION
2.02.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Loan Parties in any Loan Document are true and correct in
all material respects at and as if made as of such date except to the extent
they expressly relate to an earlier date.
(c) NO DEFAULT. No Default or Event of Default shall exist or be
continuing either prior to or after giving effect thereto.
The delivery of each Notice of Borrowing, Swing Line Loan Request and
each request for a Letter of Credit shall constitute a representation and
warranty by the Loan Parties of the correctness of the matters specified in
SUBSECTIONS (b), and (c) above.
SECTION 4.03 CONDITIONS PRECEDENT TO FACILITIES INCREASE. No
Facilities Increase shall become effective prior to the satisfaction or waiver
of all of the following conditions precedent:
(a) CERTAIN DOCUMENTS. The Administrative Agent shall have received
on or prior to the Facilities Increase Date for such Facilities Increase each of
the following, each dated such Facilities Increase Date unless otherwise
indicated or agreed to by the Administrative Agent and each in form and
substance reasonably satisfactory to the Administrative Agent:
(i) written commitments duly executed by existing Lenders (or
their Affiliates or Approved Funds) or Eligible Assignees in an aggregate
amount equal to the amount of the proposed Facilities Increase (as agreed
between the Company and the Administrative Agent but in any case not to
exceed, in the aggregate for all such Facilities Increases, the maximum
amount set forth in SECTION 2.10(a)) and, in the case of each such Eligible
Assignee or Affiliate or Approved Fund that is not an existing Lender, an
Assignment and Assumption in form and substance reasonably satisfactory to
the Administrative Agent and duly executed by the Company, the
Administrative Agent and such Affiliate, Approved Fund or Eligible
Assignee;
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(ii) an amendment to this Agreement (including to
SCHEDULE 2.01), effective as of the Facilities Increase Date and executed
by the Company and the Administrative Agent, to the extent necessary to
implement terms and conditions of the Facilities Increase (including
interest rates, fees and scheduled repayment dates and maturity), as agreed
by the Company and the Administrative Agent but, which, in any case, except
for interest, fees, scheduled repayment dates and maturity, shall not be
applied materially differently to the Facilities Increase than to the
Revolving Loans and Term B Loans outstanding immediately prior to the
Facilities Increase;
(iii) certified copies of resolutions of the Board of Directors
of each Loan Party approving the execution, delivery and performance of the
corresponding amendments to this Agreement, if any; and
(iv) a favorable opinion of counsel for the Loan Parties, to
the extent requested by the Administrative Agent if an amendment is
required pursuant to SECTION 4.03(a)(ii) addressed to the Administrative
Agent and the Lenders and in form and substance and from counsel reasonably
satisfactory to the Administrative Agent.
(b) FEE AND EXPENSES PAID. There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent and the
Lenders (including any Person becoming a Lender as part of such Facilities
Increase on such Facilities Increase Date), as applicable, all fees and expenses
(including reasonable out-of-pocket fees, charges and disbursements of counsel)
invoiced with reasonable supporting documentation that are due and payable on or
before the Facilities Increase Date (including all fees described in the Fee
Letters).
(c) CONDITIONS TO EACH LOAN AND LETTER OF CREDIT. (i) The conditions
precedent set forth in SECTION 4.02 shall have been satisfied both before and
after giving effect to such Facilities Increase, (ii) such Facilities Increase
shall be made on the terms and conditions set forth in SECTION 2.10(a) and (iii)
the Company shall be in compliance with SECTION 7.16(a) and (b) on such
Facilities Increase Date for the most recently ended fiscal quarter for which
financial statements are required to be delivered pursuant to SECTION 6.01(a) or
(b) on a Pro-Forma Basis both before and after giving effect to such Facilities
Increase.
(d) LEVERAGE RATIO. At the time of such Facilities Increase, and
after giving effect thereto on a Pro-Forma Basis, the Leverage Ratio does not
exceed 3.75 to 1.0.
(e) YIELD MAINTENANCE. (i) The "all-in yield" of such Facilities
Increase for the Term B Commitments or Revolving Credit Commitments shall not
exceed such all-in yield (on a "marked-to-market" basis) for the Term B Loans or
Revolving Credit Loans outstanding on the Facilities Increase Date (after giving
effect to any increase in the Applicable Margin applicable to the existing Term
B Loans and Revolving Credit Loans becoming effective on the Facilities Increase
Date) and (ii) as of such Facilities Increase Date, the Weighted Average Life to
Maturity of such Facilities Increase for the Term B Loans shall not be shorter
than the remaining Weighted Average Life to Maturity for the Term B Loans
outstanding immediately prior to such Facilities Increase.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and
the Lenders that on and as of the Closing Date and after giving effect to the
Transactions and the making of the Loans and the other financial accommodations
on the Closing Date and on and as of each date as required by SECTIONS 4.02 or
4.03:
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SECTION 5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS.
Each Group Company (i) is duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or
organization, (ii) has all requisite corporate or other organizational power and
authority and all requisite governmental licenses, authorizations, consents and
approvals to (A) own its assets and carry on its business and (B) execute,
deliver and perform its obligations under the Loan Documents to which it is a
party, (iii) is duly qualified and is licensed and in good standing under the
Laws of each jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification or license, and (iv)
is in compliance with all Laws; except in any case referred to in CLAUSE
(ii)(A), (iii) or (iv), to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.
SECTION 5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery
and performance by each Loan Party of each Loan Document to which such Person is
party have been duly authorized by all necessary corporate, partnership, limited
liability company or other organizational action, and do not and will not (i)
contravene the terms of any of such Person's Organization Documents, (ii)
conflict with or result in any breach or contravention of, or the creation of
any Lien (other than Permitted Liens) under, any Contractual Obligation to which
such Person is a party or any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its
property is subject except in any case that such conflict, breach or
contravention would not reasonably be expected individually or in the aggregate
to have a Material Adverse Effect or (iii) violate any Law, except in any case
for such violations could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
SECTION 5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. Except for
filings necessary to perfect the Liens in favor of the Collateral Agent in the
Collateral and to release Liens in respect of the Refinanced Agreements and
other consents, authorizations, notices, approvals and exemptions that have been
obtained prior to or as of the Closing Date or as are scheduled on SCHEDULE 5.03
hereto, no material approval, consent, exemption, authorization, or other action
by, or notice to, or filing with, any Governmental Authority or any other Person
is necessary or required in connection with the execution, delivery or
performance by, or enforcement against, any Loan Party of this Agreement or any
other Loan Document to which it is a party.
SECTION 5.04 BINDING EFFECT. This Agreement has been, and each other
Loan Document, when delivered hereunder, will have been, duly executed and
delivered by each Loan Party that is party thereto. This Agreement constitutes,
and each other Loan Document when so delivered will constitute, a legal, valid
and binding obligation of such Loan Party, enforceable against each Loan Party
that is party thereto in accordance with its terms, except (i) as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and (ii) that rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability (regardless of whether enforcement is sought by
proceedings in equity or at law).
SECTION 5.05 FINANCIAL CONDITION; NO MATERIAL ADVERSE EFFECT.
(a) AUDITED FINANCIAL STATEMENTS. The Audited Financial Statements
(i) were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein; (ii) fairly
present in all material respects the financial condition of the Company and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or
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contingent, of the Company and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.
(b) MATERIAL ADVERSE CHANGE. Since the date of the Audited Financial
Statements, there has been no event or circumstance, either individually or in
the aggregate, that has had or could reasonably be expected to have a Material
Adverse Effect.
(c) PRO-FORMA FINANCIAL STATEMENTS. The consolidated balance sheet of
the Company and its Consolidated Subsidiaries as of December 31, 2004, prepared
on a Pro-Forma Basis giving effect to the consummation of the Transactions, has
heretofore been furnished to each Lender as part of the Pre-Commitment
Information. Such Pro-Forma balance sheet has been prepared in good faith by the
Company, based on the assumptions used to prepare the pro-forma financial
information contained in the Pre-Commitment Information (which assumptions are
believed by the Company on the date hereof and on the Closing Date to be
reasonable and fair in light of current conditions and facts then known to the
Company), is based on the best information available to the Company as of the
date of delivery thereof, accurately reflects all material adjustments required
to be made to give effect to the Transactions and presents fairly in all
material respects on a Pro-Forma basis the estimated consolidated financial
position of the Company and its Consolidated Subsidiaries as of December 31,
2004 assuming that the Transaction had actually occurred on that date.
(d) PROJECTIONS. The projections prepared as part of, and included
in, the Pre-Commitment Information (which include projected balance sheets and
income and cash flow statements on a quarterly basis for the period from the
Closing Date through December 31, 2005 and on an annual basis for each of the
following five fiscal years) have been prepared on a basis consistent with the
financial statements referred to in SUBSECTION (a) above and are based on good
faith estimates and assumptions made by management of the Company. On the
Closing Date, such management believes that such projections are reasonable and
attainable, it being recognized by the Lenders, however, that projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by such projections may differ from the projected
results and that such differences may be material.
(e) POST-CLOSING FINANCIAL STATEMENTS. The financial statements
delivered to the Lenders pursuant to SECTION 6.01(a) and (b), if any, (i) have
been prepared in accordance with GAAP (except as may otherwise be permitted
under SECTION 6.01(a) and (b)) and (ii) present fairly (on the basis disclosed
in the footnotes to such financial statements, if any) in all material respects
the consolidated and consolidating financial condition, results of operations
and cash flows of the Company and its Consolidated Subsidiaries as of the
respective dates thereof and for the respective periods covered thereby.
(f) NO UNDISCLOSED LIABILITIES. Except as reflected in the financial
statements described in SUBSECTION (a) and (b) above, items disclosed on
SCHEDULE 5.05 or SCHEDULE 7.01 hereof and the Indebtedness incurred under this
Agreement, there were as of the Closing Date (and after giving effect to any
Loans made and Letters of Credit issued on such date), no material liabilities
or obligations (excluding current obligations incurred in the ordinary course of
business) with respect to any Group Company of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether or not due and including
obligations or liabilities for taxes, long-term leases and unusual forward or
other long-term commitments).
SECTION 5.06 LITIGATION. Except as specifically disclosed in SCHEDULE
5.06, there are no actions, suits, investigations or legal, equitable,
arbitration or administrative proceedings pending or, to the knowledge of any
Loan Party, threatened against or affecting any Group Company in which there is
a
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reasonable possibility of an adverse decision that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect.
SECTION 5.07 NO DEFAULT. No Group Company is in default under or with
respect to any Contractual Obligation that could reasonably be expected to have
a Material Adverse Effect. No Default has occurred and is continuing or would
result from the consummation of the transactions contemplated by this Agreement.
SECTION 5.08 OWNERSHIP OF PROPERTY; LIENS. Each Group Company has good
and marketable title to, or valid leasehold interests or license in, all its
material properties and assets, except for Permitted Liens and minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted.
SECTION 5.09 ENVIRONMENTAL COMPLIANCE. No Group Company has failed to
comply with any Environmental Law or to obtain, maintain, or comply with any
permit, license or other approval required under any Environmental Law or is
subject to any Environmental Liability in any case which, individually or
collectively, could reasonably be expected to result in a Material Adverse
Effect or has received written notice of any claim with respect to any
Environmental Liability the subject of which notice could reasonably be expected
to have a material Adverse Effect, and no Group Company knows of any basis for
any Environmental Liability against any Group Company that could reasonably be
expected to have a Material Adverse Effect.
SECTION 5.10 INSURANCE. The properties of each Group Company are
insured with financially sound and reputable insurance companies not Affiliates
of the Company, in such amounts (after giving effect to any self-insurance
compatible with the following standards), with such deductibles and covering
such risks as are prudent in the reasonable business judgment of the Company's
officers.
SECTION 5.11 TAXES. Each Group Company has filed, or caused to be
filed, all material federal, state, local and foreign tax returns required to be
filed and paid (i) all amounts of taxes shown thereon to be due (including
interest and penalties) and (ii) all other material taxes, fees, assessments and
other governmental charges (including mortgage recording taxes, documentary
stamp taxes and intangible taxes) owing by it, except for such taxes (A) which
are not yet delinquent, (B) that are being contested in good faith and by proper
proceedings diligently pursued, and against which adequate reserves are being
maintained in accordance with GAAP or (C) unless the failure to make any such
payment could give rise to an immediate right to foreclose on a Lien securing
such amounts (unless proceedings thereto conclusively operate to stay such
foreclosure). No Loan Party knows of any pending investigation of such party by
any taxing authority or proposed tax assessments against any Group Company that
would, if made, have a Material Adverse Effect.
SECTION 5.12 ERISA; FOREIGN PENSION PLANS; EMPLOYEE BENEFIT
ARRANGEMENTS. Except as disclosed in SCHEDULE 5.12:
(a) ERISA.
(i) There are no Unfunded Liabilities in excess of the
Threshold Amount (A) with respect to any member of the Group Companies and
(B) except as would not reasonably be expected to have a Material Adverse
Effect, with respect to any ERISA Affiliate; PROVIDED that for purposes of
this SECTION 5.12(a)(i)(B) only, Unfunded Liabilities shall mean the amount
(if any) by which the projected benefit obligation exceeds the value of the
plan's assets as of its last valuation date using the actuarial assumptions
and methods being used by the plans' actuaries for making such
determination
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(ii) Each Plan, other than a Multiemployer Plan, complies in
all respects with the applicable requirements of ERISA and the Code, and
each Group Company complies in all respects with the applicable
requirements of ERISA and the Code with respect to all Multiemployer Plans
to which it contributes, except to the extent that the failure to comply
therewith would not reasonably be expected to have a Material Adverse
Effect.
(iii) Except as would not reasonably be expected to have a
Material Adverse Effect with respect to clauses (iv) and (viii) of the
definition of ERISA Event, no ERISA Event has occurred or, subject to the
passage of time, is reasonably expected to occur with respect to any Plan
maintained by any member of the Group Companies and, except to the extent
that such ERISA Event would not reasonably be expected to have a Material
Adverse Effect, no ERISA Event has occurred or, subject to the passage of
time, is reasonably expected to occur with respect to any Plan maintained
by an ERISA Affiliate.
(iv) No Group Company: (A) is or has been within the last six
years a party to any Multiemployer Plan; or (B) has completely or partially
withdrawn from any Multiemployer Plan.
(v) If any Group Company or any ERISA Affiliate were to incur
a complete withdrawal (as described in Section 4203 of ERISA) from any
Multiemployer Plan as of the Closing Date, the aggregate withdrawal
liability, as determined under Section 4201 of ERISA, with respect to all
such Multiemployer Plans would not exceed the Threshold Amount.
(vi) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereunder will not involve
any transaction that is subject to the prohibitions of Section 406 of ERISA
or in connection with which taxes could be imposed pursuant to Section
4975(c)(1)(A)-(D) of the Code, for which an exemption under ERISA does not
apply, except as would not reasonably be expected to result in a material
liability.
(vii) No Group Company has any contingent liability with
respect to any post-retirement benefit under a Welfare Plan that could
reasonably be expected to have a Material Adverse Effect.
(b) FOREIGN PENSION PLANS. Each Foreign Pension Plan has been
maintained in material compliance with its terms and with the requirements of
any and all applicable Laws, statutes, rules, regulations and orders and has
been maintained, where required, in good standing with applicable regulatory
authorities except to the extent that the failure to comply therewith would not
reasonably be expected to have a Material Adverse Effect. No Group Company has
incurred any obligation in an amount that would reasonably be expected to have a
Material Adverse Effect in connection with the termination of or withdrawal from
any Foreign Pension Plan.
(c) EMPLOYEE BENEFIT ARRANGEMENTS.
(i) All liabilities under the Employee Benefit Arrangements
are (A) funded to at least the minimum level required by Law or, if higher,
to the level required by the terms governing the Employee Benefit
Arrangements, (B) insured with a reputable insurance company, (C) provided
for or recognized in the financial statements most recently delivered to
the Administrative Agent pursuant to SECTION 6.01 hereof or (D) estimated
in the formal notes to the financial statements most recently delivered to
the Administrative Agent pursuant to SECTION 6.01 hereof, where such
failure to fund, insure provide for, recognize or estimate the liabilities
arising under such arrangements could reasonably be expected to have a
Material Adverse Effect.
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(ii) There are no circumstances which may give rise to a
liability in relation to the Employee Benefit Arrangements which are not
funded, insured, provided for, recognized or estimated in the manner
described in CLAUSE (i) above and which could reasonably be expected to
have a Material Adverse Effect.
(iii) Each Group Company is in compliance with all applicable
Laws, trust documentation and contracts relating to the Employee Benefit
Arrangements, except as would not be expected to have a Material Adverse
Effect.
SECTION 5.13 SUBSIDIARIES; EQUITY INTERESTS. SCHEDULE 5.13 sets forth
a complete and accurate list as of the Closing Date of all Subsidiaries of the
Company. SCHEDULE 5.13 sets forth as of the Closing Date the jurisdiction of
formation of each such Subsidiary, whether each such Subsidiary is a Subsidiary
Guarantor, whether such Subsidiary is a Project Subsidiary, the number of
authorized shares of each class of Equity Interests of each such Subsidiary, the
number of outstanding shares of each class of Equity Interests, the number and
percentage of outstanding shares of each class of Equity Interests of each such
Subsidiary owned (directly or indirectly) by any Person and the number and
effect, if exercised, of all Equity Equivalents of each such Subsidiary. All the
outstanding Equity Interests of each Subsidiary of the Company are validly
issued, fully paid and non-assessable and were not issued in violation of the
preemptive rights of any shareholder and, as of the Closing Date, are owned by
the Company, directly or indirectly, free and clear of all Liens (other than
Permitted Liens and those arising under the Collateral Documents). Other than as
set forth on SCHEDULE 5.13, as of the Closing Date, no such Subsidiary has
outstanding any Equity Equivalents nor does any such Person have outstanding any
rights to subscribe for or to purchase or any options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its Equity Interests.
SECTION 5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC
UTILITY HOLDING COMPANY ACT.
(a) None of the Company and its Subsidiaries is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying "margin stock" within the meaning of
Regulation U. No part of the Letters of Credit or proceeds of the Loans will be
used, directly or indirectly, for the purpose of purchasing or carrying any
"margin stock" within the meaning of Regulation U. If requested by any Lender or
the Administrative Agent, the Company will furnish to the Administrative Agent
and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in Regulation U. No indebtedness being
reduced or retired out of the proceeds of the Loans was or will be incurred for
the purpose of purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation T.
"Margin stock" within the meaning of Regulation U does not constitute more than
25% of the value of the consolidated assets of the Company and its Consolidated
Subsidiaries. None of the transactions contemplated by this Agreement (including
the direct or indirect use of the proceeds of the Loans) will violate or result
in a violation of the Securities Act, the Exchange Act or Regulation T, U or X.
(b) None of the Group Companies is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940, each as amended. In addition, none of the Group
Companies is (i) an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, (ii) controlled by such a
company, or (iii) a "holding company", a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary" of a
"holding company", within the meaning of the Public Utility Holding Company Act
of 1934, as amended.
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SECTION 5.15 DISCLOSURE. No written information or written data
concerning the Company and its Subsidiaries (excluding financial projections,
budgets, estimates, general market data and other forward looking information)
made by any Loan Party in any Loan Document or furnished to the Administrative
Agent or any Lender by or on behalf of any Loan Party in connection with any
Loan Document, when taken as a whole, contains any untrue statement of a
material fact or omits any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
materially misleading in light of the circumstances under which such statements
were made and as of the date furnished; PROVIDED that (i) to the extent any such
statement, information or report therein was based upon or constitutes a
forecast, projection or other forward looking statement, the Company represents
only that it acted in good faith and utilized assumptions believed by it to be
reasonable at the time made (it being understood and agreed that projections as
to future events are not to be viewed as facts or guaranties of future
performance, that actual results during the period or periods covered by such
projections may differ from the projects results and that such differences may
be material and that the Loan Parties make no representation that such
representations will in fact be realized) and (ii) as to statements, information
and reports specified as having been supplied by third parties, other than
Affiliates of the Company or any of its Subsidiaries, the Company represents
only that it is not aware of any material misstatement or omission therein.
SECTION 5.16 COMPLIANCE WITH LAW. Each Group Company is in compliance
with all requirements of Law (including Environmental Laws) applicable to it or
to its properties, except for any such failure to comply which could not
reasonably be expected to cause a Material Adverse Effect. To the knowledge of
the Loan Parties, none of the Group Companies or any of their respective
material properties or assets is subject to or in default with respect to any
judgment, writ, injunction, decree or order of any court or other Governmental
Authority which, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect. As of the Closing Date, except as
disclosed in SCHEDULE 5.16, none of the Group Companies has received any written
communication from any Governmental Authority that alleges that any of the Group
Companies is not in compliance in any material respect with any Law, except for
allegations that have been satisfactorily resolved and are no longer outstanding
or which, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.17 INTELLECTUAL PROPERTY. Except as set forth on SCHEDULE
5.17, the Company and its Subsidiaries own, or possess the right to use, all of
the trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other rights that are reasonably necessary for the
operation of their respective businesses, without conflict with the rights of
any other Person except for those conflicts which 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 infringes in any material respect
upon any rights held by any other Person.
