- Certain Defined Terms
. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"Acquisition"means the transactions pursuant to which Banta will become a wholly-owned subsidiary of the Company.
"Administrative Agent"means Bank of America, in its capacity as the contractual representative for all of the Banks for purposes of this Agreement, as designated and appointed in accordance with Article VIII, and any successor thereto as provided herein.
"Administrative Questionnaire" means an Administrative Questionnaire in a form supplied by the Administrative Agent.
"Advance"means an advance by a Bank to a Borrower as part of a Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate Advance (each of which shall be a "Type" of Advance).
"Affiliate" means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person.
"Agent Party"has the meaning set forth in Section 10.02(d).
"Agent's Account"means (a) each account, as applicable, of the Administrative Agent listed onSchedule 10.02 hereto or (b) such other account of the Administrative Agent as is designated in writing from time to time by the Administrative Agent to the Company and the Banks for such purpose.
"Agreement"shall mean this Five Year Revolving Credit Agreement, as the same may be amended, modified, supplemented and/or restated from time to time.
"Alternative Currency" means each of Euro, Sterling, Yen, Canadian dollars, Hong Kong dollars, Mexican pesos and each other currency (other than Dollars) that is approved in accordance with Section 2.21.
"Applicable Facility Fee Rate" and "Applicable Margin" means, from time to time, the following percentages per annum, based upon the Debt Rating as set forth below:
Pricing Level | Debt Ratings
S&P/Moody's | Applicable Facility Fee Rate | Applicable Margin |
1 | A-/A3 or better | 0.06% | 0.29% |
2 | BBB+/Baa1 | 0.08% | 0.32% |
3 | BBB/Baa2 | 0.10% | 0.40% |
4 | BBB-/Baa3 | 0.125% | 0.475% |
5 | Debt Ratings below Level 4 | 0.175% | 0.675% |
"Debt Rating" means, as of any date of determination, the rating asdetermined by either S&P or Moody's (collectively, the "Debt Ratings") of the Company's non-credit-enhanced, senior unsecured long-term debt (and as to which there are no guarantors or other obligors);provided that (a) if the respective Debt Ratings issued by the foregoing rating agencies differ by one level, then the Pricing Level for the higher of such Debt Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt Rating for Pricing Level 5 being the lowest); (b) if there is a split in Debt Ratings of more than one level, then the Pricing Level that is one level lower than the Pricing Level of the higher Debt Rating shall apply; (c) if the Company has only one Debt Rating, the Pricing Level that is one level lower than that of such Debt Rating shall apply; and (d) if the Company does not have any Debt Rating, Pricing Level 5 shall apply.
Initially, the Applicable Margin shall be determined based upon the Debt Rating specified in the certificate delivered pursuant to Section 3.01(a)(iv). Thereafter, each change in the Applicable Margin shall be effective on the effective date of the respective change in Debt Rating.
"Applicable Lending Office"means, with respect to each Bank, such Bank's Domestic Lending Office in the case of a Base Rate Advance, and such Bank's Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance.
"Applicant Party"means, with respect to a Letter of Credit, the Borrower that requested such Letter of Credit.
"Approved 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 that is administered or managed by (a) a Bank, (b) an Affiliate of a Bank or (c) an entity or an Affiliate of an entity that administers or manages a Bank.
"Arrangers"means Banc of America Securities LLC, Citigroup Global Markets Inc. and J.P. Morgan Securities, Inc., in each case solely in the capacity as a joint lead arranger and book runner of the credit facilities provided under this Agreement.
"Assignee" has the meaning set forth in Section 9.01(c).
"Assignment and Assumption Agreement" has the meaning set forth in Section 9.01(c).
"Assumption Letter"means a letter of a Subsidiary of the Company addressed to the Banks in substantially the form ofExhibit B hereto pursuant to which such Subsidiary agrees to become a "Borrowing Subsidiary" and agrees to be bound by the terms and conditions hereof.
"Available Amount"of any Letter of Credit means the maximum amount available to be drawn under such Letter of Credit (assuming compliance at such time with all conditions to drawing).