SECTION 5.18 PURPOSE OF LOANS AND LETTERS OF CREDIT. The proceeds of
the Term B Closing Date Loans and any Revolving Loans made on the Closing Date
will be used solely to effect the to refinance other existing Indebtedness of
the Company and its Subsidiaries and to pay fees and expenses incurred in
connection with the transactions contemplated hereby. The proceeds of any Term B
Delayed Draw Loans will be used solely to finance Consolidated Capital
Expenditures and related expenses. The proceeds of the Revolving Loans, Swing
Line Loans and any Term B Loans comprising part of a Facilities Increase made
after the Closing Date will be used solely to provide for the working capital
requirements of the Company and its Subsidiaries and for the general corporate
purposes of the Company and its Subsidiaries, including Permitted Business
Acquisitions and to finance Consolidated Capital Expenditures and Restricted
Payments permitted by SECTION 7.07. The Letters of Credit will be used only for
lawful general corporate purposes, including, for (i) deposits or security
guarantees in the ordinary
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course of business, (ii) to provide support for performance, payment and surety
bonds issued by surety companies to support contracts entered into by the
Company and its Subsidiaries in the ordinary course of business, including,
without limitation, workers compensation insurance and other indemnity
obligations and (iii) such other obligations as the L/C Issuer may agree.
SECTION 5.19 SOLVENCY. After consummation of the Transactions and the
consummation of all financings related thereto, the Loan Parties (on a
consolidated basis) are Solvent.
SECTION 5.20 COLLATERAL DOCUMENTS.
(a) ARTICLE 9 COLLATERAL. Each of the Security Agreement and the
Pledge Agreement is effective to create in favor of the Collateral Agent, for
the ratable benefit of the Finance Parties, a legal, valid and enforceable
security interest in the Collateral described therein and, when financing
statements in appropriate form are filed in the offices specified on SCHEDULE
4.01 to the Security Agreement and the Pledged Collateral is delivered to the
Collateral Agent, each of the Security Agreement and the Pledge Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the grantors thereunder in such of the Collateral in which a
security interest can be perfected under Article 9 of the Uniform Commercial
Code, in each case prior and superior in right to any other Person, other than
with respect to Permitted Liens.
(b) INTELLECTUAL PROPERTY. When financing statements in the
appropriate form are filed in the offices specified on SCHEDULE 4.01 to the
Security Agreement, the Assignment of Patents and Trademarks, substantially in
the form of Exhibit A to the Security Agreement, is filed in the United States
Patent and Trademark Office and the Assignment of Copyrights, substantially in
the form of Exhibit B to the Security Agreement, is filed in the United States
Copyright Office, the Security Agreement shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the grantors
thereunder in the United States patents, trademarks, copyrights, licenses and
other intellectual property rights covered in such Assignments, in each case
prior and superior in right to any other Person (it being understood that
subsequent recordings in the United States Patent and Trademark Office and the
United States Copyright Office may be necessary to perfect a lien on registered
trademarks, trademark applications and copyrights acquired by the Loan Parties
after the Closing Date).
(c) REAL PROPERTY MORTGAGES. The Mortgages are effective to create in
favor of the Collateral Agent, for the ratable benefit of the Finance Parties, a
legal, valid and enforceable Lien on all of the right, title and interest of the
Loan Parties in and to the Mortgaged Properties thereunder and the proceeds
thereof, and when the Mortgages are filed in the offices specified on SCHEDULE
5.20(c), the Mortgages shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such Mortgaged
Properties and the proceeds thereof, in each case prior in right to any other
Person, other than with respect to Permitted Liens.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Company agrees that, until all Senior Credit Obligations (in each
case other than contingent indemnification obligations) have been paid in full:
SECTION 6.01 FINANCIAL STATEMENTS. The Company will furnish, or cause
to be furnished, to the Administrative Agent for further distribution to each of
the Lenders:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available, and in any
event within 120 days after the end of each fiscal year of the Company
(commencing with the fiscal year ending December
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31, 2005), a consolidated and consolidating balance sheet of the Company and its
Consolidated Subsidiaries, as of the end of such fiscal year, and the related
consolidated and consolidating statement of operations and stockholders' equity
and consolidated statement of cash flows for such fiscal year, setting forth in
comparative form consolidated and consolidating figures for the preceding fiscal
year, all such financial statements to be in reasonable form and detail and (in
the case of such consolidated financial statements) audited by independent
certified public accountants of recognized national standing or which are
reasonably acceptable to the Administrative Agent and accompanied by an opinion
of such accountants (which shall not be qualified or limited in any material
respect) to the effect that such consolidated financial statements have been
prepared in accordance with GAAP and present fairly in all material respects the
consolidated financial position and consolidated results of operations and cash
flows of the Company and its Consolidated Subsidiaries in accordance with GAAP
consistently applied (except for changes with which such accountants concur).
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available after the
end of each of the first three fiscal quarters of the Company (commencing with
the fiscal quarter ended June 30, 2005) and, in circumstances where (i) the
financial information required to be delivered pursuant to clause (a) above is
not available and (ii) a dividend is to be paid by the Company pursuant to
SECTION 7.07(iii), then as soon as available after the end of the fourth fiscal
quarter of the Company, and in any event within 45 days after the end of each of
the first three fiscal quarters in each fiscal year of the Company, a
consolidated and consolidating balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such fiscal quarter, together with related
consolidated and consolidating statement of operations and stockholders' equity
and consolidated statement of cash flows for such fiscal quarter and the then
elapsed portion of such fiscal year, setting forth in comparative form
consolidated and consolidating figures for the corresponding periods of the
preceding fiscal year, and accompanied by a certificate of a Responsible Officer
of the Company to the effect that such quarterly financial statements have been
prepared in accordance with GAAP and present fairly in all material respects the
consolidated financial position and consolidated results of operations and cash
flows of the Company and its Consolidated Subsidiaries in accordance with GAAP
consistently applied, subject to changes resulting from normal year-end audit
adjustments and the absence of footnotes required by GAAP.
As to any information contained in materials furnished pursuant to
SECTION 6.02(d), the Company shall not be separately required to furnish such
information under SECTION 6.01(a) or (b), but the foregoing shall not be in
derogation of the obligation of the Company to furnish the information and
materials described in SECTION 6.01(a) or (b) at the times specified therein.
SECTION 6.02 CERTIFICATES; OTHER INFORMATION. The Company will
furnish, or cause to be furnished, to the Administrative Agent for further
distribution to each of the Lenders:
(a) COMPLIANCE CERTIFICATE. At the time of delivery of the financial
statements provided for in SECTIONS 6.01(a) and 6.01(b) above, a Compliance
Certificate signed by a Responsible Officer of the Company (i) demonstrating
compliance with the financial covenants contained in SECTION 7.16 by calculation
thereof as of the end of the fiscal period covered by such financial statements,
(ii) stating that no Event of Default exists, or if any Event of Default does
exist, specifying the nature and extent thereof and what action the Company
proposes to take with respect thereto and (iii) stating whether, since the date
of the most recent financial statements delivered hereunder, there has been any
material change in the GAAP applied in the preparation of the financial
statements of the Company and its Consolidated Subsidiaries, and, if so,
describing such change. At the time such certificate is required to be
delivered, the Company shall promptly deliver to the Administrative Agent, at
the Administrative Agent's Office, information regarding any change in the
Leverage Ratio that would change the then existing Applicable Margin.
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(b) AUDITOR'S REPORTS. Promptly upon receipt thereof, a copy of any
detailed audit reports, management letters or recommendations submitted to the
board of directors (or the audit committee of the board of directors) of any
Group Company by independent accountants in connection with the accounts or
books of any Group Company, or any audit of any of them.
(c) SEC REPORTS. Promptly after the same are available, copies of
each annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Company, and copies of all annual,
regular, periodic and special reports and registration statements which any
Group Company may file or be required to file with the SEC under Section 13 or
15(d) of the Securities Exchange Act of 1934, and not otherwise required to be
delivered to the Administrative Agent pursuant hereto.
(d) ANNUAL BUSINESS PLAN AND BUDGETS. At least 45 days after the end
of each fiscal year of the Company, beginning with the fiscal year ending
December 31, 2005 (i.e., for the year ending December 31, 2006), an annual
business plan and budget of the Company and its Consolidated Subsidiaries
containing, among other things, projected financial statements for the next
fiscal year.
(e) EMPLOYEE BENEFIT REPORTS. Promptly after the same are available,
the most recently prepared actuarial reports in relation to the Plans and
Employee Benefit Arrangements for the time being operated by Group Companies,
and within 30 days of the same becoming available, the most recently prepared
actuarial reports in relation to the Foreign Pension Plans, which are prepared
in order to comply with the then current statutory or auditing requirements
within the relevant jurisdiction other than with respect to Foreign Pension
Plans where the aggregate Unfunded Liabilities of such Foreign Pension Plans are
less than $1,000,000. If requested by the Administrative Agent, the Company will
promptly instruct an actuary to prepare such actuarial reports and deliver those
to the Administrative Agent, if the Administrative Agent has reasonable grounds
for believing that any relevant statutory or auditing requirement within the
relevant jurisdiction is not being complied with and would result in a Material
Adverse Effect. Promptly upon request, the Company shall also furnish the
Administrative Agent and the Lenders with such additional information concerning
any Plan, Foreign Pension Plan or Employee Benefit Arrangement as may be
reasonably requested, including, but not limited to, with respect to any Plans,
copies of each annual report/return (Form 5500 series), as well as all schedules
and attachments thereto required to be filed with the Department of Labor
pursuant to ERISA and the Code, respectively, for each "plan year" (within the
meaning of Section 3(39) of ERISA).
(f) ENVIRONMENTAL REPORTS. Promptly after any Group Company learning
of any of the following, written notice of each of the following:
(i) that any Group Company is or may be liable to any Person
as a result of a release or threatened release that could reasonably be
expected to subject such Loan Party or such Subsidiary to Environmental
Liabilities exceeding the Threshold Amount;
(ii) the receipt by any Group Company of notification that any
real or personal property of such Group Company is or is reasonably likely
to be subject to any Lien securing any Environmental Liability;
(iii) the receipt by any Group Company of any notice of
violation of or potential liability under, or knowledge by such Group
Company that there exists a condition that could reasonably be expected to
result in a violation of or liability under, any Environmental Law, except
for violations and liabilities the consequence of which, in the aggregate,
would not be reasonably likely to subject the Company and its Consolidated
Subsidiaries collectively to Environmental Liabilities exceeding the
Threshold Amount;
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(iv) the commencement of any judicial or administrative
proceeding or investigation alleging a violation of or liability under any
Environmental Law, that, in the aggregate, if adversely determined, would
have a reasonable likelihood of subjecting the Company and its Consolidated
Subsidiaries collectively to Environmental Liabilities exceeding the
Threshold Amount;
(v) any proposed acquisition of stock, assets or real estate,
any proposed leasing of property or any other action by any Group Company
other than those the consequences of which, in the aggregate, do not have a
reasonable likelihood of subjecting the Company and its Consolidated
Subsidiaries collectively to Environmental Liabilities exceeding the
Threshold Amount;
(vi) any proposed action by any Group Company or any proposed
change in Environmental Laws that, in the aggregate, have a reasonable
likelihood of requiring any Group Company to obtain additional
environmental, health or safety Permits or make additional capital
improvements to obtain compliance with Environmental Laws that, in the
aggregate, would have cost $1,000,000 or more or that shall subject the
Company and it Consolidated Subsidiaries to additional Environmental
Liabilities exceeding the Threshold Amount; and
(vii) upon written request by any Lender through the
Administrative Agent, a report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue
identified in any notice or report delivered pursuant to this Agreement.
(g) ADDITIONAL PATENTS, TRADEMARKS AND COPYRIGHTS. At the time of
delivery of the financial statements and reports provided for in SECTION
6.01(a), a report signed by the financial officer of the Company setting forth
(i) a list of registration numbers for all patents, trademark registrations,
service ▇▇▇▇ registrations, registered tradenames and copyright registrations
awarded to the Company or any Domestic Subsidiary since the last day of the
immediately preceding fiscal year of the Company and (ii) a list of all patent
applications, trademark applications, service ▇▇▇▇ applications, trade name
applications and copyright applications submitted by the Company or any Domestic
Subsidiary since the last day of the immediately preceding fiscal year and the
status of each such application, all in such form as shall be reasonably
satisfactory to the Administrative Agent.
(h) DOMESTICATION IN OTHER JURISDICTION. Not less than 30 days after
any change in the jurisdiction of organization of any Loan Party, a copy of all
documents and certificates intended to be filed or otherwise executed to effect
such change.
(i) PROJECT NON-RECOURSE DEBT INSTRUMENTS. Within 30 days of the date
on which any Indebtedness is incurred by a Project Subsidiary in reliance on the
exception provided in SECTION 7.01(xv) for Project Non-Recourse Debt, the
Company will furnish the Administrative Agent with copies of the agreements,
documents and other instruments governing such Indebtedness, together with a
certificate of a Responsible Officer to the effect that such Indebtedness
constitutes Project Non-Recourse Debt and that the issuer thereof is a Project
Subsidiary.
(j) OTHER INFORMATION. With reasonable promptness upon request
therefor, such other information regarding the business, properties or financial
condition of any Group Company as the Administrative Agent or any Senior Credit
Party may reasonably request, which may include such information as any Senior
Credit Party may reasonably determine is necessary or advisable to enable it
either (i) to comply with the policies and procedures adopted by it and its
Affiliates to comply with the Bank Secrecy Act, the U.S. Patriot Act and all
applicable regulations thereunder or (ii) to respond to requests for information
concerning the Company and its Subsidiaries from any governmental,
self-
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regulatory organization or financial institution in connection with its
anti-money laundering and anti-terrorism regulatory requirements or its
compliance procedures under the U.S. Patriot Act, including in each case
information concerning the Company's direct and indirect shareholders and its
use of the proceeds of the Credit Extensions hereunder.
(k) LABELING AND TREATMENT OF CERTAIN INFORMATION. The Company hereby
acknowledges that (i) the Administrative Agent and/or the Joint Lead Arrangers
will make available to the Lenders and the L/C Issuers materials and/or
information provided by or on behalf of the Company hereunder (collectively,
"GROUP COMPANY MATERIALS") by posting the Group Company Materials on IntraLinks
or another similar electronic system (the "PLATFORM") and (ii) certain of the
Lenders and L/C Issuers may be "public-side" Lenders (i.e., Lenders that do not
wish to receive material non-public information with respect to the Group
Companies or their securities) (each, a "PUBLIC LENDER"). The Company hereby
agrees that: (i) all Group Company Materials that are to be made available to
Public Lenders shall be clearly and conspicuously marked "PUBLIC" which, at a
minimum, shall mean that the word "PUBLIC" shall appear prominently on the first
page thereof; (ii) by marking Group Company Materials "PUBLIC," the Company
shall be deemed to have authorized the Administrative Agent, the Joint Lead
Arrangers, the L/C Issuers and the Lenders to treat such Group Company Materials
as not containing any material non-public information with respect to the Group
Companies or their securities for purposes of United States federal and state
securities laws, it being understood that certain of such Group Company
Materials may be subject to confidentiality requirements of SECTION 10.07
hereof; (iii) all Group Company Materials marked "PUBLIC" are permitted to be
made available through a portion of the Platform designated "Public Investor,"
and (iv) the Administrative Agent and the Joint Lead Arrangers shall be entitled
to treat any Group Company Materials that are not marked "PUBLIC" as being
suitable only for posting on a portion of the Platform not designated "Public
Investor". Notwithstanding the foregoing, the Company shall be under no
obligation to ▇▇▇▇ any Group Company Materials "PUBLIC."
Documents required to be delivered pursuant to SECTION 6.01(a) or (b)
or SECTION 6.02(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Company posts such documents, or provides a link thereto on the Company's
website on the Internet at the website address listed on SCHEDULE 10.02; or (ii)
on which such documents are posted on the Company's behalf on an Internet or
Intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); PROVIDED that the Company shall notify (which may be by
facsimile or electronic mail) the Administrative Agent of the posting of any
such documents. Notwithstanding anything contained herein, in every instance the
Company shall be required to provide paper copies of the Compliance Certificates
required by SECTION 6.02(a) to the Administrative Agent. Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by the
Company with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.
SECTION 6.03 NOTICES. The Company will promptly notify the
Administrative Agent:
(i) of the occurrence of any Default or Event of Default;
(ii) of (A) breach or non-performance of, or any default
under, any material Contractual Obligation of the Company or any of its
Subsidiaries, (B) any dispute, litigation, investigation, proceeding or
suspension between the Company or any of its Subsidiaries and any
Governmental Authority, (C) the commencement of, or any material adverse
development in, any litigation or proceeding affecting the Company or any
of its Subsidiaries, including pursuant to
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any applicable Environmental Law, (D) any litigation, investigation or
proceeding affecting any Loan Party and (E) and any other matter, event or
circumstance, in each case of subclauses (A) through (E) to the extent that
the same could reasonably be expected to result in a Material Adverse
Effect;
(iii) of the occurrence of any ERISA Event and of: (A) any
event or condition that constitutes, or is reasonably likely to lead to, an
ERISA Event; or (B) any change in the funding status of any Plan or Foreign
Pension Plan that would reasonably be expected to have a Material Adverse
Effect, together with a description of any such event or condition or a
copy of any such notice and a statement by a Responsible Officer of the
Company briefly setting forth the details regarding such event, condition
or notice and the action, if any, which has been or is being taken or is
proposed to be taken by the Company or one or more other Loan Parties with
respect thereto; or (C) any event or condition that constitutes, or is
reasonably likely to lead to, an event described in SECTION
8.01(h)(iii)-(viii);
(iv) the occurrence of any default or event of default in
respect of any Project Non-Recourse Debt; and
(v) of any material change in accounting policies or
financial reporting practice by the Company or any of its Subsidiaries.
Each notice pursuant to this SECTION 6.03 shall be accompanied by a
statement of a Responsible Officer of the Company setting forth details of the
occurrence referred to therein and stating what action the Company has taken and
proposes to take with respect thereto. Each notice pursuant to SECTION 6.03(a)
shall describe with particularity any and all provisions of this Agreement or
the other Loan Documents that have been breached.
SECTION 6.04 PAYMENT OF OBLIGATIONS. Each of the Group Companies will
pay and discharge (i) all material taxes, assessments and other governmental
charges or levies imposed upon it, or upon its income or profits, or upon any of
its properties, before they shall become more than 90 days delinquent and (ii)
all lawful claims (including claims for labor, materials and supplies) which, if
unpaid, might give rise to a Lien (other than a Permitted Lien) upon any of its
properties; PROVIDED, HOWEVER, that no Group Company shall be required to pay
any such tax, assessment, charge, levy, claim or Indebtedness (A) which is being
contested in good faith by appropriate proceedings and as to which adequate
reserves have been established in accordance with GAAP or (B) the failure to
make any such payment could not reasonably be expected to have a Material
Adverse Effect.
SECTION 6.05 PRESERVATION OF EXISTENCE ETC. Except as a result of or
in connection with a dissolution, merger or disposition of a Subsidiary of the
Company permitted under SECTION 7.04 or SECTION 7.05, each Group Company will:
(i) preserve, renew and maintain in full force and effect its legal existence
and good standing under the Laws of the jurisdiction of its organization; (ii)
take all reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary or desirable in the normal conduct of its business,
except in the case of CLAUSE (i) or (ii) to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect; and (iii)
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.
SECTION 6.06 MAINTENANCE OF PROPERTIES. Each Group Company will: (i)
maintain, preserve and protect all of its material properties and equipment
necessary in the operation of its business in good working order and condition,
ordinary wear and tear and Casualty and Condemnation excepted;
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and (ii) make all necessary repairs thereto and renewals and replacements
thereof except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
SECTION 6.07 MAINTENANCE OF INSURANCE; CERTAIN PROCEEDS.
(a) INSURANCE POLICIES. Each of the Group Companies will at all times
maintain in full force and effect insurance (including worker's compensation
insurance, liability insurance, casualty insurance and business interruption
insurance) in such amounts, covering such risk and liabilities and with such
deductibles or self-insurance retentions as are prudent in the good faith
judgment of the officers of the Company. The Collateral Agent shall be named as
loss payees or mortgagees, as its interest may appear, with respect to all such
property and casualty policies and additional insured with respect to all
business interruption or liability policies (other than worker's compensation,
director and officer liability or other policies in which such endorsements are
not customary), and each provider of any such insurance shall agree, by
endorsement upon the policy or policies issued by it or by independent
instruments furnished to the Collateral Agent, that if the insurance carrier
shall have received written notice from the Collateral Agent of the occurrence
and continuance of an Event of Default, the insurance carrier shall pay all
proceeds otherwise payable to the Company or one or more of its Subsidiaries
under such policies directly to the Collateral Agent and that it will give the
Collateral Agent 10 days' prior written notice before any such policy or
policies shall be altered or canceled, and that no act or default of any Group
Company or any other Person shall affect the rights of the Collateral Agent or
the Lenders under such policy or policies.
(b) LOSS EVENTS. In case of any Casualty or Condemnation with respect
to any property of any Group Company or any part thereof having a fair market
value in excess of the Threshold Amount, the Company shall promptly give written
notice thereof to the Administrative Agent generally describing the nature and
extent of such damage, destruction or taking. In such case, the Company shall,
or shall cause such Group Company to, promptly repair, restore or replace the
property of such Person (or part thereof) which was subject to such Casualty or
Condemnation, at such Person's cost and expense, whether or not the Insurance
Proceeds or Condemnation Award, if any, received on account of such event shall
be sufficient for that purpose; PROVIDED, HOWEVER, that such property need not
be repaired, restored or replaced to the extent the failure to make such repair,
restoration or replacement (i)(A) is desirable to the proper conduct of the
business of such Person in the ordinary course and otherwise in the best
interest of such Person and (B) would not materially impair the rights and
benefits of the Collateral Agent or the Finance Parties under the Collateral
Documents or any other Loan Document or (ii) the failure to repair, restore or
replace the property is attributable to the application of the Insurance
Proceeds from such Casualty or the Condemnation Award from such Condemnation to
payment of the Senior Credit Obligations in accordance with the following
provisions of this SECTION 6.07(b). If Company or any of its Subsidiaries shall
receive any Insurance Proceeds from a Casualty or Condemnation Award from a
Condemnation Award exceeding the Threshold Amount in respect of the single event
or series of related events giving rise thereto, such Person will, if required
pursuant to SECTION 2.09(b)(ii), promptly pay over such proceeds to the
Administrative Agent, for payment of the Senior Credit Obligations in accordance
with SECTION 2.09(b)(ii) and (vi) or, if such funds constitute Reinvestment
Funds, deposit such funds in an account that is subject to a Depository Bank
Agreement.
SECTION 6.08 COMPLIANCE WITH LAWS. Each of the Group Companies will
comply with all requirements of Law applicable to it and its properties to the
extent that noncompliance with any such requirement of Law would reasonably be
expected to have a Material Adverse Effect. Without limiting the generality of
the foregoing, each of the Group Companies will do each of the following as it
relates to any Plan maintained by, or Multiemployer Plan contributed to by, each
of the Group Companies, Foreign Pension Plan or Employee Benefit Arrangement:
(i) maintain each Plan (other than a Multiemployer Plan), Foreign Pension Plan
and Employee Benefit Arrangement in compliance in all material respects
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with the applicable provisions of ERISA, the Code or other Federal, state or
foreign Law; (ii) cause each Plan (other than a Multiemployer Plan) that is
qualified under Section 401(a) of the Code to maintain such qualifications;
(iii) make all required contributions to any Plan subject to Section 412 of the
Code and make all required contributions to Multiemployer Plans; (iv) ensure
that there are no Unfunded Liabilities in excess of the Threshold Amount unless
the aggregate amount of such Unfunded Liabilities is reduced below the Threshold
Amount within a 30-day period; (v) except for the obligations set forth on
SCHEDULE 5.12, not become a party to any Multiemployer Plan; (vi) make all
contributions (including any special payments to amortize any Unfunded
Liabilities) required to be made in accordance with all applicable laws and the
terms of each Foreign Pension Plan in a timely manner; (vii) ensure that all
material liabilities under all Employee Benefit Arrangements are either (A)
funded to at least the minimum level required by law or, if higher, to the level
required by the terms governing the Employee Benefit Arrangements; (B) insured
with a reputable insurance company; or (C) provided for or recognized in the
financial statements most recently delivered to the Administrative Agent under
SECTION 6.01(a) or (b); and (viii) ensure that the material contributions or
premium payments to or in respect of all Employee Benefit Arrangements are and
continue to be promptly paid at no less than the rates required under the rules
of such arrangements and in accordance with the most recent actuarial advice
received in relation to the Employee Benefit Arrangement and generally in
accordance with applicable Law; and (ix) shall use its reasonable efforts to
cause each of its ERISA Affiliates to do each of the items listed in CLAUSES (i)
through (iv) above as it relates to Plans and Multiemployer Plans maintained by
or contributed to by its ERISA Affiliates such that there shall be no liability
to a Group Company by virtue of such ERISA Affiliate's acts or failure to act.
SECTION 6.09 BOOKS AND RECORDS; LENDER MEETING. Each of the Group
Companies will keep books and records of its transactions that are complete and
accurate in all material respects in accordance with GAAP (including the
establishment and maintenance of appropriate reserves).
SECTION 6.10 INSPECTION RIGHTS. Each of the Loan Parties will permit
the Administrative Agent or any representative thereof upon reasonable prior
notice (but not more frequently than once per year unless an Event of Default
shall have occurred and be continuing) to inspect the properties and operations
of such Loan Party, and permit, at any reasonable time during normal business
hours and with reasonable notice (but not more frequently than once per year or
at any time without notice if an Event of Default exists), the Administrative
Agent or any representative thereof to visit any or all of its offices, to
discuss its financial matters with its officers and its independent auditors
(and such Loan Party hereby authorizes such independent auditors to discuss such
financial matters with the Administrative Agent or any representative thereof
provided that a representative of such or any other Loan Party has been given
the opportunity to be present), and during such visit to examine (and, at the
expense of such Loan Party, photocopy extracts from) any of its books or other
corporate records.
SECTION 6.11 USE OF PROCEEDS. The Company will use the proceeds of the
Loans and will use the Letters of Credit solely for the purposes set forth in
SECTION 5.18.
SECTION 6.12 ADDITIONAL LOAN PARTIES; ADDITIONAL SECURITY.
(a) ADDITIONAL SUBSIDIARY GUARANTORS. The Company will take, and will
cause each of its Subsidiaries (other than (i) Project Subsidiaries except to
the extent not prohibited by the terms of the instruments governing any Project
Non-Recourse Debt of such Project Subsidiary, (ii) Foreign Subsidiaries except
to the extent provided in SUBSECTION (d) below and (iii) those Subsidiaries
having limited or negligible assets as of the Closing Date which are to be
merged into, or liquidated or dissolved and their residual assets distributed
to, one or more Loan Parties within 90 days after the Closing Date pursuant to
the Company's reorganization plan disclosed to the Administrative Agent prior to
the Closing Date) to take, such actions from time to time as shall be necessary
to ensure that all Subsidiaries of the
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Company (other than such Project Subsidiaries, Foreign Subsidiaries and other
Subsidiaries) are Subsidiary Guarantors. Without limiting the generality of the
foregoing, if any Group Company shall form or acquire any new Subsidiary, the
Company, as soon as practicable and in any event within 30 days after such
formation or acquisition, will provide the Collateral Agent with notice of such
formation or acquisition setting forth in reasonable detail a description of all
of the assets of such new Subsidiary and will cause such new Subsidiary (other
than any such Project Subsidiary or such Foreign Subsidiary) to:
(i) within 30 days after such formation or acquisition,
execute an Accession Agreement pursuant to which such new Subsidiary shall
agree to become a "Guarantor" under the Subsidiary Guaranty, an "Obligor"
under the Security Agreement and an "Obligor" under the Pledge Agreement
and/or an obligor under such other Collateral Documents as may be
applicable to such new Subsidiary; and
(ii) deliver such proof of organizational authority,
incumbency of officers, opinions of counsel and other documents as is
consistent with those delivered by each Loan Party pursuant to SECTION 4.01
on the Closing Date or as the Administrative Agent or the Collateral Agent
shall have reasonably requested.
(b) ADDITIONAL SECURITY. The Company will cause, and will cause each
of its Subsidiaries (other than (i) Project Subsidiaries except to the extent
not prohibited by the terms of the instruments governing any Project
Non-Recourse Debt of such Project Subsidiary, (ii) Foreign Subsidiaries except
to the extent provided in SUBSECTION (d) below and (iii) those Subsidiaries
having negligible assets as of the Closing Date which are to be merged into, or
liquidated or dissolved and their residual assets distributed to, one or more
other Loan Parties within 90 days after the Closing Date pursuant to the
Company's reorganization plan disclosed to the Administrative Agent prior to the
Closing Date) to cause, all of its owned Real Properties with a fair market
value in excess of $1,000,000 hereafter acquired and all or substantially all
personal property located in the United States to be subject at all times to
perfected and, in the case of owned Real Property, title insured Liens in favor
of the Collateral Agent pursuant to the Collateral Documents or such other
security agreements, pledge agreements, mortgages or similar collateral
documents as the Collateral Agent shall request in its sole reasonable
discretion (collectively, the "ADDITIONAL COLLATERAL DOCUMENTS"). With respect
to any owned Real Property having a fair market value in excess of $1,000,000
acquired by any Loan Party subsequent to the Closing Date, such Person will
cause to be delivered to the Collateral Agent with respect to such Real Property
documents, instruments and other items of the types consistent with those
required by SECTION 4.01, all in form and substance reasonably satisfactory to
the Collateral Agent. In furtherance of the foregoing terms of this SECTION
6.12, the Company agrees to promptly provide the Administrative Agent with
written notice of the acquisition by the Company or any of its Subsidiaries
(other than Project Subsidiaries or Foreign Subsidiaries) of any owned Real
Property having a market value greater than $1,000,000, setting forth in each
case in reasonable detail the location and a description of the asset(s) so
acquired. Without limiting the generality of the foregoing, the Company will
cause, and will cause each of its Subsidiaries that is or becomes a Subsidiary
Guarantor to cause, 100% of the Equity Interests of each of their respective
direct and indirect Domestic Subsidiaries that are not Subsidiaries of Foreign
Subsidiaries (or (x) 65% of such Equity Interests, if such Subsidiary is a
direct Foreign Subsidiary, except as provided in SUBSECTION (d) below, or (y) to
the extent not prohibited by the terms of any Organization Document or other
agreement governing a Permitted Joint Venture, such percentage as is equal to
their respective ratable ownership of all Equity Interests in Permitted Joint
Ventures and non-Wholly-Owned Subsidiaries) to be subject at all times to a
first priority, perfected Lien in favor of the Collateral Agent, subject only to
Permitted Liens described in SECTION 7.02(iii) or (v).
If, subsequent to the Closing Date, a Loan Party shall acquire any
patents, trademark registrations, service ▇▇▇▇ registrations, registered trade
names, copyright registrations or any
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applications related to the foregoing, securities, instruments, chattel paper or
other personal property required to be delivered to the Collateral Agent as
Collateral hereunder or under any of the Collateral Documents, the Company shall
promptly (and in any event within ten Business Days after any Responsible
Officer of any Loan Party acquires knowledge of the same) notify the Collateral
Agent of the same. Each of the Loan Parties shall adhere to the covenants
regarding the location of personal property as set forth in the Collateral
Documents.
All such security interests and mortgages shall be granted pursuant to
documentation consistent with the Collateral Documents executed at Closing and
otherwise reasonably satisfactory in form and substance to the Collateral Agent
and shall constitute valid and enforceable perfected security interests and
mortgages superior to and prior to the rights of all third Persons and subject
to no other Liens except for Permitted Liens. The Additional Collateral
Documents or instruments related thereto shall have been duly recorded or filed
in such manner and in such places as are required by law to establish, perfect,
preserve and protect the Liens in favor of the Collateral Agent required to be
granted pursuant to the Additional Collateral Documents, and all taxes, fees and
other charges payable in connection therewith shall have been paid in full. The
Company shall cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be reasonably
requested by the Collateral Agent to assure itself that this SECTION 6.12(b) has
been complied with.
(c) REAL PROPERTY APPRAISALS. If the Collateral Agent or the Required
Lenders determine that they are required by Law or regulation to have appraisals
prepared in respect of the Real Property of any Group Company constituting
Collateral, the Company shall provide to the Collateral Agent appraisals which
satisfy the applicable requirements set forth in 12 C.F.R., Part 34 - Subpart C
or any successor or similar statute, rule, regulation, guideline or order, and
which shall be in scope, form and substance, and from appraisers, reasonably
satisfactory to the Required Lenders and shall be accompanied by a certification
of the appraisal firm providing such appraisals that the appraisals comply with
such requirements.
(d) SECURITY FROM FOREIGN SUBSIDIARIES. If, following a change that
is reasonably determined to be material by the Administrative Agent in the
relevant Sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, the Company does
not within 90 days after delivery of a request from the Required Lenders deliver
a certificate of a Responsible Officer, with respect to any Foreign Subsidiary
of the Company which has not already had all of the Equity Interests issued by
it pledged pursuant to the Pledge Agreement that (i) a pledge (A) of 65.0% or
more of the total combined voting power of all classes of capital stock of such
Foreign Subsidiary entitled to vote, and (B) of any promissory note issued by
such Foreign Subsidiary to the Company or any of its Domestic Subsidiaries, (ii)
the entering into by such Foreign Subsidiary of a guaranty in form and substance
substantially identical to the Subsidiary Guaranty, (iii) the entering into by
such Foreign Subsidiary of a security agreement in form and substance
substantially identical to the Security Agreement, and (iv) the entering into by
such Foreign Subsidiary of a pledge agreement substantially identical to the
Pledge Agreement, in any such case would cause the undistributed earnings of
such Foreign Subsidiary as determined for United States federal income tax
purposes to be treated as a deemed dividend to such Foreign Subsidiary's United
States parent (or other domestic Affiliate) for United States federal income tax
purposes under Code Section 956 or any similar provision of federal, state or
local law, then, (A) in the case of a failure to deliver the evidence described
in CLAUSE (i) above, that portion of such Foreign Subsidiary's outstanding
capital stock or any promissory notes so issued by such Foreign Subsidiary, in
each case not theretofore pledged pursuant to the Pledge Agreement, shall be
pledged to the Collateral Agent for the benefit of the Finance Parties pursuant
to the Pledge Agreement (or another pledge agreement in substantially identical
form, if needed); (B) in the case of a failure to deliver the evidence described
in CLAUSE (ii) above, such Foreign Subsidiary shall execute and deliver the
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Subsidiary Guaranty (or another guaranty in substantially identical form, if
needed), guaranteeing the Finance Obligations; (C) in the case of a failure to
deliver the evidence described in CLAUSE (iii) above, such Foreign Subsidiary
shall execute and deliver the Security Agreement (or another security agreement
in substantially identical form, if needed), granting to the Collateral Agent,
for the benefit of the Finance Parties, a security interest in all of such
Foreign Subsidiary's assets and securing the Finance Obligations; and (D) in the
case of a failure to deliver the evidence described in CLAUSE (iv) above, such
Foreign Subsidiary shall execute and deliver the Pledge Agreement (or another
pledge agreement in substantially identical form, if needed), pledging to the
Collateral Agent, for the benefit of the Finance Parties, all of the capital
stock and promissory notes owned by such Foreign Subsidiary, in each case to the
extent that entering into the Guaranty, Security Agreement or Pledge Agreement
is permitted by the Laws of the respective foreign jurisdiction and with all
documents delivered pursuant to this SECTION 6.12(d) to be in form, scope and
substance reasonably satisfactory to the Collateral Agent and the Required
Lenders.
(e) COMPLETION OF ACTIONS. The Company agrees that each action
required by this SECTION 6.12 shall be completed as soon as possible, but in no
event later than 90 days after such action is either requested to be taken by
the Collateral Agent or required to be taken by the Company or any of its
Subsidiaries pursuant to the terms of this SECTION 6.12.
SECTION 6.13 INTEREST RATE PROTECTION AGREEMENTS. Within nine months
after the Closing Date, the Company will enter into and thereafter maintain in
full force and effect interest rate swaps, rate caps, collars or other similar
agreements or arrangements designed to hedge the position of the Company with
respect to interest rates at rates and on terms reasonably satisfactory to the
Administrative Agent, taking into account the market conditions, to provide
protection against interest rates on Funded Indebtedness bearing floating
interest rates for a period expiring no earlier than 24 months after the date of
execution and delivery of such agreements with respect to a notional amount of
Funded Indebtedness of the Company and its Subsidiaries such that, after giving
effect thereto, at least 40% of the Funded Indebtedness of the Company and its
Subsidiaries bears fixed interest rates. The Company will promptly deliver
evidence of the execution and delivery of such agreements to the Administrative
Agent.
SECTION 6.14 PROJECT SUBSIDIARIES. The Company will cause, and will
cause each of its Subsidiaries to cause, each of its Subsidiaries which is a
Project Subsidiary to: (i) except as permitted by SECTION 7.09(viii), maintain
books, financial records and bank accounts that are separate and distinct from
the books, financial records and bank accounts of any other person or entity;
(ii) observe appropriate corporate, limited liability company or partnership, as
applicable, procedures and formalities; (iii) except as required by SECTION
6.01, maintain separate annual financial statements prepared in accordance with
GAAP, consistently applied, showing its assets and liabilities separate and
distinct from those of any other person or entity; (iv) not guarantee or become
obligated for the Indebtedness or other obligations of any other Person other
than of another Project Subsidiary or one or more Subsidiaries of such Project
Subsidiary; (v) not hold out its credit as being available to satisfy the
Indebtedness or other obligations of any other Person other than another Project
Subsidiary or one or more Subsidiaries of such Project Subsidiary except to the
extent required or permitted by and pursuant to this Agreement; (vi) hold itself
out as an entity separate and distinct from any other Person (including its
Affiliates) (except that nothing herein shall prohibit the filing of a
consolidated tax return for all Group Companies or the entry by any Group
Company into one or more tax sharing agreements with other Group Companies);
(vii) use reasonable efforts to correct any known misunderstanding regarding its
separate identity; (viii) except as permitted by SECTION 7.09(viii), SECTION
7.06(a)(i) and SECTION 7.06(a)(xvi), not make any loans to the Company or any
Subsidiary of the Company that is not a Project Subsidiary or buy or hold any
Indebtedness issued by the Company or any Subsidiary of the Company that is not
a Project Subsidiary other than one or more Subsidiaries of such Project
Subsidiary; (ix) conduct its own business in its own name; (x) hold all of its
assets in its own name; (xi) maintain an arm's-length relationship with its
Affiliates and enter into transactions with Affiliates only on a commercially
reasonable basis and as
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permitted by SECTION 7.09 pursuant to written documentation (other than to the
extent of Performance Guaranties by the Company or its Subsidiaries); (xii) not
identify itself as a division or department of any other entity, except for tax
purposes; (xiii) conduct transactions between the Project Subsidiary and third
parties only in the name of the Project Subsidiary and as an entity separate and
independent from its Affiliates (other than to the extent of Performance
Guaranties by the Company or its Subsidiaries and as contemplated by SECTION
7.09(viii)); (xiv) allocate fairly and reasonably any overhead for shared office
space; (xv) use separate stationary, invoices and checks; (xvi) cause
representatives, employees and agents of the Project Subsidiary to hold
themselves out to third parties as being representatives, employees or agents,
as the case may be, of the Project Subsidiary to the extent acting for such
Project Subsidiary; (xvii) not acquire or assume the obligations of its
Affiliates other than another Project Subsidiary or one or more Subsidiaries of
such Project Subsidiary; and (xviii) not pay from its own funds the Indebtedness
or other obligations of any kind incurred by an Affiliate other than another
Project Subsidiary or one or more Subsidiaries of such Project Subsidiary.