"Bank of America" means Bank of America, N.A., a national banking association and its successors.
"Banks"means the banks and other financial institutions listed onSchedule I hereto and each Person that becomes a party hereto pursuant to Section 9.01(c), together with, in each case, any Affiliate of any such Person through which such Person elects, by notice to the Administrative Agent and the Company, to make any Advances available to any Borrowing Subsidiary that is not organized in the United States or any state or territory thereof or the District of Columbia, provided that, for all purposes of voting or consenting with respect to (a) any amendment, supplementation or modification of any Loan Document, (b) any waiver of any requirements of any Loan Document or any Default or Event of Default and its consequences, or (c) any other matter as to which a Bank may vote or consent pursuant to Section 10.01 of this Agreement, the Bank making such election shall be deemed the "Person" rather than such Affiliate, which shall not be entitled to vote or consent.
"Banta" shall mean Banta Corporation, a corporation organized under the laws of the state of Wisconsin.
"Base Rate"means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its "prime rate." 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 Advance"means an Advance denominated in Dollars which bears interest at a rate based upon the Base Rate, as provided in Section 2.06(a)(i).
"Borrower"means the Company or any Borrowing Subsidiary.
"Borrower Materials" has the meaning set forth in Section 5.12.
"Borrowing"means a borrowing consisting of Advances by each of the Banks to a Borrower pursuant to Section 2.01.
"Borrowing Subsidiary"means any Subsidiary of the Company duly designated by the Company pursuant to Section 2.20 hereof to make Borrowings hereunder, which Subsidiary shall have delivered an Assumption Letter to the Administrative Agent in accordance with Section 2.20.
"Business Day"means a day of the year on which banks are not required or authorized to close in New York and (a) with respect to any Advance denominated in Euros, any such day for (i) payments or purchases of Euros, a TARGET Business Day and (ii) all other purposes, including the giving and receiving of notices, a TARGET Business Day on which banks are generally open for business in London, England and in any other principal financial center as the Administrative Agent may from time to time determine for this purpose, and (b) with respect to all notices (except with respect to general matters not relating directly to funding), determinations and fundings in connection with, and payments of principal and interest on, Eurocurrency Rate Advances, any day which is a day for trading by and between banks in deposits of the applicable currency for such Advances in the interbank eurocurrency market. For purposes of this definition, a "TARGET Business Day"is a day when the Trans-European Automated Real-time Gross Settlement Express Transfer System, or any successor thereto, is open for business.
"Cash Collateral Account"has the meaning set forth in Section 2.18(k).
"Commission"means the Securities and Exchange Commission or any federal body succeeding to its functions.
"Commitment"has the meaning set forth in Section 2.01.
"Company" has the meaning set forth in the recitals hereto.
"Consolidated Debt" means at any time, the total Debt of the Company and its Consolidated Subsidiaries at such time, as determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA"means, with respect to any Person, for any period, (a) Consolidated Net Income for such period,plus(b) to the extent deducted in computing such Consolidated Net Income, the sum (without duplication) of (i) all income taxes of such Person and its Consolidated Subsidiaries paid or accrued in accordance with GAAP for such period, (ii) Consolidated Interest Expense, (iii) depreciation and amortization, (iv) the cumulative effect of changes in accounting principles, (v) any non-cash charges, accruals or reserves for extraordinary, unusual or nonrecurring items, (vi) non-cash restructuring charges and (vii) any non-cash compensation expense,minus(c) to the extent added in computing Consolidated Net Income, the sum (without duplication) of (i) consolidated interest income and (ii) the cumulative effect of changes in accounting principles,minus(d) the payment of cash, if any, when actually paid, with respect to any charge, accrual or reserve that was deducted in determining Consolidated Net Income, but added back in any prior period pursuant to clause (b)(v),(vi) or (vii).