ARTICLE VII
NEGATIVE COVENANTS
The Company agrees that, until all Senior Credit Obligations (in each
case other than contingent indemnification obligations) have been paid in full:
SECTION 7.01 LIMITATION ON INDEBTEDNESS. None of the Group Companies
will incur, create, assume or permit to exist any Indebtedness or Swap
Obligations except:
(i) Indebtedness of the Company and its Subsidiaries
outstanding on the Closing Date and disclosed on SCHEDULE 7.01
(collectively, the "EXISTING INDEBTEDNESS");
(ii) Indebtedness of the Loan Parties under this Agreement and
the other Loan Documents and Indebtedness of the Group Companies under the
other Finance Documents;
(iii) Purchase Money Indebtedness and Attributable Indebtedness
in respect of Capital Leases and Synthetic Lease Obligations and of the
Company and its Subsidiaries incurred after the Closing Date to finance
Capital Expenditures; PROVIDED that (1) the aggregate amount of all such
Indebtedness does not exceed $40,000,000 at any time outstanding and (2) no
Lien securing such Indebtedness shall extend to or cover any property or
asset of any Group Company other than the asset so financed;
(iv) Indebtedness of the Company or its Subsidiaries secured
by Liens permitted by CLAUSES (xvii), (xviii) and (xix) of SECTION 7.02 and
any other Indebtedness of a Person whose Equity Interests or assets are
acquired in a Permitted Business Acquisition which is acquired or assumed
by the Company or a Subsidiary of the Company in such Permitted Business
Acquisition and any Permitted Refinancing thereof; PROVIDED that (A) such
Indebtedness was not incurred in connection with, or in anticipation of,
the events described in such clauses or such Permitted Business
Acquisition, and (B) such Indebtedness (other than pre-existing
Attributable Indebtedness and Purchase Money Indebtedness) does not
constitute indebtedness for borrowed money;
(v) any Permitted Refinancing of Indebtedness permitted under
CLAUSES (i), (iii) or (iv) above;
(vi) unsecured Subordinated Indebtedness of the Company or any
of its Subsidiaries that is issued to a seller of assets or Person acquired
in a Permitted Business
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Acquisition and any Permitted Refinancing thereof if, immediately prior to
and immediately after giving effect thereto, (A) no Event of Default shall
exist or result therefrom and (B) Company and its Subsidiaries will be in
compliance on a Pro-Forma Basis with the financial covenants set forth in
SECTION 7.16(a) and (b);
(vii) (A) contingent liabilities in respect of any
indemnification, adjustment of purchase price, earn-out, non-compete,
consulting, deferred compensation and similar obligations of the Company
and its Subsidiaries incurred in connection with Permitted Business
Acquisitions, Permitted Joint Ventures and Asset Dispositions and (B)
Indebtedness incurred by the Company or its Subsidiaries in a Permitted
Business Acquisition or Asset Disposition under agreements providing for
earn-outs or the adjustment of the purchase price or similar adjustments;
(viii) Swap Obligations of the Company or any Subsidiary under
Swap Agreements to the extent entered into after the Closing Date in
compliance with SECTION 6.13 or to manage interest rate, foreign currency
exchange rate and commodity pricing risks and not for speculative purposes;
(ix) Indebtedness owed to any Person providing property,
casualty or liability insurance to the Company or any Subsidiary of the
Company, so long as such Indebtedness shall not be in excess of the amount
of the unpaid cost of, and shall be incurred only to defer the cost of,
such insurance for the annual period in which such Indebtedness is incurred
and such Indebtedness shall be outstanding only during such year;
(x) Indebtedness consisting of (1) Guaranty Obligations
incurred (A) by the Company in respect of Indebtedness, leases or other
ordinary course obligations permitted to be incurred by, or obligations in
respect of Permitted Business Acquisitions or Permitted Joint Ventures of,
Wholly-Owned Domestic Subsidiaries of the Company, (B) by Domestic
Subsidiaries of the Company of Indebtedness, leases or other ordinary
course obligations permitted to be incurred by, or obligations in respect
of Permitted Business Acquisitions or Permitted Joint Ventures of, the
Company or Wholly-Owned Domestic Subsidiaries of the Company, (C) by
Foreign Subsidiaries of the Company of Indebtedness, leases or other
ordinary course obligations permitted to be incurred by, or obligations in
respect of Permitted Business Acquisitions or Permitted Joint Ventures of,
Wholly-Owned Foreign Subsidiaries of the Company and (D) by the Company or
any Subsidiary of the Company of Indebtedness, leases or other ordinary
course obligations permitted to be incurred by, Foreign Subsidiaries;
PROVIDED that (x) no Guaranty Obligation permitted under this CLAUSE (x)
may be in respect of Indebtedness, leases or other obligations of any
Project Subsidiary except to the extent a Guaranty Obligation is incurred
by a Project Subsidiary in respect of the Indebtedness, leases or other
obligations of one or more of its Subsidiaries and (y) the aggregate amount
of Guaranty Obligations referred to in this clause (D), together with all
Investments by the Company and its Wholly-Owned Domestic Subsidiaries
permitted under SECTION 7.06(a)(xii), will not exceed $5,000,000 at any one
time outstanding and (2) Performance Guaranties not constituting Guaranty
Obligations incurred by the Company or a Subsidiary consistent with past
practice in connection with contracts entered into by a Subsidiary in the
ordinary course of business.
(xi) inter-company Indebtedness owing to the Company or a
Subsidiary of the Company to the extent permitted by SECTION 7.06(a)(xi) or
(xii);
(xii) Indebtedness of Foreign Subsidiaries incurred on or after
the Closing Date to finance working capital requirements and general
corporate purposes and Permitted Refinancings thereof (determined without
regard to CLAUSE (ii) of the definition thereof) in an
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aggregate principal amount which, when taken together with the then
outstanding principal amount of all Indebtedness of Foreign Subsidiaries
referred to in CLAUSE (i) above, does not exceed the sum of (A) the
aggregate principal amount of all Indebtedness of Foreign Subsidiaries
outstanding on the Closing Date and disclosed on SCHEDULE 7.01 plus (B)
$10,000,000 (or its equivalent in one or more applicable foreign
currencies);
(xiii) (A) Indebtedness of the Company and its Subsidiaries
arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument drawn against insufficient funds in the
ordinary course of business; PROVIDED that (1) such Indebtedness (other
than credit or purchase cards) is extinguished within five Business Days
after receipt of notice of its incurrence and (2) such Indebtedness in
respect of credit or purchase cards in extinguished within 60 days from its
incurrence, and (B) contingent indemnification obligations of the Company
and its Subsidiaries to financial institutions, in each case to the extent
in the ordinary course of business and on terms and conditions which are
within the general parameters customary in the banking industry, entered
into to obtain cash management services or deposit account overdraft
protection services (in amount similar to those offered for comparable
services in the financial industry) or other services in connection with
the management or opening of deposit accounts or incurred as a result of
endorsement of negotiable instruments for deposit or collection purposes;
(xiv) unsecured Indebtedness of the Company and its
Subsidiaries (other than loans or advances that would be in violation of
Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act) owing to any then existing or former
director, officer or employee of the Company or its Subsidiaries or their
respective assigns, estates, heirs or their current or former spouses for
the repurchase, redemption or other acquisition or retirement for value of
any Equity Interest or Equity Equivalent of the Company or its Subsidiaries
held by them in an aggregate principal amount at any time outstanding not
to exceed $2,500,000;
(xv) Project Non-Recourse Debt of one or more Project
Subsidiaries;
(xvi) unsecured senior notes, senior subordinated notes, senior
floating rate notes, senior discount notes or other securities of the
Company having terms, yield, guarantees, covenants, default and
subordination provisions and other terms as are customary for "high yield"
securities issued for cash in a registered public offering or in a private
placement for resale pursuant to Rule 144A under the Securities Act or
otherwise; PROVIDED that (A) any such Indebtedness must constitute
unsecured Subordinated Indebtedness, (B) no Default or Event of Default
shall have occurred and be continuing immediately before and immediately
after giving effect to the incurrence thereof and (C) the Company shall
have delivered to the Administrative Agent a certificate demonstrating
that, upon giving effect on a Pro-Forma Basis to the incurrence of such
Indebtedness and to the concurrent prepayment of the Loans, the Loan
Parties shall be in compliance with the financial covenants set forth in
SECTION 7.16;
(xvii) Sale/Leaseback Transactions permitted by SECTION 7.13;
(xviii) accretion or amortization of original issue discount and
accretion of interest paid in kind, in each case in respect of Indebtedness
otherwise permitted by this SECTION 7.01;
(xix) contingent obligations under or in respect of surety
bonds, appeal bonds, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business in
connection with bids, projects, leases and similar commercial contracts;
and
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(xx) Indebtedness of the Company and its Subsidiaries not
otherwise permitted by this SECTION 7.01 incurred after the Closing Date in
an aggregate principal amount not to exceed $10,000,000 at any time
outstanding; PROVIDED that (A) the documentation with respect to such
Indebtedness shall not contain covenants or default provisions relating to
Company or any Subsidiary of Company that are more restrictive than the
covenants and default provisions contained in the Loan Documents and (B) no
Default or Event of Default shall have occurred and be continuing
immediately before and immediately after giving effect to such incurrence.
SECTION 7.02 RESTRICTION ON LIENS. None of the Group Companies will
create, incur, assume or permit to exist any Lien on any property or assets
(including Equity Interests or other securities of any Person, including any
Subsidiary of the Company) now owned or hereafter acquired by it or on any
income or rights in respect of any thereof, or sign or file or authorize the
filing under the Uniform Commercial Code of any jurisdiction of a financing
statement that names any Group Company as debtor, or sign any security agreement
authorizing any secured party thereunder to file such a financing statement,
except Liens described in any of the following clauses (collectively, "PERMITTED
LIENS"):
(i) Liens existing on the Closing Date and listed on SCHEDULE
7.02 hereto and any modifications, replacements, renewals or extensions
thereof; PROVIDED that (A) the Lien does not extend to any additional
property other than (x) after-acquired property that is affixed or
incorporated into the property covered by such Lien or financed by
Indebtedness permitted under SECTION 7.01 and (y) proceeds and products
thereof and (B) the renewal, extension or modification of the obligations
secured or benefited by such Liens is permitted by SECTION 7.01;
(ii) Liens created by the Collateral Documents;
(iii) Liens for taxes, assessments or governmental charges or
levies not more than 30 days over due or which may be paid without penalty
or that are being contested in good faith and by appropriate proceedings
for which adequate reserves (in the good faith judgment of the management
of the Company) have been established in accordance with GAAP;
(iv) Liens imposed by Law securing the charges, claims,
demands or levies of landlords, carriers, suppliers, warehousemen,
materialmen, workmen, mechanics, carriers and other like Liens imposed by
Law (including without limitation under Article 2 of the UCC) which were
incurred in the ordinary course of business and which (A) are for amounts
not more than 30 days overdue or which may be paid without penalty or (B)
which are being contested in good faith by appropriate proceedings for
which adequate reserves (in the good faith judgment of the management of
the Company) have been established in accordance with GAAP;
(v) Liens (other than any Liens imposed by ERISA or pursuant
to any Environmental Law) not securing Indebtedness or Swap Obligations
incurred or deposits made in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other types of
social security and other similar obligations incurred in the ordinary
course of business;
(vi) Liens securing obligations in respect of surety bonds
(other than appeal bonds), statutory obligations to Governmental
Authorities, tenders, sales, contracts (other than for borrowed money),
bids, leases, government contracts, Performance Guaranties not constituting
Guaranty Obligations, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business for sums
not more than 90 days overdue or being contested in good faith by
appropriate proceedings and for which the Company and its
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Subsidiaries maintain adequate reserves in accordance with GAAP; PROVIDED
that the aggregate amount of the obligations or other liabilities secured
by such Liens, together with the aggregate amount of outstanding deposits
permitted under SECTION 7.06(a)(ix), do not exceed $10,000,000 at any time;
(vii) Liens upon specific items or inventory or other goods and
proceeds of the Company or any of its Subsidiaries securing such Person's
obligations in respect of bankers' acceptances or documentary letters of
credit issued or created for the account of such Person to facilitate the
shipment or storage of such inventory or other goods;
(viii) pledges or deposits of cash and Cash Equivalents securing
deductibles, self-insurance, co-payment, co-insurance, retentions or
similar obligations to providers of insurance in the ordinary course of
business;
(ix) Liens on (A) incurred premiums, dividends and rebates and
other identifiable proceeds therefrom which may become payable under
insurance policies and loss payments which reduce the incurred premiums on
such insurance policies and (B) rights which may arise under State
insurance guarantee funds relating to any such insurance policy, in each
case securing Indebtedness permitted to be incurred pursuant to SECTION
7.01(ix);
(x) Liens arising solely by virtue of any statutory or common
Law provision relating to banker's liens, rights of set-off or similar
rights, in each case incurred in the ordinary course of business;
(xi) licenses, leases or subleases granted to third Persons or
to the Company or its Subsidiaries by the Company and its Subsidiaries in
the ordinary course of business not interfering in any material respect
with the business of any Group Company and not otherwise prohibited by
SECTION 7.05(xiv);
(xii) zoning restrictions, building codes, land use and other
similar Laws and municipal ordinances, easements, rights of way, licenses,
reservations, covenants, conditions, waivers, restrictions on the use of
property or other minor encumbrances or irregularities of title not
securing Indebtedness or Swap Obligations which do not, individually or in
the aggregate, materially impair the use of any property in the operation
or business of the Company or any of its Subsidiaries or the value of such
property for the purpose of such business;
(xiii) Liens arising from precautionary Uniform Commercial Code
financing statements regarding, and any interest or title of a licensor,
lessor or sublessor under, Operating Leases permitted by this Agreement;
(xiv) Liens in favor of licensors, lessors, sublessors, lessees
or sublessees securing Operating Leases or other obligations not
constituting Indebtedness;
(xv) Liens arising from judgments, decrees or attachments (or
securing of appeal bonds with respect thereto) in circumstances not
constituting an Event of Default under SECTION 8.01;
(xvi) Liens securing Indebtedness permitted to be incurred
under SECTION 7.01(i), (iii), (iv) and (v);
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(xvii) any Lien existing on any asset of any Person at the time
such Person becomes a Subsidiary of the Company and not created in
contemplation of such event;
(xviii) any Lien on any asset (other than on the Equity Interests
of one or more Subsidiaries) of any Person existing at the time such Person
is merged or consolidated with or into the Company or a Subsidiary of the
Company and not created in contemplation of such event;
(xix) any Lien existing on any asset (other than on the Equity
Interests of one or more Subsidiaries) prior to the acquisition thereof by
the Company or a Subsidiary of the Company and not created in contemplation
of such acquisition;
(xx) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by
the Company or any of its Subsidiaries in connection with any letter of
intent or purchase agreement with respect to a Permitted Business
Acquisition or a Permitted Joint Venture;
(xxi) Liens on cash and Cash Equivalents securing Swap
Obligations owing to one or more Persons who are not Swap Creditors;
PROVIDED that the aggregate amount of all cash and Cash Equivalents subject
to such Liens may at no time exceed $2,000,000;
(xxii) Liens on any assets or Equity Interests of a Foreign
Subsidiary of the Company securing Indebtedness of such Foreign Subsidiary
incurred pursuant to SECTION 7.01(xii);
(xxiii) Liens securing Sale/Leaseback Transactions permitted
under SECTION 7.13;
(xxiv) Liens on assets of one or more Project Subsidiaries
securing Project Non-Recourse Debt permitted by SECTION 7.01(xv);
(xxv) Liens that might be deemed to exist on assets subject to
a repurchase agreement constituting a Cash Equivalent permitted hereunder,
if such Liens are deemed to exist solely because of the existence of such
repurchase agreement; and
(xxvi) other Liens securing Indebtedness permitted under SECTION
7.01 if the aggregate amount of the obligations or liabilities secured
thereby does not exceed $10,000,000 at any time.
SECTION 7.03 NATURE OF BUSINESS. The Company will not, nor will it
permit any Subsidiary to, engage in any line of business other than the lines of
business conducted by the Company and its Subsidiaries on the date hereof and
any business reasonably related, incidental or ancillary thereto.
SECTION 7.04 CONSOLIDATION, MERGER AND DISSOLUTION. Except in
connection with an Asset Disposition permitted by the terms of SECTION 7.05,
none of the Group Companies will enter into any transaction of merger or
consolidation or liquidate, wind up or dissolve itself or its affairs (or suffer
any liquidations or dissolutions); PROVIDED that:
(i) any Domestic Subsidiary of the Company which is not a
Project Subsidiary may be acquired by, merge with and into, or be
voluntarily dissolved or liquidated into, the Company, so long as the
Company is the surviving corporation of such merger, dissolution or
liquidation;
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(ii) any Domestic Subsidiary of the Company which is not a
Project Subsidiary may be acquired by, merge with and into, or be
voluntarily dissolved or liquidated into, any other Domestic Subsidiary of
the Company, so long as in the case of any such merger, dissolution or
liquidation involving one or more Subsidiary Guarantors, a Subsidiary
Guarantor is the surviving corporation of such merger, dissolution or
liquidation;
(iii) any Foreign Subsidiary of the Company which is not a
Project Subsidiary may be merged with and into, or be voluntarily dissolved
or liquidated into, the Company or any Subsidiary of the Company, so long
as in the case of any such merger, dissolution or liquidation involving one
or more Subsidiary Guarantor, the Company or such Subsidiary Guarantor, as
the case may be, is the surviving corporation of any such merger,
dissolution or liquidation;
(iv) the Company or any Subsidiary of the Company which is not
a Project Subsidiary may merge with any Person which is not a Project
Subsidiary in connection with a Permitted Business Acquisition if (A) in
the case of any such merger involving the Company, the Company shall be the
continuing or surviving corporation in such merger and (B) in the case of
any such merger involving a Subsidiary Guarantor, such Subsidiary Guarantor
shall be the continuing or surviving corporation in such merger or the
continuing or surviving corporation in such merger shall, simultaneously
with the consummation of such merger, become a Subsidiary Guarantor having
all the responsibilities and obligations of the Subsidiary Guarantor so
merged;
(v) any Subsidiary of the Company which is not a Project
Subsidiary may merge with any Person in connection with a Permitted Joint
Venture if in the case of any such merger involving a Subsidiary Guarantor,
such Subsidiary Guarantor shall be the continuing or surviving corporation
in such merger or the continuing or surviving corporation in such merger
shall, simultaneously with the consummation of such merger, become a
Subsidiary Guarantor having all the responsibilities and obligations of the
Subsidiary Guarantor so merged;
(vi) a Project Subsidiary may be acquired by or merged with
another Project Subsidiary and the Equity Interests of one or more Project
Subsidiaries may be acquired by any Group Company; and
(vii) a Foreign Subsidiary may be acquired by or merged with
another Foreign Subsidiary.
In the case of any merger or consolidation permitted by this SECTION 7.04 of any
Subsidiary of the Company which is not a Loan Party into a Loan Party, the Loan
Parties shall cause to be executed and delivered such documents, instruments and
certificates as the Administrative Agent may reasonably request so as to cause
the Loan Parties to be in compliance with the terms of SECTION 6.12 after giving
effect to such transaction. Notwithstanding anything to the contrary contained
above in this SECTION 7.04, no action shall be permitted which results in a
Change of Control.
SECTION 7.05 ASSET DISPOSITIONS. None of the Group Companies will make
any Asset Disposition; PROVIDED that:
(i) any Group Company may sell inventory in the ordinary
course of business;
(ii) any Group Company may make any Asset Disposition to the
Company or any Wholly-Owned Domestic Subsidiary which is not a Project
Subsidiary;
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(iii) the Company and its Subsidiaries may liquidate or sell
Cash Equivalents and Foreign Cash Equivalents;
(iv) the Company or any of its Subsidiaries may dispose of
machinery or equipment which will be replaced or upgraded with machinery or
equipment used or useful in the ordinary course of business of and owned by
such Person;
(v) the Company or any of its Subsidiaries may dispose of
obsolete, worn-out or surplus tangible assets in the ordinary course of
business;
(vi) any Subsidiary of the Company which is not a Project
Subsidiary may sell, lease or otherwise transfer all or substantially all
or any part of its assets (including any such transaction effected by way
of merger or consolidation) to the Company or any Subsidiary Guarantor;
(vii) any Subsidiary that is not a Subsidiary Guarantor may
sell, lease or otherwise transfer all or any part of its assets (including
any such transaction effected by way of merger or consolidation) to any
other Subsidiary that is not a Subsidiary Guarantor;
(viii) the Company or any Subsidiary of the Company may issue
Equity Interests in the Company or such Subsidiary to qualify directors
where required by applicable Law or to satisfy other requirements of
applicable Law with respect to the ownership of Equity Interests in Foreign
Subsidiaries or Nominal Shares for tax considerations;
(ix) any Group Company may transfer assets as a part of the
consideration for Investments in Permitted Joint Ventures;
(x) the Company and its Subsidiaries may transfer trade
fixtures to Foreign Subsidiaries which are not Project Subsidiaries and to
non-Wholly-Owned Domestic Subsidiaries which are not Project Subsidiaries
having an aggregate fair market value not exceeding $2,000,000 in any
fiscal year;
(xi) Asset Dispositions effected by transactions permitted
under SECTION 7.04 shall be permitted;
(xii) any Group Company may lease, as lessor or sublessor, or
license, as licensor or sublicensor, real or personal property in the
ordinary course of business if not otherwise prohibited by CLAUSE (xiv)
below;
(xiii) any Group Company may write-off, discount, sell or
otherwise dispose of defaulted or past due receivables and similar
obligations in the ordinary course of business and not as part of an
accounts receivable financing transaction;
(xiv) any Group Company may, in the ordinary course of
business, license and sublicense Intellectual Property;
(xv) any Project Subsidiary may make Asset Dispositions to any
Group Company;
(xvi) any Foreign Subsidiary may make Asset Dispositions to any
Group Company;
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(xvii) any Group Company may dispose of non-core assets acquired
in Permitted Business Acquisitions;
(xviii) any Group Company may enter into any (A) Sale/Leaseback
Transaction not prohibited by SECTION 7.01 or SECTION 7.13 and (B) any
Interim Purchase Transaction;
(xix) any Group Company may make Asset Dispositions to any
other Group Company or Permitted Joint Venture which is not a Subsidiary
Guarantor where such Asset Disposition constitutes an Investment permitted
by SECTION 7.06(a);
(xx) any Group Company which is not a Subsidiary Guarantor may
make Asset Dispositions to any Loan Party;
(xxi) any Group Company may dispose of (A) core assets acquired
in Permitted Business Acquisitions and (B) the equity or assets comprising
an Investment in one or more Permitted Business Acquisitions or Permitted
Joint Ventures;
(xxii) any Group Company may make Asset Dispositions to
Subsidiaries of the Companies that are not Loan Parties for cash
consideration not less than the then fair market value of the assets
subject to such Asset Disposition (as determined in good faith by the Board
of Directors of the Group Company making such Asset Disposition) if such
Asset Disposition is otherwise in the ordinary course of its business and
on terms and conditions as favorable to it as would be obtainable by it in
a comparable arms'-length transaction with an independent, unrelated third
party; and
(xxiii) any Group Company may make any other Asset Disposition
other than to a Project Subsidiary; PROVIDED that (A) at least 75% of the
consideration therefor is cash or Cash Equivalents; (B) such transaction
does not involve the sale or other disposition of a minority Equity
Interest in any Group Company; (C) the aggregate fair market value of all
assets sold or otherwise disposed of by the Group Companies in all such
transactions in reliance on this CLAUSE (xxiii) shall not exceed
$10,000,000 in any fiscal year of the Company; and (D) no Default or Event
of Default shall have occurred and be continuing immediately before or
immediately after giving effect to such transaction.
Upon consummation of an Asset Disposition permitted under this SECTION 7.05, the
Lien created thereon under the Collateral Documents (but not the Lien on any
proceeds thereof) shall be automatically released, and the Administrative Agent
shall (or shall cause the Collateral Agent to) (to the extent applicable)
deliver to the Company, upon the Company's request and at the Company's expense,
such documentation as is reasonably necessary to evidence the release of the
Collateral Agent's security interests, if any, in the assets being disposed of,
including amendments or terminations of Uniform Commercial Code Financing
Statements, if any, the return of stock certificates, if any, and the release of
any Subsidiary being disposed of in its entirety from all of its obligations, if
any, under the Loan Documents.
SECTION 7.06 INVESTMENTS.
(a) INVESTMENTS. None of the Group Companies will hold, make or
acquire, any Investment in any Person, except the following:
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(i) Investments existing on the date hereof disclosed on
SCHEDULE 7.06 hereto and Investments existing on the date hereof in Persons
which are Subsidiaries on the date hereof;
(ii) the Company or any Domestic Subsidiary of the Company may
invest in cash (including cash held in deposit accounts) and Cash
Equivalents;
(iii) Foreign Subsidiaries of the Company may invest in cash
(including cash held in deposit accounts), Cash Equivalents or Foreign Cash
Equivalents;
(iv) the Company and each Subsidiary of the Company may
acquire and hold receivables, accounts, notes receivable, chattel paper,
payment intangibles and prepaid accounts owing to them, if created or
acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms;
(v) the Company and each Subsidiary of the Company may
acquire and own Investments (including Indebtedness obligations) received
in connection with the settlement of accounts in the ordinary course or in
connection with the bankruptcy or reorganization of suppliers and customers
or in settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(vi) loans and advances by the Company and its Subsidiaries to
employees of the Company and its Subsidiaries for moving and travel and
other similar expenses, in each case in the ordinary course of business, in
an aggregate principal amount not to exceed $2,000,000 at any time
outstanding;
(vii) loans and advances to employees of the Group Companies in
the ordinary course of business (other than loans or advances that would be
in violation of Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act) in an aggregate
principal amount not to exceed $2,000,000 at any one time;
(viii) the Company or any Subsidiary may make deposits in the
ordinary course of business consistent with past practices to secure the
performance of operating leases and payment of utility contracts;
(ix) the Company or any Subsidiary may make good faith
deposits in the ordinary course of business in connection with Permitted
Business Acquisitions or obligations in respect of surety bonds (other than
appeal bonds), statutory obligations to Governmental Authorities, tenders,
sales, contracts (other than for borrowed money), bids, leases, government
contracts, Performance Guaranties not constituting Guaranty Obligations,
performance and return-of-money bonds and other similar obligations
incurred in the ordinary course of business for sums not more than 90 days
overdue or being contested in good faith by appropriate proceedings and for
which the Company and its Subsidiaries maintain adequate reserves in
accordance with GAAP; PROVIDED that the aggregate amount of all outstanding
deposits made pursuant to this CLAUSE (ix), together with the aggregate
amount of the obligations and other liabilities secured by Liens permitted
under SECTION 7.02(vi), shall not at any time exceed $10,000,000;
(x) loans by the Company to officers and employees of the
Company the proceeds of which are used to purchase the Company's Equity
Interests or Equity Equivalents;
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(xi) the Company may make Investments in any of its
Wholly-Owned Domestic Subsidiaries which is not a Project Subsidiary and
any Subsidiary of the Company which is not a Project Subsidiary may make
Investments in the Company or any Wholly-Owned Domestic Subsidiary of the
Company which is not a Project Subsidiary; PROVIDED that (A) each item of
intercompany Indebtedness shall be evidenced by a promissory note (which,
from and after the date which is 90 days after the Closing Date, shall be
substantially in the form of EXHIBIT H hereto, except for those promissory
notes existing on the Closing Date which are issued by Subsidiaries
designated on SCHEDULE 5.13 hereof to be dissolved or reorganized within
twelve months following the Closing Date), (B) each promissory note
evidencing intercompany loans and advances made by a Foreign Subsidiary or
a non-Wholly-Owned Domestic Subsidiary to the Company or a Wholly-Owned
Domestic Subsidiary of the Company shall, from and after the date which is
90 days after the Closing Date, contain the subordination provisions set
forth in EXHIBIT I hereto and (C) each promissory note evidencing
intercompany loans and advances (other than promissory notes held by
Foreign Subsidiaries, except to the extent provided in SECTION 6.12(d))
shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(xii) the Company and its Subsidiaries which are not Project
Subsidiaries may make Investments in any Foreign Subsidiary or any
non-Wholly-Owned Domestic Subsidiary of the Company (A) in the case of
Investments by the Company or any Wholly-Owned Domestic Subsidiary of the
Company, in an aggregate amount together with all Guaranty Obligations
permitted under SECTION 7.01(x)(D) (determined without regard to any
write-downs or write-offs of any such Investments constituting
Indebtedness) at any one time outstanding not exceeding $5,000,000 and (B)
to the extent such Investments arise from the sale of inventory in the
ordinary course of business by the Company or such Subsidiary to such
Foreign Subsidiary or non-Wholly-Owned Domestic Subsidiary for resale by
such Foreign Subsidiary or non-Wholly-Owned Domestic Subsidiary (including
any such Investments resulting from the extension of the payment terms with
respect to such sales); PROVIDED that (A) each item of intercompany
Indebtedness shall be evidenced by a promissory note (which, from and after
the date which is 90 days after the Closing Date, shall be substantially in
the form of EXHIBIT H hereto, except for those promissory notes existing on
the Closing Date which are issued by Subsidiaries designated on SCHEDULE
5.13 hereof to be dissolved or reorganized within twelve months following
the Closing Date) and (B) each promissory note evidencing intercompany
loans and advances (other than promissory notes (x) issued by Foreign
Subsidiaries of the Company to the Company or any of its Domestic
Subsidiaries or (y) held by Foreign Subsidiaries of the Company, in each
case except to the extent provided in SECTION 6.12(d)) shall be pledged to
the Collateral Agent pursuant to the Pledge Agreement;
(xiii) Guaranty Obligations permitted by SECTION 7.01(x);
(xiv) Investments arising out of the receipt by the Company or
any of its Subsidiaries of non-cash consideration for the sale of assets
permitted under SECTION 7.05;
(xv) the Company and its Subsidiaries may make Investments
constituting Permitted Business Acquisitions;
(xvi) after the Closing Date, the Company and its Subsidiaries
which are not Project Subsidiaries may make Investments in Project
Subsidiaries (including by way of designating a Subsidiary which is not a
Project Subsidiary as a Project Subsidiary) in an aggregate amount
(determined without regard to any write-downs or write-offs of any such
Investments constituting Indebtedness but excluding any portion thereof
funded with proceeds of
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a Qualifying Equity Issuance not otherwise utilized for any purpose
specified in CLAUSE (ii) of the definition of "Qualifying Equity Issuance")
at any time outstanding not exceeding $20,000,000;
(xvii) the Company and its Subsidiaries which are not Project
Subsidiaries may make Investments in Permitted Joint Ventures in an
aggregate amount (determined without regard to any write-downs or
write-offs of any such Investments constituting Indebtedness) at any one
time outstanding not exceeding $10,000,000;
(xviii) Project Subsidiaries may make Investments in other
Project Subsidiaries;
(xix) Performance Guaranties not constituting Guaranty
Obligations incurred by the Company or a Subsidiary consistent with past
practice in connection with contracts entered into by a Subsidiary in the
ordinary course of business; and
(xx) the Company and its Subsidiaries may make other
Investments not otherwise permitted by this SECTION 7.06 (determined
without regard to any write-downs or write-offs of any such Investments
constituting Indebtedness but excluding any portion thereof funded with
proceeds of a Qualifying Equity Issuance not otherwise utilized for any
purpose specified in CLAUSE (ii) of the definition of "Qualifying Equity
Issuance") the amount of which is deducted from Available Cash for the
Reference Period in which made pursuant to clause (iv)(H) of the definition
of Available Cash;
PROVIDED that no Group Company may make or own any Investment in Margin Stock in
violation of Regulations T, U or X of the Board of Governors of the Federal
Reserve System.
(b) LIMITATION ON THE CREATION OF SUBSIDIARIES. No Group Company will
establish, create or acquire after the Closing Date any Subsidiary; PROVIDED
that the Company and its Subsidiaries shall be permitted to establish, create or
acquire Subsidiaries so long as (i)) the Investment resulting from such
establishment, creation or acquisition is permitted pursuant to SECTION 7.06(a)
above, (ii) the capital stock or other equity interests of such new Subsidiary
(other than (A) Project Subsidiaries, except to the extent not prohibited by the
terms of the instruments governing any Project Non-Recourse Debt of such Project
Subsidiary, and (B) Foreign Subsidiaries, except to the extent otherwise
required pursuant to SECTION 6.12(d)) is pledged pursuant to, and to the extent
required by, the Pledge Agreement and the certificates representing such
interests, together with transfer powers duly executed in blank, are delivered
to the Collateral Agent, (iii) such new Subsidiary (other than (A) Project
Subsidiaries, except to the extent not prohibited by the terms of the
instruments governing any Project Non-Recourse Debt of such Project Subsidiary,
and (B) Foreign Subsidiaries, except to the extent otherwise required pursuant
to SECTION 6.12(d)) executes the Accession Agreement to the extent required by
SECTION 6.12(b), and (iv) such new Subsidiary, to the extent requested by the
Administrative Agent, takes all other actions required pursuant to SECTION 6.12.
SECTION 7.07 RESTRICTED PAYMENTS, ETC. The Company will not, nor will
it permit any Subsidiary to, declare or make, or agree to pay or make, directly
or indirectly, any Restricted Payment or incur any obligation (contingent or
otherwise) to do so, except:
(i) the Company may declare and pay dividends or make
distributions with respect to its capital stock solely in additional shares
of its common stock;
(ii) the Subsidiaries of the Company may declare and pay
dividends ratably with respect to their capital stock;
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(iii) so long as no Default shall have occurred and be
continuing, the Company may pay current dividends on its capital stock,
repurchase its capital stock and make other Restricted Payments in an
amount not exceeding Cumulative Distributable Cash of the Company and its
Subsidiaries calculated as of the date of such Restricted Payment; PROVIDED
that, after June 30, 2005, no Restricted Payment shall be made under this
CLAUSE (iii) prior to the date five days after the Company shall have
delivered to the Administrative Officer a certificate signed on its behalf
by a Responsible Officer stating that the amount of such Restricted Payment
to be made pursuant to this CLAUSE (iii) and demonstrating that the sum of
(A) Cumulative Distributable Cash through the most recent fiscal quarter as
of which the financial statements under SECTION 6.01 (which may be
unaudited if the financial statements required under SECTION 6.01(a) are
not available) and a Compliance Certificate required to be delivered with
such financial statements have been delivered to the Lenders MINUS (B) the
amount of such Restricted Payment, is greater than zero; and
(iv) so long as no Default shall have occurred and be
continuing, the Company may pay current dividends on its capital stock,
repurchase capital stock and make other Restricted Payments up to but not
exceeding the Available Equity Issuance Amount as of the date of such
Restricted Payment, PROVIDED; that at the time of any Restricted Payment
under this CLAUSE (iv), the Company shall deliver a certificate signed on
its behalf by a Responsible Officer stating the amount of the Restricted
Payment being made pursuant to this CLAUSE (iv) and setting forth a
calculation of the Available Equity Issuance Amount immediately before and
immediately after such Restricted Payment.
SECTION 7.08 PREPAYMENTS OF INDEBTEDNESS, ETC.
(a) AMENDMENTS OF INDEBTEDNESS AGREEMENTS. None of the Group
Companies will, or will permit any of their respective Subsidiaries to, after
the issuance thereof, amend, waive or modify (or permit the amendment, waiver or
modification of) any of the material terms, agreements, covenants or conditions
of or applicable to any Subordinated Indebtedness issued by such Group Company
if such amendment, waiver or modification would add or change any material
terms, agreements, covenants or conditions in any manner materially adverse to
any Group Company, or shorten the final maturity or average life to maturity or
require any payment to be made sooner than originally scheduled or increase the
interest rate applicable thereto or change any material subordination provision
thereof in a manner that would be materially adverse to the interests of the
Lenders under the Loan Documents.
(b) PROHIBITION AGAINST CERTAIN PAYMENTS OF PRINCIPAL AND INTEREST OF
OTHER INDEBTEDNESS. Upon the occurrence of, and during the continuation of, an
Event of Default, none of the Group Companies will (i) directly or indirectly,
redeem, purchase, prepay, retire, defease or otherwise acquire for value, prior
to scheduled maturity, scheduled repayment or scheduled sinking fund payment,
any Subordinated Indebtedness, or set aside any funds for such purpose, whether
such redemption, purchase, prepayment, retirement or acquisition is made at the
option of the maker or at the option of the holder thereof, and whether or not
any such redemption, purchase, prepayment, retirement or acquisition is required
under the terms and conditions applicable to such Indebtedness or (ii) release,
cancel, compromise or forgive in whole or in part any Indebtedness evidenced by
any Intercompany Note.
SECTION 7.09 TRANSACTIONS WITH AFFILIATES. None of the Group Companies
will engage in any transaction or series of transactions with any Affiliate,
other than:
(i) transactions permitted by SECTION 7.05;
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(ii) transactions expressly permitted by SECTION 7.01, SECTION
7.04, SECTION 7.05, SECTION 7.06 or SECTION 7.07;
(iii) normal compensation, indemnities and reimbursement of
reasonable expenses of officers and directors, including stock incentive
and option plans and agreements relating thereto;
(iv) other transactions with officers, directors, the Sponsor
and its Affiliates in existence on the Closing Date to the extent disclosed
in SCHEDULE 7.09;
(v) any transaction entered into among the Company and its
Domestic Subsidiaries which are not Project Subsidiaries or among such
Domestic Subsidiaries which are not Project Subsidiaries;
(vi) transactions entered into among Project Subsidiaries;
(vii) transactions entered into among Foreign Subsidiaries;
(viii) a centralized cash management system among Group
Companies in the ordinary course of business consistent with past practice
if the transactions and flows of funds related to the use of the
centralized cash management system between and among the Company and its
Subsidiaries (Project Subsidiaries or Non-Project Subsidiaries) are
recorded and identifiable on a net cash basis with offsetting entries on
the applicable Company or Subsidiary books and records; and
(ix) other transactions which are engaged in by the Company or
any of its Subsidiaries in the ordinary course of its business on terms and
conditions as favorable to such Person as would be obtainable by it in a
comparable arms'-length transaction with an independent, unrelated third
party.
SECTION 7.10 FISCAL YEAR; ORGANIZATIONAL AND OTHER DOCUMENTS. None of
the Group Companies will (i) change its fiscal year or (ii) enter into any
amendment, modification or waiver to its articles or certificate of
incorporation, bylaws (or analogous organizational documents) or any agreement
entered into by it with respect to its Equity Interests, in each case as in
effect on the Closing Date except for changes that do not materially and
adversely affect the rights and privileges of the Lenders. The Company will
cause the Group Companies to promptly provide the Agent with copies of all
amendments to the foregoing documents and instruments as in effect as of the
Closing Date.
SECTION 7.11 RESTRICTIONS WITH RESPECT TO INTERCORPORATE TRANSFERS.
None of the Group Companies will create or otherwise cause or permit to exist
any encumbrance or restriction which prohibits or otherwise restricts (i) the
ability of any such Subsidiary to (A) make Restricted Payments or pay any
Indebtedness owed to the Company or any Subsidiary of the Company, (B) pay
Indebtedness or other obligations owed to any Loan Party, (C) make loans or
advances to the Company or any Subsidiary of the Company, (D) transfer any of
its properties or assets to the Company or any Subsidiary of the Company or (E)
act as a Subsidiary Guarantor and pledge its assets pursuant to the Loan
Documents or any renewals, refinancings, exchanges, refundings or extensions
thereof or (ii) the ability of the Company or any Subsidiary of the Company to
create, incur, assume or permit to exist any Lien upon its property or assets
whether now owned or hereafter acquired to secure the Finance Obligations,
except in each case for prohibitions or restrictions existing under or by reason
of:
(i) this Agreement and the other Loan Documents;
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(ii) applicable Law;
(iii) restrictions in effect on the date of this Agreement
contained in the agreements governing the Existing Indebtedness and in any
agreements governing Permitted Refinancing thereof if such restrictions are
no more restrictive than those contained in the agreements governing the
Indebtedness being renewed, extended or refinanced;
(iv) customary non-assignment provisions with respect to
leases or licensing agreements entered into by the Company or any of its
Subsidiaries, in each case entered into in the ordinary course of business;
(v) any restriction or encumbrance with respect to any asset
of the Company or any of its Subsidiaries or a Subsidiary of the Company
imposed pursuant to an agreement which has been entered into for the sale
or disposition of such assets or all or substantially all of the capital
stock or assets of such Subsidiary, so long as such sale or disposition is
permitted under this Agreement;
(vi) customary provisions in joint venture agreements and
other similar agreements entered into in the ordinary course of business in
connection with Permitted Joint Ventures;
(vii) restrictions applicable solely to one or more Project
Subsidiaries contained in agreements governing Project Non-Recourse Debt;
and
(viii) Liens permitted under SECTION 7.02 and any documents or
instruments governing the terms of any Indebtedness or other obligations
secured by any such Liens; PROVIDED that such prohibitions or restrictions
apply only to the assets subject to such Liens.
SECTION 7.12 LIMITATIONS ON CERTAIN ACTIVITIES. The Company will not,
nor will it permit any Subsidiary to, engage in any line of business other than
the lines of business conducted by the Company and its Subsidiaries on the date
hereof and any business reasonably related, incidental or ancillary thereto.
SECTION 7.13 SALE AND LEASEBACK TRANSACTIONS. None of the Group
Companies will directly or indirectly become or remain liable as lessee or as
guarantor or other surety with respect to any lease (whether an Operating Lease
or a Capital Lease) of any property (whether real, personal or mixed), whether
now owned or hereafter acquired, except pursuant to an Interim Purchase
Transaction, (i) which such Group Company has sold or transferred or is to sell
or transfer to any other Person which is not a Group Company or (ii) which such
Group Company intends to use for substantially the same purpose as any other
property which has been sold or is to be sold or transferred by such Group
Company to another Person which is not a Group Company in connection with such
lease; PROVIDED, HOWEVER, that the Group Companies may enter into such
transactions with respect to personal property, in an aggregate amount of up to
$5,000,000 in sales proceeds during the term of this Agreement, if (i) after
giving effect on a Pro-Forma Basis to any such transaction the Company shall be
in compliance with all other provisions of this Agreement, including SECTION
7.01 and SECTION 7.02, (ii) the gross cash proceeds of any such transaction are
at least equal to the fair market value of such property (as determined by the
Board of Directors, whose determination shall be conclusive if made in good
faith) and (iii) the Net Cash Proceeds are forwarded to the Administrative Agent
as set forth in SECTION 2.09(b)(ii) to the extent required therein.