"Consolidated Interest Expense"means, for any period, (a) the sum of total interest expense of the Company and its Consolidated Subsidiaries, as determined in accordance with GAAP,plus (b) without double counting, the consolidated interest, fees, yield or discount accrued during such period on the aggregate outstanding investment or claim held by purchasers, assignees or other transferees of (or of interests in) receivables of the Company and its Consolidated Subsidiaries in connection with Securitization Transactions (regardless of the accounting treatment of such Securitization Transactions).
"Consolidated Net Income"means, for any period, the consolidated net earnings (or loss) after taxes of the Company and its Consolidated Subsidiaries for such period, determined in accordance with GAAP.
"Consolidated Subsidiary"means at any date any Subsidiary the accounts of which would be consolidated with those of the Company in its consolidated financial statements at such date in accordance with GAAP;provided that for purposes of Sections 5.02 and 5.03, "Consolidated Subsidiary" shall mean any subsidiary the accounts of which would be consolidated with those of the Company in its consolidated financial statements at such date in accordance with GAAP.
"Consolidated Tangible Net Worth"means, as of any date, an amount equal to the sum of (i) the par or stated value of the outstanding shares of all classes of capital stock of the Company, (ii) paid-in capital and capital surplus of the Company and (iii) retained earnings of the Company, as each would appear on a consolidated balance sheet of the Company and its Consolidated Subsidiaries prepared as of the last day of the most recently completed fiscal quarter in accordance with GAAP, less the aggregate net amount of (i) all assets so appearing which in accordance with GAAP are deemed intangible, such intangible assets to specifically include, but not be limited to, licenses, copyrights, trademarks, trade names, patents and goodwill, and (ii) any write-up in the book value of assets made after December 31, 2005, other than any such write-up to an appraised fair market value in accordance with the purchase accounting requirements of GAAP.
"Credit Exposure"means with respect to any Bank at any time, the sum of (x) the aggregate principal amount at such time of all outstanding Advances in Dollars (and in the Equivalent amount in Dollars for any Advances denominated in an Alternative Currency) of such Bank plus(y) such Bank's L/C Exposure at such time.
"Debt"means (but without duplication of any item) (i) indebtedness for borrowed money or for the deferred purchase price of property or services other than (x) trade accounts payable on customary terms in the ordinary course of business and (y) financial obligations under management consulting contracts or noncompete agreements with unaffiliated Persons entered into in connection with the acquisition of the businesses of such Persons, (ii) obligations evidenced by bonds, debentures, notes or other similar instruments, (iii) obligations as lessee under leases which shall have been or should be, in accordance with GAAP, recorded as capital leases, and (iv) obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clause (i), (ii) or (iii) above.
"Default"means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.
"Defaulted Advance"means, with respect to any Bank at any time, the amount of any Advance required to be made by such Bank to a Borrower pursuant to Section 2.01 at or prior to such time that has not been so made as of such time;provided, however,that any Advance made by the Administrative Agent for the account of such Bank pursuant to Section 2.02(d) shall not be considered a Defaulted Advance even if, at such time, such Bank shall not have reimbursed the Administrative Agent therefor as provided in Section 2.02(d). If part of a Defaulted Advance shall be deemed made pursuant to Section 2.16(a), the remaining part of such Defaulted Advance shall be considered a Defaulted Advance originally required to be made pursuant to Section 2.01 on the same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount"means, with respect to any Bank at any time, any amount required to be paid by such Bank to the Administrative Agent or any other Bank hereunder at or prior to such time that has not been so paid as of such time, including, without limitation, any amount required to be paid by such Bank to (a) the Administrative Agent pursuant to Section 2.02(d) to reimburse the Administrative Agent for the amount of any Advance made by the Administrative Agent for the account of such Bank, (b) the Issuing Bank pursuant to Section 2.18(e) to reimburse the Issuing Bank for any unreimbursed L/C Disbursements and (c) the Administrative Agent pursuant to Section 8.09 to reimburse the Administrative Agent for such Bank's ratable share of any amount required to be paid by the Banks to the Administrative Agent as provided therein. If part of a Defaulted Amount shall be deemed paid pursuant to Section 2.16(b), the remaining part of such Defaulted Amount shall be considered a Defaul ted Amount originally required to be made hereunder on the same date as the Defaulted Amount so deemed paid in part.