SECTION 7.14 ADDITIONAL NEGATIVE PLEDGES. None of the Group Companies
will enter into, assume or become subject to any agreement prohibiting or
otherwise restricting the creation or
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assumption of any Lien upon its properties or assets, whether now owned or
hereafter acquired, or requiring the grant of any security for an obligation if
security is given for some other obligation, except (i) pursuant to this
Agreement and the other Loan Documents, (ii) pursuant to any document or
instrument governing Capital Lease Obligations or Purchase Money Indebtedness
incurred pursuant to SECTION 7.01(iii) if any such restriction contained therein
relates only to the asset or assets acquired in connection therewith, (iii)
pursuant to any document or instrument solely applicable to a Project Subsidiary
governing Project Non-Recourse Debt, (iv) pursuant to an agreement which has
been entered into by the Company or any of its Subsidiaries for the sale or
disposition of any assets of the Company or such Subsidiary or of any Subsidiary
of the Company if such restriction contained therein relates only to the
Subsidiary or its assets which is the subject of the sale provided for therein,
(v) pursuant to a joint venture or other similar agreement entered into in the
ordinary course of business in connection with Permitted Joint Ventures so long
as any such restriction contained therein relates only to the assets of, or the
interest of the Company and its Subsidiaries in, such Permitted Joint Venture,
(vi) customary provisions restricting the assignment of rights under contracts
entered into in the ordinary course of business, consistent with past practice
and pertinent to excluded contracts and excluded equipment, (vii) customary
restrictions on cash or other deposits or net worth imposed by customers or
contracts entered into in the ordinary course and (viii) any restrictions
governing Existing Indebtedness and Permitted Refinancings.
SECTION 7.15 IMPAIRMENT OF SECURITY INTERESTS. None of the Group
Companies will (i) intentionally take or omit to take any requested action which
action or omission might or would materially impair the security interests in
favor of the Collateral Agent with respect to the Collateral or (ii) grant to
any Person (other than the Collateral Agent pursuant to the Collateral
Documents) any interest whatsoever in the Collateral, except for Permitted
Liens.
SECTION 7.16 FINANCIAL COVENANTS.
(a) LEVERAGE RATIO. The Leverage Ratio on the last day of each fiscal
quarter ended during any period set forth below will not be greater than the
ratio set forth below opposite such fiscal quarter:
FISCAL QUARTER ENDED RATIO
----------------------------------------------
6/30/05 through 12/31/06 4.50 to 1.0
3/31/07 through 9/30/07 4.25 to 1.0
12/31/07 and thereafter 4.00 to 1.0
(b) INTEREST COVERAGE RATIO. The Interest Coverage Ratio on the last
day of each fiscal quarter, commencing with the fiscal quarter ending June 30,
2005, in each case for the period of four consecutive fiscal quarters of the
Company then ending and taken as a single accounting period, will not be less
than 3.50 to 1.0.
(c) FIXED CHARGE COVERAGE RATIO. The Fixed Charge Coverage Ratio on
the last day of each fiscal quarter ending during any period set forth below, in
each case for the period of four consecutive fiscal quarters of the Company then
ending and taken as a single accounting period, will not be less than the ratio
set forth below opposite such fiscal quarter:
FISCAL QUARTER ENDED RATIO
----------------------------------------------
6/30/05 through 12/31/06 1.65 to 1.0
3/31/07 and thereafter 2.00 to 1.0
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SECTION 7.17 NO OTHER "DESIGNATED SENIOR DEBT". The Company will not,
nor will it permit any Subsidiary to, designate, or permit the designation of,
any Indebtedness (other than under this Agreement and the other Finance
Documents) as "Designated Senior Indebtedness" or any other similar term for the
purpose of the definition of the same or the subordination provisions contained
in any indenture or other agreement governing any Subordinated Indebtedness
permitted under SECTION 7.01.
ARTICLE VIII
DEFAULTS
SECTION 8.01 EVENTS OF DEFAULT. An Event of Default shall exist upon
the occurrence of any of the following specified events or conditions (each an
"EVENT OF DEFAULT"):
(a) PAYMENT. Any Loan Party shall:
(i) default in the payment when due (whether by scheduled
maturity, acceleration or otherwise) of any principal of any of the Loans
or of any L/C Disbursement; or
(ii) default, and such default shall continue for five or more
Business Days, in the payment when due of any interest on the Loans, or of
any fees or other amounts owing hereunder, under any of the other Loan
Documents or in connection herewith.
(b) REPRESENTATIONS. Any representation or warranty made or deemed to
be made by any Loan Party herein, or in any of the other Loan Documents, or in
any statement or certificate delivered or required to be delivered pursuant
hereto or thereto shall prove untrue in any material respect on the date as of
which it was made or deemed to have been made.
(c) COVENANTS. Any Loan Party shall:
(i) default in the due performance or observance of any term,
covenant or agreement contained in SECTIONS 6.10, 6.11, 6.12, 6.13, or
ARTICLE VII;
(ii) default in the due performance or observance by it of any
term, covenant or agreement contained in ARTICLE VI (other than those
referred to in SUBSECTION (a) or (c)(i) of this SECTION 8.01) and such
default shall continue unremedied for a period of twenty (20) Business Days
after the earlier of a Responsible Officer of a Loan Party becoming aware
of such default or notice thereof given by the Administrative Agent; or
(iii) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in SUBSECTION (a)
or (c)(i) or (ii) of this SECTION 8.01) contained in this Agreement and
such default shall continue unremedied for a period of 30 days after the
earlier of an executive officer of a Loan Party becoming aware of such
default or notice thereof given by the Administrative Agent.
(d) OTHER LOAN DOCUMENTS. (i) Any Loan Party shall default in the due
performance or observance of any term, covenant or agreement in any of the other
Loan Documents the consequence of which is to adversely affect the ability of
the Loan Parties to perform their material obligations under the Loan Documents
taken as a whole and such default shall continue unremedied for a period of 30
days after the earlier of an executive officer of a Loan Party becoming aware of
such default or notice thereof given by the Administrative Agent, (ii) except
pursuant to the terms thereof, any Loan Document shall fail in any material
respect to be in full force and effect or any Loan Party shall so assert or
(iii) except pursuant to the terms thereof, any Loan Document shall fail in any
material respect to give the
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Administrative Agent, the Collateral Agent and/or the Lenders the security
interests, liens, rights, powers and privileges purported to be created thereby.
(e) CROSS-DEFAULT.
(i) any Group Company other than a Project Subsidiary (A)
fails to make payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), regardless of amount, in
respect of any Indebtedness or Guaranty Obligation (other than in respect
of (x) Indebtedness outstanding under the Loan Documents, (y) Swap
Agreements and (z) Project Non-Recourse Debt) having an aggregate principal
amount (including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount, (B) fails to perform or
observe any other condition or covenant, or any other event shall occur or
condition shall exist, under any agreement or instrument relating to any
such Indebtedness or Guaranty Obligation, in the case of each of CLAUSES
(A) and (B) if the effect of such failure, event or condition is to cause,
or to permit, with or without the giving of notice or lapse of all
applicable grace periods or both, the holder or holders or beneficiary or
beneficiaries of such Indebtedness or Guaranty Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, such Indebtedness to be declared to be due and payable prior to
its stated maturity, or such Guaranty Obligation to become payable, or cash
collateral in respect thereof to be demanded or (C) shall be required by
the terms of such Indebtedness or Guaranty Obligation to offer to prepay or
repurchase such Indebtedness or the primary Indebtedness underlying such
Guaranty Obligation (or any portion thereof) prior to the stated maturity
thereof;
(ii) any Group Company other than a Project Subsidiary fails
to pay, within 30 days after the date such obligation arises, any
reimbursement, indemnification or similar obligation in an aggregate amount
exceeding the Threshold Amount relating to any performance or surety bond
or completion guarantee as to which the issuing or providing party or
parties have made payment under the documentation relating thereto (except
only to the extent that the existence of any such default is being
contested by such Group Company in good faith and by appropriate
proceedings and appropriate reserves have been made in respect of such
default); or
(iii) there occurs under any Swap Agreement or Swap Obligation
an Early Termination Date (as defined in such Swap Agreement) resulting
from (A) any event of default under such Swap Agreement as to which any
Group Company is the Defaulting Party (as defined in such Swap Agreement)
or (B) any Termination Event (as so defined) as to which any Group Company
is an Affected Party (as so defined), and, in either event, the Swap
Termination Value owed by a Group Company as a result thereof is greater
than the Threshold Amount and such Group Company fails to pay when due
after applicable grace periods.
(f) INSOLVENCY EVENTS. (i) Any Group Company other than a Project
Subsidiary shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any Debtor Relief Law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to authorize
any of the foregoing or (ii) an involuntary case or other proceeding shall be
commenced against any Group Company other than a Project Subsidiary seeking
liquidation, reorganization or other relief with respect to it or its debts
under any Debtor Relief Law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of
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it or any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60 days, or any
order for relief shall be entered against any Group Company other than a Project
Subsidiary under the federal bankruptcy laws as now or hereafter in effect.
(g) JUDGMENTS. One or more judgments, orders, decrees or arbitration
awards is entered against any Group Company involving in the aggregate a
liability (to the extent not covered by independent third-party insurance or an
indemnity from a credit-worthy third party as to which the insurer or
indemnitor, as applicable, does not dispute coverage), as to any single or
related series of transactions, incidents or conditions, in excess of the
Threshold Amount, and the same shall not have been discharged, vacated or stayed
pending appeal within 30 days after the entry thereof.
(h) ERISA. (i) An ERISA Event occurs which has resulted or could
reasonably be expected to result in liability of any Group Company or any ERISA
Affiliate in an aggregate amount in excess of the Threshold Amount, (ii) there
shall exist an amount of Unfunded Liabilities, individually or in the aggregate,
for all Plans and Foreign Pension Plans (excluding for purposes of such
computation any Plans and Foreign Pension Plans with respect to which assets
exceed benefit liabilities), in an aggregate amount in excess of the Threshold
Amount, (iii) any Foreign Pension Plan is not in substantial compliance with all
applicable pension benefits and tax laws, (iv) any contribution required to be
made in accordance with any applicable law or the terms of any Foreign Pension
Plan has not been made; (v) any event has occurred or condition exists with
respect to any Foreign Pension Plan that has resulted or could result in any
Foreign Pension Plan being ordered or required to be wound up in whole or in
part pursuant to any applicable laws or having any applicable registration
revoked or refused for the purposes of any applicable pension benefits or tax
laws or being placed under the administration of the relevant pension benefits
regulatory authority or being required to pay any taxes or penalties under
applicable pension benefits and tax laws; (vi) an order has been made or notice
has been given pursuant to any applicable pension benefits and tax laws in
respect of any Foreign Pension Plan requiring any person to take or refrain from
taking any action in respect thereof or that there has been a contravention of
any such applicable laws; (vii) an event has occurred or a condition exists that
has resulted or could result in any Group Company being required to pay, repay
or refund any amount other than contributions required to be made or expenses
required to be paid in the ordinary course) to or on account of any Foreign
Pension Plan or a current or former member thereof; or (viii) an event has
occurred or a condition exists that has resulted or could result in a payment
being made out of a guarantee fund established under the applicable pension
benefits laws in respect of a Foreign Pension Plan; and which, with respect to
all the events and obligations described in the preceding CLAUSES (iii) through
(viii) of this SECTION 8.01(h), would reasonably be expected to have a Material
Adverse Effect.
(i) GUARANTIES. Any Guaranty given by any Loan Parties or any
provision thereof shall, except pursuant to the terms thereof, cease to be in
full force and effect, or any Guarantor thereunder or any Person acting by or on
behalf of such guarantor shall deny or disaffirm such Guarantor's obligations
under such Guaranty.
(j) IMPAIRMENT OF COLLATERAL. Any security interest purported to be
created by any Collateral Document shall cease to be, or shall be asserted by
any Group Company not to be, a valid, perfected, Lien (except as otherwise
expressly provided in such Collateral Document) in the securities, assets or
properties covered thereby, other than in respect of assets and properties
which, individually and in the aggregate, are not material to the Group
Companies taken as a whole or in respect of which the failure of the security
interests in respect thereof to be valid, perfected first priority security
interests will not in the reasonable judgment of the Collateral Agent have a
Material Adverse Effect on the rights and benefits of the Lenders under the Loan
Documents taken as a whole.
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(k) OWNERSHIP. A Change of Control shall occur.
SECTION 8.02 ACCELERATION; REMEDIES. Upon the occurrence of and during
the continuation of an Event of Default, and at any time thereafter unless and
until such Event of Default has been cured by the Company or waived in writing
by the Required Lenders (or the Lenders as may be required pursuant to SECTION
10.01), the Administrative Agent (or the Collateral Agent, as applicable) shall,
upon the request and direction of the Required Lenders, by written notice to the
Company, take any of the following actions without prejudice to the rights of
the Agents or any Lender to enforce its claims against the Loan Parties except
as otherwise specifically provided for herein:
(a) TERMINATION OF COMMITMENTS. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(b) ACCELERATION OF LOANS. Declare the unpaid principal of and any
accrued interest in respect of all Loans, any reimbursement obligations arising
from drawings under Letters of Credit and any and all other indebtedness or
obligations of any and every kind (other than contingent indemnification
obligations) owing by a Loan Party to any of the Lenders hereunder to be due
whereupon the same shall be immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Loan Parties.
(c) CASH COLLATERAL. Direct the Company to pay (and the Company
agrees that upon receipt of such notice, or upon the occurrence of an Event of
Default under SECTION 8.01(f), it will immediately pay) to the Collateral Agent
additional cash, to be held by the Collateral Agent, for the benefit of the
Lenders, in a cash collateral account as additional security for the L/C
Obligations in respect of subsequent drawings under all then outstanding Letters
of Credit in an amount equal to 102% of the maximum aggregate amount which may
be drawn under all Letters of Credits then outstanding.
(d) ENFORCEMENT OF RIGHTS. Enforce any and all rights and interests
created and existing under the Loan Documents, including, without limitation,
all rights and remedies existing under the Collateral Documents, all rights and
remedies against a Guarantor and all rights of set-off.
(e) ENFORCEMENT RIGHTS VESTED SOLELY IN ADMINISTRATIVE AGENT AND
COLLATERAL AGENT. The Lenders agree that this Agreement may be enforced only by
the action of the Administrative Agent, acting upon the instructions of the
Required Lenders, and, with respect to the Collateral, the Collateral Agent, and
that no other Finance Party shall have any right individually to seek to enforce
any Loan Document or to realize upon the security to be granted hereby.
Notwithstanding the foregoing, if an Event of Default specified in
SECTION 8.01(f) shall occur, then the Commitments shall automatically terminate,
all Loans, all reimbursement obligations under Letters of Credit, all accrued
interest in respect thereof and all accrued and unpaid fees and other
indebtedness or obligations owing to the Lenders hereunder and under the other
Loan Documents shall immediately become due and payable and the obligation of
the Company to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without the giving of any notice or
other action by the Administrative Agent or the Lenders, which notice or other
action is expressly waived by the Loan Parties.
SECTION 8.03 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
(a) PRIORITY OF DISTRIBUTIONS. The Company hereby irrevocably waives
the right to direct the application of any and all payments in respect of its
Finance Obligations and any proceeds of Collateral after the occurrence and
during the continuance of an Event of Default and agrees that,
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notwithstanding the provisions of SECTIONS 2.09(b) and 2.14, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent, the Collateral Agent or any
Finance Party on account of amounts then due and outstanding under any of the
Loan Documents or any Swap Agreement or in respect of the Collateral shall be
paid over or delivered in respect of its Finance Obligations as follows:
FIRST, to pay interest on and then principal of any portion of
the Loans that the Administrative Agent may have advanced on behalf of any
Lender for which the Administrative Agent has not then been reimbursed by
such Lender or the Company;
SECOND, to pay interest on and then principal of any Swing Line
Loan;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including reasonable attorneys' fees) of the Administrative Agent
or the Collateral Agent in connection with enforcing the rights of the
Finance Parties under the Finance Documents, including all expenses of sale
or other realization of or in respect of the Collateral, including
reasonable compensation to the agents and counsel for the Collateral Agent,
and all expenses, liabilities and advances incurred or made by the
Collateral Agent in connection therewith, and any other obligations owing
to the Collateral Agent in respect of sums advanced by the Collateral Agent
to preserve the Collateral or to preserve its security interest in the
Collateral;
FOURTH, to the payment of all reasonable out-of-pocket costs and
expenses (including reasonable attorneys' fees) of (i) each of the Lenders
(including any L/C Issuer in its capacity as such) in connection with
enforcing its rights under the Loan Documents or otherwise with respect to
the Senior Credit Obligations owing to such Lender and (ii) each Swap
Creditor in connection with enforcing any of its rights under the Swap
Agreements or otherwise with respect to the Swap Obligations owing to such
Swap Creditor;
FIFTH, to the payment of all of the Senior Credit Obligations
consisting of accrued fees and interest;
SIXTH, except as set forth in CLAUSES FIRST through FIFTH above,
to the payment of the outstanding Senior Credit Obligations and Swap
Obligations owing to any Finance Party, Pro-Rata, as set forth below, with
(i) an amount equal to the Senior Credit Obligations being paid to the
Collateral Agent (in the case of Senior Credit Obligations owing to the
Collateral Agent) or to the Administrative Agent (in the case of all other
Senior Credit Obligations) for the account of the Lenders or any Agent,
with the Collateral Agent, each Lender and the Agents receiving an amount
equal to its outstanding Senior Credit Obligations, or, if the proceeds are
insufficient to pay in full all Senior Credit Obligations, its Pro-Rata
Share of the amount remaining to be distributed, and (ii) an amount equal
to the Swap Obligations being paid to the trustee, paying agent or other
similar representative (each a "REPRESENTATIVE") for the Swap Creditors,
with each Swap Creditor receiving an amount equal to the outstanding Swap
Obligations owed to it by the Loan Parties or, if the proceeds are
insufficient to pay in full all such Swap Obligations, its Pro-Rata Share
of the amount remaining to be distributed;
SEVENTH, to the payment of the surplus, if any, to whomever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied
in the numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Finance Parties shall receive an amount
equal to its Pro-Rata Share of amounts available to be applied pursuant to
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CLAUSES "FOURTH", "FIFTH" and "SIXTH" above; and (iii) to the extent that any
amounts available for distribution pursuant to CLAUSE "SIXTH" above are
attributable to the issued but undrawn amount of outstanding Letters of Credit,
such amounts shall be held by the Collateral Agent in a cash collateral account
and applied (x) first, to reimburse the L/C Issuer from time to time for any
drawings under such Letters of Credit and (y) then, following the expiration of
all Letters of Credit, to all other obligations of the types described in
CLAUSES "SIXTH" above in the manner provided in this SECTION 8.03.
(b) PRO-RATA TREATMENT. For purposes of this SECTION 8.03, "PRO-RATA
SHARE" means, when calculating a Finance Party's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Finance Party's Senior
Credit Obligations or Swap Obligations, as the case may be, and the denominator
of which is the then outstanding amount of all Senior Credit Obligations or Swap
Obligations, as the case may be. When payments to the Finance Parties are based
upon their respective Pro-Rata Shares, the amounts received by such Finance
Parties hereunder shall be applied (for purposes of making determinations under
this SECTION 8.03 only) (i) first, to their Senior Credit Obligations and (ii)
second, to their Swap Obligations. If any payment to any Finance Party of its
Pro-Rata Share of any distribution would result in overpayment to such Finance
Party, such excess amount shall instead be distributed in respect of the unpaid
Senior Credit Obligations or Swap Obligations, as the case may be, of the other
Finance Parties, with each Finance Party whose Senior Credit Obligations or Swap
Obligations, as the case may be, have not been paid in full to receive an amount
equal to such excess amount multiplied by a fraction the numerator of which is
the unpaid Senior Credit Obligations, Swap Obligations or Secondary Obligations,
as the case may be, of such Finance Party and the denominator of which is the
unpaid Senior Credit Obligations or Swap Obligations, as the case may be, of all
Finance Parties entitled to such distribution.
(c) DISTRIBUTIONS WITH RESPECT TO LETTERS OF CREDIT. Each of the
Finance Parties agrees and acknowledges that if (after all outstanding Loans and
Reimbursement Obligations with respect to Letters of Credit have been paid in
full) the Lenders are to receive a distribution on account of undrawn amounts
with respect to Letters of Credit issued (or deemed issued) under the
Credit
Agreement, such amounts shall be deposited in the L/C Cash Collateral Account as
cash security for the repayment of Senior Credit Obligations owing to the
Lenders as such. Upon termination of all outstanding Letters of Credit, all of
such cash security shall be applied to the remaining Senior Credit Obligations
of the Lenders. If there remains any excess cash security, such excess cash
shall be withdrawn by the Collateral Agent from the L/C Cash Collateral Account
and distributed in accordance with SECTION 8.03(a) hereof.
(d) DISTRIBUTIONS OF FUNDS ON DEPOSIT IN A PREPAYMENT ACCOUNT.
Notwithstanding the foregoing provisions of this SECTION 8.03, amounts on
deposit in a Prepayment Account for any Class of Loans shall be applied upon the
occurrence of any Event of Default, first, to pay Loans of such Class and,
second, after all the Loans of such Class have been paid in full, to the other
Senior Credit Obligations in the manner provided in this SECTION 8.03.
(e) RELIANCE BY COLLATERAL AGENT. For purposes of applying payments
received in accordance with this SECTION 8.03, the Collateral Agent shall be
entitled to rely upon (i) the Administrative Agent under the
Credit Agreement
and (ii) the Representative, if any, for the Swap Creditors for a determination
(which the Administrative Agent, each Representative for any Swap Creditor and
the Finance Parties agree (or shall agree) to provide upon request of the
Collateral Agent) of the outstanding Senior Credit Obligations and Swap
Obligations owed to the Agents, the Lenders or the Swap Creditors, as the case
may be. Unless it has actual knowledge (including by way of written notice from
a Swap Creditor or any Representatives thereof) to the contrary, the Collateral
Agent, in acting hereunder, shall be entitled to assume that no Swap Agreements
are in existence.
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ARTICLE IX
AGENCY PROVISIONS
SECTION 9.01 APPOINTMENT AND AUTHORITY. Each of the Lenders and each
L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as
the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the benefit of
the Administrative Agent, the Lenders and the L/C Issuers, and neither the
Company nor any other Loan Party shall have rights as a third party beneficiary
of any of such provisions.
SECTION 9.02 RIGHTS AS A LENDER. The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent and the term "LENDER" or "LENDERS" shall,
unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Company or any
Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefore to the
Lenders.
SECTION 9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall
not have any duties or obligations except those expressly set forth herein and
in the other Loan Documents. Without limiting the generality of the foregoing,
the Administrative Agent:
(i) shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents that
the Administrative Agent is required to exercise as directed in writing by
the Required Lenders (or such other number of percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
PROVIDED that the Administrative Agent shall not be required to take any
action that, in its opinion of its counsel, may expose the Administrative
Agent to liability or that is contrary to any Loan Document or applicable
Law; and
(iii) shall not, except as expressly set forth herein and in
the other Loan Documents, have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Company
or any of its Affiliates that is communicated to or obtained by the Person
serving as the Administrative Agent or any of its Affiliates in any
capacity.
The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the Administrative Agent shall believe in good faith shall be necessary, under
the circumstances as provided in SECTIONS 10.01 and 8.02) or (ii) in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Company, a
Lender or a L/C Issuer.
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The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in ARTICLE IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
SECTION 9.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine and
to have been signed, sent or otherwise authenticated by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any
condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or a
L/C Issuer, the Administrative Agent may presume that such condition is
satisfactory to such Lender or L/C Issuer unless the Administrative Agent shall
have received notice to the contrary from such Lender or L/C Issuer prior to the
making of such Loan or the issuance of such Letter of Credit. The Administrative
Agent may consult with legal counsel (who may be counsel for the Company),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
SECTION 9.05 DELEGATION OF DUTIES. The Administrative Agent may
perform any and all of its duties and exercise its rights and powers hereunder
or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
SECTION 9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative
Agent may at any time give notice of its resignation to the Lenders, the L/C
Issuers and the Company. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, in consultation with the Company, to
appoint a successor, which shall be a bank with an office in the United States,
or an Affiliate of any such bank with an office in the United States. If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuers, appoint a successor Administrative
Agent meeting the qualifications set forth above; PROVIDED that if the
Administrative Agent shall notify the Company and the Lenders that no qualifying
Person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (i) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders or
the L/C Issuers under any of the Loan Documents, the retiring Administrative
Agent shall continue to hold such collateral security until such time as a
successor Administrative Agent is appointed) and (ii) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and L/C Issuer
directly, until such time as the Required Lenders
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appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Company to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After the retiring Administrative
Agents' resignation hereunder and under the other Loan Documents, the provisions
of this Article and SECTION 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as an L/C Issuer and as the
Swing Lien Lender. Upon the acceptance of a successor's appointment as
Administrative Agent hereunder, (i) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of Bank of America
as a retiring L/C Issuer and as the Swing Line Lender, (ii) Bank of America, as
a retiring L/C Issuer and as the Swing Line Lender, shall be discharged from all
of its duties and obligations in such capacities hereunder or under the other
Loan Documents and (iii) a successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, issued by Bank of America
outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America as a retiring L/C issuer to effectively assume
the obligations of Bank of America as issuer of such Letters of Credit.
SECTION 9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender and L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
SECTION 9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding , none of the Agents or the Joint Lead Arrangers listed on the
cover page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, a Lender or a L/C Issuer hereunder.
SECTION 9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Company)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(i) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Senior Credit Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent
(including any
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claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 2.09 and 10.04) allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under SECTIONS 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Senior Credit Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
SECTION 9.10 COLLATERAL AND GUARANTY MATTERS. The Lenders irrevocably
authorize the Administrative Agent, at its option and in its discretion:
(i) to release any Lien on any property granted to or held by
the Administrative Agent under any Finance Document (A) upon termination of
the Commitments and payment in full of all Finance Obligations (other than
contingent indemnification obligations and, but only to the extent not then
due and payable, Swap Obligations and Cash Management Obligations) and the
expiration or termination of all Letters of Credit, (B) that is sold or to
be sold as part of or in connection with any sale permitted hereunder or
under any other Finance Document, or (C) subject to SECTION 10.01, if
approved, authorized or ratified in writing by the Required Lenders;
(ii) to subordinate any Lien on any property granted to or
held by the Administrative Agent or either Collateral Agent under any Loan
Document to the holder of any Lien on such property that is permitted by
SECTION 7.02(xvi) and (xxiii); and
(iii) to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this SECTION
9.10.
SECTION 9.11 RELATED OBLIGATIONS. The benefit of the Loan Documents
and of the provisions of this Agreement relating to the Collateral shall extend
to and be available in respect of any Cash Management Obligations and to any
Swap Obligations permitted hereunder from time to time owing to one or more Swap
Creditors (collectively, "RELATED OBLIGATIONS") solely on the condition and
understanding, as among the Collateral Agent and all Finance Parties, that (i)
the Related Obligations shall be entitled to the benefit of the Loan Documents
and the Collateral to the extent expressly set forth
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in this Agreement and the other Loan Documents and to such extent the
Administrative Agent and the Collateral Agent shall hold, and have the right and
power to act with respect to, the Guaranty and the Collateral on behalf of and
as agent for the holders of the Related Obligations, but the Administrative
Agent and the Collateral Agent are otherwise acting solely as agent for the
Lenders and the L/C Issuers and shall have no fiduciary duty, duty of loyalty,
duty of care, duty of disclosure or other obligation whatsoever to any holder of
Related Obligations, (ii) all matters, acts and omissions relating in any manner
to the Guaranty, the Collateral, or the omission, creation, perfection,
priority, abandonment or release of any Lien, shall be governed solely by the
provisions of this Agreement and the other Loan Documents and no separate Lien,
right, power or remedy shall arise or exist in favor of any Finance Party under
any separate instrument or agreement or in respect of any Related Obligation,
(iii) each Finance Party shall be bound by all actions taken or omitted, in
accordance with the provisions of this Agreement and the other Loan Documents,
by the Administrative Agent, the Collateral Agent and the Required Lenders, as
applicable, each of whom shall be entitled to act at its sole discretion and
exclusively in its own interest given its own Commitments and its own interest
in the Loans, L/C Obligations and other Senior Credit Obligations to it arising
under this Agreement or the other Loan Documents, without any duty or liability
to any Swap Creditor or holder of Cash Management Obligations or as to any
Related Obligation and without regard to whether any Related Obligation remains
outstanding or is deprived of the benefit of the Collateral or becomes unsecured
or is otherwise affected or put in jeopardy thereby, (iv) no holder of Related
Obligations and no other Finance Party (except the Lenders to the extent set
forth in this Agreement) shall have any right to be notified of, or to direct,
require or be heard with respect to, any action taken or omitted in respect of
the Collateral or under this Agreement or the Loan Documents and (v) no holder
of any Related Obligation shall exercise any right of setoff, banker's lien or
similar right except to the extent provided in SECTION 10.08 and then only to
the extent such right is exercised in compliance with SECTION 2.13.
SECTION 9.12 AGENTS' FEES; JOINT LEAD ARRANGERS FEES. The Company
shall pay to the Administrative Agent for its own account, to the Collateral
Agent for its own account and to Banc of America Securities LLC and ▇▇▇▇▇▇
Brothers Inc., in their capacities as Joint Lead Arrangers, for their own
accounts, fees in the amounts and at the times previously agreed upon between
the Company and the Administrative Agent, the Collateral Agent and such Joint
Lead Arrangers, respectively, in each case with respect to this Agreement, the
other Loan Documents and the transactions contemplated hereby and thereby.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 AMENDMENTS, ETC.
(a) AMENDMENTS GENERALLY. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
any Loan Party therefrom, shall in any event be effective unless the same shall
be in writing and (i) in the case of any such waiver or consent, signed by the
Required Lenders (or by the Administrative Agent with the consent of the
Required Lenders), (ii) in the case of any amendment necessary to implement the
terms of a Facilities Increase in accordance with the terms of SECTION 2.10(a)
hereof, by the Company and the Administrative Agent and (iii) in the case of any
other amendment, by the Required Lenders (or by the Administrative Agent with
the consent of the Required Lenders) and the Company, and each such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; PROVIDED that the Administrative Agent and the Company
may, with the consent of the other, amend, modify or supplement this Agreement
and any other Loan Document to cure any ambiguity, typographical error, defect
or inconsistency if such amendment, modification or supplement does not
adversely affect the rights of any Agent, any Lender or any L/C Issuer.
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(b) AMENDMENTS AND WAIVERS PERTINENT TO AFFECTED LENDERS.
Notwithstanding PARAGRAPH (a) above and in addition to any other consent that
may be required thereunder, no amendment, waiver or consent shall:
(i) extend or increase the Commitment of any Lender without
the written consent of such Lender;
(ii) postpone any date fixed by this Agreement or any other
Loan Document for any payment (excluding mandatory prepayments) of
principal, interest, fees or other amounts due to the Lenders (or any of
them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;
(iii) reduce the principal of, or the rate of interest
specified herein on, any Loan or unreimbursed L/C Disbursement, or (subject
to SUBSECTION (c) below) any fees or other amounts payable hereunder or
under any other Loan Document without the written consent of each Lender
directly affected thereby; PROVIDED, HOWEVER, that only the consent of the
Required Lenders shall be necessary (A) to amend the definition of "Default
Rate" or to waive any obligation of the Company to pay interest or Letter
of Credit Fees at the Default Rate or (B) to amend any financial covenant
hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or any
unreimbursed L/C Disbursement or to reduce any fee payable hereunder;
(iv) change SECTION 2.13 or SECTION 8.03 in a manner that
would alter the pro-rata sharing of payments required thereby without the
written consent of each Lender;
(v) change any provision of this Section or the definition of
"Required Lenders" or "Required Revolving Lenders" or any other provision
hereof specifying the percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender which is
a Lender of the applicable Class so specified, in each case other than as
part of a Facilities Increase for which the conditions specified in SECTION
4.03 are satisfied;
(vi) release the Company or substantially all of the other
Loan Parties from its or their obligations under the Loan Documents without
the written consent of the Required Lenders (PROVIDED that the
Administrative Agent may, without the consent of any Lender, release any
Guarantor (or all or substantially all of the assets of a Guarantor) that
is sold or transferred in compliance with SECTION 7.05);
(vii) release all or substantially all of the Collateral
securing the Senior Credit Obligations hereunder without the written
consent of each Lender (PROVIDED that the Collateral Agent may, without
consent from any other Lender, release any Collateral that is sold or
transferred by a Loan Party in compliance with SECTION 7.05 or released in
compliance with SECTION 9.01(b)); and
(viii) affect the rights or duties of any L/C Issuer under this
Agreement or any Letter of Credit Request relating to any Letter of Credit
issued or to be issued by it, without the prior written consent of such L/C
Issuer; affect the rights or duties of the Swing Line Lender under this
Agreement, without the prior written consent of the Swing Line Lender;
(iii) affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document, without the prior written consent of
the Administrative Agent.
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(c) FEE LETTER AMENDMENT; DEFAULTING LENDERS. Notwithstanding
anything to the contrary herein, (i) the Fee Letter may be amended, or rights
and privileges thereunder waived, in a writing executed only by the parties
thereto and (ii) no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.
Each Lender and each holder of a Note shall be bound by any waiver,
amendment or modification authorized by this SECTION 10.01 regardless of whether
its Note shall have been marked to make reference therein, and any consent by
any Lender or holder of a Note pursuant to this SECTION 10.01 shall bind any
Person subsequently acquiring a Note from it, whether or not such Note shall
have been so marked.
SECTION 10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) NOTICES GENERALLY. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in SUBSECTION (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Company, the Administrative Agent, a L/C Issuer
or the Swing Line Lender, to the address, telecopier number, electronic
mail address or telephone number specified for such Person on SCHEDULE
10.02; and
(ii) if to any other Lender, to the address, telecopier
number, electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in SUBSECTION (b) below, shall be effective as provided in such
SUBSECTION (b).
(b) ELECTRONIC COMMUNICATIONS. Notices and other communications to
the Lenders and the L/C Issuers hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent, PROVIDED that the
foregoing shall not apply to notices to any Lender or L/C Issuer pursuant to
ARTICLE II if such Lender or L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Company
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
PROVIDED that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), PROVIDED that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for
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the recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing CLAUSE
(i) of notification that such notice or communication is available and
identifying the website address therefor.
(c) THE PLATFORM. THE PLATFORM IS PROVIDED "AS IS" AND "AS
AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE GROUP COMPANY MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE GROUP COMPANY
MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE GROUP COMPANY MATERIALS OR THE PLATFORM.
In no event shall the Administrative Agent or any of its Related Parties
(collectively, "AGENT PARTIES") have any liability to the Borrower, any Lender,
any L/C Issuer or any other Person for losses, claims, damages, liabilities or
expenses of any kind (whether in tort, contract or otherwise) arising out of any
Loan Party's or the Administrative Agent's transmission of Group Company
Materials through the Internet, except to the extent that such losses, claims,
damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final an nonappealable judgment to have resulted from the
gross negligence, bad faith or willful misconduct of such Agent Party; PROVIDED,
HOWEVER, that in no event shall any Agent Party have any liability to the
Borrower, any Lender, any L/C Issuer or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or actual
damages).
(d) CHANGE OF ADDRESS, ETC. Each of the Company, its Subsidiaries,
the Administrative Agent, each L/C Issuer and the Swing Line Lender may change
its address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other communications
hereunder by notice to the Company, the Administrative Agent, the L/C Issuers
and the Swing Line Lender. In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.
(e) RELIANCE BY ADMINISTRATIVE AGENT, L/C ISSUERS AND LENDERS. The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic notices) purportedly given by or on behalf of the
Company or any other Loan Party even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof. The Company shall
indemnify the Administrative Agent, each L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of the Company. All telephonic notices to and other communications
with the Administrative Agent may be recorded by the Administrative Agent, and
each of the parties hereto hereby consents to such recording.
SECTION 10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender
or L/C issuer or by the Administrative Agent to exercise, and no delay by any
such Person in exercising, 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.
The rights, remedies, powers and
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privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by Law.
SECTION 10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) COSTS AND EXPENSES. The Company agrees to pay (i) all reasonable
out-of-pocket documented and invoiced expenses incurred by the Administrative
Agent and its Affiliates (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof, (ii) all reasonable documented and invoiced
out-of-pocket expenses incurred by any L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred
by the Administrative Agent, any Lender and any L/C Issuer (including the fees,
charges and disbursements of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel for the Administrative Agent, any Lender and the L/C Issuer), in
connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under
this Section, or (B) in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit; PROVIDED that the Company shall not be required to reimburse the legal
fees and expenses of more than one outside counsel (in addition to any special
counsel and up to one local counsel in each applicable local jurisdiction) for
all Persons indemnified under this SUBSECTION (a); PROVIDED, FURTHER, that the
Company shall not be required to pay the fees and expenses of third party
advisors to the Administrative Agent, any Lender or the L/C Issuer (which shall
not include counsel otherwise authorized hereunder) without the prior written
consent of the Company (such consent not to be unreasonably withheld or
delayed); PROVIDED, FURTHER that, so long as no Event of Default has occurred
and is continuing, the fees, charges and disbursements incurred by counsel for
the Administrative Agent in connection with the administration of, or any
amendments, modifications or waivers to, the Loan Documents shall not exceed
$5,000 in any given month without the prior written consent of the Company and
no amounts in excess of $5,000 per month shall be payable by the Company if no
such prior written consent has been obtained.
(b) INDEMNIFICATION. The Company shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender each L/C Issuer, and each Related
Party of any of the foregoing Persons (each such Person being called an
"INDEMNITEE") against, and hold each Indemnitee harmless from, any and all
(subject to clause (d) below) losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any
Indemnitee and one financial advisor for all Indemnitees), incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by the
Company or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or thereby
or, in the case of the Administrative Agent (and any sub-agent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Company or any of its
Subsidiaries, or any Environmental Liability related in any way to the Company
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding brought by a third party or by the Company or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto,
in
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all cases, whether or not caused by or arising, in whole or in part, out of the
comparative, contributory or sole negligence of the Indemnitee; PROVIDED that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are determined by
a court of competent jurisdiction by final and nonappealable judgment (x) to
have resulted from the gross negligence, bad faith or willful misconduct of such
Indemnitee or (y) result from a claim brought by the Company or any other Loan
Party against an Indemnitee or such Indemnitee's Related Parties for breach of
such Indemnitee's obligations hereunder or under any other Finance Document;
PROVIDED, FURTHER, that the Company shall not be required to reimburse the legal
fees and expenses of more than one outside counsel (in addition to up to one
local counsel in each applicable local jurisdiction) for all Indemnitees unless,
in the written opinion of outside counsel reasonably satisfactory to the Company
and the Administrative Agent, representation of all such Indemnitees would be
inappropriate due to the existence of an actual or potential conflict of
interest.
(c) REIMBURSEMENT BY LENDERS. To the extent that the Company for any
reason fail indefeasibly to pay any amount required under SUBSECTION (a) or (b)
of this Section to be paid by it or them to the Administrative Agent (or any
sub-agent thereof), any L/C Issuer or any Related Party of any of the foregoing,
each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), each LC Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
SUBSECTION (c) are subject to the provisions of SECTION 2.14(d).
(d) WAIVER OF CONSEQUENTIAL DAMAGES. To the fullest extent permitted
by applicable Law, the Company shall not assert, and hereby waives, any claim
against any Indemnitee, and each of the Lenders agrees not to assert or permit
any of their respective Subsidiaries to assert any claim against the Company or
any of its Subsidiaries or any of their respective directors, officers,
employees, attorneys, agents or advisors, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred to in
SUBSECTION (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.
(e) PAYMENTS. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(f) SURVIVAL. The agreements in this Section shall survive the
resignation of the Administrative Agent, any L/C Issuer, the replacement of any
Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all the other Senior Credit Obligations.
SECTION 10.05 PAYMENTS SET ASIDE. To the extent that any payment by or
on behalf of the Company or any other Loan Party is made to the Administrative
Agent or any Lender, 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 is 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
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Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (i) 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 (ii) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect. The obligations of the Lenders and the L/C
Issuers under CLAUSE (ii) of the preceding sentence shall survive the payment in
full of the Senior Credit Obligations and the termination of this Agreement.
SECTION 10.06 SUCCESSORS AND ASSIGNS.