"Defaulting Bank"means, at any time, any Bank that, at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take or be the subject of any action or proceeding of a type described in Section 6.01(f).
"Dollars"and the sign "$" each mean the lawful currency of the United States.
"Domestic Lending Office"means, with respect to any Bank, the office of such Bank specified as its "Domestic Lending Office" opposite its name onSchedule I hereto or in the Assignment and Assumption Agreement pursuant to which it became a Bank, as the case may be, or such other office of such Bank as such Bank may from time to time specify to the Company and the Administrative Agent.
"Effective Date"has the meaning set forth in Section 3.01.
"Environmental Action"means any administrative, regulatory or judicial action, suit, demand, demand letter, claim, notice of noncompliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, Environmental Permit or Hazardous Materials or arising from alleged injury or threat of injury to the environment, including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or any third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law"means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial interpretation relating to the environment or Hazardous Materials.
"Environmental Permit"means any permit, approval, indemnification number, license or other authorization required under any Environmental Law.
"Equivalent" in Dollars of any Alternative Currency on any date means the equivalent in Dollars of such Alternative Currency determined by using the quoted spot rate at which Bank of America's principal office in London offers to exchange Dollars for such Alternative Currency in London prior to 4:00 P.M. (London time) on such date as is required pursuant to the terms of this Agreement, and the "Equivalent" in any Alternative Currency of Dollars means the equivalent in such Alternative Currency of Dollars determined using the quoted spot rate at which Bank of America's principal office in London offers to exchange such foreign currency for Dollars in London prior to 4:00 P.M. (London time) on such date as is required pursuant to the terms of this Agreement.
"ERISA"means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and the rulings issued thereunder.
"ERISA Affiliate"means any Person that for purposes of Title IV of ERISA is a member of the Company's controlled group, or under common control with the Company, as determined under Section 414 of the Internal Revenue Code.
"ERISA Event"means (a) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement with respect to such event has been waived by the PBGC; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of the Company or any of its ERISA Affiliates in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by the Company or any of its ERISA Affiliates from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001 (a)(2) of ERISA; (f) the failure by the Company or any of its ERISA Affiliates to make a payment to a Plan if the condition s for the imposition of a lien under Section 302(f)(l) of ERISA are satisfied; (g) the adoption of an amendment to a Plan requiring the provision of security to such Plan, pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan, pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that could constitute grounds for the termination of, or the appointment of trustee to administer, a Plan.
"Euro"and/or "EUR"mean the euro referred to in Council Regulation (EC) No. 1103/97 dated June 17, 1997 passed by the Council of the European Union, or, if different, the then lawful currency of the member states of the European Union that participate in the third stage of Economic and Monetary Union.
"Eurocurrency Lending Office"means, with respect to any Bank and for Advances denominated in any currency, the office of such Bank or one of its Affiliates specified as its "Eurocurrency Lending Office" with respect to Advances denominated in such currency opposite its name onSchedule I hereto or in the Assignment and Assumption Agreement pursuant to which it became a Bank (or, if no such office is specified, its Domestic Lending Office), or such other office of such Bank or one of its Affiliates as such Bank may from time to time specify to the Company and the Administrative Agent.
"Eurocurrency Liabilities"has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Eurocurrency Rate" means, with respect to any Eurocurrency Rate Advance for any Interest Period, the rate per annum equal to the British Bankers Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 A.M. (London time), on the Quotation Day, as the rate for deposits of the currency in which such Eurocurrency Rate Advance is denominated in the amount of $5.0 million (or the Equivalent thereof in the relevant Alternative Currency), with a maturity comparable to such Interest Period. In the event that such rate is not available at such time for any reason, then the "Eurocurrency Rate" with respect to such Eurocurrency Rate Advance for such Interest Period shall be the rate supplied to the Administrative Agent at its request quoted by the Reference Banks in the London interbank market as of the Quotati on Day as the rate for deposits of the currency in which the relevant Eurocurrency Rate Advance is denominated, as applicable, with a maturity comparable to such Interest Period.
"Eurocurrency Rate Advance"means an Advance denominated in Dollars or an Alternative Currency which bears interest at a rate based upon the Eurocurrency Rate, as provided in Section 2.06(a)(ii).
"Eurocurrency Rate Reserve Percentage" means for any day, that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) in New York City, or, in the case of Advances in Alternative Currencies, any similar authority outside the United States, for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) with deposits exceeding $5,000,000,000 in respect of "Eurocurrency Liabilities" (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on Eurocurrency Rate Advances is determined or any category of extensions of credit or other assets which include loans by a non-United States office of any Bank to United States residents).
"Events of Default"has the meaning set forth in Section 6.01.
"Exchange Rates"has the meaning set forth in Section 2.14.
"Existing Letter of Credit"shall mean each letter of credit previously issued for the account of the Company or any Subsidiary by a Bank or an Affiliate that is listed onSchedule 2.18(a).
"Facility Fee"has the meaning set forth in Section 2.03(a).
"Federal Funds Rate"means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day;provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
"GAAP"has the meaning set forth in Section 1.03.
"Hazardous Materials"means petroleum and petroleum products, byproducts or breakdown products, radioactive materials, asbestos-containing materials, radon gas and any other chemicals, materials or substances designated, classified or regulated as being "hazardous" or "toxic", or words of similar import, under any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial interpretation.
"Indemnitee"has the meaning set forth in Section 10.11.
"Information Documents"means the Company's Annual Report on Form 10-K for the year ended December 31, 2005 together with all schedules and exhibits thereto, including those incorporated therein by reference, as filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended.
"Insurance Policy Debt"means Debt of the Company or any of its Subsidiaries under policies of life insurance now or hereafter owned by the Company or any of its Subsidiaries under which policies the sole recourse for such borrowing is against such policies.
"Interest Coverage Ratio"means the ratio, determined on a consolidated basis for the Company and its Consolidated Subsidiaries as of the end of each fiscal quarter, of Consolidated EBITDA to Consolidated Interest Expense, in each case determined as of the last day of such fiscal quarter for the four-quarter period then ended.
"Interest Period"means, for each (a) Base Rate Advance, quarterly on the last day of each January, April, July and October of each year (or the date such Advance is repaid or converted) and (b) Eurocurrency Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Eurocurrency Rate Advance or the date of any conversion or continuation thereof, and ending on the last day of the period selected by a Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one, two, three or six months (or one or two weeks or nine or twelve months if at the time of such Advance, all Banks make interest periods of such length available), in each case as a Borrower may select, upon notice received by the Administrative Agent pursuant to Section 2.02 or 2.08;provided, however,that
- Interest Periods commencing on the same date for Eurocurrency Rate Advances comprising part of the same Borrowing shall be of the same duration;
- whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day,provided that if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day;
- whenever the first day of any Interest Period occurs on a day in an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month; and
- no Interest Period may terminate later than the Termination Date.
"ISP" means, with respect to any Letter of Credit, the "International Standby Practices 1998" published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
"Issuer Documents" means with respect to any Letter of Credit, any letter of credit application, and any other document, agreement and instrument entered into by the Issuing Bank and a Borrower (or any Subsidiary) or in favor of the Issuing Bank and relating to such Letter of Credit.
"Issuing Bank"shall mean Bank of America, in each case in its capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.18(i) and, solely with respect to an Existing Letter of Credit (and any amendment, renewal or extension thereof in accordance with this Agreement), the Bank that issued such Existing Letter of Credit. The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term "Issuing Bank" shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
"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 Borrowing" means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as an Advance.
"L/C Disbursement"shall mean a payment or disbursement made by the Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure"shall mean at any time the sum of (a) the aggregate undrawn amount of all Letters of Credit outstanding at such time and (b) the aggregate principal amount of all L/C Disbursements ( including all L/C Borrowings) that have not yet been reimbursed at such time. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 2.18(m). For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be "outstanding" in the amount so remaining available to be drawn. The L/C Exposure of any Bank at any time shall mean its Percentage of the aggregate L/C Exposure at such time.