(a) SUCCESSORS AND ASSIGNS GENERALLY. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that
neither the Company nor any other Loan Party may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of SUBSECTION (b) of this Section,
(ii) by way of participation in accordance with the provisions of SUBSECTION (d)
of this Section or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of SUBSECTION (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in SUBSECTION (d)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C issuers and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) ASSIGNMENTS BY LENDERS. Any Lender may at any time assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitments and the Loans
(including for purposes of this subsection (b), any Participation Interests in
Letters of Credit and Swing Line Loans) at the time owing to it); PROVIDED,
HOWEVER, that:
(i) except in the case of an assignment of the entire
remaining amount of the assignment Lender's Commitment and the Loans of the
applicable Class owing to it or in the case of an assignment to a Lender or
an Affiliate of a Lender or an Approved Fund with respect to a Lender, (A)
the aggregate amount of the Revolving Commitment (which for this purposes
includes Revolving Loans outstanding thereunder) or, if the Revolving
Commitments are not then in effect, the principal outstanding balance of
the Revolving Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if
"Trade Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000 unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing,
the Company otherwise consents (each such consent not to be unreasonably
withheld or delayed), (B) (x) so long as any Term B Delayed Draw Commitment
is in effect and there are no Term B Delayed Draw Loans outstanding, such
Term B Delayed Draw Commitment may be assigned in whole or in part without
regard to any minimum amount or (y) if the Term B Delayed Draw Commitments
are not then in effect, the principal outstanding balance of the Term B
Delayed Draw Loans of the of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if
"Trade Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $1,000,000 unless each
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of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Company otherwise consents (each such
consent not to be unreasonably withheld or delayed) and (C) the aggregate
amount of any Term B Closing Date Loans of an assigning Lender subject to
each such assignments, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $1,000,000 unless
each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Company otherwise consents (each such
consent not to be unreasonably withheld or delayed); PROVIDED, HOWEVER,
that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee
(or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such
minimum amount has been met
(ii) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lenders' rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned,
except that this clause (ii) shall not apply to rights in respect of Swing
Line Loans;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent and, in the case of any assignment of a Revolving
Commitment, the L/C Issuers and the Swing Line Lender, unless the proposed
assignee is itself a Lender (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee);
(iv) the Eligible Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent and Administrative Questionnaire, and
the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee (the "ASSIGNMENT FEE") of $2,500; PROVIDED,
however, that in the event of two or more concurrent assignments to members
of the same Assignee Group (which may be effected by a suballocation of an
assigned amount among members of such Assignee Group) or two or more
concurrent assignments by members of the same Assignee Group to a single
Eligible Assignee (or to an Eligible Assignee and members of its Assignee
Group), the Assignment Fee will be $2,500 plus the amount set forth below:
TRANSACTION ASSIGNMENT FEE
----------- --------------
First four concurrent assignments or suballocations to -0-
members of an Assignee Group (or from members of an
Assignee Group, as applicable)
Each additional concurrent assignment or suballocation $ 500
to a member of such Assignee Group (or from a member of
an Assignee Group, as applicable)
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to SUBSECTION (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment
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and Assumption covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of SECTIONS 3.01, 3.04, 3.05, 10.04 and
10.17 with respect to facts and circumstances occurring prior to the effective
date of such assignment). Upon request, the Company (at its expense) shall
execute and deliver a Note or Notes to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with SUBSECTION (d) of this Section.
(c) REGISTER. The Administrative Agent, acting solely for this
purpose as an agent of the Company, shall maintain at the Administrative Agent's
Office a copy of each Assignment and Assumption delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the "REGISTER"). The
entries in the Register shall be conclusive, and the Company, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Company and the L/C Issuers at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or other substantive
change to the Loan Documents is pending, any Lender wishing to consult with
other Lenders in connection therewith may request and receive from the
Administrative Agent a copy of the Register.
(d) PARTICIPATIONS. Any Lender may at any time, without the consent
of, or notice to, the Company or the Administrative Agent, sell participations
to any Person (other than a natural person or the Company or any of the
Company's Affiliates or Subsidiaries) (each, a "PARTICIPANT") in all or a
portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitments of any Class and/or the Loans
(including such Lender's participations in L/C Obligations and/or Swing Line
Loans) owing to it); PROVIDED that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Company, the Administrative Agent, the Lenders and the L/C Issuers
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; PROVIDED that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
SECTION 10.01 that affects such Participant. Subject to SUBSECTION (e) of this
Section, the Company agrees that each Participant shall be entitled to the
benefits and subject to the requirements of SECTIONS 3.01, 3.04 and 3.05 to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to SUBSECTION (b) of this Section. To the extent permitted by Law, each
Participant also shall be entitled to the benefits of SECTION 10.08 as though it
were a Lender, PROVIDED such Participant agrees to be subject to SECTION 2.13 as
though it were a Lender.
(e) LIMITATION UPON PARTICIPANT RIGHTS. A Participant shall not be
entitled to receive any greater payment under SECTION 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Company's prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of SECTION 3.01 unless the Company is
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notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Company, to comply with SECTION 3.01(e) as though
it were a Lender.
(f) CERTAIN PLEDGES. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; PROVIDED that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) ELECTRONIC EXECUTION OF ASSIGNMENTS. The words "execution,"
"signed," "signature," and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
record keeping system, as the case may be, to the extent and as provided for in
any applicable Law, including the Federal Electronic Signatures in Global and
National Commerce Act, the
New York State Electronic Signatures and Records Act
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) CERTAIN ASSIGNMENTS BY BANK OF AMERICA. Notwithstanding anything
to the contrary contained herein, if at any time Bank of America assigns all of
its Revolving Commitment and Revolving Loans pursuant to SUBSECTION (b) above,
Bank of America may, (i) upon 30 days' notice to the Company and the Lenders,
resign as a L/C Issuer and/or (ii) upon 30 days' notice to the Company, resign
as Swing Line Lender. In the event of any such resignation as a L/C Issuer or
Swing Line Lender, the Company shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder; PROVIDED,
HOWEVER, that no failure by the Company to appoint any such successor shall
affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all
the rights, powers, privileges and duties of a L/C Issuer hereunder with respect
to all Letters of Credit issued by it outstanding as of the effective date of
its resignation as a L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Revolving Lenders to make Base Rate Loans or
purchase Participation Interests in Letters of Credit and L/C Obligations
pursuant to SECTION 2.05 (e)). If Bank of America resigns as Swing Line Lender,
it shall retain all the rights of the Swing Line Lender provided for hereunder
with respect to Swing Line Loans made by it and outstanding as of the effective
date of such resignation, including the right to require the Revolving Lenders
to make Base Rate Loans or Purchase Participation Interests in outstanding Swing
Line Loans pursuant to SECTION 2.01(d)(vi). Upon the appointment of a successor
L/C Issuer and/or Swing Line Lender, (i) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the
retiring L/C Issuer or Swing Line Lender, as the case may be, and (ii) the
successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to Bank of America effectively to assume the
obligations of Bank of America with respect to such Letters of Credit.
SECTION 10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each
of the Administrative Agent, the Lenders and the L/C Issuers agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (i) to its Affiliates and to it and its Affiliates'
respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (ii) to the extent requested
by any regulatory authority purporting to have jurisdiction over it (in which
case the Administrative Agent or such Lender or L/C Issuer, as applicable, shall
use reasonable efforts to notify the Company prior to such disclosure, in any
case including any self-regulatory authority, such as the National Association
of Insurance Commissioners); (iii) to the extent required by applicable Laws or
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regulations or by any subpoena or similar legal process; (iv) to any other party
hereto; (v) in connection with the exercise of any remedies hereunder or under
any other Loan Document or any action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or thereunder,
(vi) subject to an agreement containing provisions substantially the same as
those of this Section, to (A) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (B) any pledgee referred to in SECTION 10.06(f) or (C) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Company and its obligations, (vii) with the consent
of the Company or (viii) to the extent such Information (A) becomes publicly
available other than as a result of a breach of this Section or (B) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Company.
For purposes of this Section, "INFORMATION" means all information
received from the Company or any of its Subsidiaries relating to the Company or
any Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent or any Lender or L/C
Issuer on a nonconfidential basis prior to disclosure by the Company or any
Subsidiary. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information. Notwithstanding the foregoing, any Agent and
any Lender may place advertisements in financial and other newspapers and
periodicals or on a home page or similar place for dissemination of information
on the Internet or worldwide web as it may choose, and circulate similar
promotional materials, after the closing of the transactions contemplated by
this Agreement in the form of a "tombstone" or otherwise describing the names of
the Loan Parties, or any of them, and the amount, type and closing date of such
transactions, all at their sole expense.
Each of the Administrative Agent, the Lenders and the L/C Issuers
acknowledges that (i) the Information may include material non-public
information concerning the Borrower or one or more Subsidiaries, (ii) it has
developed compliance procedures regarding the use of material non-public
information and (iii) it will handle such material non-public information in
accordance with applicable Laws, including Federal and state securities Laws.
SECTION 10.08 RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender and each L/C Issuer is hereby authorized
at any time and from time to time, after obtaining the prior written consent of
the Administrative Agent, to the fullest extent permitted by applicable Law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, L/C Issuer
to or for the credit or the account of the Company or any other Loan Party
against any and all of the obligations of the Company or such Loan Party now or
hereafter existing under this Agreement or any other Loan Document to such
Lender or the L/C Issuer, to the extent then due and owing, irrespective of
whether or not such Lender or the L/C Issuer shall have made any demand under
this Agreement or any other Loan Document or are owed to a branch or office of
such Lender or the L/C Issuer different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender, the L/C
Issuer and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender,
the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C
Issuer agrees to notify the Company and the Administrative Agent promptly after
any such setoff and application, PROVIDED that the failure to give such notice
shall not affect the validity of such setoff and application.
SECTION 10.09 INTEREST RATE LIMITATION. Notwithstanding anything to
the contrary contained in any Loan Document, the interest paid or agreed to be
paid under the Loan Documents shall
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not exceed the maximum rate of non-usurious interest permitted by applicable Law
(the "MAXIMUM RATE"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Company. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (i) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (ii) exclude voluntary prepayments and the effects
thereof and (iii) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Senior Credit Obligations hereunder.
SECTION 10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement. This Agreement
and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective on the Closing Date concurrently
with the satisfaction (or waiver) of the conditions set forth in SECTION 4.01
and 4.02.
SECTION 10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
any Agent or any Lender or on their behalf and notwithstanding that the Agent or
any Lender may have had notice or knowledge of any Default or Event of Default
at the time of any Credit Extension, and shall continue in full force and effect
until the Senior Credit Obligations (other than contingent indemnification
obligations) have been paid in full.
SECTION 10.12 SEVERABILITY. If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, (i) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (ii) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 10.13 REPLACEMENT OF LENDERS. If (i) any Lender requests
compensation under SECTION 3.04, (ii) the Company is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to SECTION 3.01, (iii) the obligation of any Lender to make
Eurodollar Loans has been suspended pursuant to SECTION 3.02, (iii) any Lender
is a Defaulting Lender or (iv) any Lender has failed to consent to a proposed
amendment, waiver, discharge or termination which pursuant to the terms of
SECTION 10.01 or any other provision of any Loan Document requires the consent
of all of the Lenders of a Class or Classes and with respect to which the
Required Lenders of such Class or Classes shall have granted their consent, the
Company shall have the right, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, (i) to remove such Lender by
terminating such Lender's Commitment in full or (ii) to replace such Lender by
causing such Lender to assign and delegate, without recourse (in accordance with
and subject to the restrictions contained in, and consents required by, SECTION
10.06), all of its interests, rights and obligations under this
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Agreement and the other Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); PROVIDED that:
(i) the Company shall have paid to the Administrative Agent
the assignment fee specified in SECTION 10.06(b);
(ii) such Lender shall have received payment of an amount
equal to the outstanding principal amount of its Loans and Participation
Interests in Unreimbursed Amounts arising under drawn Letters of Credit,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents (including any amounts under
SECTION 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Company (in the case of all
other amounts);
(iii) in the case of any assignment resulting from a claim for
compensation under SECTION 3.04 or payments required to be made pursuant to
SECTION 3.01, such assignment will result in a reduction in such
compensation or payments thereafter;
(iv) such assignment does not conflict with applicable Laws;
and
(v) (A) if the Company elects to exercise such right with
respect to any Lender pursuant to CLAUSE (i), (ii) or (iii) above, it shall
be obligated to remove or replace, as the case may be, all Lenders that
have similar requests then outstanding for compensation pursuant to SECTION
3.04 or 3.01 or whose obligation to make Eurodollar Loans has been
similarly suspended and (B) in the case of any replacement of Lenders under
the circumstances described in CLAUSE (iv) above, the applicable amendment,
waiver, discharge or termination that the Company has requested shall
become effective upon giving effect to such replacement (and any related
Assignment and Assumptions required to be effected in connection therewith
in accordance with this SECTION 10.13).
A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Company to require such assignment
and delegation cease to apply.
SECTION 10.14 GOVERNING LAW; JURISDICTION ETC.
(a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER
THAN LETTERS OF CREDIT AND OTHER THAN AS EXPRESSLY SET FORTH IN SUCH OTHER LOAN
DOCUMENTS) AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING, WITHOUT LIMITATION,
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK). EACH
LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS
OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500
AND, AS TO MATTERS NOT GOVERNED BY SUCH UNIFORM CUSTOMS, THE INTERNAL LAWS OF
THE STATE OF
NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK).
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(b) SUBMISSION TO JURISDICTION. THE COMPANY AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK SITTING IN
NEW
YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING
ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE COMPANY OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.
(c) WAIVER OF VENUE. THE COMPANY AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING
IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY APPLICABLE LAW
SECTION 10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND I (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.16 USA PATRIOT ACT NOTICE; LENDERS' COMPLIANCE
CERTIFICATION.
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(a) NOTICE TO BORROWER. Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Company that
pursuant to the requirements of the US Patriot Act it may be required to obtain,
verify and record information that identifies the Company, which information
includes the name and address of each Loan Party and other information that will
allow such Lender or the Administrative Agent, as applicable, to identify each
such Loan Party in accordance with the Act.
(b) LENDERS' CERTIFICATION. Each Lender or assignee or participant of
a Lender that is not incorporated under the Laws of the United States or a State
thereof (and is not excepted from the certification requirement contained in
Section 313 of the U.S. Patriot Act and the applicable regulations because it is
both (i) an Affiliate of a depository institution or foreign bank that maintains
a physical presence in the United States or foreign country and (ii) subject to
supervision by a banking regulatory authority regulating such affiliated
depository institution or foreign bank) shall deliver to the Administrative
Agent the certification or, if applicable, recertification, certifying that such
Lender is not a "shell" and certifying to other matters as required by Section
313 of the U.S. Patriot Act and the applicable regulations thereunder: (i)
within 10 days after the Closing Date or, if later, the date such Lender,
assignee or participant of a Lender becomes a Lender, assignee or participant of
a Lender hereunder and (ii) at such other times as are required under the U.S.
Patriot Act.
SECTION 10.17 JUDGMENT CURRENCY.
(a) The obligations of the Loan Parties hereunder and under the other
Loan Documents to make payments in a specified currency (the "OBLIGATION
CURRENCY") shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any currency other than
the Obligation Currency, except to the extent that such tender or recovery
results in the effective receipt by a Finance Party of the full amount of the
Obligation Currency expressed to be payable to it under this Agreement or
another Loan Document. If, for the purpose of obtaining or enforcing judgment
against any Loan Party in any court or in any jurisdiction, it becomes necessary
to convert into or from any currency other than the Obligation Currency (such
other currency being hereinafter referred to as the "JUDGMENT CURRENCY") an
amount due in the Obligation Currency, the conversion shall be made, at the rate
of exchange (as quoted by the Administrative Agent or if the Administrative
Agent does not quote a rate of exchange on such currency, by a known dealer in
such currency designated by the Administrative Agent) determined, in each case,
as of the Business Day immediately preceding the date on which the judgment is
given (such Business Day being hereinafter referred to as the "JUDGMENT CURRENCY
CONVERSION DATE").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, the Company covenants and agrees to pay, or cause to be paid, or
remit, or cause to be remitted, such additional amounts, if any (but in any
event not a lesser amount), as may be necessary to ensure that the amount paid
in the Judgment Currency, when converted at the rate of exchange prevailing on
the date of payment, will produce the amount of the Obligation Currency which
could have been purchased with the amount of Judgment Currency stipulated in the
judgment or judicial award at the rate of exchange prevailing on the Judgment
Currency Conversion Date.
(c) For purposes of determining any rate of exchange or currency
equivalent for this SECTION 10.17, such amounts shall include any premium and
costs payable in connection with the purchase of the Obligation Currency.
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SECTION 10.18 CONFLICT. To the extent that there is a conflict or
inconsistency between any provision hereof, on the one hand, and any provision
of any other Loan Document, on the other hand, this Agreement shall control.
[Signature Pages Follow]
- 142 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
SYNAGRO TECHNOLOGIES, INC.
By:
------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
Individually
By:
------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
as L/C Issuer
By:
------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
as Swing Line Lender
By:
------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
------------------------------------
Name:
Title:
S-2
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
Individually
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Syndication Agent
By:
------------------------------------
Name:
Title:
S-3
CANADIAN IMPERIAL BANK OF
COMMERCE
By:
------------------------------------
Name:
Title:
CIBC WORLD MARKETS CORP.,
as Documentation Agent
By:
------------------------------------
Name:
Title:
S-4
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF APRIL 29, 2005 AMONG
SYNAGRO TECHNOLOGIES, INC., EACH LENDER
FROM TIME TO TIME PARTY HERETO, BANK OF
AMERICA, N.A., AS ADMINISTRATIVE AGENT,
SWING LINE LENDER AND L/C ISSUER,
▇▇▇▇▇▇ COMMERCIAL PAPER INC., AS
SYNDICATION AGENT, AND CIBC WORLD
MARKETS CORP., AS DOCUMENTATION AGENT
NAME OF INSTITUTION:
-----------------------------------
By:
------------------------------------
Name:
Title:
S-5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
SYNAGRO TECHNOLOGIES, INC.
By: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------
Name: J. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer and
Senior Executive Vice President
CREDIT AGREEMENT
BANK OF AMERICA, N.A.,
Individually
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Principal
BANK OF AMERICA, N.A.,
as L/C Issuer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Principal
BANK OF AMERICA, N.A.,
as Swing Line Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Principal
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Principal
S-2
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
Individually
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Title: Managing Director
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Title: Managing Director
S-3
CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Managing Director
CIBC WORLD MARKETS CORP.,
as Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Managing Director
S-4
SIGNATURE PAGE TO THE CREDIT GREEMENT
DATED AS OF APRIL 29, 2005 MONG SYNAGRO
TECHNOLOGIES, INC., EACH LENDER FROM
TIME TO TIME PARTY HERETO, BANK OF
AMERICA, N.A., AS ADMINISTRATIVE AGENT,
SWING LINE LENDER AND L/C ISSUER, ▇▇▇▇▇▇
COMMERCIAL PAPER INC., AS SYNDICATION
AGENT, AND CIBC WORLD MARKETS CORP., AS
DOCUMENTATION AGENT
Allied Irish Banks, p.l.c.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF APRIL 29, 2005 AMONG SYNAGRO
TECHNOLOGIES, INC., EACH LENDER FROM
TIME TO TIME PARTY HERETO, BANK OF
AMERICA, N.A., AS ADMINISTRATIVE AGENT,
SWING LINE LENDER AND L/C ISSUER, ▇▇▇▇▇▇
COMMERCIAL PAPER INC., AS SYNDICATION
AGENT, AND CIBC WORLD MARKETS CORP., AS
DOCUMENTATION AGENT
NAME OF INSTITUTION:
Amegy Bank, N.A.
----------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
S-5
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF APRIL 29, 2005 AMONG SYNAGRO
TECHNOLOGIES, INC., EACH LENDER FROM
TIME TO TIME PARTY HERETO, BANK OF
AMERICA, N.A., AS ADMINISTRATIVE AGENT,
SWING LINE LENDER AND L/C ISSUER, ▇▇▇▇▇▇
COMMERCIAL PAPER INC., AS SYNDICATION
AGENT, AND CIBC WORLD MARKETS CORP., AS
DOCUMENTATION AGENT
NAME OF INSTITUTION:
Bank of Texas N.A.
------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
S-5
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF APRIL 29, 2005 AMONG SYNAGRO
TECHNOLOGIES, INC., EACH LENDER FROM
TIME TO TIME PARTY HERETO, BANK OF
AMERICA, N.A., AS ADMINISTRATIVE AGENT,
SWING LINE LENDER AND L/C ISSUER, ▇▇▇▇▇▇
COMMERCIAL PAPER INC., AS SYNDICATION
AGENT, AND CIBC WORLD MARKETS CORP., AS
DOCUMENTATION AGENT
Carolina First Bank:
By: /s/ ▇▇▇▇▇ ▇. Short
------------------------
Name: ▇▇▇▇▇ ▇. Short
Title: Senior Vice President
S-5
SIGNATURE PAGE TO THE CREDIT AGREEMENT
DATED AS OF APRIL 29, 2005 AMONG SYNAGRO
TECHNOLOGIES, INC., EACH LENDER FROM
TIME TO TIME PARTY HERETO, BANK OF
AMERICA, N.A., AS ADMINISTRATIVE AGENT,
SWING LINE LENDER AND L/C ISSUER, ▇▇▇▇▇▇
COMMERCIAL PAPER INC., AS SYNDICATION
AGENT, AND CIBC WORLD MARKETS CORP., AS
DOCUMENTATION AGENT
NAME OF INSTITUTION:
Co Bank, ACB
--------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
S-5