"L/C Participation Fee"shall have the meaning assigned such term in Section 2.03(c).
"Letter of Credit"shall mean any letter of credit (including each Existing Letter of Credit) issued pursuant to Section 2.18.
"Leverage Ratio"means the ratio, determined on a consolidated basis for the Company and its Consolidated Subsidiaries as of the end of each fiscal quarter, of Consolidated Debt to Consolidated EBITDA, in each case determined as of the last day of such fiscal quarter for the four-quarter period then ended.
"Lien"means, with respect to any asset, any security interest, mortgage, pledge, lien, claim, charge or encumbrance of any kind in respect of such asset.
"Loan Documents" means this Agreement, each Note, each Assumption Letter, each Letter of Credit and each Issuer Document.
"Majority Banks"means at any time Banks holding more than 50% of the then aggregate unpaid principal amount (based on the Equivalent in Dollars at such time) of the Advances held by the Banks, or, if no such principal amount is then outstanding, Banks having more than 50% of the Commitments.
"Margin Stock"has the meaning specified in Regulation U issued by the Board of Governors of the Federal Reserve System.
"Material Adverse Effect"means a material adverse effect on (i) the business, financial condition, results of operations or properties of the Company and its Subsidiaries, taken as a whole, (ii) the legality, validity or enforceability of this Agreement or the Notes or (iii) the ability of the Company to perform its material obligations under this Agreement.
"Material Subsidiary"means a Subsidiary of the Company which, at the time of determination, (i) shall own assets comprising in excess of 10% of all of the assets of the Company and its consolidated Subsidiaries on a consolidated basis, or (ii) has operating income for the four fiscal quarters most recently ended in excess of 10% of the operating income of the Company and its consolidated Subsidiaries on a consolidated basis;provided,that solely with respect to Article V, in no event shall an SPV be deemed to be a Material Subsidiary.
"Moody's"means Moody's Investors Service, Inc.
"Multiemployer Plan"means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Company or any of its ERISA Affiliates is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan"means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Company or any of its ERISA Affiliates and at least one Person other than the Company and its ERISA Affiliates or (b) was so maintained and in respect of which the Company or any of its ERISA Affiliates could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.
"Note"means a promissory note, in substantially the form ofExhibit C hereto, duly executed by the applicable Borrower and payable to the order of a Bank in the amount of its Commitment, including any amendment, modification, renewal or replacement of such promissory note.
"Notice of Borrowing"has the meaning set forth in Section 2.02(a).
"Other Taxes"has the meaning set forth in Section 2.15(b).
"Overnight Eurocurrency Rate"means the rate per annum applicable to an overnight period beginning on one (1) Business Day and ending on the next Business Day equal to the sum of 1%, the Applicable Margin and the average (rounded upward to the nearest whole multiple of 1/16 of 1%, if such average is not such a multiple) of the respective rates per annum quoted by each Reference Bank to the Administrative Agent on request as the rate at which it is offering overnight deposits in the relevant currency in amounts comparable to such Reference Bank's Eurocurrency Rate Advances.
"Participants"has the meaning set forth in Section 9.01(b).
"Payment Office"means, for any Alternative Currency, such office of Bank of America as shall be from time to time selected by the Administrative Agent and notified by the Administrative Agent to the Company and the Banks.
"PBGC"means the Pension Benefit Guaranty Corporation and its successors and assigns.
"Percentage"shall mean, with respect to any Bank, the percentage of the total Commitments represented by such Bank's Commitment. If the Commitments have terminated or expired, the Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments pursuant to Section 9.01(c).
"Person"means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
"Plan"means a Single Employer Plan or a Multiple Employer Plan.
"Platform"has the meaning set forth in Section 5.12.
"Pro Rata Share"means, at any time with respect to any Bank, the ratio (expressed as a percentage) that such Bank's Commitment bears to the aggregate Commitments of all Banks at such time or, at any time after the Commitments have been terminated, the ratio (expressed as a percentage) that such Bank's outstanding Advances bear to the aggregate outstanding Advances of all Banks at such time.
"Protesting Bank"has the meaning set forth in Section 2.20.
"Public Bank"has the meaning set forth in Section 5.12.
"Quotation Day"in respect of the determination of the Eurocurrency Rate for any Interest Period for any Eurocurrency Rate Advance, means two (2) Business Days before the first day of that Interest Period;providedthat if quotations would ordinarily be given on more than one date, the Quotation Day for such Interest Period shall be the last of such dates.
"Receivables"means a payment owing to a Person (whether constituting an account, chattel paper, document, instrument or general intangible) arising from the provision of merchandise, goods or services by such Person, including the right to payment of any interest or finance charges and other obligations owing to such Person with respect thereto.
"Reference Banks"means Bank of America and Citibank, N.A.
"Register"has the meaning set forth in Section 9.01(f).
"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.
"Related Security"means with respect to any Receivable: (a) all security interests or liens and property subject thereto from time to time securing or purporting to secure the payment of such Receivable by the Person obligated thereon, (b) all guaranties, indemnities and warranties, insurance policies, financing statements and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable, (c) all right, title and interest of the Company or any Material Subsidiary or any SPV in and to any goods (including returned, repossessed or foreclosed goods) the sale of which gave rise to such Receivable;provided,that Related Security will not include returned goods only to the extent that all amounts required to be paid pursuant to Securitization Transactions in respect of such goods have been paid, (d) all collections, and accounts into which such collections may be deposited, with respect to any of the foregoing, (e) al l records with respect to any of the foregoing, and (f) all proceeds of such Receivable or with respect to any of the foregoing.
"Responsible Officer" means the Chief Financial Officer of the Company, the Treasurer of the Company, or any other officer of the Company responsible for overseeing or reviewing compliance with this Agreement or any Note.
"Revaluation Date" means, with respect to any Advance, each of the following: (i) each date of a Borrowing of a Eurocurrency Rate Advance denominated in an Alternative Currency and (ii) each date of a continuation of a Eurocurrency Rate Advance denominated in an Alternative Currency pursuant to Section 2.02.
"S&P"means Standard & Poor's Ratings Group, a division of The McGraw-Hill Companies, Inc.
"Securitization Transactions"means one or more transactions involving the securitization by the Company or any of its Subsidiaries of Receivables and Related Security, including, without limitation, as a result of the sale or granting of a Lien on such Receivables and Related Security to an SPV or another Person and the contribution of Receivables and Related Security to an SPV;provided,that the amount of the obligations incurred under all such transactions by all such Persons that would be characterized as principal if structured as a secured lending transaction rather than as a purchase does not exceed $750,000,000 in the aggregate at any one time outstanding.
"Single Employer Plan"means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Company or any of its ERISA Affiliates and no Person other than the Company and its ERISA Affiliates or (b) was so maintained and in respect of which the Company or any of its ERISA Affiliates could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.
"SPV" means a Subsidiary of the Company created for the sole purpose of purchasing Receivables from the Company or any of its Subsidiaries as part of a Securitization Transaction.
"Sterling"means the lawful currency of the United Kingdom.
"Subsidiary"means, with respect to any Person, any corporation, partnership, limited liability company, association or other business entity of which securities or other ownership interests having (a) ordinary voting power to elect a majority of the board of directors or other persons performing similar functions or (b) having the ability to direct the management of such corporation, partnership, limited liability company, association or other business entity are at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person's other Subsidiaries.
"Taxes"has the meaning set forth in Section 2.15(a).
"Termination Date"means the date which is five years after the Effective Date (or, if such day is not a Business Day, the immediately preceding Business Day).
"USA Patriot Act"means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
"Voting Stock"means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
"Withdrawal Liability"has the meaning set forth in Part 1 of Subtitle E of Title IV of ERISA.
"Yen"means the lawful currency of Japan.
- Computation of Time Periods
.In this Agreement in the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding."
- Accounting Terms
.All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements then most recently delivered by the Company to the Banks in accordance with Section 5.03 ("GAAP");provided, however,that, if any changes in accounting principles from those used in the preparation of the consolidated financial statements of the Company and its Subsidiaries for the fiscal year of the Company ended December 31, 2005 (as delivered to the Banks pursuant to Section 4.0 l(e)) occur by reason of the promulgation of rules, regulations, pronouncements, opinions or other requirements of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or successors thereto or agencies with similar functions) and such changes would affect (or would result in a change in the method of calculation of) the covenant set forth in Section 5.02, or any of the defined terms related thereto contained in Section 1.01, then the Company may notify the Administrative Agent, or the Administrative Agent or the Majority Banks may notify the Company, that the requesting party requests an amendment to eliminate the effects of such changes, in which case the parties hereto shall negotiate in good faith to agree upon and approve the requested amendment (and shall use their commercially reasonable efforts to agree thereon within 90 days), if and to the extent necessary, to amend such covenant or such terms as would be affected by such changes in GAAP, in accordance with Section 10.01, in such manner as would maintain the economic terms of such covenant as in effect under this Agreement, prior to giving effect to the occurrence of any such changes;and provided further, however,that until the amendment of the covenant and the defined terms referred to in the immediately preceding proviso becomes effective, such covenant and defined terms shall be performed, observed and determined, and any determination of compliance with such covenant shall be made, as though no such changes in accounting principles had been made and the Company shall deliver to the Banks, in addition to the consolidated financial statements otherwise required to be delivered to the Banks under Section 5.03(a) or 5.03(b) during such period, a statement of reconciliation conforming such consolidated financial statements to GAAP prior to such changes.
. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
. Without limiting the generality of the provisions of Section 8.04, for purposes of determining compliance with the conditions specified above in this Article III, each Bank shall be deemed to have consented to, approved and accepted, and to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Banks unless the officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Bank prior to the proposed Effective Date, as notified by the Administrative Agent to the Banks, specifying its objection thereto. The Administrative Agent shall promptly notify the Banks of the occurrence of the Effective Date.
So long as any Advance shall remain unpaid or any Bank shall have any Commitment hereunder, unless the Majority Banks shall otherwise consent in writing:
then, and in any such event, the Administrative Agent shall at the request, or may with the consent, of the Majority Banks, by notice to the Company, (i) terminate the Commitments and declare the obligation of each Bank to make Advances to any Borrower and of the Issuing Bank to make L/C Credit Extensions hereunder to be terminated, whereupon the same shall forthwith terminate, (ii) declare the Notes, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Notes, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Borrower, (iii) require that the Company deposit cash in the Cash Collateral Account to secure the L/C Exposure (in an amount equal to the then current amount thereof); and (iv) exercise on behalf of itself, the Banks and the Issuing Bank all rights and remedies available to it, the Ba nks and the Issuing Bank under the Loan Documents;provided, however,that if an Event of Default under Section 6.01(f) (other than subsection (i)(A) thereof) occurs with respect to the Company, (A) the Commitments and the obligation of each Bank to make Advances to any Borrower and of the Issuing Bank to make L/C Credit Extensions hereunder shall automatically be terminated, (B) the Notes, all such interest and all such amounts shall automatically become and be due and payable and (C) the obligation of the Company to deposit cash in the Cash Collateral Account to secure the L/C Exposure as set forth above shall become effective immediately, in each case, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by each Borrower.
. All payments made by the Company pursuant to this Article VII shall be made in Dollars (or in the respective Alternative Currency for any obligations denominated in an Alternative Currency) and will be made without setoff, counterclaim or other defense.
. To the extent that any payment by or on behalf of any Borrower is made to the Administrative Agent, the Issuing Bank or any Bank, or the Administrative Agent, the Issuing Bank or any Bank exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the Issuing Bank or such Bank in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Bank and the Issuing Bank severally agrees to pay to the Administrative Agent upon demand its applicable share (without dupl ication) 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 Banks and the Issuing Bank under clause (b) of the preceding sentence shall survive the payment in full of the obligations of the Borrowers hereunder and the termination of this Agreement.
